MAINE	SUPREME	JUDICIAL	COURT	                                       Reporter	of	Decisions	
Decision:	 2017	ME	16		
Docket:	   Cum-16-28	
Argued:		  September	15,	2016	
Decided:	  January	26,	2017	
	
Panel:	    SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD,	GORMAN,	JABAR,	and	HJELM,	JJ.	
	
	
                                ESTATE	OF	MERRILL	P.	ROBBINS	
                                              	
                                             v.	
                                              	
                                 TOWN	OF	CUMBERLAND	et	al.	
	
	
JABAR,	J.	

         [¶1]	 	 The	 Estate	 of	 Merrill	 P.	 Robbins	 appeals	 from	 a	 judgment	 of	 the	

Superior	 Court	 (Cumberland	 County,	 Mills,	 J.)	 affirming	 the	 Town	 of	

Cumberland	Board	of	Adjustment	and	Appeals’	determination	that	the	Town’s	

proposed	development	is	permitted	within	the	Low	Density	Residential	district	

as	a	“municipal	use.”1		Because	the	plain	language	of	the	Cumberland	Zoning	

Ordinance	supports	the	Board’s	interpretation,	we	affirm.		




    1	 	 We	 agree	 with	 the	 Superior	 Court’s	 assessment	 that	 the	 operative	 decision	 from	 which	 this	

appeal	arises	is	the	Board	of	Adjustment	and	Appeals’	decision	because	the	Board	acted	“as	both	fact	
finder	and	decision	maker.”		Peregrine	Developers,	LLC	v.	Town	of	Orono,	2004	ME	95,	¶	9,	854	A.2d	
216.		(quotation	marks	omitted).			
2	

                                 I.		BACKGROUND	

      [¶2]	 	 In	 2014,	 the	 Town	 of	 Cumberland	 purchased	 property	 located	 in	

Cumberland	known	as	the	Broad	Cove	Reserve.		The	property	is	located	in	the	

Low	Density	Residential	district	(LDR	zone).		In	the	spring	of	2015,	the	Town	

submitted	 to	 the	 Cumberland	 Planning	 Board	 an	 application	 for	 site	 plan	

review	 for	 a	 proposed	 development	 involving	 the	 Broad	 Cove	 Reserve	

property.	 	 In	 its	 application,	 the	 Town	 stated	 that	 the	 purpose	 of	 the	

development	 was	 “to	 provide	 low-impact	 passive	 recreation	 along	 the	 Casco	

Bay	 shoreline	 for	 the	 residents	 of	 Cumberland.”	 	 Specifically,	 the	 Town	

endeavored	to	create	public	access	walking	trails,	construct	a	parking	lot,	and	

relocate	an	existing	bathhouse.		

      [¶3]		On	July	16,	2015,	the	Cumberland	Code	Enforcement	Officer	(CEO)	

determined	that	the	Town’s	proposed	use	was	permitted	in	the	LDR	zone	as	a	

“municipal	 use,”	 a	 designation	 defined	 in	 the	 ordinance.	 	 Cumberland,	 Me.,	

Zoning	Ordinance	§	315-4	(Mar.	26,	2012).		The	CEO	submitted	his	comments	

to	 the	 Planning	 Board,	 and	 after	 a	 public	 hearing,	 the	 Board	 approved	 the	

Town’s	 application.	 	 The	 Estate,	 which	 owns	 land	 abutting	 the	 Broad	 Cove	

Reserve	property,	subsequently	appealed	the	CEO’s	decision,	arguing	that	the	

Town’s	 development	 constituted	 an	 “outdoor	 recreational	 facility,”	 and	 was	
                                                                                        3	

thus	prohibited	in	the	LDR	zone	under	the	terms	of	the	ordinance.		The	Board	

of	 Adjustment	 and	 Appeals	 agreed	 with	 the	 CEO’s	 interpretation	 and	

determined	that	the	Town’s	proposed	facility	was	permissible	within	the	LDR	

zone	as	a	“municipal	use.”		The	Estate	subsequently	appealed	to	the	Superior	

Court,	 and	 the	 court	 affirmed,	 concluding	 that	 the	 plain	 language	 of	 the	

ordinance	supported	the	Board	of	Adjustment	and	Appeals’	determination	that	

the	Town’s	proposed	use	of	the	Broad	Cove	Reserve	property	was	a	“municipal	

use,”	and	was	thus	permissible	within	the	LDR	zone.		The	Estate	appeals.		

                                   II.		DISCUSSION	

A.	   Standard	of	Review	

	     [¶4]		On	appeal,	the	parties	do	not	dispute	the	description	or	the	physical	

characteristics	of	the	Town’s	proposed	facility,	nor	do	they	contest	its	proper	

characterization	 under	 the	 ordinance	 as	 an	 “outdoor	 recreational	 facility.”		

Rather,	 they	 offer	 competing	 interpretations	 of	 the	 zoning	 ordinance,	

specifically	with	regard	to	how	it	is	applied	to	the	Town’s	proposed	facility.		The	

interpretation	 of	 a	 zoning	 ordinance	 is	 a	 question	 of	 law,	 and	 we	 review	 the	

relevant	 portions	 of	 the	 Town	 of	 Cumberland	 Zoning	 Ordinance	 de	 novo.		

