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Sawyer Environmental v. Town of Hampden
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	2000 ME 179
Docket:	Pen-00-83
Argued:	June 12, 2000
Decided:	October 24, 2000



	[¶1]  The Town of Hampden appeals the order of the Superior Court
(Penobscot County, Kravchuk, J.) granting Sawyer Environmental Recovery
Facilities, Inc.'s Rule 80B appeal from (i) a decision of the Hampden Zoning
Board of Appeals affirming the Hampden Code Enforcement Officer's (CEO)
decision that two proposed landfill expansion projects constituted
prohibited expansions of a nonconforming use; and (ii) a subsequent
decision of the Hampden Planning Board that these projects cannot receive
site plan approval based on the Zoning Board's approval of the CEO's land
use determination.  Because state law preempts the Town's capacity to
absolutely prohibit expansion of the landfill, we vacate and remand.
	[¶2]  Sawyer Environmental Recovery Facilities (SERF) operates a
private, commercial solid waste disposal facility (the landfill) on land located
in Hampden.  The district in which the landfill is located is zoned for
industrial use.  SERF's predecessor-in-interest first sought a permit to
operate the landfill in 1974.  Sawyer's 1974 application requested a permit
"to operate a sanitary landfill facility on land owned by Lawrence Brown,
Ruby Burke, [and] Fred Oxley (Lots 44-45-46) . . . ."{1}  The application did
not suggest any limitations on the landfill boundaries within the listed lots.  
	[¶3]  Under the then applicable 1964 ordinance, a landfill was not a
permitted use within the industrial zone.  Presumably on this basis, the
building inspector denied Sawyer's 1974 application.  On appeal, the
Hampden Zoning Board of Appeals (ZBA) granted a permit to operate the
landfill on the condition that Sawyer follow all applicable Department of
Environmental Protection (DEP) guidelines and monitoring requirements. 
The permit included no space or coverage limitations within the three lots
subject to the permit.  The parties have stipulated that the Board's approval
of the application constituted the grant of a variance as well as a permit
because the landfill was not a permitted use within the industrial zone.{2}  
	[¶4]  In 1975, SERF separately sought and obtained DEP approval to
operate the landfill.  The footprint of the proposed landfill, indicated in the
1975 application, covered an area within but not coextensive with Lots 44,
45, and 46.  The landfill as it existed within this footprint is described by
the parties as the "conventional landfill." 
	[¶5]  In 1979, the Town enacted a comprehensive zoning ordinance
that imposed stricter guidance on the process for granting conditional uses
and variances, subjected such uses to site plan reviews, and prohibited
expansion of nonconforming uses as the ordinance defined that term.{3}  The
ordinance also changed the general description of industrial uses, but
maintained the status that a landfill was not a use allowed in the industrial
	[¶6]  SERF operated the conventional landfill until its closure in the
early 1980s.  Since the closure of the conventional landfill, SERF's
operations proceeded with a series of "secure"{4} landfills situated on top of
the conventional landfill.  This litigation concerns Secure III, Phases VI, VII,
and VIII.
	[¶7]  In September 1996, SERF filed a Preliminary Information
Report with the DEP, seeking a determination of public benefit for a
proposed expansion of Secure III.  Pursuant to 38 M.R.S.A. § 1310-AA (Supp.
1999), the DEP concluded that development of Secure III, Phases VI
through VIII would "provide a substantial public benefit" and "meet [the]
immediate, short-term and long-term capacity needs of the State."  
	[¶8]  In March 1998, pursuant to 38 M.R.S.A. §§ 1310-N(1) & 1310­p;S
(Supp. 1999), SERF filed an application with the DEP for a license allowing
them to commence operation of Phases VI through VIII.  Prior to filing,
SERF notified the Town of its intent to submit the application and held a
public informational meeting in accordance with DEP regulations.  Pursuant
to 38 M.R.S.A. § 1310-S(3), the Town was granted automatic municipal
intervenor status in SERF's application process.  
