Flower Co. Properties, Inc. v. Town of Kittery

• Court: Superior Court of Maine
• Decided: May 5, 2005
• Docket: YORap-03-060
• Status: Unpublished

Opinion

STATE OF MAINE SUPERIOR COURT CIVIL ACTION YORK, ss. DOCKET NO. AP-03-060

FLOWER COMPANY PROPERTIES, INC., et al.,

Plaintiffs

ORDER

TOWN OF KITTERY, et al.,

Defendants

This case comes before the Court on Petitioners Flower Company Properties, Inc.

and Jacquelyn Nooney's 80B Appeal.

FACTS

Flower Company Properties, Inc. and Jacquelyn Nooney (Petitioners) occupy

two adjacent pieces of property at 18 and 22 Stevenson Road in Kittery, Maine. On

March 9, 1994, Petitioners were granted a special use exception to conduct a

landscaping business at 22 Stevenson Road, subject to five conditions imposed by the

Kittery Zoning Board of Appeals (ZBA). The Kittery Planning Board added six

conditions to its site approval on May 1 2 1994. The following year, Petitioners obtained

a building permit from the Town of Kittery (the Town) to construct the first of three

greenhouses on the property. A permit for a second greenhouse was issued in 1997.

In 2000, Petitioners purchased adjacent property at 18 Stevenson Road. The

following year, they were issued a permit to build an 88' x 27' greenhouse on that

property. In November 2002 Petitioners asked the ZBA to amend the 1994 conditions

imposed on 22 Stevenson Road, to allow additional employees at the site, and to allow the storage and use of chemicals "to control insects on my greenhouse crops." In the

course of hearing that request, the ZBA heard from neighbors and abutters who

objected to Petitioners' apparent violations of the 1994 use conditions. The ZBA also

heard testimony from Petitioners about how they had been unable to comply with the

conditions imposed on their rapidly growing landscaping business. In January 2003,

Petitioners withdrew their request to amend conditions, stating they were moving the

landscaping business to another town. However, in March 2003, the Town Code

Enforcement Office (CEO) found petitioners, by their own admission, to be in violation

of the 1994 special exception conditions and to be continuing to operate the landscaping

business on the property. Petitioners were also in violation of Town noise ordinances

because of fans installed in the 18 Stevenson Road greenhouse.

Neighbors continued to be concerned about what appeared to be Petitioners'

violations of the 1994 conditions, and the noise from the greenhouse fans at 18

Stevenson Road. In June 2003, the CEO told Petitioners that the Town had not

approved the operation of any business at 18 Stevenson Road. In a separate letter, the

CEO concluded Petitioners had move a portion of the landscaping business elsewhere

and were in violation of one condition of use, concerning the storage and use of

chemicals on the property. This decision was appealed to the ZBA by abutters who

believed Petitioners were in violation of many more conditions than one.

On August 26, 2003, the ZBA heard the abuttersf administrative appeal and

overturned the CEO, finding Petitioners out of compliance with four of the five 1994

conditions of use imposed by the ZBA. Petitioners appealed that decision in the

Superior Court pursuant to Rule 80B, claiming they had been unfairly denied an

opportunity to appear and be heard at the ZBA administrative appeal. On July 12, 2004, this Court remanded the case to the ZBA for rehearing to allow Petitioners an

opportunity to appear and argue their case.

On September 14, 2004, on remand, the ZBA concluded that Petitioners were in

violation of all five of the 1994 conditions of use imposed on 22 Stevenson Road by the

ZBA, and that Petitioners had no approval of any lund for conducting a wholesale plant

business out of 18 or 22 Stevenson Road. On January 18,2005, Petitioners appealed that

decision pursuant to Maine Rule 80B.

DISCUSSION

When a Zoning Board of Appeals has conducted a hearing, heard testimony,

considered evidence, and made factual findings concerning the decision of the Code

Enforcement Officer, its determination is "the operative decision of the municipality."

Tarason v. Town of South Benuick, 2005 ME 30, ¶ 6, 868 A.2d 230, ;30-A M.R.S.A. §

2691(3)(D), Kittery Land Use Code 16.04.050 (B)(2). The Superior Court, acting in its

intermediate appellate capacity, reviews the record of the proceedings before the

municipal agency for abuse of discretion, errors of law, or findings unsupported by

substantial evidence. Priestly v. Town of Hermon, 2003 ME 9, ¶ 6, 814 A.2d 995, 997; M.R.

Civ. P. 80B(f). This Court will affirm the decision of the ZBA unless it is arbitrary,

capricious, or unreasonable. Senders v. Town of Columbia Falls, 647 A.2d 93, 94 (Me.

