MAINE SUPREME JUDICIAL COURT                                    Reporter of Decisions
Decision: 2013 ME 26
Docket:   Cum-12-371
Argued:   January 16, 2013
Decided:  March 5, 2013

Panel:       SAUFLEY, C.J., and ALEXANDER, LEVY, SILVER, MEAD, GORMAN, and
             JABAR, JJ.


                      SUMMERWIND COTTAGE, LLC et al.

                                         v.

                         TOWN OF SCARBOROUGH et al.

JABAR, J.

         [¶1] Summerwind Cottage, LLC and Peter and Libby Cassat appeal from a

judgment entered in the Superior Court (Cumberland County, Mills, J.) affirming

the decision of the Scarborough Zoning Board of Appeals (ZBA) granting a

setback variance to abutting property owners in the Higgins Beach neighborhood

of Scarborough. Summerwind Cottage argues that the Superior Court’s judgment

should be vacated because the ZBA erred in relying on the Official Shoreland

Zoning Map to conclude that the property was in the buildable Shoreland Overlay

District and in concluding that the property met the requirements for a variance.

We affirm the court’s judgment.

                                I. BACKGROUND

         [¶2] Phyllis Scala and her daughter Eralda Adams own a vacant lot in the

Higgins Beach area of Scarborough. The lot was created in 1923 as a part of a
2

subdivision in the area. The Scala family purchased the lot in 1958, before the

zoning ordinances were in place. The family had always planned to build on the

lot and consistently mowed and kept a fence on it. In April 2009, Adams sought a

variance to build a cottage on the lot to move into following her retirement.

      [¶3] The property borders a tidal marsh to the northeast, and is situated

between a cottage on the southern side and another vacant lot on the northwestern

side, both owned by Summerwind Cottage, LLC. Virdap Street borders the lot to

the west, and Peter and Libby Cassat own the land directly across the street. The

lot is a narrow wedge shape measuring 50 feet at the street, 200 feet on its longest

side, and with 107 feet of frontage abutting the marsh. It is larger than many of the

surrounding lots in the neighborhood, and a representative of the Scala family

asserted that if they received a variance, the proposed structure would be set back

at a similar distance from the marsh as the other homes in the area. The provision

in the Shoreland Zoning Ordinance from which Adams sought a variance provided

that any building must be set back from the marsh at least seventy-five feet, which

she sought to reduce to twenty-five feet.

      [¶4]   Summerwind Cottage and the Cassats contested the request for a

variance at the zoning board hearings. The Scarborough ZBA held a hearing on

May 13, 2009, during which it heard arguments and testimony. Two days after the

hearing, the ZBA issued a short statement granting the variance. Summerwind
                                                                                 3

Cottage sought review of the ZBA’s action in the Superior Court pursuant to

Maine Rule of Civil Procedure 80B, but the court remanded the case, instructing

the ZBA to make written findings of fact and conclusions of law. On March 10,

2010, the ZBA held a second hearing without taking additional testimony or

hearing arguments.         The ZBA issued a written decision on April 14, 2010,

concluding that the vacant lot met the undue hardship requirements for a variance

because (1) the lot’s unsuitability for any of the other permitted uses in the zone

meant that it did not have a reasonable return without a variance; (2) the need for

the variance was due to the unique shape of the lot; (3) the proposed cottage is

consistent with the other properties in the neighborhood and will not alter the

essential character of the locality; and (4) the hardship was caused by the

enactment of zoning restrictions after the Scala family purchased the lot, not a

result of their actions.

       [¶5] Summerwind Cottage again sought review in the Superior Court, which

concluded that the ZBA did not err with regard to the undue hardship test, but

remanded for explicit findings that the property complied with the requirements of

the Scarborough Shoreland Zoning Ordinance. On September 14, 2011, the ZBA

held a third hearing where it again approved the variance, concluding that because

the lot was purchased before the Shoreland Zoning Ordinance was in place, it was

“grandfathered” and did not require a variance for the minimum width
4

requirements, and that the remaining provisions either were met or did not apply.

