Molinelli v. Town of Boothbay

• Court: Superior Court of Maine
• Decided: February 4, 2019
• Docket: LINap-18-05
• Status: Unpublished

Opinion

STATE OF MAINE SUPERIOR COURT LINCOLN, ss. LOCATION: WISCASSET DOCKET NO. LINSC-AP-2018-05

EUGENE & JUDITH MOLINELLI ) ) Plaintiffs, ) ) V. ) ORDER ON PLAINTIFFS' ) RULE SOB APPEAL TOWN OF BOOTHBAY ) ) Defendant. )

This matter is before the Court on Plaintiffs' Rule SOB Appeal. Plaintiffs contend that the

Town of Boothbay Board of Appeals erred by upholding Notice of Violations issued

against them.

BACKGROUND Eugene and Judith Molinelli ("the Molinellis") purchased 66 Sawyers Island Road

from the Lewis family in 2007. Pl.'s Br. 1. Their deed includes, and they assert, a view

easement of the Sheepscot River that is across the road from their property and over a

portion of property across the street, 65 Sawyers Island Road, that used to be owned by

the Lewis's. 1 Pl.'s Br. 1-2. Peter and Kathryn Wagner (the "Wagners") purchased 65

Sawyers Island Road from the Lewis's in 2012. Def.'s Br. 1. Before the Wagners bought

the property, the Lewis's had maintained the vegetation more or less in accordance with

the easement. R. 130. After the Wagners purchased the property a dispute arose about

the scope of the view easement. R. 130. 65 Sawyers Island Road is located within the

1 The deed restriction states: It is agreed that no house or other structure will be built and no vegetation allowed to grow so as to interfere or block the view of the Sheepscot River [from the 66 Sawyers Island Road parcel]." R. 51.

1 Special Residential zoning district, and a portion of it is also located within the Shoreland

Overlay zoning district. R. 27. This means that the Shoreland Zoning Ordinance (ZO),

section 3.11.3 pertaining to the clearing or removal of vegetation, applies to the Wagners'

property. The ZO provides an exemption from the vegetation clearing and removal

technicalities for property within the Shoreland Overlay zoning district that has been

consistently maintained. If the property has not been maintained, it is considered to have

reverted back to its natural state and is subject to the Shoreland ZO provisions.

The area that the Molinellis assert a view easement over are described as the

mowed meadow,2 the steep slope shoreline, and the understory. R. 133-43. In 2013, the

Wagners hired a landscape architect, Sarah Witte, to develop a maintenance plan that

would be consistent with both the Shoreland ZO and the Molinellis' view easement. R.

262. Peter Wagner testified before the BOA that Sarah Witte told him that the meadow

had not reverted, but that the understory and the steep slope shoreline may have

reverted. R. 263.

The Town of Boothbay's ("the Town") Code Enforcement Officer ("CEO") became

involved in January 2014 when the Wagners and the Molinellis could not agree on the

maintenance to be performed on the Wagners' property. R. 123. After a site visit at the

property with former-CEO Dan Breyer, the Molinellis hired their own forester to create a

Vegetation Maintenance Plan ("VMP"). R. 213. In July 2015, the Wagners completed

maintenance of the view easement per Sarah Witte's report and notified then-CEO Art

Dunlap that it was complete. R. 262. In September 2015, the Molinellis conducted

additional cutting on the property, prompting a letter from CEO Dunlap to the Molinellis

2 The parties agree that the meadow area has been mowed annually and is not an issue for this appeal. Def.'s Br. 3.

2 directing them. to stop any cutting of steep slope and understory until certain zoning

requirements were met. R. 262, 110-11. CEO Dunlap further indicated that future cutting

would have to be according to a plan filed with, and approved by, his office before cutting

occurred. R. 111.

