Coffin v. Town of Pownal

• Court: Superior Court of Maine
• Decided: July 20, 2007
• Docket: CUMap-06-55
• Status: Unpublished

Opinion

-,, STATE OF MAINE CUMBERLAND, ss. CLERk's (;I~ r:iCI/ SUPERIOR COURT CIVIL ACTION za07 JUL 20 A q: I 1 f) DO,CKET ;- ,- . 1) AP-06-~~" .,.--( (..NO,. "-- t i 7 ' l,xcD -7 _ 'I

'-- -' /' JEAN M. COFFIN & DONALD J. ARNOLD d Ib I a ROYAL RIVER CAMPGROUND,

Plaintiffs v. ORDER ON 80B APPEAL

TOWN OF POWNAL, POWNAL PLANNING BOARD and POWNAL BOARD OF SELECTMEN

Defendants

Before the Court is Plaintiffs Jean M. Coffin and Donald J. Arnold d/bl a

Royal River Campground's ("Plaintiffs") appeal pursuant to M.R. Civ. P. 80B of a

decision of the Town of Pownal ("Town") Board of Appeals overturning the

Town Code Enforcement Officer's ("CEO") interpretation of the Town's Zoning

Ordinance ("Ordinance").

BACKGROUND The Ordinance divides the Town into one "Village District" and two

"Rural Districts." Ordinance § 2B. One of the Rural Districts is labeled "RA" and

the other "RB." Id. On March 22, 2006, Plaintiffs met with the Town Planning

Board to discuss their proposal for a campground on property located in the RA

zoning district. At this meeting Plaintiffs "presented a hand drawing of the

proposed campground. No survey, delineation or studies [had] been

performed." (R. at Tab 9, p. 1.)

On April 26, 2006, Plaintiffs again met with the Planning Board,

discussing what would be necessary to satisfy the requirements of the

Ordinance. At the conclusion of their meeting, Plaintiffs notified the Planning

1 Board that they would submit "copies of everything by next meeting" and the

minutes reflect that "[t]he campground proposal will be on the May agenda." (R.

at Tab 10, p. 2.)

At the Planning Board's next meeting, on May 24, 2006, Plaintiffs

provided the Planning Board with "a packet ... of letters from the town attorney

... and the CEO ... in favor of the argument that [their proposed campground]

is a permitted use without restrictions [in District RA]." (R. at Tab 12, p. 1.) The

CEO's letter was dated May 20, 2006, titled "Interpretation on Campgrounds in a

RA District" and was not specifically addressed to the Planning Board or any

other party. (R. at Tab 11.) In particular, the letter noted that there are "no

restrictions on Campgrounds in the Village or RB District ... [and that b ]ecause

of this I see no reason that there [should be] any restrictions in the RA District.

This should be a permitted use within State and Local guidelines." (Id.) At the

conclusion of the May 24 meeting, the Planning Board noted that it would

conduct a site walk on the proposed campground. (R. at Tab 12, p. 1.)

At the Planning Board's June 28, 2006 meeting, Plaintiffs stated that, at

that time, they "would like to formally submit the site plan application under

review ... [and subsequently] handed the Board a notebook of paperwork for

the campground ... [and] a check for the $100 site plan fee. I " (R. at Tab 13, p. 1.)

The Planning Board's next meeting occurred on July 26, 2006. At this

meeting the Planning Board voted to appeal the CEO's decision that Plaintiffs'

proposed campground was a permitted use within the RA Zone as an "open

space recreational use" rather than a special exception use. (R. at Tab 14, p. 1.) At

1Although Plaintiffs claim that this was a resubmission of their formal application, there is nothing in the record to support this proposition and there is no dispute that this was the first time that the required $100 fee was tendered.

2 their August 14, 2006 meeting, the Town Board of Selectmen similarly voted

unanimously to appeal the CEO's determination. (R. at Tab IS, p. 1.)

The Board of Appeals held a hearing on September 20, 2006 and

unanimously determined both that the Planning Board and Board of Selectmen's

appeal was timely, (R. Tab 3 ,p. 6), and that a "a commercial campground is not

considered open space recreational use" under the Ordinance, (R. Tab 3, p. 14.)

