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SERF v. Town of Hampden, attorneys and footnotes.

Attorneys for plaintiff:

Catherine R. Connors, Esq., (orally)
Philip F.W. Ahrens III, Esq.
Helen L. Edmonds, Esq.
Pierce Atwood
One Monument Square
Portland, ME 04101-1110

Attorneys for defendants:

Thomas A. Russell, Esq., (orally)
Nathaniel M. Rosenblatt, Esq.
Farrell, Rosenblatt & Russell
P O Box 738
Bangor, ME 04402-0738
FOOTNOTES******************************** {1} . The Town has reconfigured and renumbered the lots on its tax maps since 1974. Lots 45, 46, and 47 are now depicted on Tax Map 9 as Lots 44-1, 45-1, 46, and 46A. We make reference to the original lot numbers in order to avoid confusion. {2} . Because of this stipulation, we need not consider whether the 1974 approval was a variance or a permit. As such, we also need not consider the potential legal implications under the ordinance of designating the approval as a variance or a permit. Cf. DeSomma v. Town of Casco, 2000 ME 113, ¶ 13, 755 A.2d 485, 489. {3} . The changes made by the 1979 comprehensive zoning ordinance are discussed in more detail at ¶¶ 15­p;17 infra. {4} . The designation "secure" refers to a type of landfill that is required pursuant to DEP regulations for the disposal of certain types of waste such as oil and incinerator ash. SERF's secure landfills are lined and contain pumps that transport leachate from the base of the landfill to a storage pond, the content of which is transported to wastewater treatment facilities. {5} . The letter was addressed to the Hampden Town Manager, but a copy was directed to the DEP. {6} . As amended, Article 5 of the 1964 ordinance outlined the permitted uses within the industrial zone as follows: a. Permitted Uses: Manufacturing; sale, storing, not involving junk; truck terminal; wholesale; repair, service and sale of motor vehicles; accessory uses customarily incidental to above uses exemplified by office, laboratory, and watchman's dwelling; one sign pertaining to premises and not larger than 36 sq. ft. Section 3.2.2 of the 1979 ordinance, as amended, describes permitted industrial uses as follows: Permitted Uses (Subject to Site Plan Review) Facilities for manufacturing, compounding, processing, packaging, essential service, treatment or warehousing of goods and products, wholesale distribution, retail sales where such activities are part of and accessory to an industrial use, such facilities having less than five thousand (5,000) square feet of gross floor area. Accessory uses and structures. Thus, insofar as SERF's landfill use is concerned, the 1979 ordinance rewords the prior general description of permitted industrial uses. The 1979 ordinance also subjects all industrial uses to site plan review when a new facility or an expansion is sought. {7} . The 1964 ordinance did not contain any prohibition on the expansion of nonconforming uses. Rather, it excepted from the ordinance's regulations "structures and uses, existing at the time the ordinance is enacted." {8} . In 1995, the Town passed an amendment to this definition. The definition currently defines expansion of use as "the addition of months to a use's operating season; the use of more floor area or ground area; the increase in the volume or height of a use, including but not limited to the storage or disposal of materials of any kind; or the extraction of additional material such as gravel excavation." The Town did not apply this definition to Secure III, Phases VI through VIII, apparently because the amendment was only discovered after SERF's site plan application was submitted and because it was not yet incorporated into the published version of the ordinance. Because the 1995 amendment was not addressed in the Superior Court, we do not address it here. {9} . Variances may be granted if the landowner proves that: (1) there would be no reasonable return on the property if used for the purpose allowed in the zone; (2) the plight of the owner is due to the unique circumstances rather than general conditions in the neighborhood and may reflect upon the unreasonableness of the zoning ordinance; (3) the use will not alter the essential character of the locality; and (4) the current or previous landowner has not caused the hardship. See Barnard v. Zoning Bd. of Appeals of the Town of Yarmouth, 313 A.2d 741, 749 (Me. 1974); 30-A M.R.S.A. § 4353(4) (Supp. 1999). {10} . Most