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Cumberland Farms v. Town of Scarborough
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MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 1997 ME 11
Submitted on briefs December 13, 1996
Decided January 23, 1997
PANEL: WATHEN, C.J., and ROBERTS, GLASSMAN, CLIFFORD, RUDMAN, DANA, and
CUMBERLAND FARMS, INC.
TOWN OF SCARBOROUGH, et al
[¶1] Plaintiff Cumberland Farms appeals from a judgment entered in
the Superior Court (Cumberland County, Mills, J.) affirming the decision
of the Scarborough Zoning Board of Appeals (the "Board"). Contrary
to plaintiff's contention, the Board properly construed the Scarborough
zoning ordinance to prohibit a gasoline filling station as an accessory
use in the Town and Village Centers zone ( the "TVC" zone). Accordingly
we affirm the judgment.
[¶2] The relevant facts may be briefly summarized as follows. Plaintiff
is the owner of a convenience store on U.S. Route One in the TVC zoning
district in Scarborough. Plaintiff applied for a permit for the sale of
gasoline as an accessory use in the TVC zone. The code enforcement officer
denied the application and plaintiff appealed to the Board. After a public
hearing, the Board issued a written decision finding that gasoline filling
stations are not allowed as either a principal or accessory use in the TVC
zone. After a hearing on plaintiff's complaint for review pursuant to M.R.
Civ. P. 80B, the Superior Court affirmed the Board's decision. Plaintiff
[¶3] When the Superior Court acts as an intermediate appellate court,
we independently examine the record and review the Board's decision for
an abuse of discretion, error of law, or findings unsupported by substantial
evidence in the record. C.N. Brown Co., Inc. v. Town of Kennebunk, 644 A.2d
1050, 1051 (Me. 1994). Whether the proposed use falls within a particular
use category in a zoning ordinance is a question of law. Id.
[¶4] Plaintiff argues that the Board improperly excluded gasoline filling
stations from the permitted accessory use category in the TVC zone. This
contention is without merit. The Board properly interpreted the terms and
provisions of the ordinance by reading the ordinance as a whole and by giving
effect to obvious legislative intent. Singal v. City of Bangor, 440 A.2d
1048, 1052 (Me. 1982).
[¶5] The Scarborough zoning ordinance expressly permits gasoline filling
stations in only two districts, B-2, the general business district and B
H, the highway business district, and then only as a special exception use
subject to strict performance standards. Section II(D)(7) of the ordinance
states a general rule of prohibition: "Any use not specifically allowed
as either a permitted use or a Special Exception in any district shall be
considered prohibited in that district." The zoning ordinance evidences
an obvious intent to restrict gasoline filling stations to special exception
uses in heavy commercial districts subject to strict performance standards.
[¶6] Plaintiff acknowledges that gasoline filling stations are not
permitted in the TVC zone as a principal use, but argues that they may be
permitted as an accessory use. The Scarborough zoning ordinance, however,
defines "Gasoline Filling Stations" as "[a]ny building, structure,
land or part thereof where motor vehicle fuel is sold at retail either as
a principal use or as an accessory use..." (emphasis added). The Board
properly interpreted this provision to mean that the ordinance's restrictive
treatment of gasoline filling stations applies when gasoline is sold at
retail as a principal or as an accessory use. The Board's interpretation
is not only supported by the plain language of the provision, it is compelled
by the ordinance's restrictive treatment of gasoline filling stations. Individual
provisions must be interpreted in harmony with the overall scheme of a zoning
ordinance, Natale v. Kennebunkport Board of Zoning Appeals, 363 A.2d 1372,
1374 (Me. 1976).
[¶7] Because "accessory use" is a permitted category in every
zone under the ordinance, plaintiff's view, if upheld, would allow the location
of gasoline filling stations in every zone. Moreover, as a permitted accessory
use, the stations would be free from the strict performance standards. Given
the "comprehensive spirit of the ordinance," the Board did not
err in declining to accept such an unreasonable interpretation. Singal at
The entry is:
Attorney for plaintiff:
David A. Lourie, Esq.
189 Spurwink Ave.
Cape Elizabeth, ME 04107
Attorney for defendant:
Christopher L. Vaniotis, Esq.
Bernstein, Shur, Sawyer & Nelson
P O Box 9729
Portland, ME 04104-5029