STATE OF MAINE SUPREME JUDICIAL COURT

SITTING AS THE LAW COURT

LAW COURT DOCKET NO. KEN-19-94

SHAWN A. GRANT

Plaintiff - Appellant

v.

TOWN OF BELGRADE

Defendant - Appellee

ON APPEAL FROM THE SUPERIOR COURT KENNEBEC COUNTY DOCKET NO. AP-18-64

BRIEF OF APPELLEE

Michael A. Hodgins, Bar #7741 EATON PEABODY 80 Exchange Street PO Box 1210 Bangor, ME 04402-1210 207-947-0111 mhodgins@eatonpeabody.com

Attorneys for Defendant – Appellee Town of Belgrade

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TABLE OF CONTENTS TABLE OF CONTENTS ............................................................................................ i TABLE OF AUTHORITIES ................................................................................... iii INTRODUCTION ..................................................................................................... 1 STATEMENT OF FACTS. ....................................................................................... 2 PROCEDURAL HISTORY ....................................................................................... 7

ARGUMENT ............................................................................................................. 8

I. The Board of Appeals correctly determined that the lot at 24

Hulin Road could not be used for a commercial use ............................ 8

A. A change in use would have increased and added to an existing non-conformity .............................................................. 9

B. The Board of Appeals’ interpretation of Section 12(E)(1) does not lead to an absurd result ............................... 14

C. The Board of Appeals’ reference to the MLSO was not in error, and the Shoreland Zoning provisions are virtually identical, so any error was harmless ............................................................................ 15

II. The Board of Appeals did not err in determining that the 2018 application represented a new commercial use .................................. 17

A. The 2008 home occupation permit did not apply to lots on both sides of Hulin Road...................................................... 18

B. The Town of Belgrade regulates commercial uses generally, and marinas in particular, even if dock construction is not regulated ..................................................... 21

ii

CONCLUSION ........................................................................................................ 24 CERTIFICATE OF SERVICE ................................................................................ 25

iii

TABLE OF AUTHORITIES

Cases

Brackett v. Town of Rangeley, 2003 ME 109, 831 A.2d 422 ................................................................................... 12 Lewis, et al. v. Maine Coast Artists, 2001 ME 75, 770 A.2d 644 ..................................................................................... 13 Nyczepir v. Town of Naples, et al., 586 A.2d 1254 (Me. 1991) ................................................................................ 13, 14 Town of Levant v. Seymour, 2004 ME 115, 855 A.2d 1159 ................................................................................. 12 Turbat Creek Preservation, LLC v. Town of Kennebunkport, 2000 ME 109, 753 A.2d 489 .............................................................................. 11, 12 Rules M.R.Civ.P. 80B ...................................................................................................... 3, 7

1

INTRODUCTION

Appellant, Shawn Grant (“Grant”) has appealed a decision of the Belgrade

Board of Appeals (the “BOA”) which affirmed an earlier decision by the Belgrade

Planning Board denying Grant permits for the commercial use of his property

located at 24 Hulin Road in Belgrade. Grant’s property at 24 Hulin Road is a small

lot sandwiched between Hulin Road and the outlet stream of Great Pond, abutted

by residences. The commercial use applied for was to operate a marina and

commercial dock in the outlet stream which would be accessible by customers

crossing Grant’s property, and to launch boats rented from Grant at his home

occupation business located across the street. Although commercial uses are

permitted in this area of the Town, unfortunately, Grant’s property is simply too

small for a commercial use according to the Town’s zoning requirements.

Confusing the history of this case, in 2008 Grant applied for and received a

permit for a boat repair business that was classified as a home occupation,

however, that business is located at 21 Hulin Road, across the street from the

marina parcel at issue here, and further away from the water. Over the years the

boat repair business grew. Owning the lot across the street made further expansion

logical and convenient. Grant expanded his business, invested money in docks,

and operated his business on 24 Hulin Road for several years without receiving the

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necessary permits. The unpermitted business at 24 Hulin Road was similar, if not

identical to, the permits now sought.

Prior to the expansion of the dock system and marina, and now concurrent

with that continuing commercial use, the property at 24 Hulin Road included a

home that was rented continuously for residential use. After the business expanded

to the point it was called to the attention of the Town, Grant began the application

process in early 2018 to add a commercial use on 24 Hulin Road in addition to the

rental home, resulting in denials by the Planning Board in April 2018, and the

BOA in August 2018. The latter denial forms the basis for this appeal.