Kittery	Retail	Ventures,	LLC	v.	Town	of	Kittery,	2004	ME	65,	¶	10,	856	A.2d	1183.			
4	

B.	    The	Town	of	Cumberland	Zoning	Ordinance	

	      [¶5]		The	Estate	argues	that	because	the	Town’s	proposed	facility	may	be	

characterized	as	either	a	“municipal	use”	or	an	“outdoor	recreational	facility,”	

and	 because	 a	 “municipal	 use,”	 but	 not	 an	 “outdoor	 recreational	 facility,”	 is	

permitted	 in	 the	 LDR	 zone,	 the	 relevant	 provisions	 of	 the	 ordinance	 are	 in	

conflict.	 	 Further,	 the	 Estate	 argues	 that	 because	 of	 this	asserted	 conflict,	 we	

must	 look	 beyond	 the	 plain	 language	 of	 the	 ordinance	 to	 interpret	 the	

conflicting	provisions.		And	because	the	provisions	here	cannot	be	harmonized,	

the	 Estate	 argues,	 we	 must	 conclude	 that	 the	 Town’s	 facility	 is	 an	 “outdoor	

recreational	facility,”	and	is	thus	prohibited	in	the	LDR	zone.		

	      [¶6]	 	 The	 Town,	 on	 the	 other	 hand,	 contends	 that	 the	 language	 of	 the	

ordinance	is	clear	and	unambiguous,	and	that	we	need	not	look	past	the	text	of	

the	 ordinance	 itself	 to	 interpret	 the	 relevant	 provisions.	 	 Alternatively,	 the	

Town	argues,	if	the	provisions	here	are	in	conflict,	they	may	be	harmonized	in	

a	way	that	permits	the	Town’s	proposed	development.			

	      [¶7]		We	interpret	the	Town	of	Cumberland	Zoning	Ordinance	de	novo	

and	“look	first	to	the	plain	meaning	of	the	terms	of	the	ordinance	to	give	effect	

to	the	legislative	intent.”		Lane	Constr.	Corp.	v.	Town	of	Washington,	2007	ME	31,	

¶	7,	916	A.2d	973.		“[I]f	the	meaning	of	the	.	.	.	ordinance	is	clear,	we	need	not	
                                                                                    5	

look	beyond	the	words	themselves.”		Wister	v.	Town	of	Mt.	Desert,	2009	ME	66,	

¶	17,	974	A.2d	903.		

	     [¶8]	 	 The	 Town	 of	 Cumberland	 Zoning	 Ordinance	 defines	 a	 “municipal	

use”	 as	 “[a]ny	 use	 or	 building	 maintained	 by	 the	 Town	 of	 Cumberland.”	

Cumberland,	 Me.,	 Zoning	 Ordinance	 §	 315-4	 (Mar.	 26,	 2012).	 	 It	 defines	 an	

“outdoor	recreational	facility,”	in	pertinent	part,	as	

        [a]	 place	 designed	 and	 equipped	 primarily	 for	 the	 conduct	 of	
        nonmotorized	 outdoor	 sports,	 leisure-time	 activities,	 and	 other	
        customary	 and	 usual	 recreational	 activities,	 excluding	 boat	
        launching	facilities,	amusement	parks,	and	campgrounds.		
               	
Id.	 	 “Municipal	 uses”	 are	 permitted	 within	 the	 LDR	 zone,	 whereas	 “outdoor	

recreational	facilities”	are	not.		Id.	§	315-7.		

	     [¶9]		The	language	of	the	ordinance	is	clear	and	unambiguous.		It	provides	

that	“any	use”	by	the	Town	of	Cumberland	qualifies	as	a	“municipal	use,”	and	

that	these	uses	are	permitted	in	the	LDR	zone.		Id.	§§	315-4,	315-7.		There	are	

no	carveouts	or	exceptions,	though	some	uses	that	are	“municipal”	are	defined	

elsewhere	in	the	ordinance.		The	Estate’s	argument,	if	accepted,	would	have	us	

interpret	 the	 ordinance	 as	 limiting	 permissible	 “municipal	 uses”	 in	 the	 LDR	

zone	to	only	those	uses	that	are	otherwise	explicitly	permitted	within	the	zone.		

Such	an	interpretation	would	not	only	require	us	to	read	additional	language	
6	

into	the	provision,	it	would	also	have	the	effect	of	limiting	the	Town’s	ability	to	

operate	municipal	facilities	throughout	the	Town’s	various	zones.	

	        [¶10]		Because	the	meaning	of	“municipal	use”	as	used	in	the	ordinance	

is	unambiguous,	we	affirm	the	court’s	judgment	that	in	turn	affirmed	the	Board	

of	 Adjustment	 and	 Appeals’	 decision	 allowing	 the	 Town’s	 proposed	 facility	

within	the	LDR	zone.2		

         The	entry	is:	

                            Judgment	affirmed.		
	
	     	      	     	     	      	
	
Scott	D.	Anderson,	Esq.	(orally),	and	Juliet	T.	Browne,	Esq.,	Verrill	Dana,	LLP,	
Portland,	for	appellant	Estate	of	Merrill	P.	Robbins	
	
Natalie	L.	Burns,	Esq.	(orally)	and	Alyssa	C.	Tibbetts,	Esq.,	Jensen	Baird	
Gardner	&	Henry,	Portland,	for	appellee	Town	of	Cumberland	
	
	
	
Cumberland	County	Superior	Court	docket	number	AP-2015-35	
FOR	CLERK	REFERENCE	ONLY	
	




     2		Because	we	conclude	that	the	language	of	the	ordinance	is	clear	and	unambiguous,	we	do	not	

reach	the	Estate’s	argument	regarding	harmonization	of	the	provisions.			