In its third review, the Superior Court affirmed the ZBA’s decision to grant the

variance. Summerwind Cottage and the Cassats filed this timely appeal.

                                        II. DISCUSSION

A.       Zoning Map

         [¶6] Summerwind Cottage contends that the ZBA erred in relying on the

Official Shoreland Zoning Map in determining that the property was in the

buildable Shoreland Overlay District, rather than in a Resource Protection District.

In reviewing a decision by a municipal zoning board of appeals, “[w]e directly

review the operative municipal decision at issue, without deference to the Superior

Court’s ruling on the intermediate appeal.” D’Alessandro v. Town of Harpswell,

2012 ME 89, ¶ 5, 48 A.3d 786. Because the Official Shoreland Zoning Map is part

of Scarborough’s local ordinance, the issue of whether the ZBA erred in relying on

that map’s classification of a particular parcel of land is a matter of interpreting the

ordinance.1 Scarborough, Me. Shoreland Zoning Ordinance § 9(A) (Feb. 6, 2008)

(“The areas to which this Ordinance is applicable are . . . shown on the Official

Zoning Map which is made a part of this Ordinance.” (emphasis added)). “The

     1
      Although the proper method of challenging the validity of the Official Shoreland Zoning Map is
through a declaratory judgment action, see 14 M.R.S. § 5954 (2012); Bog Lake Co. v. Town of Northfield,
2008 ME 37, ¶ 11, 942 A.2d 700, we reach the merits of Summerwind Cottage’s appeal on this issue in
the interests of judicial economy to avoid remand to the Superior Court to amend the complaint and to
address an issue that the court has already heard, see LaBonta v. City of Waterville, 528 A.2d 1262,
1263-64 (Me. 1987).
                                                                                    5

interpretation of a local ordinance is a question of law, and we review that

determination de novo.”      Aydelott v. City of Portland, 2010 ME 25, ¶ 10,

990 A.2d 25 (quotation marks omitted).

      [¶7] Summerwind Cottage contends that the map’s classification of the lot

as within the buildable Shoreland Overlay District was clearly wrong because the

lot itself was not already developed and building on the lot would be detrimental to

the Ordinance’s protective goals. The Scarborough Shoreland Zoning Ordinance

creates four districts in areas adjacent to protected resources: the Resource

Protection District, the Stream Protection District, the Stream Protection 2 District,

and the Shoreland Overlay District.         Scarborough, Me. Shoreland Zoning

Ordinance § 9(A). The Resource Protection District includes all land areas within

250 feet from any wetland “in which developments would adversely affect water

quality, productive habitat, biological ecosystems, or scenic and natural values,”

and “which are rated ‘moderate’ or ‘high’ value by the Maine Department of

Inland Fisheries and Wildlife.” Scarborough, Me. Shoreland Zoning Ordinance

§ 13(A) (Feb. 6, 2008). Building structures and occupying homes are prohibited

activities in the Resource Protection District. Scarborough, Me. Shoreland Zoning

Ordinance § 14 (Feb. 6, 2008).

      [¶8] When “such areas were already developed at the time of mapping,”

however, those areas may be included in the Shoreland Overlay District, even if
6

they are within 250 feet of a protected resource. Scarborough, Me. Shoreland

Zoning Ordinance § 13(A). Land use activities in the Overlay District are subject

to the requirements of both the Shoreland Zoning Ordinance and the Scarborough

Zoning Ordinance, but permitted activities can include building structures and

occupying homes, if permitted by the Scarborough Zoning Ordinance for the zone

in which the property is located. Scarborough, Me. Shoreland Zoning Ordinance

§ 14 & n.1.