STATEMENT OF FACTS

In 2008 Grant applied for a permit for a boat repair business classified as a

home occupation. Appendix at 159 (hereinafter “A. at 159”). The specific

property identified for this home occupation was 21 Hulin Road, Tax Map 26, Lot

58. A. at 159. The description of the business provided with the application in

2008 was for “boat cleaning, painting and varnishing.” A. at 160. The application

did not list any land within the Shoreland Zone. A. at 159, ¶ 6.

The permit that was issued May 1, 2008 identifies the permitted property as

21 Hulin Road and describes the area of the approved use as the 32’ x 48’ garage

on the property. A. at 161. There was no reference in the permit application or the

approval by the Planning Board in its May 1, 2008 minutes that the home

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occupation included a marina, slip rentals, boat rentals, or any other activity now

occurring on the property at 24 Hulin Road for which Grant sought a permit in

2018. Superior Court Record, Tab 5, at 3 (hereinafter “R. Tab 5 at 3”).1

Grant acknowledges that over the years he has had at least 4 different dock

systems in the water off 24 Hulin Road and because of the size of the docks, he

began to rent slips to customers. A. at 165; Recording of July 18, 2018 Board of

Appeals meeting at 37:30-37:50.2 The use of the property for commercial docks

has increased significantly since at least 2011 as demonstrated by written

testimony submitted by an opponent, Robert Gardner, R. Tab 14 at 113, supported

by photographs comparing the current size and scope of the Brightside Marina, R.

Tab 14 at 127-129 and 131, with photographs and aerial views from 2011 and as

recently as 2016. R. Tab 14 at 127, 130 and 133.

According to the website for Brightside Marina, by 2018 Grant had

“expanded” his dock system to include 20 boat slips and 10 moorings. R. Tab 14

at 135. The number of customers that would access the docks using 24 Hulin Road

was estimated at 15 vehicles per day on a typical summer Saturday, with as many

as five vehicles an hour accessing the docks from this property. R. Tab 7 at 14, ¶

1 The citations to the Record are to the Record on Appeal generated during the BOA hearing and filed with Appellant’s Brief in the Superior Court during the 80B appeal process. Sections of the Superior Court Record are tabbed numerically. The page numbers in the citation after the Tab reference are to the Bates stamped numbers located in the lower right hand corner of the Record. 2 Audio of this recording is found on the CD provided in the Appendix on Appeal at 165. This recording is referenced further herein as “A. at 165, 37:30-37:50” to reflect the time stamp of the relevant audio.

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28. While this estimate identifies the number of vehicles, it does not identify the

number of people per vehicle, or the potential for additional customers accessing

the property strictly by foot.

Because of this unpermitted growth, in early 2018 when Grant applied for

permits he was seeking approval “for a new Marina on Great Pond.” R. Tab 9 at

65. Grant and witnesses on his behalf acknowledged that the installation of the

commercial docks would be in connection with his other business, Brightside

Wooden Boat Service, which was the “home occupation,” permitted in 2008. R.

Tab 7 at 11, ¶ 16; R. Tab 9 at 65.

The property at 24 Hulin Road is necessary to service those docks, including

“temporary parking, loading & unloading by hand of personal items as well as foot

passage to the normal high water mark and docks.” R. Tab 13 at 109, ¶ 2. In

addition to customers accessing their own boats that are moored or docked in the

slips, Grant launches boats from the property at 24 Hulin Road as part of his

companion business across the street. A. at 165, 30:30-30:55. Grant rents kayaks,

canoes, and standup paddle boards that are stored on the property at 24 Hulin Road

and launched from that property. A. at 165, 31:10-31:55. Grant’s wife Samantha

Grant testified before the BOA that the business transaction, i.e. paying for the

kayak or paddleboard rental, occurs across the street at 21 Hulin Road, and

customers walk across the street to launch their rental from 24 Hulin Road, so that

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property further serves the commercial nature of the Grant’s other business. A. at

165, 31:30-31:40.

Letters submitted by Grant in favor of his application verify that this has

been an ongoing commercial operation on 24 Hulin Road. R. Tab 9 at 70, 74. The

commercial nature of the business is reflected in the terms and conditions of

Grant’s marina slip/mooring rental. R. Tab 9 at 67-68. The rental agreement

further verifies that the property above the high water mark at 24 Hulin Road is

necessary to park, unload and access the docks in the marina. R. Tab 9 at 68, ¶ 14.