of the cases SERF relies on involve variances that were granted after the governing ordinance came into effect and pursuant to its provisions. See Hoffmann v. Gunther, 666 N.Y.S.2d 685 (N.Y. App. Div. 1997); In re Angel Plants, Inc., 546 N.Y.S.2d 112 (N.Y. App. Div. 1989); James v. Town of New Hartford, 373 N.Y.S.2d 938 (N.Y. App. Div. 1975); Industrial Lessors, Inc. v. City of Garfield, 290 A.2d 737 (N.J. Super. Ct. App. Div. 1972). {11} . Although this holding appears to be on point, the facts are not sufficiently presented to enable us to assure that Lovely governs this case. There is no way to determine with certainty whether a variance was actually granted previously, whether the landowner simply posited that such a variance must have existed based on the fact that the grocery store had been in operation for approximately 12 years, or whether the use was simply a preexisting use at the time the ordinance was enacted. {12} . Title 30-A M.R.S.A. § 4359 (1996), which was in effect at the time of the Midcoast decision but was not mentioned in it, provides in pertinent part: It is the policy of this State, with respect to commercial landfill facilities . . . [t]o affirm the importance of State and municipal control over the . . . substantial expansion of existing commercial landfill facilities[] and . . . to recognize that any municipality may, under its home rule authority, enact a moratorium on the issuance or processing of any municipal permit for . . . the substantial expansion of a commercial landfill facility, as defined by Title 38, section 1303, subsection 11-B. (P.L. 1989, ch. 104 § A, 45 (reenacting P.L. 1987, ch. 737 § A, 1 &
ch. 822 § 1)). Section 4359 supports the ability of the Town to exert some control over any "substantial expansion" of SERF. Title 38 M.R.S.A. § 1303 (11-B)(1989) formerly defined "substantial expansion of a commercial landfill facility" as "an expansion of an existing licensed commercial waste facility by more than 50%, as measured by either volume of waste or land area affected, whichever is more of its currently licensed operation . . . ." Section 1303 has been repealed and reenacted as section 1303-C. See P.L. 1989, ch. 890 § B-225. Section 1303-C(37) changes the definition of substantial expansion to "more than 25%" from "more than 50%" but leaves other parts of the definition basically the same. However, even though the Legislature has not repealed 30 M.R.S.A. § 4359, and assuming it has not been impliedly repealed, section 4359 is inapplicable because the Town has not "enacted a moratorium." {13} . 38 M.R.S.A. § 1310-U (1989 & Pamph. 2000) states: § 1310-U. Municipal ordinances Municipalities are prohibited from enacting stricter standards than those contained in this chapter and in the solid waste management rules adopted pursuant to this chapter governing the hydrogeological criteria for siting or designing solid waste disposal facilities or governing the engineering criteria related to waste handling and disposal areas of a solid waste disposal facility. Except as provided in section 2173, municipalities are further prohibited from enacting or applying ordinances that regulate solid waste disposal facilities owned by the office or a regional association. Under the municipal home rule authority granted by the Constitution of Maine, Article VIII, Part Second and Title 30-A, section 3001, municipalities, except as provided in this section, may enact ordinances with respect to solid waste facilities that contain standards the municipality finds reasonable, including, without limitation, conformance with federal and State solid waste rules; fire safety; traffic safety; levels of noise heard outside the facility; distance from existing residential, commercial or institutional uses; ground water protection; surface water protection; erosion and sedimentation control; and compatibility of the solid waste facility with local zoning and land use controls, provided that the standards are not more strict than those contained in this chapter and in chapter 3, subchapter I, articles 5-A and 6 and the rules adopted under these articles. Municipal ordinances must use definitions consistent with those adopted by the board. A municipality adopting an ordinance under this section shall forward a copy of the ordinance to the commissioner within 30 days of its adoption.

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