LaRose v. City of Biddeford

• Court: Superior Court of Maine
• Decided: August 29, 2003
• Docket: YORap-02-053
• Status: Unpublished

Opinion

OTrmon

STATE OF MAINE SUPERIOR COURT YORK, ss. Civil Action Docket No. AP-02-053

SIMONE LAROSE, ) ) Plaintiff ) Tort tae “yo > -~=-BECISIGON AND ORDER v. ) ) THE CITY OF BIDDEFORD, and ) PETER E. PETIT and KIMN. PETIT, ) | ) SEF 5 As Defendants )

This matter came before the Court for hearing on February 14, 2003. At that time, the Court requested that the parties meet to attempt to reach a mutually satisfactory resolution to some or all of the issues raised in this case. Counsel have reported to the

Court that Plaintiff and Defendant Peter Petit have met but have been unable to agree

oD Fp

upon a resolution. Becaus: have requested that the Court continue its review of this matter.

Defendants Peter E Petit and Kim N. Petit are the owners of property located at 20 Forest Street in Biddeford, Maine. This property is located in the R-1-A zoning district. On April 8, 2002, the City’s Code Enforcement Officer sent a Notice of Violation to Defendant Peter Petit. This Notice of Violation instructed Defendant Peter Petit to store all business related equipment, “including but not limited to tools, vehicles and trailers, in an approved enclosed storage area. Defendant Petit appealed the Notice of Violation to the Zoning Board of Appeals. At the same time, Rhonda and Steven Hebert, who were then owners of property abutting the Petit property, appealed the decision, arguing that

the commercial use of the property was not permitted. The Zoning Board of Appeals heid separate hearings on the two appeals. At the conclusion of the hearing on the Heberts’ appeal, the Board voted to deny the appeal. That decision was not appealed. At the same time, the Board continued the hearing on

Defendant Petit’s ‘S appeal. The Board conducted a 2 public hearing on Defendant Petit’s

appeal o on July 10, 2002. At that time, the Board, 4, following its standard practice, did not

allow Plaintiff or any other members of the e public to participate in the hearing.

According to a letter from Defendant E Petit’s counsel to the Board, the Board only heard testimony from the appealing party. However, if that person was someone other than the property owner, then the property owner would be allowed to present testimony. No one else, including abutting property owners, could speak at the public hearing.

At the conclusion of the hearing, the Board voted to grant Defendant Petit’s appeal. The Board’s findings of fact set forth the owner and location of the iot and what ppeal. The findings did not discuss the decision of the Code Enforcement Officer or any of the information submitted to the Board conceming the historical use of the lot. It also did not address the Zoning Ordinance’s provisions governing nonconforming uses. The Board’s decision stated that Defendant Petit could continue the commercial storage of outside equipment, provided that he place screening along the southwesterly property line. Plaintiff filed this appeal.

Both in her Brief and at oral argument, Plaintiff has challenged the decision of the Board as well as the procedures utilized at the Board’s hearing on Defendant Petit’s administrative appeal. Some of these challenges involve the legal interpretation of the

City’s applicable Zoning Ordinance and the application of that Ordinance to the facts in

this case. However, I cannot reach those arguments at this time due to the failure of the o enter sufScient Gndince af fact andr nly af lew ta annarnice the On our at nf iG enter Suiicient imdings of fact and conclusions of law to apprise tne Court of

the basis of its decision. At issue in this case was the Code Enforcement Officer’s order to cease outside storage on the property. The Board’s decision does not address whether

such outside storage was lawfully created or any other relevant considerations. It simply

allows the use to continue if screening is 1S added t to the property, This does not answer the fundamental issue in this case. If the outside storage was not lawfully created through some method reco enized in the Zoning Ordinance, it may not continue under the provisions of that Ordinance. The Board’s decision does not address this issue.

The findings and conclusions do not meet the requirements of 30-A M.R.S.A. § 2691(3)(E), which requires 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 and the appropriate order, relief or denial of relief. The written findings of

_ record of every conditional approval or denial of an application, “sufficient to appraise the applicant and any interested member of the public of the basis for the decision.”

Because the Board’s findings and conclusion fail to meet these standards, this matter

must be remanded to the Board. See Chapel Road Associates, L.L.C. v. Town of Wells, 2001 ME 178, { 12, 787 A.2d 137, 140-141 (remedy for an agency's failure to make sufficient and clear findings of fact is a remand to the agency for findings that permit meaningful judicial review).

Furthermore, I find that the Board’s decision to exclude the testimony of anyone

other than Defendant Petit was an error of law that requires a new hearing by the Board.

Section 2 of the Zoning Ordinance defines Plaintiff as an abutter to the Petit property. that her property interests are impacted by the use of the Petit property. Because of this,

she was entitled to participate as a party in the hearing. See Fitanides v. City of Saco,

684 A.2d, 421, 423 fn. 1 (Me. 1996) (abutting property owners entitled to procedural due

process rights).

Plaintiff has indicated that she does not want the Court to remand this matter. She - has stated a concer that the Board of Appeals has already made its decision in this case and will not be willing to listen to her testimony or consider the evidence that she has already attempted to present, both on her own and through her son. These concems are addressed by the requirement of this Order that the Board conduct a new hearing and allow full participation of neighboring property owners and their attorneys or other representatives.

For the reasons stated, the decision of the Board of Appeals is vacated and remanded to the Board for a new hearing on Defendant Petit’s appeal. The Board shall allow neighboring property owners to participate in the hearing, through both oral testimony and submission of evidenc e.

This Court shall retain jurisdiction over this matter pending the action of the

(Ch fa

J ystice, Superior Court

Board of Appeals.

Dated: s/, 29-22 PLAINTIFF: co”

Natalie Burns, Esq.

JENSEN BAIRD GARDNER AND HENRY PO Box 4510

Portland Me 04112

DEFENDANTS PETITS John Turcotte, Esq. LEVIS & HULL

409 Alfred St Biddeford Me 04005

ALL DEFENDANTS

Harry Center, Esq.

SMITH ELLIOTT SMITH AND GARMEY PO Box 1179

Saco Me 04072