ZONING Defining “Household” / Use of “Family” in Ordinance

Adams v. Town of Brunswick, 2010 ME 7, 987 A.2d 502, Mead, J.

This is a really interesting case involving the issue whether a house in the Residential 2 Zone in Brunswick, which was divided into two apartments with a total of eleven bedrooms and rented to eleven Bowdoin students, violated the zoning ordinance because it constituted a “boarding house,” which was not an allowable use in the district.

The Law Court affirmed the Superior Court’s judgment, which had affirmed the decision of the CEO and the Zoning Board of Appeals, that the house was not a boarding house because the tenants of each apartment constituted a household unit as that concept is defined in the Town’s Zoning Ordinance.  The Law Court rested its decision primarily on the same rationale used by the Superior Court, which was that, because the tenants were jointly and severally liable for the entire rent payment, they constituted a housekeeping unit.  This was distinguished from the individual responsibility for rent which typifies a boarding house.

The underlying theme of the case was essentially that the neighbors who opposed the use of the house for apartments did so because they objected to having students in their quiet residential neighborhood, while the Court’s position was that the Town had no business inquiring into the relationship of people who live together in a collective arrangement.

An interesting side note on appellate practice is that the Court concluded that the neighbors had failed to preserve the issue of whether the house was a non-conforming use because, although they made that argument before the ZBA and the Superior Court, they did not make it in their original letter to the Code Enforcement Officer.  Without having fully researched this issue, and based solely on my experience as an appellate lawyer, it seems to me that this is an extremely broad reading of the failure to preserve standard, which would require a potential litigant to think of and raise every single potential argument in support of his or her position at the earliest and most informal stage of a proceeding lest he or she lose those arguments.  The case relied upon by the Law Court for the general proposition that arguments which are not preserved for appeal are not properly before the Law Court was a criminal case in which the defendant failed to raise an argument at the Superior Court level.

Justice Jabar issued what I believe is his first dissent in this case.  He took the majority to task for failing to address the issue of whether the house was being used as a “dwelling, single/two family” which was one way that the zone was characterized in the Zoning Ordinance.  He stated that the majority’s rationale “opens the door for any landlord to transform a single or two-family residence into a building housing an unlimited number of unrelated and unaffiliated tenants.

This entry was posted on Thursday, June 10th, 2010 at 10:46 am and is filed under Misc. The entry is tagged under You can follow any responses to this entry through the RSS 2.0 feed. Responses are currently closed, but you can trackback from your own site.