Posted by: Patricia Salkin | February 5, 2014

ME Supreme Court Finds Lease for Cell Tower Does Not Create a New Lot for Purposes of Triggering Subdivision Law

Shellie and Robert Symonds (“Symonds”) granted AT&T, by lease, the right to use a portion of their property in the Town of Casco (“Casco”), Maine to build a wireless communications tower. AT&T submitted an application to the Planning Board seeking approval to do so. The Planning Board approved the application. William Horton (“Horton”) appealed the decision to the Zoning Board of Appeals (“ZBA”). Horton argued that (1) the lease violated both local and state subdivision regulations; (2) the lease violated the minimum lot size requirements of the Town of Casco Zoning Ordinance (“Zoning Ordinance”); and (3) the Planning Board failed to adequately address a shared right-of-way to access the leased land and other concerns. The ZBA affirmed the decision and concluded that (1) it had no jurisdiction to hear the subdivision arguments; (2) there was no violation of the Zoning Ordinance; and (3) the board did not err in reviewing the right-of-way or other concerns.

Horton appealed to the Superior Court. In addition to the previous arguments, Horton argued that the Zoning Ordinance did not allow for the development of cell towers in a residential zone and renewed his contention that the proposed tower setback violates the ordinance. The court affirmed the ZBA’s decision, concluding that the lease agreement did not create a new and separate lot, accepting AT&T’s argument that a legal interest was transferred but that no land was split off.

On appeal, Horton argued that both statute and case law required the court to find that the lease created a new lot, and that AT&T’s application violated the Zoning Ordinance. In support of his argument, he urged the court to use language from a subdivision regulation statute that allowed new lots to be created by lease, as a guide for determining when a new lot is created. However, the subdivision regulation did not apply to the operative terms of the Zoning Ordinance. Further, a determination that the lease does or does not create a new lot would have resolved only the question of whether AT&T’s application violated the Zoning Ordinance. The Zoning Ordinance required all lots in residential zones to meet a minimum lot size. Here, the area did not meet the requirement, if the lease did create a new lot, AT&T’s application did not conform to the Zoning Ordinance.

The court explained that a lease may be used to create a new lot. However, a lease is capable of transferring a broad range of legal interests, and it is the nature of the transferred interests that determines whether a new lot is created. The court used two cases to illustrate. In the Town of Arundel v. Swain, the court held that the right to use campsites for a limited period of time did not create new lots. Instead, the interest in the campsites was “akin to the renting or occupying of space in an exhibition hall, a parking lot, or a drive-in theater.” When the interest transferred is more permanent, the court has held that the transfer does create a new lot. For example, in Planning Bd. of Town of Naples v. Michaud, the court determined that a developer’s sale of timeshares in spaces to park recreational vehicles was distinguishable from the temporally limited interests in Swain, and concluded that the conveyance of an “indefinite fee interest in a unique and identifiable parcel of land,” did create a new lot.

Here, AT&T did not have exclusive rights to the leased property, nor was its interest conveyed in a fee, or recorded in a deed or other public record. Instead, AT&T had the right to use and occupy a certain space for a period of time, and for the specific and limited purpose of building a wireless communications tower. This legal interest, which resembled a license, was not sufficient to create a new lot under the Zoning Ordinance, which defined a lot as a parcel of land having distinct and defined boundaries and described in a deed, plan or similar legal document. Therefore, the relevant dimensions for the purposes of the Zoning Ordinance were those of the Symondses’ property, which satisfied the lot size requirements.

Further, the Zoning Ordinance required “the center of the tower base to be set back from the property line by a distance of at least 100% percent of the total tower height.” To decide whether this was satisfied, the court had to determine whether the term “property line,” from which the setback is measured, refers to the property line described in the application or the boundary of the leased area. Because the height of AT&T’s proposed tower was 150 feet, if the borders of the leased area were considered the property lines instead of the borders of the Symondses’ lot, AT&T’s application would be in violation of the Zoning Ordinance. AT&T’s application consistently referenced the Symondses’ property as the property where the proposed tower would be built. The Symondses were listed as the owners on the application, their warranty deed was included as evidence of right or title to the proposed building site, and the proposal site plan showed their property lines clearly delineated as the benchmark from which the one-hundred-percent setback was measured. The issue is not the size of the area subject to a lease with the owner, but rather the entirety of the owner’s property upon which the tower is located.

Because the court concluded that the lease did not create a new lot and that the setback requirements of the Zoning Ordinance had been satisfied, it affirmed the judgment.

Horton v. Town of Casco, 2013 WL 6685140 (ME. 12/19/2013)

The opinion may be accessed at:

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