Posted by: Patricia Salkin | December 29, 2019

ME Supreme Court Upholds Denial of Seasonal Dock and Boat Rental Business Applications Finding it was not an Extension of a Home Occupation

This post was authored by Matthew Loeser, Esq.

In 2008, the Town’s Planning Board approved Grant’s application for a home occupation permit to conduct boat cleaning, painting and varnishing for his new business, Brightside Boat Services. In 2018, Grant submitted applications to the Planning Board for a seasonal dock and boat rental business at his adjoining property, 24 Hulin Road, under the Commercial Development Review Ordinance (“CDRO”) and the Shoreland Zoning Ordinance (“SZO”). The Planning Board denied both applications, and held the property failed to meet the minimum lot standards provided in Section 15(A) of the SZO. Grant filed an appeal with the BOA, which affirmed, finding the property failed to meet the square footage and shore frontage requirements found in the SZO and Minimum Lot Size Ordinance (“MLSO”). Grant appealed the BOA’s decision to the Superior Court, which affirmed the BOA’s decision.

On appeal, Grant contended that his use of 24 Hulin Road was not a new commercial use since his 2008 home occupation permit applied to both 21 and 24 Hulin Road. Specifically, Grant argued the permit applied to both properties because he wrote “1.6 Acres” under “Total lot area” on the home occupation permit application, which was the total area of his three lots combined. Despite this, the permit application only identified “Hulin Rd. (21)” under “Specific location of property,” and Grant left blank the space after “Name of Lake/Pond/Stream.” As such, the scope of the permit was limited to the property at 21 Hulin Road. The 2008 home occupation permit for “Brightside Boat Services” listed under business type simply “Boat cleaning, painting and varnishing.” Accordingly, the court held the BOA did not err when it found that Grant’s 2008 home occupation permit did not extend to include his present activities at 24 Hulin Road.

Grant next argued that the Town lacked the authority to regulate docks. The court found, however, that the Town’s decision to omit the dock provisions did not equate to an intent to de-regulate commercial use related to docks. Here, the SZO maintained the definition for “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.” While the BOA did not make a finding categorizing Grant’s activity as a marina, the court found this finding was not necessary for the BOA to reasonably determine that Grant’s activity should be regulated as a commercial use. The record reflected that even without considering the commercial activity on the docks themselves, Grant admitted that his use of 24 Hulin Road included at least “foot traffic and the loading and unloading of boats and gear.” Furthermore, customers rented paddle boards and kayaks from 21 Hulin Road and travelled to 24 Hulin Road to launch them. Thus, the BOA’s determination that it had the authority to classify Grant’s use of 24 Hulin Road as commercial was found reasonable.

As a final matter, the court held that it read SZO sections 11 and 12(A) and MLSO section 4(A) to liberally to bar a change in use that would make a nonconforming lot more nonconforming.  Moreover, while grandfathering clauses, such as those in the Town’s Ordinances, allowed landowners to continue the reasonable investment-backed expectations they had when they bought their properties, they did not to permit expansions or changes to nonconforming conditions indefinitely. Accordingly, the judgment of the BOA was affirmed.

Grant v. Town of Belgrade, 2019 WL 6598354 (ME 12/5/2019)

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