1994). The burden is on the plaintiff to prove that, based on evidence in the record, the

ZBA should have reached a different conclusion. Britton v. Town of York, 673 A.2d 1322,

1325 (Me. 1996). When, as here, the Superior Court remands the case for further

proceedings, all issues raised on the Superior Court's initial review of the governmental

action are preserved in a subsequent appeal. M.R. Civ. P. 80B(m).

Petitioners argue first that the ZBA improperly found them in violation of

restrictive conditions of use that apply to the landscaping business only, and not to the bedding plant business. Petitioners claim the landscaping business has moved off site

and cannot be found in violation. Because Petitioners' property is zoned for agriculture,

they argue, the greenhouse activities and bedding plant business are permissible.

Second, Petitioners argue that the Town is equitably estopped from objecting to

activities connected to the greenhouses after the Town issued permits for their

construction upon which Petitioners reasonably relied. Finally, Petitioners argue that

the ZBA violated Petitioners' due process protections when the ZBA's decision failed to

adequately reflect the "Factors for Consideration" listed in Town Land Use ordinance

16.24.060.

I. Ordinance violations.

a. Violation of the Special Exception Conditions.

Here the record shows that the Town imposed eleven conditions of use upon

Petitioners' landscaping business at 22 Stevenson Road in 1994. Pet. App. A, B. The

record offers ample evidence from abutters and from Petitioners' own admissions, that

Petitioners were violating prohibitions on retail sales, signs, chemical use and storage,

odors, outdoor equipment storage, and hiring more than three employees, to the extent

that Petitioners continued to operate a landscaping business at 22 Stevenson Road. Pet.

App. A, B. In 2002, Petitioners themselves considered their pesticide use in the 22

Stevenson Road greenhouses to be subject to the 1994 conditions in their request for

relief from those conditions. However, to the extent Petitioners activities took place

after the landscaping business was no longer located at 22 Stevenson Road, or took

place at 18 Stevenson Road, Petitioners cannot not be found in violation of the 1994

conditions of use, and such a finding would be clear error on the part of the ZBA.

Although the record is unclear about when or if the Petitioners removed the

landscaping business, the ZBA's decision will not be vacated simply because the record is unclear. See, e.g., Twigg v. Town of Kennebunk, 662 A.2d 914, 916 (Me. 1995). The

record shows that the CEO concluded the landscaping business had not been moved as

of March 19, 2003, and had been partially moved on June 13,2003. The ZBA findings of

September 17, 2004, show Petitioners' testified that the business had been completely

removed from the site and the ZBA drew their own conclusions from that testimony.

Twigg v. Town of Kennebunk, 662 A.2d 914, 916 (Me. 1995)(findingthe Board's decision is

not wrong because a different conclusion could be drawn from it.) Thus Petitioners

have not met their burden of showing that no factual evidence supports the ZBA's

finding that Petitioners were operating a landscaping business at 22 Stevenson Road in

violation of the 1994 conditions of use, and that contrary evidence compels a finding in

Petitioners' favor. Perrin v. Town of Kittery, 591 A.2d 861, 863 (Me. 1991). The decision of

the ZBA will be affirmed.

b. Bedding plant business.

The undisputed record on appeal shows that Petitioners have no approval from

the ZBA or the Town Planning Board to operate a commercial bedding plant business at

either 18 or 22 Stevenson Road. However, both parcels have been zoned as Rural

Residential, which allows, with inapplicable exceptions, "Any agricultural building

and use." Kittery Land Use Code 5 16.12.040(B)(4)."Agriculture" is defined elsewhere

in the Code to include the "production, keeping and maintenance for sale" of plants,

including "ornamental and greenhouse products." Id, at 5 16.08.020. Thus, Petitioners'

production and maintenance of bedding plants in greenhouses on 18 and 22 Stevenson

Road clearly falls w i h n the "Permitted Use" and the definition of "Agriculture"

provisions of the Town Code. Any interpretation of the Code as not permitting the

production, keeping and maintenance of ornamental plants and greenhouse products

for later sale at 18 and 22 Stevenson Road would clearly be in error. However, the use of Rural Residential property for on-site commercial sales is

not a Permitted Use, and therefore requires additional Town approval. Kittery Land

Use Code 5 16.12.040(B). The ZJ3A's conclusion that Petitioners were conducting

commercial bedding plant sales at 18 and 22 Stevenson Road without Town approval in

violation of Town ordinances is supported by competent evidence, and must be

affirmed. Tlzacker v. Kolzover Dew. Corp., 2003 ME 30, 14, 818 A.2d 1013, 1019 (agency's

interpretation of a statute administered by it will be given great deference and upheld

unless the statute plainly compels a contrary result).