The property that the docks extend from has had a residence that has been

there “for decades.” A. at 165, 17:35-17:48. Craig Alexander testified at the

hearing before the BOA that he has rented and lived in the house on 24 Hulin Road

for 10 years, and during that time has watched the business grow. A. at 165,

47:00-47:20. The increased commercial use on the property included the rental of

boats from 24 Hulin Road. A. at 165, 47:30-47:35.

The application to the Planning Board, which was also initially advanced to

the BOA, proposed that the existing residential structure at 24 Hulin Road would

continue unchanged and the marina and boat rental would become a separate

additional use of the property. R. Tab 13 at 110, ¶ 8. No structures or construction

was being proposed with the application. Id. at 110, ¶ 8. During the hearing before

the BOA Grant agreed that he would convert the residence and property as a whole

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into a strictly commercial use in order to maintain the commercial operation on the

property. A. at 165, 25:40-25:55 (Attorney Bearor); A. at 165, 1:32:30-1:33:00

(Samantha Grant).

The property at 24 Hulin Road contains approximately 25,000 square feet of

area, slightly more than 200 feet of water frontage on the Great Pond stream, and

approximately 225 feet of frontage on Hulin Road. R. Tab 13 at 110, ¶ 7. The lot

dimensions are critical factors in the BOA’s decision, as the dimensional

requirements for a commercial use in the district are 60,000 square feet of lot area

and 300 feet of shore frontage. A. at 21, ¶ 4; A. at 52.

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PROCEDURAL HISTORY

Grant applied to the Planning Board for a Shoreland Zoning permit and a

Commercial Development Review Ordinance (“CDRO”) permit. A. at 19, ¶ 1. At

a hearing held on April 5, 2018, the Planning Board denied both of those

applications. A. at 193, ¶ 2. The basis for the denial was the inability of the lot to

meet the combined shore frontage, road frontage and lot area required for a

commercial and residential use in the Shoreland Zone, pursuant to Belgrade’s

Shoreland Zoning Ordinance, (hereinafter “SZO”) Section 15(A)(5). R. Tab 11 at

100; R. Tab 13 at 109-110. Grant timely filed an administrative appeal to the

Belgrade BOA on May 3, 2018. A. at 193, ¶ 3. After several preliminary meetings

the application was deemed to be complete and the matter was set for hearing and

notice was provided to the applicant and others. A. at 193, ¶¶ 4-7. The public

hearing was held before the BOA on July 18, 2018. A. at 193, ¶ 8. The final

written decision of the BOA was approved on August 22, 2018, denying Grant’s

appeal and denying permits for the commercial dock and boat rentals on his

property at 24 Hulin Road. A. at 20, ¶ 13 and A. at 22. Grant appealed pursuant to

Rule 80B, and that appeal was denied and the BOA decision was affirmed by the

Superior Court’s decision dated February 22, 2019. A. at 3.

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ARGUMENT

I. The Board of Appeals correctly determined that the lot at 24 Hulin Road could not be used for a commercial use.

The combined lots at 24 Hulin Road are substandard for virtually any

purpose, but are legally non-conforming for the residential use that predates the

ordinance. Because Grant proposes to change this non-conforming lot at 24 Hulin

Road from a residential use to a commercial use, that proposal falls under the

prohibition that “no . . . land shall hereafter be used, [or] changed in use, . . . except

in conformity with all of the regulations herein specified for the district in which it

is located, unless a variance shall have been granted.” SZO, Section 11. By

proposing a change of use from residential to commercial, Grant called into play

all of the land use standards that follow in Section 15 of the ordinance, and the

BOA properly found that the lot did not meet the minimum area or shore frontage

requirements, so the lot was not grandfathered for a commercial use. A. at 21, ¶¶ 5

and 7.

Grant has implicitly acknowledged that an undersized lot for which a change

of use is requested must meet all of the ordinance requirements for that changed

use. After the Planning Board properly denied the application because the

combined lot area and shore frontage required for both residential and commercial

uses was not met, Grant withdrew his request to retain both uses before the BOA,

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and tried to make a run with a single commercial use.3 However, because this is a

change of use, and the commercial use is more intensive than the residential use,

Grant’s proposal was not saved by removing the less offending use, because the

non-conforming conditions would become more non-conforming. The BOA

properly denied the amended request to permit a change in use of Grant’s

undersized lot.