      [¶9] It is undisputed that the marsh abutting the land is a protected resource

and that the Official Shoreland Zoning Map places the lot in the Shoreland Overlay

District. Summerwind Cottage argues, however, that because section 10 of the

Ordinance states that the Official Shoreland Zoning Map is “merely illustrative” of

the boundary locations, the map is not entitled to deference by the ZBA or the

court. Scarborough, Me. Shoreland Zoning Ordinance § 10 (Feb. 6, 2008). We

disagree.     Because the Official Shoreland Zoning Map forms a part of the

Shoreland Zoning Ordinance, it is the result of the legislative process by the

Scarborough Town Council. See Scarborough, Me. Shoreland Zoning Ordinance

§ 8-9 (Feb. 6, 2008) (describing Official Shoreland Zoning Map as part of the

Shoreland Ordinance and setting out amendment procedures as requiring “adoption

by the municipal legislative body”). See also F.S. Plummer Co. v. Town of Cape

Elizabeth, 612 A.2d 856, 861 (Me. 1992); Veerman v. Town of China,
                                                                                    7

1994 Me. Super. LEXIS 145, at *3 (“The drawing of zoning map boundary lines is

a legislative, not an administrative function.”). The decision to place the lot in the

Shoreland Overlay District “is entitled to great deference from the courts [and]

[a]ccordingly, . . . we limit [our] review [of a zoning ordinance] to a determination

of whether the ordinance itself is constitutional, and . . . is in basic harmony with

the Town’s comprehensive plan.”        See Bog Lake Co. v. Town of Northfield,

2008 ME 37, ¶ 11, 942 A.2d 700 (quotation marks omitted); 30-A M.R.S.

§ 4314(2) (2012) (providing that portions of shoreland and floodplain zoning

ordinances inconsistent with the municipality’s comprehensive plan have no effect

unless they meet certain statutory exemptions inapplicable to this case). Further,

“[a]llowing zoning administrators to amend boundary lines based on their

individual view . . . would open the door to considerable mischief in municipal

zoning practice.” Veerman, 1994 Me. Super. LEXIS 145, at *4.

      [¶10] Summerwind argues that placing the lot and the surrounding area in

the Shoreland Overlay District is inconsistent with the purposes set out in the

Shoreland Zoning Ordinance itself. Because our review of the town’s legislative

acts is limited to constitutionality and harmony with the town’s comprehensive

plan, Summerwind’s arguments do not raise any issue upon which we can vacate

the ZBA’s interpretation of the ordinance. See Bog Lake Co., 2008 ME 37, ¶ 11,

942 A.2d 700.
8

B.    Variance Requirements

      [¶11] Summerwind Cottage also contends that the ZBA erred in granting

the variance because (1) the property did not meet the minimum lot width

requirement; (2) the need for a variance was due to the general conditions of the

neighborhood, not to the unique conditions of the property; and (3) Scala and

Adams failed to establish that the property cannot yield a reasonable return without

a variance. “The municipality’s decision is reviewed for error of law, abuse of

discretion or findings not supported by substantial evidence in the record.”

Toomey v. Town of Frye Island, 2008 ME 44, ¶ 11, 943 A.2d 563 (quotation marks

omitted). “A court will not substitute its judgment for that of a board.” Id.

Moreover, “local characterizations or fact-findings as to what meets ordinance

standards will be accorded substantial deference.”            Rudolph v. Golick,

2010 ME 106, ¶ 8, 8 A.3d 684 (quotation marks omitted).

      1.     Lot Width

      [¶12] The Shoreland Zoning Ordinance provides that “[t]he minimum width

of any portion of any lot within 100 feet . . . of the . . . upland edge of a wetland

shall be equal to or greater than 100 feet.” Scarborough, Me. Shoreland Zoning

Ordinance § 15(A)(2) (Feb. 6, 2008). The Scalas’ lot measures only fifty feet

wide. Nevertheless, the ordinance provides that
                                                                                                     9

       [a] non-conforming lot of record as of the effective date of this
       Ordinance . . . may be built upon, without the need for a variance,
       provided that such lot is in separate ownership and not contiguous
       with any other lot in the same ownership, and that all provisions of
       this Ordinance except lot size and frontage can be met.

Scarborough, Me. Shoreland Zoning Ordinance § 12(E)(1) (Feb. 6, 2008).2 The

ordinance defines “non-conforming lots” as “[a] single lot of record which, at the

effective date of adoption . . . of this Ordinance, does not meet the area, frontage or

width requirements of the district in which it is located.”                           Scarborough,

Me. Shoreland Zoning Ordinance § 17 (Feb. 6, 2008) (emphasis added).

