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Sproul v. Town of Boothbay Harbor

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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	2000 ME 30
Docket:	Lin-99-468
on Briefs:	February 9, 2000
Decided:	February 24, 2000



	[¶1]  Carroll J. Sproul and James M. Sproul appeal from a judgment
entered in the Superior Court (Lincoln County, Perkins, A.R.J.) denying their
M.R. Civ. P. 80B appeal from the decision of the Boothbay Harbor Zoning
Board of Appeals.  The Board of Appeals affirmed the decision of the
Boothbay Harbor Planning Board granting James and Geraldine Magnasco
permission to expand a nonconforming structure pursuant to Boothbay
Harbor Code art. XIII, § 170-98(B).  The Sprouls assert that, contrary to the
decision of the Superior Court, they, as abutters, have standing to contest
the Planning Board's decision, and that the Planning Board's decision was
arbitrary, capricious or unreasonable.  We agree with the Sprouls that they
have standing, but find the Planning Board's decision to be neither arbitrary,
capricious nor unreasonable, and, therefore, affirm the judgment of the
Superior Court.
	[¶2]  The Magnascos desired to convert the deck on their home in
Boothbay Harbor into a garage.  They sought and received a permit from the
Town to convert their deck into a 20' x 32' garage, but after construction
was almost complete, the Town discovered that the permit was based on an
erroneous calculation of the distance between the road and the garage.  The
garage violated the Town's road setback requirements.  The Town also
discovered that the garage violated the shoreland setback requirements
because the garage was 63 feet from the shoreline while the shoreland
setback ordinance required the garage to be 75 feet from the shoreline. 
The Boothbay Harbor Planning Board issued a stop work order based upon
these violations.
	[¶3]  The Magnascos petitioned the Board for a permit to expand
their nonconforming deck into a garage pursuant to Boothbay Harbor Code
art. XIII, § 170-98.{1}  The Planning Board needed to determine whether the
deck, which the Magnascos enclosed to create a garage, was originally 12' x
32' or 8' x 32'.  The new garage measured 20 feet from the house, 63 feet
from the water and 27 feet from the road to the edge of the garage.{2}   
	[¶4]  The size of the original deck was important because the deck
was built before the town enacted the 75 foot shoreland setback
requirement, and a 12 foot deck, although encroaching upon the setback,
would have been grandfathered as a nonconforming structure.  The
nonconforming structure ordinance only allows expansions of
nonconforming structures that do not increase the structure's floor area or
volume by more than thirty percent (30%).  See Boothbay Harbor
Code art. XII, § 170-98.  Thus, the size of the deck before the 75 foot
setback was enacted would determine the permissible size of the garage. 
	[¶5]  After a site visit, the Planning Board accepted the existence of
the 12 foot deck and determined that the 12 foot deck encroached upon
the shoreland 75 foot setback "by a 5 feet diagonal for 6 feet forming a
triangle."  The Planning Board concluded that the Magnascos' could build a
12' x 32' garage because the deck was originally 12 feet and granted the
Magnascos' application to expand the nonconforming structure pursuant to
Boothbay Harbor Code art. XIII, § 170-98(C).{3}  The Board determined that
the portion of the structure that encroached into the 75 foot setback was so
small that it was permitted under the 30% expansion rule of the Boothbay
Harbor Code art. XIII, § 170-98(B).  The decision of the Planning Board was
affirmed by action of the Zoning Board of Appeals and the Sprouls then
appealed to the Superior Court pursuant to M.R. Civ. P. 80B.  The Superior
Court dismissed the appeal for lack of standing and this appeal followed.
	[¶6]  To appeal a decision of the zoning board of appeals, pursuant to
30-A M.R.S.A. § 2691(3)(G) (1996), a party must (1) "have appeared before
the board of appeals"; and (2) "be able to demonstrate a particularized injury
as a result of the board's action."  See Rowe v. City of South Portland,
1999 ME 81, ¶ 4, 730 A.2d 673, 674-75 (reiterating the two-prong test for
standing in zoning appeals).  When the party appealing is an abutter, the
party need only allege "a potential for particularized injury" to satisfy the
standing requirement.  Pearson v. Town of Kennebunk, 590 A.2d 535, 537
(Me. 1991).  
	[¶7]  The threshold requirement for an abutter to have standing is
minimal.  Because of the abutter's proximate location, a minor adverse
consequence affecting the party's property, pecuniary or personal rights is
all that is required for the abutting landowner to have standing.  See Rowe,
¶ 4, 730 A.2d at 674-75 (concluding that a neighbor's violation of a front
yard setback requirement was sufficient injury to give the abutting
landowner standing).  Setback violations are a sufficient adverse
consequence to give an abutter a particularized injury.  See id.  As abutters of
property with a structure that violates setback requirements, the Sprouls
have standing to appeal the decision of the Planning Board.  See id.  The
trial court erred when it dismissed the Sprouls' appeal for lack of standing.
	[¶8]  We, therefore, must turn to the merits of the Sprouls' appeal. 
When the Board of Appeals reviews the decision of the Planning Board in an
appellate capacity, we do not review the decisions of the Board of Appeals or
the Superior Court, but rather, review the Planning Board's decision directly
for "error of law, abuse of discretion or findings not supported by substantial
evidence in the record." See Veilleux v. City of Augusta, 684 A.2d 413, 415
(Me. 1996).  Substantial evidence is evidence that a reasonable mind would
accept as sufficient to support a conclusion.  See id.  The possibility of
drawing two inconsistent conclusions from the evidence does not make the
evidence insubstantial.  See id.  
	[¶9]  The Planning Board based its determination of the garage's size
upon three items: (1) the Magnascos' excavation contract with the builders
stating the contract was for the removal of a twelve foot deck; (2) the
Magnascos' insurance records stating that the deck was 12' x 32' when
Magnasco bought the house; and (3) the site visit where the Planning Board
personally examined the structure.  These three items constitute substantial
evidence to support the Planning Board's determination that the deck was
12' x 32' when it was originally constructed.  See Veilleux, 684 A.2d at 415
(stating that substantial evidence exists when a reasonable mind can apply
the evidence to support the conclusion).  The Sprouls contend that the
Planning Board erred in not following the Town tax record.  Although the
tax record indicated that the deck was 8' x 32', the tax record is undated. 
The Planning Board, as factfinder, is allowed to weigh the evidence and
make a decision based upon its perception of the evidence.  See id. (stating
that the possibility of drawing an inconsistent conclusion does not affect the
factfinder's determination).  The Planning Board did not err when it
examined the evidence and decided that the deck was 12' x 32'.  
	[¶10]  Nor did the Planning Board act arbitrarily or capriciously in
allowing the Magnascos to construct a 12' x 32' garage.  The Code allows
property owners to expand nonconforming structures that do not satisfy the
shoreland setback requirements provided the expansion does not exceed
thirty percent of the structure's volume or area.  See Boothbay Harbor Code
art. XII, 170-98(B).  In the present case, the Planning Board properly
applied section 170-98 of the Code by determining that the garage's
encroachment onto the setback requirement maximized the 30% rule and
that if the garage exceeded the 30% rule, the Board would allow the overage
because the overage would be a de minimis amount.  This is not error.
	The entry is:
Judgment affirmed.