	[¶9]  With the support of a $50,000 intervenor assistance grant, see
§§ 1310-S(4) & 1310-T (Supp. 1999), the Town hired an independent
technical consultant and conducted an independent review of SERF's
application.  This process included a series of "stakeholder meetings"
occurring between July and October 1998, attended by the DEP, SERF, and
the Town's representatives.  On October 2, 1998, the Town's technical
consultant and representative submitted a final summary of the Town's
technical comments, indicating those changes SERF had agreed to
incorporate in the project as a result of the Town's independent review. 
The summary concluded that "[w]ith these commitments and application
changes, the technical issues we have raised have been addressed and our
intervenor review is complete."{5} 
	[¶10]  On October 20, 1998, the DEP approved SERF's application to
construct and operate Secure III, Phases VI, VII, and VIII.  Despite its
participation in the intervenor review process, the Town appealed the
DEP's approval of the license application to the Board of Environmental
Protection (BEP).  The BEP denied the appeal and affirmed the order
granting SERF the license, but modified some conditions and added other
minor conditions to the license.  No appeal was taken from this BEP action.
	[¶11]  On November 20, 1998, SERF applied to the CEO for site plan
approval of Secure III, Phases VI, VII and a portion of VIII.  The CEO
concluded that (i) SERF's landfill constitutes a nonconforming use that is
subject to ordinance provisions prohibiting the expansion of nonconforming
uses; and (ii) Phase VI and Phase VII are prohibited because they are to be
built on land not situated within the conventional landfill's footprint, which
the CEO determined to be the extent of any grandfathered, preexisting use. 
The CEO approved construction of Phase VIII because it will be built atop
the conventional landfill.  On February 25, 1999, SERF appealed the CEO's
decision to the ZBA.  Following an extended hearing, the ZBA affirmed the
CEO's decision on April 27, 1999. 
	[¶12]  SERF filed its first complaint in the Superior Court on
March 25, 1999, advancing the claim that State solid waste management
laws, 38 M.R.S.A. §§ 1302-1310-AA (1989 & Supp. 1999), preempt the
Town's ordinance (count I).  On May 5, 1999, SERF filed an amended
complaint, retaining the preemption claim (count I), and adding a Rule 80B
appeal (count II), a claim for inverse condemnation (count III), and a claim
pursuant to 42 U.S.C. § 1983 (count IV).  Subsequently, the Town Planning
Board determined that it lacked jurisdiction due to the ZBA's prior decision,
preventing it from considering SERF's site plan application.  SERF appealed
the Planning Board's decision to the ZBA, which denied the appeal.  SERF
then filed a separate Rule 80B appeal of this ruling to the Superior Court. 
These appeals were consolidated by an order of the court (Hjelm, J.).  The
Superior Court (Kravchuk, J.) granted SERF's 80B appeal, determining that
the Hampden Zoning Ordinance did not prohibit the landfill expansion.  The
court dismissed SERF's other counts, and remanded the case to the ZBA for
further proceedings consistent with the opinion.  The Town filed a timely
appeal to this Court.
	[¶13]  When the Superior Court has acted as an intermediate appellate
court, we review directly the decision of a local zoning board of appeals.  See
DeSomma v. Town of Casco, 2000 ME 113, ¶ 7, 755 A.2d 485, 487.  We
examine the ZBA's decisions for abuse of discretion, error of law, or findings
unsupported by substantial evidence in the record.  See Richert v. City of
S. Portland, 1999 ME 179, ¶ 6, 740 A.2d 1000, 1002.  The burden of
persuasion in an action challenging the decision of a zoning authority falls on
the party seeking to overturn the authority's decision.  See Toussaint v.
Town of Harpswell, 1997 ME 189, ¶ 6, 698 A.2d 1063, 1065.
	[¶14]  This case first requires us to address whether the status of
SERF's sanitary landfill, permitted pursuant to the 1974 variance, is
changed by the provisions of the 1979 comprehensive zoning ordinance, as
amended, that limit the expansion of preexisting, nonconforming uses and
continue the prohibition of landfills in the industrial district or anywhere
else in the Town.