A. A change in use would have increased and added to an existing non-conformity.

As with any ordinance or statutory construction, to understand the overall

intent, it is helpful to start at the beginning. By reading the Belgrade SZO section

on non-conformity from the start, the overall intent of how to treat non-conformity

– whether to preserve or eliminate a non-conforming condition – is more clearly

understood. Just prior to the non-conformity section in the Section 11 the SZO

states as follows:

Except as hereinafter specified, no building, structure or land shall hereafter be used, changed in use, or occupied, and no building or structure or part thereof shall hereafter be erected, constructed, expanded, relocated, replaced, reconstructed or altered except in conformity with all of the regulations herein specified for the district in which it is located, unless a variance shall have been granted.

3 The Planning Board decision was based upon a determination that the lots did not meet the standards of Section 15(A)(1)(a), (b) and 15(A)(5). R. Tab 11 at 100. Specifically, 24 Hulin Road did not meet the standards for a combined residential and commercial use, which required the necessary area and shore frontage be totaled to meet the standards of Section 15(A)(5). Before the Board of Appeals the applicant withdrew the request to retain the residential rental use, which limited the review to only the commercial lot standards under Section 15(A)(1)(b) to avoid being treated as a new combined use. If the lot was grandfathered to be built on for all purposes as Grant argues, dropping the residential use was unnecessary.

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SZO § 11; A. 26 (emphasis added). The BOA relied upon this language to deny

the grandfathering of the lot for a marina or other commercial business on 24 Hulin

Road because approval would result in a change of use that did not conform to

existing lot requirements. A. 21, ¶ 7.

Immediately after the statement in Section 11, the SZO addresses all non-

conformities, whether lots, uses or structures, by stating generally in Section 12:

It is the intent of this Ordinance to promote land use conformities, except that non-conforming conditions that existed before the effective date of this Ordinance, or amendments thereto, shall be allowed to continue, subject to the requirements set forth in this section. Except as otherwise provided in this ordinance a non-conforming condition shall not be permitted to become more non-conforming.

SZO § 12(A); A. 26 (emphasis added). Although the BOA did not cite specifically

to Section 12, it clearly addressed the intent of not increasing a non-conformity by

reference to Section 4(A) of the Belgrade Minimum Lot Size Ordinance

(“MLSO”), which provides that a non-conforming lot “may not be changed to any

other use for which the lot would be less conforming under the provisions of this

ordinance.” A. at 22, ¶ 10 (emphasis added). The rationale of these two ordinance

sections is the same.

Simply put, residential uses are less intensive than commercial uses. This is

clearly reflected in the Belgrade SZO because a residential unit requires less lot

area and less uninterrupted shore frontage. SZO, Section 15(A)(1)(a) and (b); A.

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52. Residential uses require a lot with 40,000 square feet of area per dwelling and

200 feet of shore frontage. Commercial uses require 60,000 square feet of lot area

and 300 feet of shore frontage.

The fact that a residential structure existed on a substandard lot means that it

was a legally non-conforming lot for that purpose because the residential use

predated the enactment of the ordinance and lacked 15,000 square feet of lot area.

However, if Grant’s lot is changed to the proposed commercial use, rather than

being short in lot area by 15,000 square feet, the commercial use would be 35,000

square feet shy of the necessary lot area. Grant’s lot, which was conforming for

the frontage requirement for residential use having precisely 200 feet of shore

frontage, would now be 100 feet shy on shore frontage for the commercial use.

This made the non-conforming lot area “more non-conforming” under Sections

12(A) and 15(A)(1), and created a non-conformity for shore frontage that did not

exist previously for the residential use. Although Grant is correct that the lot at 24

Hulin Road was itself not physically altered, the non-conforming “condition”

would be changed in a way that the lot would be “more” non-conforming,

therefore, the permit was properly denied.

In order to qualify for non-conforming or grandfathered status, “it must be

shown that the use existed prior to the enactment of the zoning provisions

prohibiting it and that the use was ‘actual and substantial.’” Turbat Creek

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Preservation, LLC v. Town of Kennebunkport, 2000 ME 109, ¶ 13, 753 A.2d 489,

492. While a commercial use is permitted within the shoreland zone in the Town

of Belgrade in the Limited Commercial District, that use cannot be permitted if the

lot standards are not met, therefore, the commercial use of this lot would need to be

grandfathered. As in Turbat Creek, because the change of use includes both

changes to the quantity and quality of that use, the Board of Appeals correctly

determined that the commercial use of the lot was not grandfathered. 2000 ME

109, ¶ 15. See also, Town of Levant v. Seymour, 2004 ME 115, ¶ 22, 855 A.2d

1159, 1166 (a use is not grandfathered unless the owner or user demonstrates that

the use existed prior to the enactment of the ordinance that restricts or prohibits the

use, and that the use was ‘actual and substantial.’”) (additional citation omitted).

