LaRose v. Town of Kennebunkport

• Court: Superior Court of Maine
• Decided: May 29, 2008
• Docket: YORap-08-02
• Status: Unpublished

Opinion

STATE OF MAINE SUPERIOR COURT CIVIL ACTION YORK, ss. ~C;>C!

MARY KAE LaROSE, et al.,

Plaintiffs

v. ORDER AND DECISION

TOWN OF KENNEBUNKPORT, et a1.,

Defendants

The plaintiffs Mary Kae LaRose and Marc Montagner own real estate at 41

Skipper Joe's Point Road in Kennebunkport near property belonging to the defendants

Charles 1. Nardi and Marie J. Nardi at 38 Skipper Joe's Point Road.

In March or April of 2007 the Nardis received site plan approval from the

Kennebunkport Planning Board for an expansion of their single family home. No

appeal to this Court was taken from the decision of the Planning Board.

In August of 2007 the plaintiffs informed the Kennebunkport Code Enforcement

Officer that a subdivision plan for Skipper Joe's Point existed, see Plan Book 69, Page I,

and that the plan had been approved by the Planning Board on May IS, 1974. Note one

on the plan indicated that, " ... The minimum setback for residences will be 125 feet

from the high water mark." The plaintiffs stated that the Nardis' home was in part

withIn the 125-foot setback, that the alleged noncompliance had not been considered by

the Planning Board and that a permit should not be granted. A building permit was

however granted on September 7, 2007. The plaintiffs appealed the granting of the building permit to the Kennebunkport

Zoning Board of Appeals which denied the appeal on November 26, 2007 stating, in

essence, that the Planning Board decision had not been appealed and that the decision

to grant the building permit was a ministerial act that could not be appealed. A further

appeal was taken to this Court which has been briefed and argued.

The defendants have raised numerous arguments. Several of those arguments

do not require extensive discussion. The plaintiffs do have standing. There is nothing

in 30-A M.R.S.A. §4402(5), which states that the statutory sub-chapter dealing with

subdivisions does not apply to a "subdivision in violation of this subchapter that has

been in existence for 20 years or more", which precludes an attempt to enforce a

restriction found in the plan of a legal subdivision.

The plaintiffs have argued that that the Code Enforcement Officer, before

granting a building permit based on a Planning Board decision, has the independent

duty to examine a claim that information was not presented to the Planning Board and

that, had the information been presented, the approvals should not have been granted.

The defendants argue that the Planning Board made its decision which was not

appealed and that the Code Enforcement Officer is required to follow the Board's

decision and issue the necessary permit. The resolution of this dispute is found in the

Kennebunkport Land Use Ordinance.

Article 1O.8.H states, "Upon notification of the decision of the Planning Board,

the Code Enforcement Officer, as instructed, shall issue, with conditions prescribed by

the Planning Board, or deny a Building or Use Permit." However Article 11.5.A.1 states

that"A permit may be suspended or revoked, if: 1. The permit was issued on

incomplete or false information ..." among other reasons.

2 It is correct that normally the Code Enforcement Officer's job is to execute the

unappealed final decision of the Planning Board. Howevec the Land Use Ordinance

allows for the suspension or revocation of a permit if the permit was issued based on

claimed to be incomplete information. Once called to his attention the Code

Enforcement Officer was required to examine the requirements of the 1974 site plan

approval and determine whether the claimed incomplete information, that the site plan

existed and had a setback requirement, if it had been provided would have changed the

outcome. The Zoning Board of Appeals was likewise obligated to consider the

plaintiffs' arguments.

The result is consistent with Shafmaster v. Town of Kittery, 469 A,2d 847, 850 (Me.

1984) where the Law Court in examining the Kittery Land Use and Development Code

Zoning Ordinance, stated "There is no indication that the granting of Planning Board

approval relieves the Code Enforcement Officer of his or her responsibility to ensure

conformity with zoning requirements." In a different context involving the enactment

of new zoning provisions and the passage of over one year the Law Court stated, in

Perrin v. Town of Kittery, 591 A.2d 861, 4 (Me. 1991) that "We find no error in the trial

court's determination that the Perrins' application for a building permit was a separate

proceeding from the Perrins' previous application for the division of Lot 7 into two

lots ...." Lastly in Turbat Creek Preservation, LLC v. Town of Kennebunkport, 2000 ME 109,

asserting a violation in a particular use of property when the renovations of the

property leading to the use receive town approval based on misleading information

provided by the applicant as to the nature of the renovations and extent of the intended

uses."

3 The plaintiffs timely appealed the Code Enforcement Officer's decision and are

not guilty of finding a clever way to indirectly file an untimely appeal of the Planning

Board's decision.

The entry is:

Decision of the Kennebunkport Zoning Board of Appeals of November 26, 2007 denying the plaintiffs' appeal is reversed. Remanded to the Kennebunkport Zoning Board of Appeals for further remand to the Kennebunkport Code Enforcement Officer for consideration of whether the building permit should be suspended or revoked if the permit was issued on incomplete or false information.

Dated: May 29,2008

cz~,/~ Paul A. Fritzsche Justice, Superior Court PLAINTIFFS: Sandra Guay, Esq. WOODMAN EDMANDS DANYLIK & AUSTIN PO BOX 468 BIDDEFORD ME 04005

DEFENDANT -INH OF KENNEBUNKPORT: Amy T. Tchao, Esq. DRUMMOND WOODSUM & MACMAHON PO BOX 9781 PORTLAND ME 04104-5081

DEFENDANTS - CHARLES & MARIE NARDI, TRUSTEES: JOHN C. BANNON ESQ MURRAY PLUMB £. MURRAY PO BOX 9785 PORTLAND ME 04104-5085