Darya I. Zappia v. Town of Old Orchard Beach

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2022 ME 15
Docket: Yor-21-201
Submitted
On Briefs: January 26, 2022
Decided: March 1, 2022

Panel: MEAD, JABAR, HORTON, and CONNORS, JJ.

DARYA I. ZAPPIA

v.

TOWN OF OLD ORCHARD BEACH

HORTON, J.

[¶1] Darya I. Zappia appeals from an order entered by the Superior Court

(York County, Mills, A.R.J.) affirming the Town of Old Orchard Beach’s decision

to deny Zappia’s application to build a greenhouse in the front yard of her

residential property. The Town’s Zoning Board of Appeals interpreted a

particular provision of the Town’s Zoning Ordinance to prohibit Zappia from

building the greenhouse anywhere in the front yard of her property. See Old

Orchard Beach, Me., Code § 78-1381(a) (Aug. 3, 2021). We agree with Zappia’s

contention that the provision does not prevent her from building a greenhouse

in her front yard, provided that the Ordinance’s setback requirement is

satisfied. Id. We therefore vacate and remand for the Superior Court to remand

this matter to the Board for proceedings consistent with this opinion.
2

I. BACKGROUND

[¶2] The Town of Old Orchard Beach Zoning Ordinance establishes

zoning districts and prescribes various height, width, setback and other

requirements for principal and accessory structures in each district. See Old

Orchard Beach, Me., Code §§ 78-456 to 78-1229 (Aug. 3, 2021). In one district,

separate setback requirements are defined for principal structures and for

accessory structures, id. § 78-805, but in most districts, a single setback

requirement applies to “all structures,” see, e.g., id. § 78-579, a phrase not

defined in the Ordinance but one that in context plainly includes both principal

structures and accessory structures.

[¶3] Zappia owns a lot on Portland Avenue in Old Orchard Beach,

occupied by a house and a separate barn. The property is located within the

Rural District as defined by the Ordinance. The Ordinance’s space and bulk

regulations for the Rural District require “a minimum front yard setback” of

fifty feet for “all structures.” Id. § 78-964. Zappia filed with the Town an

application for a building permit, seeking permission to build a

thirty-by-thirty-six-foot noncommercial greenhouse in the area between her

barn and the public road. The Ordinance classifies her proposed greenhouse as

an “accessory structure.” See id. § 78-1. With her application she filed a lot
3

survey and a sketch of the proposed greenhouse showing that the entire

structure would be outside the fifty-foot front yard setback.

[¶4] Based on an Ordinance provision applicable to all districts stating

that “[n]o garage, swimming pool or other accessory building shall be located

in a required front yard,” id. § 78-1381(a), the Town’s Code Enforcement Officer

(CEO) denied the application because, according to the CEO, “an accessory

structure cannot be located in the front yard.” Zappia appealed the denial to

the Town’s Zoning Board of Appeals. The Board upheld the denial based on the

same Ordinance provision, concluding that it prohibits accessory structures

anywhere in Zappia’s front yard.1 Zappia appealed to the Superior Court

(Mills, A.R.J.), which affirmed the Board’s decision. This appeal followed.

See 14 M.R.S. § 1851 (2021); M.R. App. P. 2B(c)(1).

II. DISCUSSION

A. Standard of Review and Operative Decision

[¶5] When the Superior Court has acted in its intermediate appellate

capacity to adjudicate an appeal from a municipal zoning board decision, we

review the operative decision of the municipality directly. Hill v. Town of Wells,

That decision occurred after Zappia’s first appeal, in which the Superior Court (O’Neil, J.)
1

remanded the matter to the Board for a de novo hearing in compliance with 30-A M.R.S. § 2691(3)
(2021), but those proceedings are not germane to Zappia’s appeal here.
4

2021 ME 38, ¶ 8, 254 A.3d 1161. When a municipal ordinance provides for a

board of appeals to review a CEO’s decision, the board’s review is

presumptively de novo and the board’s decision is the operative decision for

purposes of our review unless the ordinance explicitly provides for appellate

review. LaMarre v. Town of China, 2021 ME 45, ¶¶ 4-5, 259 A.3d 764. When

the ordinance explicitly calls for the board’s review to be appellate, the

operative decision is that of the CEO. See id. ¶ 5.

