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Oliver v. City of Rockland
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MAINE SUPREME JUDICIAL COURT				Reporter of Decisions
Decision:	1998 ME 88
Docket:	Kno-97-321
Argued:	December 5, 1997	
Decided:	April 30, 1998

Panel:  WATHEN, C.J., and ROBERTS, CLIFFORD, RUDMAN, DANA, LIPEZ, and SAUFLEY, JJ.


VIRGINIA R. OLIVER v. CITY OF ROCKLAND, et al.
LIPEZ, J.

	[¶1]  Virginia R. Oliver appeals from the judgment of the Superior Court
(Knox County, Marsano, J.) affirming two decisions of the Rockland Board of
Zoning Appeals that rejected her challenges to the issuance by the City of
Rockland of a plumbing permit and a certificate of occupancy to Ronald and
Lori Marie Robbins.  We affirm the judgment.
I.
	[¶2]  The subject of the controversy between the parties is property
located at 10 Clarendon Street in Rockland.  Jay Andrews and Peter Sandefur
purchased this property in 1989.  The property's previous occupants had
vacated the premises four years earlier.  After purchasing the property the two
men attempted to renovate the house on the property.{1}   After becoming
frustrated with this project, they put the property on the market and entered
into a sales contract with Ronald and Lori Marie Robbins in July 1996.  	
	[¶3]  On July 13, 1996, the City of Rockland issued a plumbing permit to
the Robbinses.  In August 1996 Oliver, the owner of adjoining property,
challenged the City's issuance of the plumbing permit by appealing to the
Rockland Zoning Board of Appeals (the Board).  On August 12, 1996, three
days after Oliver filed her appeal, the zoning ordinance of the City of Rockland
was amended.{2}  At the hearing on Oliver's appeal, the parties limited their
discussion to whether the pre-amended ordinance precluded the City's
issuance of the permit because of the long vacancy at 10 Clarendon Street. 
The Board denied Oliver's appeal on September 5, 1996, holding that section
19-308(1)(D), entitled "Non-Conforming Uses," did not apply by its terms to
nonconforming structures.
	[¶4]  On September 18, 1996, Oliver filed a petition for review of the
Board's decision with the Superior Court pursuant to M.R. Civ. P. 80B and 30-
A M.R.S.A. § 2691 (1996).  The City was named as a party, and the Robbinses,
Andrews, and Sandefur were named as parties-in-interest.  The City filed a
motion for a trial of the facts pursuant to M.R. Civ. P. 80B(d).  Noting that
Sandefur and Andrews were not present at the hearing before the Board, the
City contended that if the court found that section 19-308 (1)(D) was
applicable, evidence regarding the history of the property would be insufficient
for a determination whether the vacancy constituted a discontinuance. The
court (Atwood, J.) ordered a trial of the facts.{3} 
	[¶5]  In December 1996 the City issued the Robbinses a certificate of
occupancy.  Oliver appealed the issuance of the certificate to the Board.  Her
appeal was subsequently denied.  She appealed the Board's decision to the
Superior Court pursuant to M.R. Civ. P. 80B and 30-A M.R.S.A. § 2691.  The
two appeals were consolidated and a trial of the facts was held.  At the trial a
copy of the amended ordinance was submitted to the court as a joint exhibit.  
The court affirmed both decisions of the Zoning Board of Appeals.  This appeal
followed.
II.
	[¶6]  Oliver argues that the City should not have issued the plumbing
permit or the certificate of occupancy to the Robbinses because the property
was unoccupied from 1985 to August 1996 when the Robbinses moved into the
house on the premises.  Given this history, she contends that the property was
not used or maintained as a residence for the five years preceding the issuance
of the plumbing permit and, therefore, the resumption of a residential use is
prohibited under section 19-308(1)(D).   The City, Sandefur, and Andrews{4}
counter that recent amendments to the ordinance govern Oliver's appeal and
render it moot or, at a minimum, clarify that the resumption prohibited by
section 19-308(1)(D) does not apply to nonconforming structures or lots
devoted to conforming uses.  Alternatively, they assert that even if the pre-
amended ordinance governs her appeal, the meaning of "nonconforming use" in
that edition of the ordinance did not include a nonconforming structure.   
	[¶7]  The record indicates that none of the parties raised the applicability
of the amended ordinance before the Board.{5}  In deciding Oliver's appeal, the
Board only considered whether a nonconforming structure was a
nonconforming use under section 19-308(1)(D) of the original ordinance.  We
have repeatedly stated that a party in an administrative proceeding must raise
any objections it has before the agency to ensure that the agency, and not the
court, has the first opportunity to pass upon the claims of the parties.  Berry v.
Maine State Retirement Sys. Bd. of Trustees, 663 A.2d 14, 18-19 (Me. 1995). 
The submission of the amended ordinance as a joint exhibit at the trial of the
facts was insufficient to preserve the applicability of the amended ordinance as
an issue on appeal.  Because the parties failed to properly raise before the
Board the applicability of the amended ordinance, our review is limited to
whether the Board erred in its determination that section 19-308(1)(D) of the
pre-amended ordinance did not apply to nonconforming structures.{6}
	[¶8]  The meaning of terms or expressions in a zoning ordinance is a
question of law for the court.  George D. Ballard, Builder, Inc. v. City of
Westbrook, 502 A.2d 476, 480 (Me. 1985).  "The terms or expressions are
construed reasonably with regard to both the objects sought to be obtained and
to the general structure of the ordinance as a whole."  Id.  Furthermore,
"[u]ndefined terms should be given their common and generally accepted
meaning unless the context clearly indicates otherwise."  Id.   
	[¶9]  We have often stated that "'[n]onconforming uses are a thorn in the
side of proper zoning and should not be perpetuated any longer than
necessary.  The policy of zoning is to abolish nonconforming uses as swiftly as
justice will permit.'"  Farley v. Town of Lyman, 557 A.2d 197, 201 (Me. 1989)
(quoting Town of Windham v. Sprague, 219 A.2d 548, 552-53 (Me. 1966)).  To
that end, "'provisions of a zoning regulation for the continuation of
[nonconforming] uses should be strictly construed, and provisions limiting
nonconforming uses should be liberally construed.'"  Town of Windham v.
Sprague, 219 A.2d at 552 (quoting 101 C.J.S. Zoning § 182).  This rule of
construction, however, does not preclude a town from adopting a policy
permitting the continuance of nonconforming structures and enacting an
ordinance which furthers that policy by its explicit terms.   
	[¶10]  We agree with the Board that section 19-308(1)(D) of the original
ordinance does not apply to a nonconforming structure devoted to a
conforming use.   The original ordinance defined a "nonconforming use" as "the
lawful use of a building or land existing at the effective date of this Article, or
amendments thereto, which use does not conform with the regulations of the
zone in which it is located."  (Emphasis added).  The definition does not include
nonconforming structures.  Moreover, a review of the original ordinance in its
entirety confirms that the term "nonconforming use" does not include
nonconforming structures and lots.   For example, section 19-309, the
provision reciting the exceptions and exemptions to the ordinance, refers to
"nonconforming structures and uses."   If the drafters of the ordinance had
intended the phrase "nonconforming use" to include within its meaning
nonconforming structures, they would not have referred to the two concepts
separately.  Section 19-308 itself distinguishes between nonconforming uses
and nonconforming buildings.  Other sections in the ordinance also link the
term "use" with the activities being conducted on the property.  Section 19-
301(3)(B), which sets forth the authority of the Board to grant variances,
provides in pertinent part that "[n]o variance shall be granted for a use not
allowed within the zone in which the property is located."  If the term "use"
included nonconforming structures, the Board could never grant a variance.
	[¶11]  We will not substitute our judgment for that of the Rockland City
Council.  There is no impediment in law to its decision to distinguish between
nonconforming uses and structures and to permit the continuation of the
latter.{7}
	The entry is:

				Judgment affirmed.
              
Attorney for plaintiff: Frederick M. Newcomb, III, Esq., (orally) P O Box 1115 Rockland, ME 04841-1115 Attorneys for defendants: James D. Bivins, Esq., (orally) Carol L. Maines, Esq. City Attorneys P O Box 546 Rockland, ME 04841-0546 (for City of Rockland) Randal E. Watkinson, Esq., (orally) Strout & Payson, P.A. P O Box 248 Rockland, ME 04841-024 (for Sandefur and Andrews) Ronald & Lori Marie Robbins 10 Clarendon Street Rockland, ME 04841
FOOTNOTES******************************** {1} . The parties agree that the structure and the lot do not comply with area and setback requirements of the City of Rockland zoning ordinance. The use of the property, however, does conform with the ordinance's zoning requirements that the property be used for residential purposes. {2} . Before the amendments were enacted, the ordinance included the following provision: Sec. 19-308 Non-Conforming Uses 1. Existing Non-Conforming Building Use Permitted. The unlawful use of a building existing at the time of the effective date of this Article may be continued although such use does not conform with the provisions of this Article and such building may be reconstructed or structurally altered and the non-conforming use changed subject to the following regulations. . . . D. Resumption Prohibited. A lot, building, or structure in or on which a non- conforming use is discontinued for a period exceeding one (1) year may not again be devoted to a non-conforming use except that the Planning Commission may, for good cause shown by the applicant, grant up to a one (1) year extension to that time period. This provision shall not apply to the resumption of a use of a residential structure provided that the structure has been used or maintained for residential purposes during the preceding five (5) year period. Rockland, Me., Code § 19-308 (Oct. 11, 1995). The original ordinance defined "nonconforming use" as "the lawful use of a building or land existing at the effective date of this Article, or amendments thereto, which use does not conform with the regulations of the zone in which it is located." Rockland, Me., Code § 19- 302(20). The amended ordinance includes a provision similar to the original section 19- 308(1)(D). It, however, defines "nonconforming use," "nonconforming structure," and "nonconforming lot" and differentiates between the three. Rockland, Me., Code § 19-302 (Sept. 11, 1996). {3} . The Superior Court should not have acted as a factfinder on the discontinuance issue. That issue should have been addressed by the Board. The error, however, was harmless. {4} . The Robbinses did not submit a brief on appeal. {5} . The applicability of the amended ordinance was first argued by Sandefur and Andrews in their trial brief submitted to the court four days before the trial of the facts. They did not argue that the amended ordinance rendered Oliver's appeal moot. Rather, they only argued that it illustrated the City's intent to protect nonconforming structures and lots from discontinuance. {6} . Moreover, because the parties failed to preserve this issue, we are not called upon to determine the applicability of 1 M.R.S.A. § 302 (1989) (the statutory provision dealing with the effect on pending proceedings of an amendment to a municipal ordinance) to this appeal. {7} . We decline Sandefur's and Andrews's invitation to impose sanctions against Oliver for instituting a frivolous appeal pursuant to M.R. Civ. P. 76(f). We will exercise that power only in egregious cases. Rich v. Fuller, 666 A.2d 71, 77 (Me. 1995). The facts of this case do not merit such an imposition.