Plaintiffs timely filed the present appeal of this decision.

STANDARD OF REVIEW

The Court reviews a local board's decision for abuse of discretion, error of

law or findings not supported by substantial evidence in the record. York v. Town

of Ogunquit, 2001 ME 53, 16, 769 A.2d 172, 175. Substantial evidence is evidence

that is sufficient for a board to have reasonably found the facts as it did. Ryan v.

Town of Camden, 582 A.2d 973,975 (Me. 1990). The burden of persuasion is on the

party challenging aboard's decision to show that the evidence compels a

different result. Twigg v. Town of Kennebunk, 662 A.2d 914, 916 (1996). The Court

must not substitute its judgment for that of a board on factual issues. Id. Further,

a board's factual findings are "not wrong because the record is inconsistent or a

different conclusion could be drawn from it." Id. In contrast to the deference

shown a board's findings on questions of fact, the proper interpretation of a

zoning ordinance is a question of law to be determined de novo by the Court.

Viles v. Town of Embden, 2006 ME 107119, 905 A.2d 298, 303.

DISCUSSION

I. Standing

A threshold issue raised by Plaintiffs is whether either the Planning Board

or Board of Selectmen had standing to appeal the CEO's determination to the

3 Board of Appeals. Specifically, the Ordinance permits only persons "aggrieved

by a decision" of the CEO to file an appeal. Ordinance § 5D(l). Plaintiffs note that

there is nothing in the record demonstrating how the Planning Board and the

Board of Selectmen were "aggrieved" by the CEO's decision. Further, Plaintiffs

argue that although by statute a planning board must be made a party to any

appeal, 30-A M.R.S.A. § 4353(3), it does not follow that this grants the Planning

Board the power to itself commence an appeal.

Contrary to Plaintiffs' argument, 30-A M.R.S.A. § 4353(3) and Ordinance §

5D(l) authorized the Planning Board and Board of Selectmen to appeal the

CEO's decision based on their status as automatic parties to all appeals. In Crosby

v. Town of Belgrade, the Law Court held that identical language to the present

statute, as formerly codified at 30-A M.R.S.A. § 4504(4), authorized "municipal

officers and the 'planning board, agency or office' responsible for enforcing the

zoning ordinance" in their official capacities to initiate appeals to the Superior

Court whenever "aggrieved by a decision of the board of appeals." 562 A.2d

1228, 1231 (Me. 1989). This language makes clear that the Law Court considers

those parties in their official capacities to be "aggrieved by a decision" when they

disagree with that decision. As a result, the Ordinance authorized the Planning

Board and Board of Selectmen to appeal the CEO's decision.

II. Timeliness of Appeal

The Ordinance provides no time limit by which an appeal of the CEO's

decision must be taken to the Board of Appeals. In such a situation, the Law

Court has provided that an aggrieved party generally has sixty days from the

action complained of to file an appeal. Keating v. Zoning Board of Appeals of the

City of Saco, 325 A.2d 521,525 (Me. 1974). The sixty day time period may be tolled

4 when there are "special circumstances which would result in a flagrant

miscarriage of justice unless, within a narrowly extended range, a time longer

than [sixty days] is held 'reasonable.'" Id. at 524.

Plaintiffs argue that the clock for filing an appeal of the CEO's

interpretation of the Ordinance began running on May 20, 2006, the date of the

CEO's letter. As a result, Plaintiffs argue that the subsequent appeals filed by the

Planning Board following its meeting on July 26, 2006 and by the Board of

Selectmen following its meeting on August 14, 2006 are both untimely as falling

outside the sixty day appeals period provided by Keating.

In Freeport v. Greenlaw, the Law Court decided a case in which a restaurant

owner received a letter from the CEO of the Town of Freeport notifying him that

he was in violation of a local ordinance because he put picnic tables outside his

establishment for customer use. 602 A.2d 1156, 1158. The letter instructed the

owner to remove the tables immediately but did not mention any means by

which this decision could be appealed. Id. Subsequently, the town brought an

enforcement action in the Superior Court and argued that the court could not

consider the substance of the owner's arguments against enforcement because

the owner had not timely appealed to the local zoning board as required by the

local ordinance. Id. at 1159.