	[¶15]  The 1964 ordinance which formed the basis for the 1974
variance did not designate a landfill as either a permitted use or a use
permitted as an exception within the industrial district.  Section 3.2 of the
1979 ordinance addresses uses permitted in the industrial district.  As with
the 1964 ordinance, the 1979 ordinance omitted landfills from its lists of
permitted uses and conditional uses.  The 1979 comprehensive zoning
ordinance also made changes by: (i) revising the general description of
industrial uses; (ii) reclassifying "uses permitted by exception" as
"conditional uses" and changing the description of those uses; and (iii)
subjecting both categories of uses to site plan review.{6}  
	[¶16]  The 1979 ordinance also added significant direction regarding
nonconforming uses.{7}  Section 4.5 prohibits the expansion of a
nonconforming use.  Section 7.2 defines nonconforming use as the "use of
land, or portion thereof, existing at the effective date of adoption or
amendment of this Ordinance which does not conform to all applicable
provisions of this Ordinance."  Expansion is defined 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."{8}
	[¶17] In sum, the 1979 ordinance adopted a new process for
restricting the expansion of nonconforming uses, and reworded the
descriptions of permitted and conditional uses within the industrial zone. 
The 1979 ordinance did not expressly state that landfill uses would be
prohibited in the industrial zone.  Rather, it maintained the prior
ordinance's omission of a landfill under the category of permitted uses.
	[¶18]  A variance is authority extended to a landowner to use property
in a manner prohibited by a zoning ordinance absent such a variance.  See
Cope v. Town of Brunswick, 464 A.2d 223, 226 (Me. 1983); Stucki v. Plavin,
291 A.2d 508, 511 (Me. 1972).  This authority is usually granted after a
quasi-judicial determination that, on the facts presented, a "strict
application of the ordinance to the [landowner] and the [landowner's]
property would cause undue hardship."{9}  30-A M.R.S.A. § 4353(4) (Supp.
1999).  Variances are meant to encompass those: 
[s]ituations . . . where the application of zoning to a particular
piece of property practically destroys or greatly decreases its
value for any permitted use to which it can reasonably be put,
and where the application of the ordinance bears so little
relationship to the purposes of zoning that, as to that property,
the regulation is, in effect, confiscatory or arbitrary. 
Lovely v. Zoning Bd. of Appeals of the City of Presque Isle, 259 A.2d 666, 669
(Me. 1969) (quoting Libby v. Bd. of Zoning Appeals, 118 A.2d 894, 896
(Conn. 1955)).   
	[¶19] A use permitted by a variance is distinct from a nonconforming
use, because a use permitted by a variance becomes conforming under the
ordinance that authorizes the issuance of the variance.  See, e.g., Dimitrov v.
Carlson, 350 A.2d 246, 249 (N.J. Super. Ct. App. Div. 1975); Borer v.
Vineberg, 623 N.Y.S.2d 378, 380 (N.Y. App. Div. 1995); In re Angel Plants,
Inc. v. Schoenfeld, 546 N.Y.S.2d 112, 113 (N.Y. App. Div. 1989).  SERF
quotes a leading treatise that states "a use established or maintained
pursuant to a variance granted by an administrative body is not a
nonconforming use."  Robert M. Anderson, American Law of Zoning § 6.01 at
483 (4th ed. 1995).  However, this statement does not support the
proposition that uses permitted by a variance are not subject to restrictions
on nonconforming uses enacted after the variance was issued.{10}  
	[¶20]  This case concerns the narrower question of whether a use
made conforming by a variance under one ordinance remains a conforming
use when a subsequently adopted comprehensive ordinance confirms the
nonpermitted and nonconforming nature of the use.  In Lovely, we
addressed obliquely the nonconforming use issue presented here in the
course of determining whether a landowner's circumstance amounted to an
"undue hardship" entitling him to obtain a variance to operate a grocery
store in an agricultural zone.  See id. at 667.  The ordinance at issue in
Lovely provided that the zoning board could grant a variance when necessary
to avoid an undue hardship.  See id.  In the course of addressing whether an
undue hardship existed, we considered the landowner's argument that his
was a special circumstance because: 
he had at some time in the past enjoyed a non-conforming use,
granted by way of variance, a right subsequently lost by the
application of the Ordinance, . . . which provides in part, 'If . . .
