Agenda - Planning Commission - 09/04/2014

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Zoning Bulletin August 10, 2014 I Volume 8 I Issue 15 Ili tion through a consent decree, but said that performance standards adopted under the consent decree had to be approved through a statutory contract zon- ing process or by amendment to land use ordinance. The City then amended its land use ordinance, and then entered into a second consent decree with Pike and IDEXX. That consent decree was eventually ap- proved by the court. Smiling Hill then appealed the court's approval of the consent decree. Among other things, Smiling Hill argued that the decree resulted in a forfeiture of the City's enforcement power. In other words, Smiling Hill argued that if Pike lost its grandfather status by ceasing to use its property for quarrying for at least 12 months and the City amended its zoning regulations to prohibit quarrying on Pike's property, the consent decree would prevent the City from enforcing any such future amended ordinance. DECISION: Judgment of superior court affirmed. The Supreme Judicial Court of Maine held that the consent decree did not result in a forfeiture of the City's enforcement power. The court concluded that the consent decree did not provide Pike with "a shield, defense, or any other mechanism that would prevent the City from enacting or enforcing a land use ordinance that prohibits quarrying operations in the zoning district that includes Pike's property." Rather, the court found that the purpose and effect of the consent decree was merely to recognize Pike's grandfathered rights "to the same extent as if the [c]ourt had entered a final judgment after trial in favor of Pike." In support of its arguments, Smiling Hill had pointed to Paragraph 60 of the consent decree. Paragraph 60 provided, in relevant part: "[T]he City shall not enforce any of the performance and use standards established by Section 311 of the City's Land Use Ordinances, as may be amended, under the terms of this order, and further, that nothing in this Order allows or shall be construed to authorize the City to enforce any performance and use standard contained herein. The City shall only enforce its Land Use Ordinances pursuant to [state statutory law governing enforcement of land use laws and ordinances]." The court found that language "clearly [did] not eliminate the City's enforce- ment powers or transfer them to Pike." Instead, the court found that language "merely require[d] that the City follow the statutorily prescribed process for enforcing land use performance standards . . . , and prevent[ed] the City from using the court as an additional tool." The court concluded that the only rights that Pike could enforce as a result of the consent decree were "the grandfathered rights that it could have acquired had it prevailed at trial." Case Note: Because the City had also amended its ordinance, Pike's quarrying operations were, at the time of the appeal, a conforming use —not simply grandfathered. The court said that, contrary to Smiling Hill's argument, that arrangement did not allow Pike to avoid enforcement indefinitely. The City could amend its current land use ordinance in the future and rezone the area that encompasses Pike's quarry operations, said the court. If the City did so, the quarrying and related uses would then, like any other nonconform- ing use, become grandfathered., nonconforming uses subject to the City's land use ©2014 Thomson Reuters 7