It has been held and reaffirmed repeatedly that the underlying policy of zoning is

to gradually eliminate – and not increase – non-conformity, so provisions that limit

expansion are liberally construed, and attempts to expand non-conformity are

disfavored. Brackett v. Town of Rangeley, 2003 ME 109, ¶ 16, 831 A.2d 422, 427.

(additional citations omitted).

This case law is consistent with the non-conformity provisions of the

Belgrade Shoreland Zoning Ordinance, particularly Sections 11 and 12(A). This

Court should read these provisions liberally to prevent an intensive commercial use

on such a small lot surrounded by residences, just as the BOA did. The land use

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standards in Section 15 of the SZO predated the commercial use of 24 Hulin Road

by many years, even assuming that unpermitted use began at or near the time of the

Grant’s boat repair application in 2008. If the commercial use was commenced

without permits in violation of the ordinance provisions, the lot cannot be said to

be legally non-conforming for that use if it changes now.

Another case which cites to the rationale for eliminating non-conformity,

which more directly addresses the issue of a non-conforming lot is Nyczepir v.

Town of Naples, et al. 586 A.2d 1254, 1256 (Me. 1991). Most cases of non-

conformity before the Law Court have addressed non-conforming uses. Nyczepir

dealt with a situation in which a previously conforming lot area of 23,000 square

feet became non-conforming when the Naple’s Shoreland Zoning Ordinance was

amended to require 40,000 square feet, where no prior use had been made of the lot

in question. Id. at 1255. This Court held that because there was no use of the lot

prior to the ordinance amendment the lot cannot be grandfathered. Id. at 1256.

Here, there can be no grandfathering because there was no commercial use prior to

the ordinance adoption, and the proposed use increases the non-conformity of the

lot in two ways. The alteration of uses is substantial because the lot standards treat

commercial and residential uses differently. See also, Lewis et al. v. Maine Coast

Artists, 2001 ME 75, ¶ 26, 770 A.2d 644, 653 (In the context of a structure, “[a]ny

significant alteration of a nonconforming structure is an extension or expansion.”)

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The Belgrade BOA was correct in determining that the new commercial

proposal was a significant change from a residential to a commercial use, which

made the lot “more non-conforming” from the perspective of the minimum lot size

requirements.

B. The Board of Appeals’ interpretation of Section 12(E)(1) does not lead to an absurd result. Grant argues that Section 12(E)(1) of the Shoreland Zoning Ordinance

allows him to place a commercial use on the property regardless of the dimensional

lot requirements for that commercial use. If the proposed commercial use has

never existed on the lot, this interpretation is inconsistent with the decision in

Nyczepir.

Section 12(E) addresses when a lot can be “built on” when the lot does not

meet current dimensional requirements. It is undisputed that the lot in question has

already been built upon, including the residential structure. If Grant proposed a

new residential structure such as an accessory garage, Section 12(E) would allow

him to do so because the structure would not make the lot more non-conforming

for the use. If Grant had a pre-existing commercial use and wanted to add another

building, Section 12(E) would allow him to do so. Conversely, and more similar to

the present situation, if Grant proposed to build a second house on this same lot, he

could not because the SZO requires 40,000 square feet and 200 feet of frontage

“per dwelling unit.” SZO Section 15(A)(1)(a); A. at 52. The introduction to

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Section 15 describes the table as regulating the “land use activities” rather than the

building of structures. Id. at 52. It would be absurd to suggest that Grant could

continue to build unlimited residential dwelling units in violation of the use

standards, simply because construction is allowed based upon Section 12(E).

The application here is not for building of a structure, but to change the use

of the lot from a single residential structure to a 30-boat marina that also services

boat rentals for water recreation. The change of use directed the BOA to a

different lot size standard in Section 15. The SZO language that prohibits making

a condition “more non-conforming” is entirely consistent with the goal of

eliminating, rather than expanding, non-conformity. In this case, there is no doubt

that the goal of prohibiting a 30-boat marina on a half-acre lot sandwiched between

residences is a reasonable interpretation of the SZO by the BOA.

