Marjorie Gerald appeals from a decision and order entered by the Superior Court (York County, Brodrick, J.) affirming a decision of the Town of York Planning Board ("Planning Board") that denied her application for a wetlands permit. On appeal, Gerald contends, she did before the Superior Court, that the Planning Board erred as a matter of law in concluding that her request for a permit to improve her road is not allowed under section 3 of the York Beach Village Corporation Wetlands Permit Ordinance ("Wetlands Permit Ordinance").
Gerald owns property located in the Town of York upon which she operates da campground. The history of Gerald's use of the property dates back to October 2, 1977 when she first applied to the Planning Board for permission to construct the campground. At the time of the application, campgrounds were "permitted sues" under the York Beach Shoreland Zoning Ordinance ("Zoning Ordinance") and the Planning Board approved Gerald's application. A few weeks later the Zoning Ordinance
Gerald did not apply for a building permit to begin actual construction of the campground until December, 1983. The York Code Enforcement Officer ("CEO) denied Gerald' application for a building permit on the grounds that the campground was no longer a permitted use ad Gerald did not have an application for a building permit pending at the time the Zoning Ordinance was amended. On February 8, 1984, the Board of Appeals reversed the CEO's decision finding that Gerald did have an application pending at the time the ordinance was amended and that Gerald's proposed use of the property as a campground is "grand fathered" under the Zoning Ordinance. The Board of Appeals instructed the CEO to issue a building permit allowing Gerald to construct 46 camp sites, a service building, bathroom, and shower facilities, an office building and a building for patron services. The Town of York did not appeal this decision and the Board's February 8, 1984 findings are res judicata. Gerald did not complete construction of the buildings on her property until October, 1989.
On January 25 1989, Gerald applied to the Planning Board for a permit under the Wetlands Permit Ordinance to place approximately 2,400 cubic yards of fill to improve the road leading to her campground. The road runs within 100 feet of a protected wetland.
Gerald filed a timely notice of appeal in the Superior Court pursuant to M.R.Civ.P. 80B. In her complaint, Gerald contends that section 3 of the Wetlands Permit Ordinance allows permits to be issued not only for uses expressly listed in the Zoning Ordinance as "permitted sues" but also legal "nonconforming uses" which are also permitted under th Zoning Ordinance.
On appeal Gerald contends that the Planing Board and the court erred as a matter of law in concluding that section 3 of the Wetlands Permit Ordinance allows permits to be used only for uses expressly listed as "permitted uses" under the Zoning Ordinance. We agree.
The meaning of terms or expressions in an ordinance is as question of law for the court. Ballard v. City of Westbrook, 502 A.2d 476, 480 (Me.1985). The terms or expressions is an ordinance are to be construed reasonably with regard to both the objectives sought to be obtained and the general structure of the ordinance as a whole. Id. On appeal, the constructions of terms or expressions in an ordinance is given de novo review. See id.
Section 3 of the Wetlands permit Ordinance defines the types of uses for which wetlands permits may be issued. Section 3 provides:
The planning Board found that section 3 must be construed to allow only uses expressly listed as "permitted uses" in the Zoning Ordinance. In affirming this finding the court reasoned that the phrase "permitted use," which appears in the caption of section 3, is a common and frequently used expression in zoning law and refers to those narrowly defined uses listed in a town's zoning regulations. By contrast, the court reasoned, nonconforming uses are uses other than "permitted uses" which are lawful only because they predate the ordinance but are, nonetheless, external to the uses permitted under the zoning regulations. The court's narrow reading of section 3 assumes that the policy of zoning in general is to gradually or eventually eliminate nonconforming sues as speedily as justice will permit. Keith v. Saco River Corridor Comm'n, 464 A.2d 150, 154 (Me. 1983).
The policy of zoning in general is not the determining factor in the context of this case. We find that the construction of section 3 adopted by the Planning Board and the court clearly goes beyond what is reasonable with regard to the objectives and structure of the Wetlands Permit Ordinance. The stated objectives of the Wetlands Permit Ordinance are "to further the maintenance of safe and healthful conditions, prevent and control water pollution to establish flood proofing provisions."
The entry is:
Judgment vacated. Remanded to the Superior Court with instructions to remand to the Planning Board for further proceedings consistent with the opinion herein.