Matheson v. ZONING BD. OF APP. OF CITY OF SACO

387 A.2d 218 (1978)

Ralph MATHESON et al. v. ZONING BOARD OF APPEALS OF the CITY OF SACO et al.

Supreme Judicial Court of Maine.

June 1, 1978.

Smith, Elliott, Wood & Nelson, P. A. by Stephen R. Lamson (orally), Saco, for plaintiffs.

Caron, Ayotte & Caron by Ronald E. Ayotte, Sr. (orally), Saco, for defendants.

*219 Before McKUSICK, C. J., and POMEROY, WERNICK, ARCHIBALD, GODFREY and NICHOLS, JJ.

WERNICK, Justice.

On January 28, 1976, defendant Zoning Board of Appeals of the City of Saco denied an application filed by plaintiff Ralph Matheson, on behalf of the Lawrence O. Drown Agency, to be allowed to erect on property at 445 Main Street in Saco a "business" sign four by eight feet in size, as allegedly authorized under Section 608-4 of the Saco Zoning Ordinance. Thereafter, the defendant Building Inspector learned that plaintiff had erected on said premises a sign greater in size than the "one square foot in surface" limitation prescribed by Section 608-1 of the Zoning Ordinance.[1] On February 2, 1976 the Building Inspector ordered removal of the sign.

On February 9, 1976, pursuant to Rule 80B M.R.Civ.P., plaintiff sought judicial review of the action of the Zoning Board and the Building Inspector by filing a complaint against them in the Superior Court (York County). Plaintiff alleged that Section 608-4 of the Zoning Ordinance authorized plaintiff to maintain the sign erected on the Main Street property. The presiding Justice, ruling on a motion by defendants seeking summary judgment in their favor, concluded that plaintiff is not entitled to a sign of the size allowed by Section 608-4 of the Saco Zoning Ordinance. He therefore granted the motion for summary judgment and ordered judgment entered for defendants.

We deny plaintiff's appeal from this judgment, as entered.

In 1975, plaintiffs filed an application with the Building Inspector for the City of Saco for permission to convert an existing building to "professional offices." Because the building was located in an R-4 High Density [Residential] District, under Section 509 of the Zoning Ordinance, the proposed use for "professional offices" could be allowed only as an "exception permitted by appeal." Accordingly, the Building Inspector denied the application since he lacked authority to grant an application as to a use allowable only as an "exception permitted by appeal." Plaintiff then sought an "exception" by filing an application with the Zoning Board of Appeals for the "converting [of] an existing building to professional officesrealty [and] attorney." The Board granted the application, adding the specification that Section 608 of the Zoning Ordinance would control the size of the proposed sign in front of the building. It was thus left ambiguous whether sub-provision *220 1 or sub-provision 4 of Section 608 would govern.

As the case is before us, the parties agree that the sign erected by plaintiff is lawful if sub-provision 4 of section 608 governs but is unlawful if sub-provision 1 controls.

We decide that Section 608-1, rather than 608-4, is controlling and therefore the sign erected by plaintiff violates the Ordinance.

Section 608-1 permits on premises in any district a one square foot sign announcing the name, address or professional activity of the occupant of the premises. By contrast, Section 608-4, which authorizes "business" signs of larger size, is significantly more restrictive in that it does not purport to permit the larger "business" signs in any district or in conjunction with any use in the city but confines "business" signs to those uses which are "in connection with any legal business or industry" (emphasis supplied) located on the premises. We therefore interpret Section 608-1 as being special in purpose to the extent that it authorizes a one square foot sign to "announce" the "professional activity" of the occupant of premises located in any district, including the high density (residential) district of Saco. To give appropriate meaning to the special purpose of Section 608-1, as well as to be faithful to the overall districting scheme of the Ordinance, we conclude that the concept of "legal business or industry" as utilized in Section 608-4 does not encompass "professional activity" as specially dealt with in Section 608-1-at least where the "professional activity" is being conducted, as here, in a district which is neither business nor industrial.

The Superior Court was correct in deciding that plaintiffs are not entitled to maintain the four by eight feet "business" sign authorized by Section 608-4 on their "professional offices" property in the R-4 High Density [Residential] District in Saco.

The entry is:

Appeal denied.

Judgment affirmed.

DELAHANTY, J., did not sit.

[1] As here relevant, the Saco Zoning Ordinance provided:

"Section 608. Signs: No sign, billboard or exterior graphic display shall be permitted in any district except as herein provided.

"608-1 In any district a sign not exceeding one square foot in surface size is permitted which announces the name, address, or professional activity of the occupant of the premises on which said sign is located.

"608-2 A bulletin board not exceeding twenty-four (24) square feet is permitted in connection with any church, school or similar public structure.

"608-3 A temporary real estate or construction sign, not exceeding twenty-four (24) square feet is permitted on the property being sold, leased or developed. Such sign shall be removed promptly when it has fulfilled its function.

"608-4 Business signs shall be permitted in connection with any legal business or industry when located on the same premises, and if they meet the following requirements:

"(a) Signs shall not contain information or advertising for any product not sold on the premises.

"(b) Signs shall not have a combined aggregate surface greater than five (5) square feet for each foot of width of the principal structure on the premises.

"(c) Signs on the verticle, that is projecting from a building, may project over a sidewalk as long as:

"1. It is no larger than 50% of the sign size permitted in (b) above.

"2. It does not project more than 10 feet out from the building line.

"3. It is at least 3 feet back from the verticle line from the curb line.

"4. The bottom height is at least 10 feet above sidewalk level.

"(d) Signs and structures shall not be illuminated in any manner which causes undue distraction, confusion or hazard to vehicular traffic."