JR Redemption Center Inc. v. City of Brewer

CourtSuperior Court of Maine
DecidedSeptember 7, 2017
DocketPENap-17-03
StatusUnpublished

This text of JR Redemption Center Inc. v. City of Brewer (JR Redemption Center Inc. v. City of Brewer) is published on Counsel Stack Legal Research, covering Superior Court of Maine primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
JR Redemption Center Inc. v. City of Brewer, (Me. Super. Ct. 2017).

Opinion

STATE OF MAINE SUPERIOR COURT PENOBSCOT, ss. CIVIL ACTION Docket No.: AP-2017-03

JR REDEMPTION CENTER INC.,

Plaintiff, ORDER ON PLAINTIFFS' 80B V. APPEAL

CITY OF BREWER,

Defendant.

Presently before the Court is Plaintiff JR Redemption Center, lnc.'s M.R. Civ. P. 808

Appeal, filed on January 12, 2017. Plaintiff filed its Brief on May 1, 2017. Defendant, City of

Brewer, filed its Opposition to Plaintiffs Brief on May 22, 2017. Plaintiff filed its Reply

Brief on June 2, 2017. After careful consideration of the parties' respective filings, the

Court reverses the judgment of the City of Brewer Board of Appeals and remands the case

for further proceedings consistent with the opinions expressed below.

I. BACKGROUND

The relevant facts underlying the present dispute can be briefly summarized as

follows. In 1985, Plaintiff began conducting business as a redemption center at 151 South

Main Street in Brewer, Maine. The building Plaintiff used to operate the redemption center

burned down on or around 1992 or 1993. In 1993, Defendant sent a letter to Plaintiff

stating that Plaintiff had previously agreed to remove certain trailers located on the

property and that Plaintiff had not yet satisfied the agreement.

No further action took place, and in 2011, Defendant attempted to have Plaintiff

remove the trailers, but that action was delayed as Plaintiff and Defendant endeavored to I come to an agreement. In 2016, the Code enforcement Officer for Defendant issued I I I II Plaintiff a notice of violation alleging three specific violations. Plaintiff appealed the

decision of the Code Enforcemenl Officer to the Board of Appeals, which held a hearing on

December 7, 2016. At the hearing, the Board voted, five to zero, in favor of upholding the

decision of the Code Enforcement Officer. This appeal concerns only one on the violations:

that JR altered or expanded an originally approved use without approval of the city. The

Board later issued its written decision, confirming the vote in favor of the Code

Enforcement Officer, which specifically found that:

2. The Appellant presented the testirhony of manager Ben Gould, but his testimony was not helpful or convincing on the key facts in issue, some of which related to events occurring a number of years ago. Although we understand that one of the long-time owners, Mrs. Mona Gould, Ben's mother, has died, Mr. Salls is alive, involved in the husiness and knowing that the historical uses and understandings would be an issue, he elected not to be present. We draw no adverse inference from his absence but it may be a part of the reason why Appellant failed to meet its burden.

3. The City presented documentary evidence, including a letter from then Code Enforcement Officer, Donald Grant, to Mr. Salls, dated September 8, 1993. That Jetter expressly refers to an assurance given by the business and Mr. Salls that the storage trailers would be promptly removed. Had the business disagreed with the order to remove the trailers, it could have resorted to the Board of Appeals process. There is no evidence it ever did so and we must therefore conclude that the letter of September 8, 1993 is final and binding on the issue of lack of right to have storage trailers.

4. Although the case is circumstantial, the most likely explanation for the presence of storage trailers on the property is the fire around 1992 which destroyed the wooden building and effectively put JR Redemption out of business. The City most likely allowed the trailers on a temporary basis ( despite a 1992 ordinance prohibiting outside storage at redemption centers), to keep the business going during the rebuild on the express understanding, referred to in Mr. Grant's letter, that they would be removed when the rebuild was complete and the certificate of occupancy for the new building issued. Removal never happened and there was in fact an increase in the amount of unregistered trailers over time.

