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Brooks v. Cumberland Farms, corrected 10-21-97
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Decision: 	1997 ME 203
Docket:	Yor-97-63
Argued:	September 2, 1997
Decided:	October 16, 1997



	[¶1] Cumberland Farms, Inc. appeals from the judgment entered in
the Superior Court (York County, Fritzsche, J.) vacating the decision of the
North Berwick Zoning Board of Appeals approving setback variances
pursuant to the North Berwick Zoning Ordinance and 30-A M.R.S.A.
§ 4353(4)(1996).   Cumberland contends (1) that the court erred by
determining that David L. Brooks, whose personal residence and
professional office are directly across the street from the subject property,
has standing to seek review of the Board's decision pursuant to Maine Rule
of Civil Procedure 80B, and (2) that the court erred in holding that the
Board committed an error of law in approving the setback variances.  We
disagree with Cumberland's contentions and affirm the judgment. 
	[¶2] David L. Brooks is an attorney whose home and law practice are
located directly across the street from a property now owned by Elaine
Perkins Spence and Fred Perkins, Jr. in North Berwick.   Cumberland seeks
to purchase the Perkins property, which is located on a main road in North
Berwick and which abuts residential properties on both sides, and to
renovate it for operation as a convenience store with gasoline pumps.    
	[¶3]  The only buildings now on the Perkins property are a repair
garage, an uninhabited multi-unit apartment building, and a convenience
store.  Until recently, the Perkins sold gasoline from three fuel dispensers
in front of the convenience store.  The fuel dispensers, along with five
underground storage tanks (USTs) located on the property, are no longer in
use.  In addition to various permitted and conditional uses authorized by the
North Berwick Zoning Ordinance,{1} the property also enjoys two
grandfathered nonconforming uses:  retail gasoline sales and repair garage. 
	[¶4]  As part of its proposed project, Cumberland seeks to replace the
five existing USTs with two modern USTs of equivalent storage capacity; to
erect a canopy that would house fire suppression equipment; and to move
the store's sign onto the property from its current location in the State's
right-of-way.   Because the Perkins property is adjacent to and across from
residential properties, three setback variances from the North Berwick
Zoning Ordinance are required to make these proposed changes.{2}       
	[¶5]  In mid-1995 Cumberland filed a variance application with the
North Berwick Zoning Board of Appeals for the proposed USTs, canopy, and
sign.{3}   At a public hearing to consider the application in December 1995,
Cumberland argued that, pursuant to the applicable law, the gasoline sales
could continue only if the existing USTs were replaced with more modern
USTs.  Directing the Board's attention to the variance application's Financial
Information Supplement,{4} it further argued that the Perkins' existing
business had been unprofitable for four of the last five years; that the
apartment building would require a significant capital infusion to make it
habitable; and that the property currently did not produce a reasonable rate
of return.
	[¶6]  Brooks also appeared before the Board, arguing that 30-A
M.R.S.A. § 4353's criteria for the granting of a variance had not been
satisfied.  To support his contention that beneficial use of the property could
exist without the variances, he directed the Board's attention to the zoning
ordinance's Land Use Table, which listed permitted and conditional uses
not requiring variances.{5}    
	[¶7]  After the hearing the Board approved Cumberland's variance
application for the proposed USTs, canopy, and sign.  Brooks filed a
complaint for review of governmental action pursuant to Maine Rule of Civil
Procedure 80B.  Following two remands by the Superior Court to the Board
for clarification of the Board's decision,{6} the court concluded that the Board
