Adams v. Town of Brunswick

Superior Court of Maine·Decided February 13, 2009·No. CUMap-07-41and51and08-10·Unpublished

Opinion

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Docket Nos. AP-07-41,

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MICHAEL ADAMS, et al.,

Plaintiffs,

v.

TOWN OF BRUNSWICK, and DIMITRI SERETAKIS, et al, Defendants,

ORDER

DIMITRI SERETAKIS, et a1.,

Plaintiffs,

v.

TOWN OF BRUNSWICK, Defendant.

Before the court are three Rule 80B appeals concerning 17 Cleaveland Street in Brunswick. Seventeen Cleaveland Street is located within the TR2 District in Brunswick and is owned by Dimitri and Anthony Seretakis. Seventeen Cleaveland is also located

Zoning 0 rd'Inance.

within the'Ji\\a%e Review Zone established by the Brunswlck '

, rnes uevllaqua,

The first appeal (AP-07-41) is brought by Michael Adams E t l:! .

Warren Dwyer, and Patricia Welsch (collectively, the" Abutters") from a May 30, 2007 decision of the Brunswick Zoning Board of Appeals (ZBAl affirming a ruling of the BrunsWick Planning Director that 17 Geaveland, as it is proposed to be used by the

Seretakises, meets the definition of a dwelling rather than a boarding house. Dwellings are permitted within the TR2 District, but boarding houses are not. See R. Tab 62 at 418.

The second and third appeals are brought by the Seretakises with respect to certain alterations they made to install dormers at 17 Cleaveland Street. In AP-07-51 the Seretakises appeal from a preliminary ruling of the Brunswick Village Review Board (VRB) that an appeal taken by the Abutters to the VRB with respect to the construction of the dormers was timely. In AP-08-10 the Seretakises appeal from the VRB's decision that two of the seven dormers installed by the Seretakises were not appropriate within the Village Review Zone.

All these appeals involve a somewhat convoluted procedural history.

1. Procedural History In early April 2007 the Seretakises applied pursuant to the Brunswick zoning ordinance for Certificate of Appropriateness for the addition of seven new dormers at 17 Cleaveland (five for the main house and two for the barn). Under the Brunswick zoning code a certificate of appropriateness is required, inter alia, for any alterations to the exterior structure of a building within the Village Review Zone. See Ordinance § 216.4 (R. Tab 62 at 488). Ordinarily applications for certificates of appropriateness are made to the Village Review Board with notice to abutting landowners. See Ordinance § 216.8 (R. Tab 62 at 490). However, the ordinance also provides that where the impact of proposed alterations will be minor in the judgment of the planning director, the planning director may grant certificates of appropriateness. Ordinance § 216.4(B)(l) (R. Tab 62 at 488). In such instances the ordinance makes no provision for notification to abutters.

In this case the Seretakises' application for a certificate of appropriateness was approved by staff of the Brunswick Planning Department on or about April 9, 2007. (R. Tab 1 at 1). Nothing in the documents submitted for the certificate of appropriateness disclosed anything as to how many people would be living in 17 Cleaveland Street or the circumstances of their occupancy. See R. Tab 1. No notice had been sent to abutters. See R. Tab 35 at 195.

A certificate of appropriateness is a prerequisite to the issuance of a building permit to perform the actual alteration work, and on April 17, 2007, a building permit was issued to the Seretakises by the Town. (R. Tab 3 at 34). The Seretakises' application for a building permit mentioned only the construction of dormers. (R. Tab 2 at 17-33). Nothing in that application disclosed anything about the number of people who were expected to reside in the building, their status, or the conditions of their occupancy.l Moreover, the Brunswick ordinance does not require that notice of a building permit application be given to abutters and there is no evidence that any such notice was given.

In early May the Abutters became aware that the Seretakises intended to rent 17 Cleaveland to eleven Bowdoin students. See R. Tab 53 at 264. The record reflects that Adams, Bevilaqua and Dwyer met with Town Planner James Fortune on May 11, 2007 and queried whether such a use would constitute a boarding house not permitted in the TR2 Zone. (R. Tab 6 at 41). Shortly afterward, the code enforcement officer got in touch with the Seretakises and was informed that their position was that they were continuing the existing use of 17 Cleaveland as two dwelling units. Id. 2

1 Although the permit application contained a space for the applicant to provide a "brief description of current and proposed uses," that space was left blank. R. Tab 2 at 17. 2 As far as the record reflects, this was the first time any town officers looked into this issue.

Further discussions were thereafter held between the Abutters and town officials. The Town acknowledges that the Abutters were first informed that a building permit had been issued for the dormers on May 23, 2007, more than a month previously. See Town's Rule 80B Brief dated August 8, 2008 at 3; R. Tab 12 at 83-85.

On May 30, 2007 the Town's Director of Planning and Development, acting on behalf of the code enforcement officer (who was temporarily incapacitated), issued a written opinion on the proposed use of 17 Cleaveland by the Seretakises (R. Tab 8 at 65). That opinion stated the Town's understanding that the prior use of the property had been a two-unit residence with a family residing in one unit and two students residing in the other unit. The Seretakises had submitted two rental leases that contemplated 6 students in one unit and 5 in the other. The opinion set forth the code enforcement officer's determination that the proposed use still fell in the two-unit residential use category and did not constitute a boarding house. Id.

That same day Adams, Bevilaqua, Dwyer, and Welsch filed an appeal to the Brunswick ZBA. (R. Tab 9 at 61-70). That appeal contested the CEO's May 30, 2007 ruling that the Seretakises' proposed use of 17 Cleaveland did not constitute a boarding house and also sought to challenge the prior issuance of the building permit on April 17, 2007. See R. Tab 8 at 62. On May 30, 2007 Adams, Bevilaqua, Dwyer, and Welsch also filed an appeal to the Village Review Board from the issuance of the certificate of appropriateness for the seven dormers. R. Tab 7 at 58-60.

2. Proceedings on appeal to the ZBA and VRB The Abutters' appeal to the VRB was heard first, on June 19, 2007. At that time the VRB determined that the Abutters' appeal from the grant of a certificate of appropriateness was timely because, although the Brunswick zoning ordinance

specified a30 day appeal period for building permits, it did not set forth any time limits for appeals from the issuance of a certificate of appropriateness (R. Tab 17 at 107). Aware that there was also an appeal pending to the ZBA on the boarding house issue, the VRB then voted to table the dormer appeal to its next meeting. (R. Tab 17 at 112). Disagreeing with the VRB's decision that the dormer appeal was timely, the Seretakises appealed that decision to the ZBA and then to this court (docket No. AP-07-51).

On June 21, 2007 the Abutters' appeal to the ZBA was heard. At that time the ZBA understood that there were two aspects to the Abutters' appeal. To the extent that the Abutters were appealing from the issuance of the building permit, the ZBA voted 5­

o that the appeal was untimely because it had not been filed within 30 days. (R. Tab 20 at 129, Tab 21 at 130). The ZBA, however, went on to separately consider the Abutters'

appeal from the CEO's determination that the proposed use would not constitute a boarding house. R. Tab 20 at 129. On that issue it voted 3-2 to uphold the decision of the CEO on the merits. The Abutters then appealed that decision to this court. (Docket No. AP-07-41).

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