any non-conforming use is discontinued for a period of one year
. . ., the future . . . use of the premises or structure shall
thereafter be in conformity with the provisions of this
Id. at 670.  We stated, "The Board was not required to grant a variance
which would re-establish a non-conforming use merely because one had
existed at some time in the past."  Id. {11}
	[¶21]  Although a variance renders a proposed use conforming so long
as that use complies with the restrictions within the variance, this
determination is based upon the ordinance and the facts at the time of the
variance application.  It is not a determination for all time that the use will
remain conforming.  As time passes, the needs and development of a
community may change.  Municipalities can reevaluate the mix of uses in a
zone and decide that a particular use should no longer be permitted.  See
Barnard v. Zoning Bd. of Appeals of the Town of Yarmouth, 313 A.2d 741,
746-47 (Me. 1974) (noting that communities are able to stabilize growth
and prevent trends they find inappropriate even if those trends have already
begun).  See also Warren v. Mun. Officers of the Town of Gorham, 431 A.2d
624, 628 (Me. 1981) (noting that zoning ordinances must be motivated by a
concern for the "public health, safety, morals or general welfare").  Thus,
our cases have held that "provisions of a zoning regulation for the
continuation of [nonconforming] uses should be strictly construed, and
provisions limiting nonconforming uses should be liberally construed" in
order to allow for the eventual elimination of nonconformity.   See Oliver v.
City of Rockland, 1998 ME 88, ¶ 9, 710 A.2d 905, 908. 
	[¶22]  The practical effect of a variance is to establish uses pursuant to
the variance as conforming uses.  However, such a conforming use may
become nonconforming when a comprehensive ordinance is subsequently
enacted that reasserts the nonpermitted nature of that use and imposes
additional limitations on its extension.  The practical effect of such a rule is
that conforming uses conducted pursuant to a use variance are placed on an
equal footing with conforming uses that are permitted under a prior
	[¶23]  Because the 1979 ordinance reestablished the nonpermitted
nature of the landfill use and imposed new criteria and conditions on any
variance, SERF's use of Lots 44, 45, and 46 became nonconforming under
the provisions of the 1979 ordinance.  The ZBA's conclusion that Phases VI
and VII of Secure III constitute a prohibited expansion of a nonconforming
use is not clearly erroneous.  
	[¶24]  Having determined that the Town may bar the SERF expansion
as a prohibited extension of a nonconforming use, we must address whether
such an absolute prohibition is preempted by State solid waste management
laws, 38 M.R.S.A. §§ 1302-1310-BB (1989 & Supp. 1999).
	[¶25]  The home rule provision of the Maine Constitution, art. VIII, pt.
2, § 1 reads as follows:  "The inhabitants of any municipality shall have the
power to alter and amend their charters on all matters, not prohibited by
Constitution or general law, which are local and municipal in character.  The
Legislature shall prescribe the procedure by which the municipality may so
	[¶26]  Standards for determining whether a local action is preempted
are set out in 30-A M.R.S.A. § 3001(3) (1996) which states:  "The
Legislature shall not be held to have implicitly denied any power granted to
municipalities under this section unless the municipal ordinance in question
would frustrate the purpose of any state law."
	[¶27]  Thus, the inquiry on a preemption question is whether the
local action "would frustrate the purpose of any state law."  Interpreting
section 3001(3) in School Comm. of Town of York v. Town of York, 626 A.2d
935 (Me. 1993), we stated that municipal action will be viewed as
preempted only where application of the municipal ordinance prevents the
efficient accomplishment of a defined state purpose.  See id. at 938-39 n.8;
940-41 (citing Report of the Joint Standing Committee on Local and County
Government on the Revision of Title 30 at 11 (Dec. 1986)).  We also
indicated that an action under a municipal ordinance will be preempted only
when state law is interpreted to "create a comprehensive and exclusive
regulatory scheme" inconsistent with the local action.  See id. at 941 (citing
Central Maine Power Co. v. Town of Lebanon, 571 A.2d 1189, 1193 (Me.