In that case, the court held that the owner's appeal was not time barred

because the CEO's letter "was insufficient to constitute an order from which

appeal had to be taken or rights forever lost." Id. The court explained that in

order for a failure to appeal a CEO's actions to act as a bar to future appeals, that

action "must entail the 'essential elements of adjudication.'" Id. at 1160 (quoting

Town of North Berwick v. Jones, 534 A.2d 667, 670 (Me. 1987)). One of those

5 essential elements is "adequate notice" to an affected party that final action has

been taken that will become conclusive if not appealed. Id. The court went on to

note that "[w]hat constitutes acceptable notice may vary according to the

circumstances, but in order to have a preclusive effect, the notice should state the

nature of the action and inform the recipient of the opportunity to object and of

the consequences of a failure to heed the notice." Id.

In the present case, the CEO's letter failed to provide adequate notice that

it constituted final action from which an appeal must be taken or rights forever

lost. First, the CEO's letter lacks any indicia of formality. It is not written on

letterhead, is not addressed to any particular party and does not contain any

warning regarding the right to appeal. More importantly than this, however, the

CEO's letter does not address Plaintiffs' specific site plan application. Indeed, it

could not have addressed that application because Plaintiffs did not formally

submit their application until June 28, 2006. This is the earliest time when the

CEO could possibly have issued a decision ripe for appeal. Prior to this date any

opinion of the CEO on Plaintiffs' proposal was merely advisory.

The difficulty in determining a precise date upon which the CEO issued

the decision that resulted in this appeal, however, underscores a more

fundamental problem. Specifically, the CEO never made a decision from which

an appeal could be taken. For the reasons discussed above, the CEO's letter was

an advisory opinion at the time it was written. Neither side has presented

authority for the proposition that a CEO's advisory opinion can be transformed

into a decision with the force of law through a party later referencing that

decision in its filings before an administrative body.

6 Because there was never a valid decision, the Planning Board and the

Board of Selectmen's appeal of the CEO's"decision" to the Board of Appeals was

a nullity. As a result, there was no valid decision of the Board of Appeals from

which appeal to this Court could lie?

Therefore, the entry is:

The decision of the Board of Appeals is VACATED. This case is remanded to the Planning Board for proceedings consistent with this order.

The clerk shall incorporate this Order into the docket by reference pursuant to M.R. Civ. P. 79(a).

Dated at Portland, Maine this M It.... day of ~ ,2007. I ~ ,

2 Even if the CEO made a decision from which an appeal was possible, this case would need to be remanded to the Board of Appeals as its decision lacked any findings of fact. See e.g. Comeau v. Town of Kittery, 2007 ME 76, _ A.2d _. All decisions made by a local board of appeals "must include a statement of findings and conclusions, as well as the reasons or basis for the findings and conclusions, upon all the material issues of fact, law or discretion presented and the appropriate order, relief or denial of relief." 30-A M.R.S.A. § 2691(3)(E). The Law Court has thus recognized that "[m]eaningful judicial review of an agency decision is not possible without findings of fact sufficient to apprise the court of the decision's basis." Carroll v. Town of Rockport, 2003 ME 135,

7 Date Filed 11-2-06 CUMBERLAND_____ Docket No. _.A1'06-55 County

Action BOB Appeal

JEAN M. COFFIN & DONALD J. ARNOLD TOWN OF POWNAL d/b/a ROYAL RIVER CAMPGROUND POWNAL PLANNING BOARD POWNAL BOARD OF SELECTMEN

Ys.

Plaintiff's Attorney Defendant's Attorney Clifford Goodall Esq/Mary Denison, Esq. Kenneth Cole, III, Esq. (all defs.) 61 Winthrop Street Natalie Burns, Esq. Augusta, Maine 04330 PO Box 4510 Portland, ME 04112

Date of Entry