5. No written site plan from that time frame was found or presented to the Board, but consistent with the more informal manner things were done up to thirty years ago, it is clear that the property owner had either presented a written document

2 which has been misplaced, or had entered into a binding agreement with the City as to the nature of the use. That use did not include unregistered storage trailers.

6. While th e City has let this matter ri ersist for twenty-fi ve years, the Appellant gained no legal or grandfathered rights, si nce the use of storage trailers for outside storage was barred hy the 1Y92 ordinance, or otherwise foreclosed by the failure to appeal the September 1993 order from the CEO. While the business existed in some form going back to 1985, the Board was not convinced based on the evidence presented that box storage trai lers were a part of the business at that time. Jn that respect he [ski Board considered the testimony of Mr. Dearborn and also considered the photograph from 1991 which the l\ppellant introduced, the only one dating back prior to the 1992 ordinance. The next photograph in the sequence, from 1997, shows both the new building and the presence of trailers which can't be seen and appreciated in lhe 1991 photograph. The Board also noted that the old wooden

I building c1ppcared to have signifil.:antly more floor space than the building constructed after the fire. As noted above, the Board also gave no weight to the testimony of Mr. Ben Gould on this point, give n his age at the time, and lack of

I knowledge on those points.

(R. 34-36.) Plaintiff timely filed this appeal.

II. STANDARD OF REVIEW

In an M.R. Civ. P. 808 appeal, the Court reviews a municipality's decision for abuse

of discretion, errors of law, or factual findings unsupported by substantial evidence in the

record. Wyman v. Town ofPhippsburg, 2009 ME 77, ,r 8, 976 A.2d 985. A parly seeking to

vacate a state or local agency decision bears the burden of persuasion on appeal. Bizier v.

Town a/Turner, 2011 ME 116, ,r 8, 32 A.3d 1048. Questions of law arc reviewed de novo

standard, Gensheimer v. Town of Phippsburg, 2005 ME 22, ,r 16, 868 A.Zd 161, while

questions of fact are reviewed under the clear error standard. Green v. Comm'r of the Dept.

ofMental Heu/th, Mental Retardation & Substance Abuse Servs., 2001 ME 86, ,r 9, 776 A.Zd

612.

Local ordinances are reviewed de novo as a question oflaw. Aydelott v. City of

Portland, 2010 MF. 25, i1 rn, 990 A.2d 1024. The court will "examine the plain meaning of

the language of the ordinance, and lJ construe its terms reasonably in light of the purposes

3 and objectives of the ordinance and its general structure." Stewartv. Town oJSedgwick,

2002 ME 81. "Local characterizations or fact-findings as to what meets ordinance

standards will be accorded '"substantial deference."' Rudolph v. Golick, 2010 ME 106, ,r 8, 8

A.3d 684.

Review of an agencies discretionary decision involves the resolution of three issues:

(1) are factual findings, if any, supported by the record according to the clear error standard; (2) did the court understand the law applicable to its exercise of discretion; and (3) given all the facts and applying the appropriate law, was the court's weighing of the applicable facts and choices within the bounds of reasonableness.

Pettinelli v. Yost, 2007 ME 121, ,r 11, 930 A.2d 1074.

III. DISCUSSION

Plaintiff claims that the Board's decision was arbitrary and capricious and based on

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Related

Aydelott v. City of Portland
2010 ME 25 (Supreme Judicial Court of Maine, 2010)
State v. Milliken
2010 ME 1 (Supreme Judicial Court of Maine, 2010)
Wyman v. Town of Phippsburg
2009 ME 77 (Supreme Judicial Court of Maine, 2009)
Pettinelli v. Yost
2007 ME 121 (Supreme Judicial Court of Maine, 2007)
Gensheimer v. Town of Phippsburg
2005 ME 22 (Supreme Judicial Court of Maine, 2005)
Rudolph v. Golick
2010 ME 106 (Supreme Judicial Court of Maine, 2010)
Donald R. Paradis v. Town of Peru
2015 ME 54 (Supreme Judicial Court of Maine, 2015)
Bizier v. Town of Turner
2011 ME 116 (Supreme Judicial Court of Maine, 2011)

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