[¶6] The Town of Old Orchard Beach Zoning Ordinance provides, in

pertinent part:

The board of appeals shall have the power and duty to hear and
decide appeals where it is alleged there is an error in any order,
decision or determination made by the [CEO] in writing. The board
may affirm or reverse in whole or in part or may modify the [CEO’s]
order, decision or determination.

§ 78-92.

[¶7] We have decided that a zoning ordinance contains a sufficiently

explicit provision for appellate review when the ordinance limits the board of

appeals’ review to determining whether the CEO’s decision was erroneous as a

matter of law or was not supported by substantial evidence in the record,

thereby implicitly precluding the board from taking additional evidence or
5

adopting its own findings of fact. See LaMarre, 2021 ME 45, ¶ 5, 259 A.3d 764;

Gensheimer v. Town of Phippsburg, 2005 ME 22, ¶ 11, 868 A.2d 161.

[¶8] Here, the Ordinance grants the Board broad authority to affirm,

reverse, or modify the CEO’s decision without limiting the review to the

evidence and the record before the CEO. § 78-92. We conclude that the

Ordinance provides for the Board to conduct de novo review of the CEO’s

decisions and that therefore the operative decision for purposes of our review

is that of the Board.

[¶9] In reviewing municipal zoning board decisions, we defer to the

judgment of the municipal board on questions of fact. See Jordan v. City of

Ellsworth, 2003 ME 82, ¶ 8, 828 A.2d 768. However, “[t]he interpretation of a

local ordinance is a question of law, and we review that determination de novo.”

Gensheimer, 2005 ME 22, ¶ 16, 868 A.2d 161; see also Isis Dev., LLC v. Town of

Wells, 2003 ME 149, ¶ 3 n.4, 836 A.2d 1285.

B. The Ordinance Provisions Applicable to Zappia’s Front Yard

[¶10] “The meaning of terms or expressions in zoning ordinances is a

question of statutory construction . . . .” LaPointe v. City of Saco, 419 A.2d 1013,

1015 (Me. 1980). When a term in an ordinance is “ambiguous or uncertain, the

court’s construction of that term should be guided by the context in which the
6

term appears” and the ordinance should be considered “as a whole.” Id. “All

words in [an ordinance] are to be given meaning, and none are to be treated as

surplusage if they can be reasonably construed.” Cobb v. Bd. of Counseling Pros.

Licensure, 2006 ME 48, ¶ 11, 896 A.2d 271. “While undefined terms should be

given their common and generally accepted meanings unless the context

requires otherwise, terms which control and limit the use of real estate must be

given a strict construction.” LaPointe, 419 A.2d at 1015.

[¶11] Zappia contends that the Ordinance provision on which the

Board’s denial relies—“No garage, swimming pool or other accessory building

shall be located in a required front yard,” § 78-1381(a)—means only that her

proposed greenhouse cannot be located within the portion of the front yard

required to meet the fifty-foot front yard setback for “all structures” in the Rural

District, not that it cannot be located in her front yard at all.

[¶12] In rejecting Zappia’s interpretation, the Board adopted a

six-paragraph set of “conclusions of law,” including the following:

The [Board] declines to adopt [Zappia’s] interpretation that the
term “front yard” means “front yard setback,” for three reasons.
First, the Zoning Ordinance already restricts accessory structures
from being located in the 50-foot setback area, see Section 78-964,
rendering Section 78-1381(a) unnecessary under [Zappia’s]
interpretation. Second, [Zappia’s] interpretation would require the
[Board] to read additional terms into the Zoning Ordinance, which
is not permitted. The [Board] notes that elsewhere in the Zoning
7

Ordinance, the term “front yard setback” is used; therefore, the
Town Council—as the legislative body of the Town of Old Orchard
Beach—could have used the term “front yard setback” in Section
78-1381(a), but elected not to. Also, the exceptions contained
within Section 78-1381(c) and (d) make reference [to] setbacks,
while Section 78-1381(a) does not.2 Therefore, viewed in the
context of the Zoning Ordinance, it appears that the legislative
intent was to limit accessory structures in the entire “front yard,”
not just the area of the “front yard setback.” Third, the [Board]
lacks the authority to second-guess the legislative determination of
the Town Council or to amend the Zoning Ordinance. If any
amendment to the provision is desired, it must happen through the
Town Council in accordance with Section 78-31 of the Zoning
Ordinance.

Of the three reasons given, we agree with only the third.