111. Estoppel

The doctrine of equitable estoppel states that "a party (1) who is guilty of a

misrepresentation of existing fact, including concealment, (2) upon wluch the other

party justifiably relies, (3) to his injury, is estopped from denying his utterances or acts

to the detriment of the other party." Chrysler Credit Corp. v. Bert Cote's LIA Auto Sales,

1998 ME 53, ql25, 707 A.2d 1311, 1318 (citation omitted). The ability of a party to assert

an estoppel defense against the government is limited depending upon the "totality of

the circumstances involved, including the nature of the government official or agency

whose actions provide the basis for the claim and the governmental function being

discharged by that official or agency." F.S. Plu~nmerCo. v. Town of Cape Elizabeth, 612

A.2d 856, 861 (Me. 1992). Those seelung to restrict enforcement of municipal zoning

ordinances face "forceful policy reasons" that militate against such restrictions. Kittery

Retail Ventures v. Town of Kittery, 2004 ME 65, ¶ 34, 856 A.2d 1183, 1194.

Here, Petitioners argue that, in approving building permits for the construction

of four greenhouses at 18 and 22 Stevenson Road, the Town implicitly approved the use

of pesticides and operation of a commercial bedding plant business in those

greenhouses. Because Petitioners relied to their detriment on the Town's implicit approval, the Town is now estopped from objecting to Petitioners conducting their

business or using pesticides there.

Here, Petitioners are unable to prevail on the merits of their estoppel argument.

Petitioners offer no evidence that the Town, in issuing building permits for

greenhouses, misrepresented or concealed the need for additional approval to operate a

business on land zoned as Rural Residence. Indeed, Petitioi~erswere familiar wit11 the

need for obtaining such approval from their efforts to operate their landscaping

business out of the Rural Residence zone. Petitioners were likewise on notice that

approval might be needed before pesticides could be used in a commercial operation on

such property, after special conditions were imposed in their other commercial

undertahng. Petitioners do not suggest that Town employees misinformed them or

concealed information in the course of issuing the building permits. Nor do Petitioners

suggest that the Town made representations of any lund approving the start of an

additional business at either 18 or 22 Stevenson Road.

However, even if Petitioners had some hope on the merits of their estoppel

argument, the Law Court has expressly held that equitable estoppel cannot, as here, be

used to affirmatively block enforcement of municipal ordinances. Tarason v. T o w n of S.

Benoick, 2005 ME 30, ¶ 16, 868 A.2d -(citing Buker v. T o w n of Sweden, 644 A.2d 1042,

1044 (Me. 1994))(affirming "that equitable estoppel can be asserted against a

municipality only as a defense and cannot be used as a weapon of assault.") Id.

Because Petitioners may not prevail in an offensive use of equitable estoppel, the

decision of the ZBA finding Petitioners in violation of Town ordinances for failure to

obtain approval to conduct commercial bedding plant sales at 18 and 22 Stevenson

Road should be affirmed. IV. Due Process.

Petitioners finally argue that the ZBA failed to frame its findings and conclusions

in terms of the "Factors for Consideration" included in its ordinances. I t t e r y Land Use

Code 16.24.060. T h s failure to explicitly express and apply standards in the ordinance

deprived Petitioners of due process of law.

Here Petitioners inust overcoine a significant presumption that agency actions

were taken with full knowledge of the facts and law. Driscoll v. Gheaualla, 441 A.2d

1023, 1030 (Me. 1982). The "Factors for Consideration" cited by Petitioners refer to

proposed property use, not violations, and apply to ZBA decisions granting or denying

variances, special exceptions, and other decisions affecting land use. The record on

appeal shows that here, the ZBA heard an administrative appeal concerning whether

Petitioners were in violation of the special use conditions imposed in 1994, or of other

ordinances, in their operation of their businesses at 18 and 22 Stevenson Road. No

additional uses or use conditions for 18 and 22 Stevenson Road, subject to these

"Factors for Consideration," were proposed or considered at that administrative appeal,

and Petitioners were not deprived of due process by the ZBA's failure to articulate

them.

CONCLUSION

The decision of Respondent Town of Itteryls Zoning Board of Appeals will be

affirmed to the extent that any violations of 1994 conditions found are applied only to

the Petitioners conduct of a landscaping business at 22 Stevenson Road. The decision of

Respondent Town of Kittery's Zoning Board of Appeals finding additional violations at

18 or 22 Stevenson Road will be affirmed, to the extent the violations are for uses other

than the expressly allowable agricultural uses, including "the production, keeping or maintenance for [off premise] sale" of plants, including "ornamental and greenhouse

products" as permitted in Rural Residence zones.

The clerk may incorporate this order in the docket by reference.

Dated: May 5,2005

~ustice,kuperiorCourt

PLAINTIFF: Gregory Orso, Esq. ERWIN OTT CLARK & CAMPBELL PO BOX 545 YORK ME 03909

DEFENDANT : Duncan McEachern, Esq. MCEACHERN & THORNHILL PO BOX 360 KITTERY ME 3904