Attorney for plaintiffs: Gordon E. Stein, Esq. Gallagher and Stein P O Box 33 Damariscotta, ME 04543 Attorneys for defendants: Daniel J. Bernier, Esq. Marden, Dubord, Bernier & Stevens P O Box 708 Waterville, ME 04903-0708 and Thomas J. McCarthy, Esq. McCarthy, Allegretto & McCarthy 13 Sea View Avenue East Boston, MA 02128 (for James and Geraldine Magnasco) Geoffrey Hole, Esq. Bernstein, Shur, Sawyer & Nelson, P.A. P O Box 9729 Portland, ME 04104-5029 (for Town of Boothbay Harbor)
FOOTNOTES******************************** {1} . Boothbay Harbor Code, Art. XIII, § 170-98, Nonconforming Structures, reads in relevant part: B. Enlargements (permitted uses only). During the lifetime of the structure, the total of all additions and enlargements of said structure which meet all the requirements except setback from the high-water mark shall not exceed thirty percent (30%) of the volume or floor area of the structure, whichever is less. No structure or portion of any structure which is less than the required setback from the high-water mark may be expanded toward the water/seaward. C. Expansion. A nonconforming structure may be added to or expanded after obtaining a permit from the Planning Board, if such addition or expansion does not increase the nonconformity of the structure. D. Further limitation. After January 1, 1989, if any portion of a structure is less than the required setback from the high-water line of a water body or upland edge of a wetland, that portion of the structure shall not be expanded in floor area or volume, by thirty percent (30%) or more, during the lifetime of the structure. (See Subsection B above). (1) Construction or enlargement of a foundation beneath the existing structure shall not be considered an expansion of the structure, provided that the structure and new foundation are placed such that the setback requirement is met to the greater practical extent as determined by the Planning Board, basing its decision on the criteria existing dimensions of the structure and that the foundation does not cause the structure to be elevated by more than three (3) additional feet. (2) No structure which is less than the required setback from the high-water line of a water body, tributary stream or upland edge of a wetland shall be expanded toward the water body, tributary stream or wetland. {2} . When the Magnascos learned that the garage violated the road setback requirement, they agreed to reduce the garage from 20' x 32' to 12' x 32' so the garage would comply with the road setback requirement and the remaining issue would be the shoreland setback requirement. {3} . The Magnascos signed a consent agreement with the town (1) to remove 8 feet of the garage so that the deck would equal its original size of 12' x 32' and (2) to pay the town $250 for costs. The Town, in return, agreed to refrain from pursuing any further legal action.