This correspondence caused two additional VMPs to be created by the Molinellis'

forester, which were reviewed by an employee of the Department of Environmental

Protection, and sent to CEO Dunlap. R. 214. This process lasted from September 2015

through September 2017. R. 110, 148. The Molinellis' lawyer, Attorney Pottle, represents

that CEO Dunlap told him that the third VMP was acceptable. R. 214-15. The Town

contends that the plan m.ay have been submitted to the CEO in September 2017, but no

CEO had ever approved any version of the Molinellis' VMPs. R. 238. In November 2017,

the Molinellis hired a licensed arborist to perform. maintenance of the steep slope and

understory. R. 217. The Molinellis did not seek a perm.it from. the Town for this activity.

R. 234.

The Town's new CEO, Jason Lorrain, was informed of this maintenance after it

occurred and visited the site on November 13, 2017. R. 27. CEO Lorrain issued 11 Notice

of Violations (NOVs) to both the Molinellis and the Wagners on December 21, 2017. R.

27-31. The Molinellis appealed the NOVs to the Boothbay Board of Appeals (BOA) on

January 18, 2018. R. 20-22. The appeal hearing was postponed to allow for settlement

discussions but no settlement happened. R. 234-35. The Molinellis hired another licensed

forester, Steve Pelletier, who went to the site in February 2018 with CEO Lorrain and

Sarah Witte to review the cutting. R. 220.

On May 21, 2018, the BOA held a hearing on the Molinellis' appeal of the NOVs.

R. 204-306. Attorney Pottle, forester Steve Pelletier, CEO Lorrain, Peter Wagner, and the

Town's attorney, Sally Daggett, all testified. The BOA heard evidence about what

3 Pelletier and Lorrain observed on the property, whether the property had reverted, when

cutting occurred, and whether any "trees" as defined by the ZO were cut. Ultimately, the

BOA upheld eight of the eleven NOVs (1, 4, 5, 6, 7, 8, 10, and 11). R. 305. The BOA issued

a three-and-a-half-page written decision with Findings of Fact on May 29, 2018. R. 314­

17. It specifically made findings that at least one tree had been cut, vegetation was cut

below three feet, and that the steep slope and the understory had reverted. R. 314-17. This

Rule BOB appeal timely followed. The Molinellis do not appeal the BOA upholding NOV

#7. The NOVs being appealed are the following:

#1. Violation of Section 3.11.3.2.1 of the ZO: A licensed forester was not used to determine what vegetation could be removed.

#4. Violation of Section 3.11.3.2.1.2.l of the ZO: Cutting did not follow the required point system for trees to remain within seventy-five feet (75') of the high water line of the Sheepscot River.

#5. Violation of Section 3.11.3.2.1.2.2 of the ZO: "Other natural vegetation" was not maintained.

#6. Violation of Section 3.11.3.2.1.3 of the ZO: Undergrowth and ground cover less than three feet (3') in height was not maintained.

#8. Violation of Section 3.11.3.2.1.5 of the ZO: None of the trees removed were determined to be storm damaged, diseased or dead.

#10. Violation of Section 3.11.3.2.5 and Section 3.11.8.1 of the ZO: Any former cleared opening had reverted to primarily shrubs, trees, or other woody vegetation and must now be allowed to continue its regrowth and meet the requirements of Section 3.11.3.

4 #11. Violation of Section 3.9.7.1.3.2 of the ZO: The Land Use Table requires a permit from the CEO to clear vegetation in the Shoreland Overlay portion of the Special Residential Zoning District and such clearing must comply with Section 3.11.3.

STANDARD OF REVIEW

In an appellate capacity, the Superior Court reviews a municipality's decision

directly for errors of law, findings not supported by the evidence in the record, or an

abuse of discretion. Tenants Harbor Gen. Store, LLC v. Dep't of Envtl. Prot., 2011 ME 6,

10 A .3d 722. The party asserting an error in a Rule BOB appeal bears the burden of

showing that error before the court. Quiland, Inc. v. Wells Sanitary Dist., 2006 ME 113,

16, 905 A.2d 806. A decision is supported by substantial evidence "when a reasonable

mind would rely on that evidence as sufficient support for a conclusion." Phaiah v. Town

of Fayette, 2005 ME 20,

Southwest Harbor, 2001 ME 9,

judgment for that of the board, and may not determine that a board's decision is wrong

"because the record is inconsistent or a different conclusion could be drawn from it."