C. The Board of Appeals’ reference to the MLSO was not in error, and the Shoreland Zoning provisions are virtually identical, so any error was harmless.

The decision of the BOA rests upon the findings that the property at 24

Hulin Road does not meet the minimum lot standards for commercial use in the

Shoreland Zoning Ordinance, 60,000 square feet of land area and 300 feet of

uninterrupted shore frontage. A. at 21, ¶¶ 4-5. These standards, found in Section

15 of the SZO (A. at 52) are the same standards upon which the Planning Board

denied Grant’s application in April 2018.

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The Minimum Lot Size Ordinance was referenced by the BOA because a

Commercial Development Review Ordinance applicant must show compliance

with all applicable ordinances. CDRO, Article 5(xvii). (R. Tab 3, p.19). The

MLSO applies to “all land areas to be used for individual private campsites,

permanent, or temporary commercial purposes” in the Town of Belgrade. MLSO,

Section 3(A); A. at 114. There is “concurrent applicability” of the MLSO and

SZO, although the “land use standards” for the Shoreland Zone, found in the Table

at Section 15 of the SZO, take precedence over other standards if the land is in the

Shoreland Zone. MLSO, Section 3(B); A. at 115. Therefore, the two ordinances

are to be read together for the interpretation of non-conforming lot size applicable

to a proposed new commercial use.

To the extent that Grant argues that the Belgrade Minimum Lot Size

Ordinance should not have been reviewed or referenced, any error in reviewing

that Ordinance for its applicability would be harmless and immaterial. The

Minimum Lot Size Ordinance has a commercial lot size requirement of 60,000

square feet, which is identical to the SZO, and does not address water frontage. A.

at 22, ¶ 12; MLSO, Section 5(D)(1)(a); A. at 123. That land use standard is

consistent between ordinances.

The other references to the Minimum Lot Size Ordinance in the BOA

decision also have virtually identical counterparts in the SZO. As set forth in

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paragraph 10 of the BOA conclusions, MLSO, Section 4(A) states that a non-

conforming lot “may not be changed to any other use for which the lot would be

less conforming under the provisions of this ordinance.” A. at 22, ¶ 10 (emphasis

added). The Shoreland Zoning Ordinance states in the purposes of the non-

conformance section that non-conforming conditions shall be allowed to continue,

but “a non-conforming condition shall not be permitted to become more non-

conforming.” SZO, Section 12(A) (emphasis added). With respect to the interplay

between the ordinances, the BOA correctly concluded that a “change of use from

an undersized residential lot to a more undersized commercial lot would create a

use of the lot that is ‘less conforming,’” which would be in violation of either the

Minimum Lot Size Ordinance or the Shoreland Zoning non-conformity

requirements. A. at 22, ¶ 13; MLSO, Section 4(A); SZO, Section 12(A). These

critical findings are correct under either or both ordinances.

II. The Board of Appeals did not err in determining that the 2018 application represented a new commercial use.

Whether under the original application before the Planning Board for a

combined residential and commercial use, or under the modified application before

the BOA for a strictly commercial use, on the face of the ordinance requirements

the lot at 24 Hulin Road does not meet the land use standards. Therefore, Grant

makes the argument that the commercial use of the lot was already approved. For

the reasons set forth in the following sections, the Planning Board and BOA were

18

appropriately unconvinced that the commercial use at 24 Hulin Road was

addressed in the permit granted in 2008. The Superior Court dispensed with

Appellant’s argument on this point in a footnote. A. at 11-12, n. 5. This Court

should similarly disregard this claim as it is without merit.

A. The 2008 home occupation permit did not apply to lots on both sides of Hulin Road.

Grant argues that the marina was simply part of the 2008 home occupation

permit. As an initial hurdle, which Grant cannot overcome with this argument, the

marina would not qualify as a “home occupation” under the SZO because a home

occupation must be “an occupation or profession” that is tied to the business of the

“family members residing in the home.” Belgrade SZO, Section 17, Definitions,

A. at 101. The residence on 24 Hulin Road is a rental property occupied by an

individual who does not work for the business. The “home occupation” applied for

in 2008 relates to the Grant residence at 21 Hulin Road. The home occupation

cannot apply to both properties. Further, although neither the Planning Board nor

Board of Appeals needed to reach this conclusion, it is difficult to accept that a

marina is “an occupation or profession” or that a marina is “customarily

conducted” from a residence or a residential property. That is why a “marina” has

its own permitting requirements. See, Argument Section II.B. below.