[¶13] In attempting to justify its interpretation of “required front yard”

to mean a property’s entire front yard, the Board pointed out that “the Zoning

Ordinance already restricts accessory structures from being located in the

50-foot setback area” and that “elsewhere in the Zoning Ordinance, the term

‘front yard setback’ is used.” However, this interpretation is not persuasive

when the Ordinance is read as a whole. See LaPointe, 419 A.2d at 1015.

[¶14] The Ordinance provision that perhaps most clearly refutes the

Board’s interpretation appears in section 78-805, which contains the space and

bulk requirements for General Business District 1, one of the zoning districts

2Subsections (c) and (d) of section 78-1381 relate to side and rear yard setbacks for storage sheds
and “membrane-covered frame structures.” They have nothing to do with front yard setbacks.
8

defined in the Ordinance. The front yard setback provision for accessory

structures reads “Not permitted.” § 78-805. The provision is significant for

three different reasons.

[¶15] First, it shows that the drafters of the Ordinance knew how to

prohibit an accessory structure from being anywhere in a property’s front yard.

That no similar provision appears in the space and bulk regulations for any of

the other districts, most of which contain front yard setback distances that

apply to “all structures,” establishes that the drafters intended to prohibit

accessory structures only within front yard setbacks in the other zoning

districts and to prohibit them anywhere in the front yards of properties in

General Business District 1. See id. §§ 78-489 to 78-1136.

[¶16] Second, the provision undermines the Board’s contention that

Zappia’s interpretation would render section 78-1381(a) surplusage and

unnecessary. The Board’s interpretation is subject to the same criticism. If

section 78-1381(a) means that an accessory building is prohibited anywhere in

a property’s front yard, then section 78-805, the provision prohibiting an

accessory structure anywhere in a front yard within General Business

District 1, becomes surplusage and unnecessary.
9

[¶17] Third, that accessory structures are prohibited anywhere in the

front yard of General Business District 1 properties contradicts the Board’s

contention that the drafters of the Ordinance “could have used the term ‘front

yard setback’ in Section 78-1381(a)[] but elected not to.” The drafters could

not in fact have used “front yard setback” in section 78-1381(a) in lieu of

“required front yard” because they then would have been ignoring that there is

no front yard setback for accessory structures in General Business District 1.

Id. § 78-805.

[¶18] The inclusion of “required” in the phrase “required front yard”

serves an evident purpose—to cross-reference the Ordinance’s space and bulk

regulations, which define what is “required” for a property’s front yard by

establishing front yard setbacks. See, e.g., id. §§ 78-489, 78-835. Under the

Board’s interpretation, the word “required” would become mere surplusage

because section 78-1381(a) would prohibit an accessory structure anywhere

in a property’s front yard.

[¶19] The interpretation of section 78-1381(a) that is completely

consistent with all other provisions of the Ordinance, and with the Ordinance

as a whole, is that the phrase “required front yard” refers to the portion of the

front yard that is required to be free of accessory structures under the
10

applicable space and bulk regulations for the zoning district within which the

property is located. See LaPointe, 419 A.2d at 1015. Thus, as to properties

within General Business District 1, “required front yard” means the entire front

yard; as to properties in the Rural District and the other zoning districts,

“required front yard” means the portion of the front yard within that zoning

district’s defined front yard setback for accessory structures. See §§ 78-805,

78-964. This reading of the Ordinance comports with our canons of statutory

construction and prevents any words or provisions from being treated as

surplusage. See Cobb, 2006 ME 48, ¶ 11, 896 A.2d 271.

[¶20] Even if the meaning of the undefined term “required front yard”

were deemed to be ambiguous, a basic principle of construction of zoning

regulations calls for strict construction of provisions that restrict the use of

property. See LaPointe, 419 A.2d at 1015. The Board’s decision quoted

LaPointe, but by interpreting “required front yard” in a manner that

significantly restricts Zappia’s and other residents’ use of their properties, it did

not follow LaPointe’s guidance.

The entry is:

Judgment vacated. Remanded to the Superior
Court for remand to the Town of Old Orchard
Beach Zoning Board of Appeals for proceedings
consistent with this opinion.
11

David A. Goldman, Esq., Norman, Hanson & DeTroy, LLC, Portland, for appellant
Darya I. Zappia

Zachary B. Brandwein, Esq., Bernstein Shur, Portland, for appellee Town of Old
Orchard Beach

York County Superior Court docket number AP-2020-10
FOR CLERK REFERENCE ONLY