	[¶28]  We addressed preemption in the context of the solid waste
management laws in Midcoast Disposal, Inc. v. Town of Union, 537 A.2d
1149 (Me. 1988).  There, the Town of Union had enacted a solid waste
disposal ordinance that banned private commercial disposal services.  See
id. at 1150.  We held that state law created a comprehensive and exclusive
regulatory scheme that "manifested a clear legislative intention to remove
any authority a municipality may have had to prohibit the establishment and
operation of a private facility within its borders for the disposal of
out-of-town solid waste."  Id. at 1151.{12}
	[¶29]  Title 38 M.R.S.A. § 1302 (Supp. 1999), the solid waste
management law declaration of policy, provides, among other things, that
"environmentally suitable sites for waste disposal are in limited supply and
represent a critical natural resource," and that:
needed municipal waste recycling and disposal facilities have
not been developed in a timely and environmentally sound
manner because of diffused responsibility for municipal waste
planning, processing and disposal among numerous and
overlapping units of local government[, and] that direct state
action is needed to assist municipalities in separating,
collecting, recycling and disposing of solid waste, and that
sound environmental policy and economics of scale dictate a
preference for public solid waste management planning and
implementation on a regional and state level.
38 M.R.S.A. § 1302.  This provision supports a role for the State in
municipal solid waste management.
	[¶30]  Consistent with this authority, 38 M.R.S.A. § 1304(1) (Supp.
1999) provides, in pertinent part, that the DEP "may adopt, amend and
enforce rules as it deems necessary to govern waste management, including
the location, establishment, construction and alteration of waste facilities as
the facility affects the public health and welfare or the natural resources of
the State."  Title 38 M.R.S.A. § 1310-N (Supp. 1999) provides that "[n]o
person may locate, establish, construct, expand the disposal capacity of or
operate any solid waste facility unless approved by the [DEP]."  Section
1310­p;N(1)(B) provides that the DEP will license a solid waste facility
provided that it finds, inter alia, that "the facility provides a substantial
public benefit" pursuant to subsection 3-A. 
	[¶31]  When state and municipal approval and regulation of solid waste
management facilities come into conflict, standards for resolution of the
conflict are stated in 38 M.R.S.A. § 1310-U.{13}  Section 1310-U indicates
that municipalities may regulate external impacts of solid waste
management facilities, but may not impose on solid waste management
facilities stricter standards than are contained in state law.  Authorizing
regulation "not more strict than" state law necessarily bars any total
municipal prohibition on expansion of a solid waste management facility,
while authorizing a municipality to participate in regulation of external
impacts to the extent its ordinances provide for such regulation. 
Cf. Hutchinson v. Cary Plantation, 2000 ME 129, ¶¶ 8-15, 755 A.2d 494,
496­p;98 (reviewing 38 M.R.S.A. § 1305(6) and the appropriate balance of
State approval and municipal regulation of external impacts of septage
disposal sites).
	[¶32]  The limited municipal role is further evidenced by
38 M.R.S.A. § 1310-S that provides for municipal participation in the DEP
licensing process.  It was pursuant to this section that the Town was granted
"automatic municipal intervenor status" and received a $50,000 assistance
grant to conduct an independent review of SERF's application.  See id.,§§ 1310-S(3-A) & (4); see also id. § 1310-T.  It would make little sense for
the Legislature to craft this process for expansion approval and include
express provision for significant local participation, then after approval,
allow the municipality to negate the proceedings and prohibit the expansion. 
Such an after the fact and absolute prohibition of the expansion prevents the
"efficient accomplishment" of the "defined state purpose" of proper
management of expansion of solid waste disposal facilities.  See School
Comm. of Town of York v. Town of York, 626 A.2d at 940-41. 
	[¶33]  Thus, we conclude that the Hampden Zoning Ordinance which,
as applied by the Town, absolutely bans the location and expansion of
landfills within the Town, is preempted by the State solid waste
management laws establishing a comprehensive regulatory scheme under
which the State, through the DEP, regulates the location and expansion of
	[¶34]  Because the Town's actions prohibited consideration of the
SERF application, it does not appear that the Planning Board reached the
issue of any regulation of local impacts that may be authorized by section
1310-U, if existing ordinances allow for any regulation of such impacts. 
Thus, the matter must be remanded to the Superior Court to remand to the
Town to reinstate consideration of SERF's applications for the purposes
indicated in the opinion.
	The entry is:
Judgment vacated.  Remand to the
Superior Court to remand to the Town
for further consideration consistent with
this opinion.

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