had erred in not finding that there are other beneficial uses of the property
without the variance and vacated the Board's decision.  Cumberland now
appeals that adverse decision.
	[¶8]  Before reaching the merits of Cumberland's appeal, we must
consider the preliminary question of Brooks' standing to challenge the
Board's decision.  Pursuant to 30 M.R.S.A. § 2691 (3)(G) (1996), any party
may appeal the decision of a local zoning board of appeals in accordance
with Maine Rule of Civil Procedure 80B.   The two-pronged test of "party"
status for the purposes of section 2691 is now well-established:  An
appellant must have participated before the board, and must make a showing
of a particularized injury.  See Forester v. City of Westbrook, 604 A.2d 31, 32
(Me. 1992) (citing Harrington v. City of Biddeford, 583 A.2d 695, 696 (Me.
1990); Singal v. City of Bangor, 440 A.2d 1048, 1050 (Me. 1982)).
	[¶9]  In the present case, there is no dispute that Brooks participated
before the Board. Cumberland contends, however, that Brooks failed to
demonstrate adequately that he will suffer any particularized injury as a
result of the Board's decision.  Noting that Brooks objects to the overall
project and not to the specific variances, Cumberland argues that Brooks has
failed to demonstrate that the UST, canopy, and sign variances themselves,
viewed in isolation and apart from the overall project, will cause him any
particularized injury.    
	[¶10] Cumberland's argument is unpersuasive.  An abutting landowner
need not establish a high degree of proof of particularized injury.{7} See Grand
Beach Ass'n v. Town of Old Orchard Beach, 516 A.2d 551, 553 (Me. 1986). 
Rather, "when the person who has appeared before the board is an abutter,
a reasonable allegation of a potential for particularized injury is all that is
necessary to establish the real controversy required for adjudication in a
court."  See Christy's Realty Ltd. Partnership v. Town of Kittery, 663 A.2d
59, 61-62 (Me. 1995)(quoting Pearson v. Town of Kennebunk, 590 A.2d
535, 537 (Me. 1991)).  "The proximate location of the abutter's property,
combined with a relatively minor adverse consequence if the requested
variance were granted,  . . . sufficiently demonstrates a potential for
particularized injury."  Forester, 604 A.2d at 32. 
	[¶11]  In this case, Brooks presented evidence to the Board that the
proposed Cumberland Farms project would cause his property's value to
depreciate, and that the project would destroy the peacefulness of the
neighborhood by its late hours of operation.{8}  The overall project is
facilitated by the specific variances in question.  Given the proximity of his
property, Brooks' allegations of decreased property value and increased
noise comport with our Rule 80B standing requirements for abutters, and
adequately establish the potential for a "minor adverse consequence" if the
variances are granted.  See id.  
	[¶12]  In an appeal from the Superior Court's appellate review of
actions taken by a municipal board of zoning appeals, we examine the record
developed before the board to determine whether the board abused its
discretion, committed an error of law, or made findings not supported by
substantial evidence in the record.  See H.E. Sargent, Inc. v. Town of Wells,
676 A.2d 920, 923 (Me. 1996).  We may not substitute our judgment for that
of the board.  See Anderson v. Swanson, 534 A.2d 1286, 1288 (Me. 1987)
(citingGrand Beach Ass'n, 516 A.2d at 554).   Because we conclude that
there was insufficient evidence to support the Board's conclusion that the
property cannot yield a reasonable return unless the variances are granted,
we affirm the court's decision vacating the Board's ruling.
	[¶13]  Pursuant to 30-A M.R.S.A. § 4353(4), a board of appeals may
grant a variance only on a finding that the strict application of a zoning
ordinance would cause undue hardship.  To establish undue hardship, the
variance applicant must prove each of the following:

A.  The land in question cannot yield a reasonable return unless a
variance is granted;

B.  The need for a variance is due to the unique circumstances of
the property and not to the general conditions in the

C. The granting of a variance will not alter the essential
character of the locality;

D.  The hardship is not the result of action taken by the
applicant or a prior owner.

30-A M.R.S.A. § 4353(4)(1996).{9}  See Leadbetter v. Ferris, 485 A.2d 225,
227 (Me. 1984)(burden is on variance applicant to prove the statutory
requirements have been met).  
	[¶14]  In construing the "reasonable return" prong of the hardship
test set forth in section 4353, we have required an applicant to show that
denial of the variance will result in the "practical loss of all beneficial use of
the land."  See, e.g., Greenberg v. DiBiase, 637 A.2d 1177, 1179 (Me. 1994)
(emphasis added) (quoting Perrin v. Town of Kittery, 591 A.2d 861, 863
(Me. 1991)).  Our application of this requirement to section 4353 variances
has been consistent and unwavering; a zoning regulation imposes undue
hardship within the meaning of section 4353 only if the property subject to
the regulation cannot yield a reasonable return from any permitted use.  See,
e.g., Twigg v. Town of Kennebunk, 662 A.2d 914, 918-19 (Me. 1995)
(quoting 3 R. Anderson, American Law of Zoning § 20.17 (3d ed. 1986));
Forester, 604 A.2d at 33 (vacating board's approval of variance because
applicant failed to submit evidence to establish the property would not yield
a reasonable return without the variance).
	[¶15]  Cumberland urges us to adopt a less stringent standard in this
case, advancing the novel argument that the "practical loss" standard should
not be applied where an applicant seeks a variance to continue an existing
nonconforming use, rather than to create a new or expanded use.  In
support of its position, Cumberland emphasizes that the continued use of
the property for nonconforming gasoline sales is contingent upon
compliance with state-mandated modernization requirements, including the
installation of new USTs.  To install the new USTs required by state law,
Cumberland needs a variance from the town's zoning ordinance.
	[¶16]  We are unpersuaded that the circumstances of this case require
a modified undue hardship standard.{10}  In fact, the strict application of the
"practical loss" standard is appropriate in this case, given our view that
"[t]he spirit of the zoning ordinances and regulations is to restrict rather
than increase any nonconforming uses, and to secure their gradual
elimination."  Town of Windham v. Sprague, 219 A.2d 548, 552 (Me. 1966)
(quoting 101 C.J.S. Zoning § 182).   Although government-mandated
modernization of gasoline stations, including the installation of new storage
tanks, may cause some property owners to cease retail gasoline sales
because they cannot obtain variances required for the modernization, we
perceive no injustice in this result when the owner retains other viable uses
of the property. 
	[¶17]  Applying the "practical loss" standard to this case, we conclude
that the Board erred in determining that the property cannot yield a
reasonable return without the variance.  Although Cumberland presented
evidence that the existing business was operating at a loss, and that the
apartment building would require a significant capital infusion to make it
habitable, the Board was also presented with undisputed evidence that the
property has numerous permitted and conditional uses for which a variance
would not be required.  "Reasonable return" is not tantamount to "maximum
return."  Perrin, 591 A.2d at 863.  There is nothing in the record to support
even an implicit finding by the Board that Cumberland had met its burden of
showing that the property could not yield a reasonable return from any use
allowed by the zoning ordinance, or that the expense of establishing such an
allowed use would be prohibitive.  The court did not err in vacating the
Board's approval of the setback variances.{11}
	The entry is:
				Judgment affirmed.

For plaintiff: David L. Brooks, Esq., (orally) Hurd Manor North Berwick, ME 03906-0415 Attorney for defendant: Paul W. Cadigan, Esq., (orally) Reagan, Adams & Cadigan P O Box 709 Kennebunk, ME 04043
FOOTNOTES******************************** {1} The Perkins property is located in a "Limited Commercial" zone. According to the North Berwick Zoning Ordinance Land Use Tables, permitted uses for properties in such zone include personal services, variety/convenience store, clubs not serving alcohol, business enterprise, agricultural business, and solid waste recycling facility. Conditional uses include home occupation, eating and drinking establishments, eating establishments, restaurants, adult businesses, lodging, bed and breakfast, and professional and administrative services. North Berwick, Me., Zoning Ordinance art. 4 (1995). {2} First, because the Perkins property abuts residential lots on both sides, it is subject to a 100-foot side setback requirement pursuant to Article 4, Table 4.3 of the North Berwick Zoning Ordinance. The property is less than 200 feet wide; thus, the two side setback requirements overlap and prevent Cumberland from replacing the USTs and erecting the canopy without a variance. Second, because the front of the Perkins property abuts a residential lot (i.e., the Brooks property across the street), Table 4.3 of the Ordinance requires a fifty foot front setback. Cumberland's proposed canopy and USTs would be located about sixteen and thirty feet, respectively, from the front property line. Finally, section 5.2.6.b.5 of the Ordinance provides that no sign may be located within fifteen feet of any travel way or lot line. Cumberland proposes to place its sign about four feet from the boundary line and about ten feet from the street. {3} This variance application marked the culmination of protracted efforts by Cumberland to obtain the town's permission to proceed with the project. In 1995 Cumberland applied for a building permit with the town's code enforcement officer (CEO), which was denied. After filing an unsuccessful administrative appeal of the CEO's decision with the Board, Cumberland revised its proposal and submitted a second building permit application with the CEO. The CEO again denied the application. Cumberland then filed an administrative appeal of the CEO's second building permit denial, as well as a variance application, with the Board. The Board denied the administrative appeal, but approved the variance application, which is now the subject of this appeal. {4} The Financial Information Supplement states, inter alia, that the Perkins property is currently assessed at $199,770; that a reasonable return on the property would be about $16,000; that the Perkins' existing business had reported ordinary trade or business losses between about $7,200 and $3,100 in four of five recent years; that the apartment building is presently not fit for habitation; and that a conservative estimate of the cost to renovate the apartment building is $15,000 to $20,000. {5} Brooks testified at the December 1995 hearing: [I]f the lots were vacant, or even if you consider the buildings that are there presently, I would suggest to you that in the land use chart in the zoning ordinance, shows a whole host of uses that this property would sustain: single-family residence, two-family dwelling, multifamily dwelling, double-wide mobile home, personal services -- as in a home occupation -- neighborhood variety or co