Dunlop v. Town of Westport Island

2012 ME 22, 37 A.3d 300, 2012 Me. LEXIS 21
CourtSupreme Judicial Court of Maine
DecidedFebruary 28, 2012
StatusPublished
Cited by4 cases

This text of 2012 ME 22 (Dunlop v. Town of Westport Island) is published on Counsel Stack Legal Research, covering Supreme Judicial Court of Maine primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dunlop v. Town of Westport Island, 2012 ME 22, 37 A.3d 300, 2012 Me. LEXIS 21 (Me. 2012).

Opinion

JABAR, J.

[¶ 1] Deirdre Dunlop appeals from an order of the Superior Court (Lincoln County, Hjelm, J.) affirming the decision of the Westport Island Board of Appeals (Board) that affirmed the issuance of a building permit to George D. Richardson III. Dunlop argues that the Board failed to make the requisite findings that Richardson’s property meets the two-acre minimum lot-size requirement for construction of a residential dwelling and that the Board imposed an unreasonable and improper heightened burden of proof on her as the appellant. Dunlop further argues that the Board erred in its determination that Jewett Cove Road can be included as part of Richardson’s lot because it serves more than two single-family residences. We disagree and conclude that the Board properly affirmed the issuance of Richardson’s building permit. We therefore affirm the decision of the Superior Court.

I. BACKGROUND

[¶ 2] On June 15, 2009, Richardson submitted a permit application with the Town of Westport Island’s Code Enforcement Office to build a single-family residence on his property. The application listed the property — tax map one, lot number twenty-five — as measuring 2.07 acres.1 Richardson included site plans and drawings with the application, but he did not include a survey; Westport’s ordinance does not require one. See Westport Island, Me., Shoreland Zoning Ordinance § 16(C) (Jan. 22, 2008) [hereinafter Ordinance]. Westport’s Code Enforcement Officer (CEO) issued a building permit for the property on September 10, 2009.

[302]*302[¶ 3] On October 6, 2009, abutting landowner Dunlop filed a notice of appeal of the CEO’s decision to issue the building permit with the Board. The Board held a public hearing on the appeal on October 29, 2009.2 At the hearing, Dunlop challenged the CEO’s decision in two ways.

[¶ 4] First, Dunlop argued that Jewett Cove Road should not be included in the acreage calculation for Richardson’s property because the access-way fits the Ordinance’s definition of a road, and not the definition of a driveway.3 Ordinance §§ 15(A)(2), 17. Jewett Cove Road is a private access-way that serves three single-family dwellings and a private commercial wharf that is owned by Richardson and located on Richardson’s property. The portion of Jewett Cove Road that Richardson owns serves two single-family dwellings (Richardson’s and Dunlop’s) and the commercial wharf.

[¶5] Second, Dunlop contended that Richardson’s application did not specify whether the survey — which Richardson commissioned but did not submit to the CEO or the Board, and which he relied upon as proof that his property is more than two acres — was completed to the low- or high-water mark. Dunlop argued that her surveyor showed the property to be less than two acres when measured to the high-water mark.4 See Ordinance § 15(A)(1)(a), (2).

[¶ 6] After hearing arguments from both parties and accepting evidence, the Board issued a decision denying the application for administrative appeal on the same day as the hearing, October 29, 2009. On November 5, 2009, Dunlop filed a motion for reconsideration and for findings of fact. In her motion, Dunlop argued that the Board “failed to make proper findings as required by Shoreland Zoning Ordinance § [ ]16.H.4.b.iv and 30-A M.R.S.A. § []2691(3)(E).”

[¶ 7] On December 10, 2009, the Board held a reconsideration hearing pursuant to Dunlop’s request and section 16(H)(6) of the Ordinance. The Board heard testimony and accepted evidence at this second hearing. That same day, the Board issued its final decision, reaffirming its determination that Jewett Cove Road is a “driveway” for purposes of establishing the size of Richardson’s lot, finding that Richardson’s lot did exceed two acres in size, and concluding that Dunlop did not meet her burden of proof.

[¶ 8] With respect to Dunlop’s claim that Richardson failed to show that his property is over two acres, the Board relied primarily on a letter written by West-port’s tax assessor to the CEO. In that [303]*303letter, the tax assessor stated that he reviewed Richardson’s land survey performed by Leighton & Associates and that the survey shows a property area of 2.04 acres.5 The tax assessor also stated in the letter that Westport’s tax records show that the property is 2.07 acres for property tax purposes. The letter does not state whether the survey or the tax records reflect land measured to the high-water mark, but in a telephone conversation between a board member and Richardson’s surveyor, the surveyor told the board member that all of Leighton & Associates’ surveys are measured to the high-water mark unless the client requests otherwise, but he would not comment to the board member on whether Richardson’s survey was to the low- or high-water mark. The Board also noted a discrepancy in Richardson’s tax records, in that the property acreage inexplicably changed from 1.65 acres to 2.07 acres between the years 2008 and 2009.

[¶ 9] In deciding how to classify Jewett Cove Road, the Board followed the CEO’s recommendation that only the portion of Jewett Cove Road on Richardson’s property should be considered. Looking only at that portion of Jewett Cove Road, the Board concluded that it meets the definition of a driveway because it serves only two residences: Dunlop’s and Richardson’s.

[¶ 10] In its final order, the Board concluded:

[T]he evidence presented supports issuance of a building permit by showing that the [p]remises has in excess of two [a]cres of area required under the [Ordinance]. [Dunlop] did not meet [her] burden of proof on the issue. The Board also reaffirms its prior decision that Jewett Cove Road is a “driveway” and not a road. The Board[’s] decision is further supported by an [a]ffidavit of ... Dunlop dated July 10, 2003[,] stating that ... Dunlop had relocated her access from the Main Road to her dwelling from Jewett Cove Road to Dewey Way.

[¶ 11] Dunlop next filed a M.R. Civ. P. 80B complaint in Superior Court on December 16, 2009. On June 24, 2011, the Superior Court issued an order affirming the decision of the Board affirming the issuance of the building permit. Dunlop timely appealed from the court’s judgment pursuant to 14 M.R.S. § 1851 (2011) and M.R.App. P. 2.

II. DISCUSSION

A. Property Acreage

[¶ 12] Dunlop argues that the Board erred in finding that Richardson’s property is over two acres because Richardson did not provide sufficient proof that his property is over two acres, and because she provided sufficient evidence to show that the permit was issued in error. Dun-lop also argues that the Board imposed an improper heightened burden of proof on her in her appeal.

[¶ 13] “When the Superior Court acts as an appellate court, we review directly the operative decision of the municipality.” Gensheimer v. Town of Phippsburg, 2005 ME 22, ¶ 7, 868 A.2d 161 (quotation marks omitted). Here, the Board was the operative decision-maker because it was authorized to and did conduct a de novo review. See id.; 30-A M.R.S. § 2691(3)(D) (2011); Ordinance [304]*304§ 16(H)(1)(a), (3).6 Westport’s Ordinance also provides that the party who files the appeal with the Board bears the burden of proof on appeal. Ordinance § 16(H)(4)(b)(ii).

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Bluebook (online)
2012 ME 22, 37 A.3d 300, 2012 Me. LEXIS 21, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dunlop-v-town-of-westport-island-me-2012.