The Grants’ self-serving subjective statements of their intent to operate their

business on both sides of Hulin Road in 2008 are not credible. There is nothing in

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the record to suggest that was their intent in 2008. Moreover, even if they had

unstated plans for the future, there is no objective evidence that the Planning Board

understood this and intended to permit a marina on the water side of Hulin Road in

2008.

In reviewing the face of the application submitted in 2008 it is clear that the

permit application applied only to 21 Hulin Road. When asked for the “specific

location” the applicant wrote “Hulin Rd. (21)” and twice described the property as

Map 26, Lot 58. A. at 159, ¶ 3. In any of these three locations on the application

Grant could have referenced the property at 24 Hulin Road or Lots 33 and 34, but

he did not. Even in the supplement to the application in 2008 when the applicant

could have put all of the necessary information about the nature of the business and

the property being used, at the top of the page the applicant again listed only 21

Hulin Road as the address of the business. A. at 160.

In his brief Grant also references his testimony that Lot 58 was on the

application simply because that was his “mailing address.” Appellant’s Brief at

21. Again, on its face this is inaccurate. Grant used a post office box for his

mailing address as referenced in the 2008 permit application and in the approval

from the Planning Board. A. at 159, ¶ 1; A. at 161.

In paragraph 3 on the application there was a place to identify the applicable

“Lake/Pond/Stream” affected by the proposed use. This space was left blank,

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which further verifies that the applicant intended to do nothing on the water side of

Hulin Road and did not put the Planning Board on notice in 2008 of any need for

water access. Despite Grant’s claims that a commercial marina goes hand in hand

with boat restoration, on the 2008 application, Grant described the use as “(Home

Occupation Boat Repair)”, A. at 159, ¶ 5, and further described the nature of the

business on the attached page as “Boat cleaning, painting and varnishing.” A. at

160. The Planning Board in 2008 permitted a home occupation limited to the

garage on the 21 Hulin Road property. A. at 161. There is nothing in the

application to suggest that the cleaning, painting or varnishing of boats required

they be launched into the stream from a property across the street. Boats can be

brought by trailer for cleaning, painting and varnishing on dry land, or in the

garage on 21 Hulin Road, and returned to the owners the same way.

Nor was there any reference to rental of paddle boards and kayaks, or the

opportunity for customers to dock their boats and leave them in a slip for the

summer for a fee, which is the primary nature of Grant’s current marina business

subject to the 2018 application. R. Tab 9 at 67-68. To further demonstrate that a

marina was not intended as part of the 2008 permit, the name of the business itself

has changed from 2008 to 2018 as the business grew, originally referred to as

Brightside Boat Services, A. at 160, now called Brightside Marina & Wooden Boat

Services. R. Tab 9 at 67, ¶ 1. The marina reference came about well after 2008.

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B. The Town of Belgrade regulates commercial uses generally, and marinas in particular, even if dock construction is not regulated.

Grant argues that the Shoreland Zoning Ordinance in Belgrade does not

regulate the construction of docks that extend below the normal high water line.

But, to the extent the docks attach to property within the shoreland zone, and the

property is used to park, unload, and access the related commercial docks, and rent

and launch boats relating to the commercial use of another property, these uses

certainly can be and are regulated. The purpose of Grant’s 2018 application was

for the “installation of seasonal docks to facilitate boat rentals in connection with a

previously approved Boat Service facility.” R. Tab 9 at 65. In order to access the

seasonal docks the marina required “temporary parking, loading & unloading by

hand of personal items as well as foot passage to the normal high water mark and

docks that would be installed below the normal high water mark.” R. Tab 13 at

109. It is clear from the applicant’s submissions that the unpermitted docks

themselves cannot exist for their commercial marina purpose without access across

24 Hulin Road.

Note that while Grant’s 2018 application to the Planning Board and Board of

Appeals referenced his newly expanded marina business, Appellant’s Brief to this

Court hardly makes and reference to the marina. This is to divert attention from

the fact that large commercial docking systems such as Brightside Marina are

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specifically regulated by the Shoreland Zoning Ordinance, and not the subject of a

home occupation.