Therefore, a plain language reading of the Scarborough Shoreland Zoning

Ordinance indicates that non-conforming lots explicitly include those lots that do

not meet “width requirements,” and the ZBA did not err or abuse its discretion in

determining that the lot did not require a variance as to width.

       2.      Unique Circumstances of the Property

       [¶13] The ZBA found that the lot has a unique shape and a viable building

envelope that other lots in the area do not have. Summerwind Cottage argues that

the ZBA erred in concluding that the hardship was due to the unique circumstances

of this lot, however, because the record reveals that the immediately abutting

   2
      The Ordinance was amended in July 2009 to include “lot width” as a specific exception from the
variance requirement in section 12(E)(1). Scarborough, Me. Shoreland Zoning Ordinance § 12(E)(1)
(July 15, 2009). The 2008 ordinance applies to this dispute because this case was pending as of
June 11, 2009. See 1 M.R.S. § 302 (2012). However, the 2009 amendment moves the reference to lot
width from the definitions section of the ordinance in section 16 to section 12 and does not change the
definition of a “non-conforming lot” in the 2008 ordinance.
10

vacant lot would have a viable building envelope of twenty-seven feet by fifteen

feet if the ZBA granted it the same variance. “In general, the unique circumstance

requirement is met when the hardship suffered by the lot owner is not a hardship

that is common with other lots in the neighborhood.” Camp v. Town of Shapleigh,

2008 ME 53, ¶ 11, 943 A.2d 595.

      [¶14] At its second hearing, the ZBA addressed the issue of whether the

neighboring lot would be buildable if it received the same variance and concluded

that it would not be.     The ZBA based its conclusion on its finding that the

twenty-seven by fifteen-foot building envelope that would be created on the

neighboring lot was not a viable size. Further, the ZBA noted that the adjacent lot

was not buildable because “even if you reduce the setback to 25 [feet], now you

have pushed the building envelope to this [adjacent] lot to the street.” Because the

record demonstrates that the surrounding lots in the vicinity either already contain

residential structures or are of insufficient size to be buildable, even if granted the

same variance from the setback requirements, we cannot conclude that the ZBA

erred in finding that the circumstances of the lot requesting a variance are unique.

Greenberg v. DiBiase, 637 A.2d 1177, 1179 (Me. 1994) (concluding that a zoning

appeals board did not err in finding that the need for variance was due to the

unique circumstances of the property because surrounding lots either already

contained residential structures or were large enough to meet the setback
                                                                                11

requirements). Moreover, the ZBA found that the lot’s wedge shape and the

encroachment of the wetlands, which had reduced the lot’s size over time, made

this parcel unique, and Summerwind Cottage does not controvert these findings.

Therefore, the ZBA did not err in concluding that the need for a variance was due

to the unique circumstances of the property, and not the general conditions of the

neighborhood.

       3.    Reasonable Return

       [¶15] Finally, Summerwind Cottage contends that the ZBA erred in finding

that any extended recreational uses on this lot were incompatible with both the

neighborhood and town ordinances and that no other uses were financially or

practically productive. These findings led the ZBA to conclude that there was no

reasonable return without a house on the property. Summerwind Cottage argues

that the substantial evidence in the record does not support the ZBA’s finding, and

that the ZBA erred as a matter of law in failing to consider recreation as a viable

use.

       [¶16] Summerwind Cottage argues that because the Scala family owns a

cottage in the same neighborhood, this lot could provide a reasonable return

through recreational use by providing access to the marsh, without the need for a

variance. We have previously noted that “[r]easonable return is not maximum

return,” Curtis v. Main, 482 A.2d 1253, 1257 (Me. 1984), and “[t]he reasonable
12

return prong of the undue hardship test is met where strict application of the zoning

ordinance would result in the practical loss of all beneficial use of the land.”