Phaiah, 2005 ME 20,

A planning board's interpretation of an ordinance is a question of law that the

court reviews de novo. Aydelott v. City of Portland, 2010 ME 25,

Logan v. City of Biddeford, 2006 ME 102,

plain meaning of the language of the ordinance" and reasonably construe its terms "in

light of the purposes and objectives of the ordinance and its general structure." Stewart v.

Town of Sedgwick, 2002 ME 81,

5 DISCUSSION

I. The Record to be Considered on Appeal.

Preliminarily, the Town objects to the Record filed by the Molinellis as not

containing all the information that was before the BOA, and also including some

information that was not before the BOA. In a Rule 80B action, "review shall be based

upon the record of the proceedings before the governmental agency." M.R. Civ. P. 80B(f).

If the agency's decision was based on a municipal ordinance, then a copy of the relevant

sections must be included in the record. Id. (e)(2). If the parties cannot agree on the

Record, then the dispute is submitted to the Court. Id.

First, the Town argues that the Record doesn't include some sections of the 2017

ZO that should have been included. The Molinellis do not object to the additional sections

of the ZO being included. 3 Second, the Town argues that the Record includes documents

that were not presented to, or referenced by, the BOA: the 2014 and 2016 ZOs. The 2016

and 2017 ZOs provide an exemption to the clearing and vegetation removal

requirements. R. 324, 351. That exemption, section 3.11.8, provides that the vegetation

removal standards set forth in section 3.11.3 do not apply to:

[t]he removal of vegetation that occurs at least once every two (2) years for the maintenance of legally existing areas that do not comply with the vegetation standards in this chapter .... If any of these areas, due to lack of removal of vegetation every two years (2) reverts back to primarily woody vegetation, the requirements of Section 3.11.3 apply.

R. 324, 351. The 2014 ZO is silent on this exemption. The Town argues that because the

BOA did not have the 2014 and 2016 ZOs before them, or even reference them during the

3 The Supplemental Record shall consist of pages 394-409.

6 hearing or in their discussions, that they were not "before the governmental agency" as

required by Rule 80B(f) and therefore should be excluded from the Record.

In response, the Molinellis argue that the ZO is relevant to the issue of

grandfathering and vegetation reversion, which the BOA decided, and therefore the

sections are required to be in the Record. The Molinellis make this assertion despite never

arguing before the BOA that an earlier version of the ZO applied to these NOVs. The

Town is correct that the earlier ZOs were not presented to, or referenced by, the BOA

during the hearing or in its decision-making process. In fact, before the BOA, Attorney

Pottle stated "I do want to point [sic] the reversion issue right now is a two-year time

frame, it's not one year, it's two," R. 248, and then directed the BOA to the 2017 ZO.

Although he did state that the issue has been ongoing since 2012, he never pointed to an

earlier ZO as applicable to this dispute.

In Boutet v. Town of Old Orchard Beach, the Superior Court (York County, O'Neil, J.)

was presented with a defendant's motion to strike documents from the record on a Rule

BOB appeal. No. AP-15-8, 2015 Me. Super. LEXIS 250 at *1 (Oct. 16, 2015). The defendant

contended that certain documents were not before the Planning Board as contemplated

by M.R. Civ. P. 80B(e)(2), and therefore could not be part of the record on appeal per M.R.

Civ. P. 80B(f). Id. at *2. Although the documents were not squarely before the Planning

Board in its hearing, the court pointed out that the Board "drafted, considered, or was

aware of each item in granting either the original approval in 1988 or subsequent

amendments and relief to [] developers over the years." Id. at *3. The court determined

that when read narrowly, the Rule would "strictly limit the record to evidence considered

during the underlying proceedings a plaintiff appeals from." Id.

