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Two Lights Lobster Shack v. Tweon of Cape Elizabeth
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	1998 ME 153
Docket:	Cum-97-30
on Briefs:	September 19, 1997
Decided:	June 17, 1998




	[¶1]  Two Lights Lobster Shack, Inc. ("The Lobster Shack"), a Cape
Elizabeth restaurant, appeals from a judgment entered in Superior Court
(Cumberland County, Mills, J.) affirming the decision of the Cape Elizabeth
Zoning Board of Appeals.  The Lobster Shack contends that the board and
the court erred as a matter of law by concluding that the proposed use of the
area created by the proposed foundation would constitute an impermissible
extension of a nonconforming use pursuant to the Cape Elizabeth zoning
ordinance.  We disagree and affirm the judgment.
	[¶2]  The Lobster Shack is located in both the Residential A ("RA")
Zone and the Shoreland Performance Overlay Zone ("Shoreland Zone") as
defined by the town's zoning ordinance.  Restaurants are not permitted uses
in the RA Zone and the building in which the Lobster Shack operates does
not meet the applicable setback requirements.  Thus, the use and the
structure are nonconforming pursuant to the terms of the applicable zoning
	[¶3]  The Lobster Shack sought approval from the Town to construct a
foundation beneath the restaurant, thereby creating a basement where only a
crawlspace existed previously.{1}  The stated purposes of the construction
were to protect the structural integrity of the building and to provide
additional storage space for the business.  The Town's code enforcement
officer determined that the construction project required board approval. 
The Lobster Shack submitted its application to the board and alternatively
applied for a variance for the proposed project.
	[¶4]  After public hearings in May and June 1996, the board issued a
written decision with findings of fact denying both the permit application
and the variance application.  The board reasoned that, although the
proposed foundation would not create a prohibited expansion of use
pursuant to the Shoreland Zone requirements, the proposed use would
constitute "an extension of a nonconforming use" pursuant to the Town's
generally applicable nonconforming use restrictions because "the resulting
basement was not manifestly designed for such use before the enactment of
the ordinance or any amendment making the present use nonconforming."{2} 
The board also concluded that the land could yield a reasonable return
without a variance and thus denied the variance application.  The Superior
Court affirmed the board's decision and this appeal followed.{3} 
	[¶5]  The meaning of terms or expressions in a zoning ordinance is a
question of law for the court.  Oliver v. City of Rockland, 1998 ME 88, ¶8,
__ A.2d __ (citations omitted).  When the Superior Court acts as an
appellate court, we independently examine the record and review the
board's decision for an abuse of discretion or an error of law.  Cumberland
Farms, Inc. v. Town of Scarborough, 1997 ME 11, ¶ 3, 688 A.2d 914, 915. 
When factual findings are made adverse to a party with the burden of proof,
we will reverse them only when the record compels a contrary conclusion. 
Gillespie v. Town of Southwest Harbor, 675 A.2d 501, 503 (Me. 1996). 
Guiding our interpretation of the Town's zoning ordinance provisions
concerning nonconforming uses is our recognition that the policy of zoning
generally is to "abolish nonconforming uses as speedily as justice will
permit" and thus "provisions of a zoning regulation for the continuation of
[nonconforming] uses should be strictly construed, and provisions limiting
nonconforming uses should be liberally construed."  Nyczepir v. Town of
Naples, 586 A.2d 1254, 1256 (Me. 1991) (quotations and citations omitted).
	[¶6]  The property of the Lobster Shack is subject to the zoning
regulations of the Shoreland Performance Overlay Zone.  The Shoreland
Zone regulations prohibit the expansion of a nonconforming use, although,
by definition{4}, the utilization of additional basement space is specifically not
considered an expansion of use.  Thus, the Shoreland Zone's regulations do
not prohibit either the construction of a new foundation or the use of the
resulting basement area.
	[¶7]  The Lobster Shack, however, is also subject to the generally
applicable nonconforming use restrictions found in section 19-3-10 of Cape
Elizabeth's zoning ordinance.  These provisions prohibit the extension of a
nonconforming use into an additional part of a building "unless . . . those
parts were manifestly arranged or designed for such use prior to the
enactment of this Ordinance or of any amendment making such use non-
conforming."  Section 19-3-10 of the generally applicable zoning ordinance
would thus not prohibit the construction of a new foundation, but would
prohibit the extension of the nonconforming use into the basement area
created by the new foundation.	  
	[¶8]  	An apparent conflict exists between the Shoreland Zone
regulations and the Town's general zoning ordinance  -- the former would
not prohibit the use of the resulting basement space contemplated by the
Lobster Shack, the latter would prohibit such use.  This conflict would be
troubling if not for the existence of section 19-4-11 of the Town's zoning
ordinance that states:
Whenever a provision of this Ordinance conflicts with, or is
inconsistent with another provision of this Ordinance or any
other ordinance, regulation or statute, the more restrictive and
specific provisions shall control.
Cape Elizabeth, Me., Zoning Ordinance § 19-4-11 (1995).  The Town's zoning
ordinance contemplates potential conflicts within its provisions, and directs
how such conflicts shall be resolved.  The board followed the ordinance's
direction and thus we find no error in the board's decision to deny the
Lobster Shack's application.{5}   
	The entry is:
		Judgment affirmed.

Attorney for plaintiff: Patrick J. Scully, Esq. Bernstein, Shur, Sawyer & Nelson, P.C. P O Box 9729 Portland, ME 04104-5029 Attorneys for defendants: Michael H. Hill, Esq. Monaghan, Leahy, Hochadel & Libby P O Box 7046 Portland, ME 04112-7046 (for Town of Cape Elizabeth) Harold C. Pachios, Esq. Preti, Flaherty, Beliveau & Pachios, LLC P O Box 11410 Portland, ME 04104-7410 (for intervenor Wayne Brooking)
FOOTNOTES******************************** {1} 1 The Lobster Shack also sought approval to construct a handicap access ramp adjacent to the building and to enclose a porch area. The restaurant withdrew its request to build the ramp and does not challenge the board's decision to deny approval of the porch enclosure. {2} 2 That section provides: Extension of Area. A non-conforming use of a building or structure shall not be extended, nor shall a non-conforming use or [sic] part of a building or structure be extended to other parts of the building or structure, unless in the opinion of the board, those parts were manifestly arranged or designed for such use prior to the enactment of this Ordinance or of any amendment making such use non- conforming. Cape Elizabeth, Me., Zoning Ordinance § 19-3-10(c) (1995). {3} 3 The Lobster Shack did not appeal the board's denial of its application for a variance. {4} 4 Section 19-1-3 of the zoning ordinance defines "expansion of use" as: "The addition of weeks or months to a use's operating season; additional hours of operation: or the use of more floor area or ground area devoted to a particular use." "Floor area of a structure" is defined as: "The sum of the contiguous horizontal areas of the floor(s) of a structure enclosed by exterior walls . . . excluding basement space . . . ." (emphasis added). {5} 5 The Lobster Shack contends that the record does not support the board's finding that the proposed use of the basement is inconsistent with the pre-ordinance use of the area beneath the restaurant. We will reverse factual findings adverse to the party with the burden of proof only if the record compels a contrary conclusion. Foley v. Adam, 638 A.2d 718, 719 (Me. 1994). The record does not compel such a conclusion; the proposed basement could not have been "designed for such use before the enactment of the ordinance" because no basement yet exists.