Toomey, 2008 ME 44, ¶ 15, 943 A.2d 563 (quotation marks omitted). However,

“[e]conomic proof that no reasonable return is possible is not required.” Id.

      [¶17] Summerwind Cottage bases the contention that recreational use is a

reasonable return on our analysis in Toomey v. Town of Frye Island. 2008 ME 44,

¶¶ 16-18, 943 A.2d 563. In Toomey, the landowner sought a variance for a vacant,

shorefront lot on Frye Island that was some distance away from another inland lot.

Id. ¶¶ 2-4. In affirming the ZBA’s decision to deny the variance, we noted, “A

waterfront lot is a significant benefit to a property owner who owns an inland lot,”

given the potential for recreational use. Id. ¶ 18. The ZBA in this case considered

the potential recreational use suggested in Toomey, but found that such use was not

viable for the Scalas’ lot, which borders a marsh, rather than open water.

      [¶18] The ZBA found that “the only uses available to the property without a

variance are non-productive uses.”     These findings are supported both by the

testimony of David Grysk, the Zoning Administrator for Scarborough, who stated

that there are local restrictions on camping and by Phyllis Scala’s testimony that

her family was not using the property recreationally. On appeal, “in reviewing

zoning board action, [we are] not free to make findings of fact independent of

those explicitly or implicitly found by the municipal zoning authority.” Driscoll v.
                                                                                   13

Gheewalla, 441 A.2d 1023, 1026 (Me. 1982).              Rather, we are “limited to

determining whether from the evidence of record facts could reasonably have been

found by the zoning body to justify its decision.” Id. The evidence of record facts

presented here is sufficient to support the ZBA’s decision finding that without a

variance the property is not suitable for any of the permitted uses in the zone.

      [¶19] Summerwind Cottage also challenges the ZBA’s finding that a sale to

a neighbor would be “forced and would not be at fair market value,” and therefore

would not be a reasonable return. We have held that the possibility that property

might be sold to a neighbor is not sufficient on its own to allow the ZBA to find a

reasonable return.    Marchi v. Town of Scarborough, 511 A.2d 1071, 1073

(Me. 1986). In addressing this issue in Marchi, we concluded, “A variance to

permit development of a substandard parcel may not be denied solely on the

ground that the applicant had an offer of purchase. A landowner has the right to

develop his land; he is not required to sell it.” Id. (quotation marks omitted).

Further, there may be room for abutting landowners who oppose the variance

request to abuse the variance process if they are able to defeat a neighbor’s request

for a variance simply by offering to purchase the land and citing that offer as

grounds to deny the variance, regardless of whether the offer is genuine.

Therefore, the ZBA did not err in failing to take into account evidence of a
14

potential price offered for the land or in finding that the sale to a neighbor was not

a reasonable return.

        [¶20] Because the zoning map is a legislative act by the Scarborough Town

Council and entitled to our deference, and there is substantial evidence in the

record to support the ZBA’s decision to grant the variance, we affirm the Superior

Court’s judgment.

        The entry is:

                           Judgment affirmed.


On the briefs:

        Andrew W. Sparks, Esq., and Nathaniel R. Huckel-Bauer, Esq., Drummond &
        Drummond, LLP, Portland, for appellants Peter Cassat, Libby Cassat, and
        Summerwind Cottage, LLC

        Shana Cook Mueller, Esq., Bernstein Shur Sawyer & Nelson, Portland, for
        appellee Town of Scarborough

        Jeffrey W. Jones, Esq., Jones & Warren, P.A., Scarborough, for appellees
        Phyllis E. Scala and Eralda Adams

At oral argument:

        Nathaniel R. Huckel-Bauer, Esq., for appellants Peter Cassat, Libby Cassat, and
        Summerwind Cottage, LLC

        Shana Cook Mueller, Esq., for appellee Town of Scarborough

        Jeffrey W. Jones, Esq., for appellees Phyllis E. Scala and Eralda Adams

Cumberland County Superior Court docket numbers AP-09-20, AP-09-21
FOR CLERK REFERENCE ONLY