Section 14 of the Belgrade SZO contains a table of permitted land uses and

“marinas” are listed as permitted uses in the limited commercial district of the

shoreland zone if they have Planning Board approval. Belgrade SZO, Section 14,

Table 1, ¶ 27; A. at 49. A “marina” is separately defined, the description of which

fits consistently with the nature of Brightside Marina:

Marina – a business establishment having frontage on navigable water and, as its principal use, providing for hire offshore moorings or docking facilities for boats, and which may also provide accessory services such as boat and related sales, boat repair and construction, indoor and outdoor storage of boats and marine equipment, bait and tackle shops and marine fuel service facilities.

SZO, Section 17, Definitions; A. at 103-104 (emphasis added). Clearly, a full

blown marina operation is separate and distinct from the construction of a private

dock. It includes the activity that occurs on land, as well as on the docks. The fact

that a marina is a permitted use means that the Planning Board must review the

application to make sure that the property meets the requirements of the SZO. The

Planning Board did not review the home occupation permit application for a

commercial marina in 2008. The Planning Board and BOA were required to do so

in 2018.

Grant also suggests through his Statement of Issues, Appellant’s Brief at 7,

that he is exempt from permitting for a commercial use by virtue of a “limited

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commercial” exception, without citing any authority in the Belgrade SZO or any

other precedent that would suggest that this exception applies.4 If a “limited”

standard applied, it is not clear how the Planning Board or BOA would determine

this use meets that undefined exception. The expansion of a dock system with 20

boat slips and 10 moorings which generates as many as 15 vehicle trips on a

summer weekend day, would not be de minimis. R. Tab 14 at 135; R. Tab 7 at 14,

¶ 28.

Despite the creative arguments by Grant that income is generated

exclusively on unregulated docks in the water, or from rental activity across the

street at 21 Hulin Road, the docks cannot be accessed by renters, and the canoes,

kayaks and paddle boards that are rented across the street cannot be launched,

without access across and from 24 Hulin Road. It is for that reason that Grant

accurately represented on his CDRO permit application that the commercial use

was “in connection with Brightside Wooden Boat Service.” R. Tab 7 at 11, ¶ 16.

This was an entirely new regulated use of this lot. Grant cannot now argue that

this same use was part and parcel of the 2008 permit for boat cleaning and

refinishing.

4 A “commercial use” is a “use of lands . . . the intent and result of which activity is the production of income,” and as such, that commercial use is regulated within the Town of Belgrade. Belgrade SZO, Section 17; A. at 97.

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CONCLUSION

The property at 24 Hulin Road requires a commercial use permit. A marina

is a change to a commercial use from the rental of a residential building. The

rental of a house is specifically exempt from the definition of a “commercial use.”

SZO, Section 17; A. at 97. A commercial marina is not exempt.

When a use on a grandfathered lot is changed, it must meet the current

commercial lot standards, and must not increase the non-conformity.

Unfortunately for Grant, creating a more intensive commercial use is an increase in

the non-conformity, and therefore it is not permitted here.

Fortunately for Grant, although the lot is substandard for most uses under the

current ordinance, he still has the grandfathered use of the rental home. Because of

that existing use, the decision of the Board of Appeals, which should be upheld by

this Court, correctly preserves that grandfathered use, though it does not permit the

commercial expansion.

Dated at Bangor, Maine this 30th day of July, 2019.

/s/ Michael A. Hodgins Michael A. Hodgins, Bar #7741 mhodgins@eatonpeabody.com EATON PEABODY 80 Exchange Street P.O. Box 1210 Bangor, ME 04402-1210

Attorneys for Appellee Town of Belgrade

25

CERTIFICATE OF SERVICE

I, Michael A. Hodgins, hereby certify that on July 30, 2019 I have caused

two copies of the Brief of Appellee Town of Belgrade to be served upon counsel

for Appellant, by depositing conformed copies thereof in the U. S. Mail, first class

and postage prepaid, to the following address:

Edmond J. Bearor, Esq. Jonathan P. Hunter, Esq. Stephen W. Wagner, Esq. Rudman Winchell 84 Harlow Street, P.O. Box 1401 Bangor, ME 04402-1401 Attorneys for Appellant Shawn A. Grant

/s/ Michael A. Hodgins

Michael A. Hodgins, Bar #7741 mhodgins@eatonpeabody.com EATON PEABODY 80 Exchange Street P.O. Box 1210 Bangor, ME 04402-1210

Attorneys for Appellee Town of Belgrade