The court reasoned that the purpose of the Rule is to "limit the record to evidence

that was actually considered by the Planning Board in rendering the decision under

7 review." Id. There, the court denied the motion to strike because it determined that it was

necessary to interpret Rule 80B(e)(2) broadly because of the long and complex history of

the development. 4 Id. at *3-4. The court allowed consideration of the "other related

approvals, deeds, and other documents that have been submitted to, considered, and

acted upon by the very same government agency-the Town Planning Board." Id. at 4.

In the case at bar, nothing indicates that the prior ZOs were submitted to,

considered, or acted upon by the BOA. The Molinellis are instead trying to expand the

Record to include support for a new argument that they assert before the Court, but that

they never made before the BOA. This makes the instant case unlike Boutet. For these

reasons, this Court will consider the additional sections of the 2017 ZO in the record as

pages 394-409, but exclude pages 347-393, the older 2014 and 2016 ZO, from the Record.

II. NOV #10. Did the BOA Err in Determining that the Property Was Not Exempt Under Section 3.11.8.1 From the Requirements of the Shoreland ZO Because it Determined that the Property Had Reverted to Woody Vegetation Per Section 3.11.3.2.5?

NOV #10 alleges violations of Shoreland ZO because the property had reverted

primarily to woody vegetation before the Molinellis' 2017 cutting. According to sections

3.11.8 and 3.11.8.1:

[t]he removal of vegetation that occurs at least once every two (2) years for the maintenance of legally existing areas that do not comply with the vegetation standards in this chapter, such as but not limited to cleared openings in the canopy or fields. Such areas shall not be enlarged, except as allowed by this section. li any of these areas, due to lack of removal of vegetation every two (2) years, reverts back to primarily woody vegetation, 5 the requirements of Section 3.11.3 apply[.]

4 The Development was originally approved in 1988, was frequently before the Old Orchard Beach Planning Board, and was the subject of at least one other Superior Court case: Dominator Golf LLC v. Pine Ridge Realty Corp. et al., No. CV-14-33, 2015 Me. Super. LEXIS 171 (July 8, 2015). 5 "Woody vegetation" is defined by the ZO as "[!Jive trees or woody, non-herbaceous shrubs." R. 82.

8 Also listed in NOV #10 is section 3.11.3.2.5 which provides that "[f]ields and other cleared

openings that have reverted to primarily shrubs, trees, or other woody vegetation shall

be regulated under the provisions of section 3.11.3.2." NOV #6 is interrelated because it

involves the required height of maintained vegetation. The Molinellis assert that the

vegetation height was allowed to be lower than three feet because of their legally

grandfathered easement. They also argue that because of their easement and continued

maintenance they are exempt from the Shoreland ZO, so the height requirement laid out

in the ZO does not apply to the ground cover that was cut below three feet. Pl.'s Br. 15.

The Molinellis generally argue that the BOA erred in finding that the understory

and steep slope had reverted according to sections 3.11.8 and 3.11.8.1 of the ZO because

the BOA erroneously failed to determine that the view easement area was grandfathered

from the vegetation clearing requirements of the Shoreland ZO. Pl.'s Br. 14-15. In support

of this general argument, the Molinellis advance three discrete arguments on appeal.

First the Molinellis argue that maintenance has occurred every year, except for the

two years from 2015 through 2017 that they were working with the Town to try to find a

suitable solution for themselves, the Wagners, and the Town. Pl.'s Br. 15-16. They state

that this two-year lull in maintenance cannot amount to abandonment of their view

easement because they always had the intent to maintain it. Pl.'s Br. 15-16. Second, and

an argument that they did not raise before the BOA, is that their 2017 maintenance did

fall within the two year exemption window because the provision did not exist in the ZO

until May 2, 2016, and should apply prospectively. 6 Finally, the Molinellis assert that even

6 Similarly, the Molinellis also progress a "calendar year" argument - that because the provision was enacted in 2016, the Molinellis could qualify for the exemption so long as they did any

9 if they did not conduct maintenance activities within the two year exemption window,

that it is irrelevant because the section contemplates a twofold "if-then" analysis: (1) if

the vegetation removal did not occur within two years, then (2) determine whether the

area actually reverted back to woody vegetation. Pl.'s Br. 18-19. The Molinellis argue that

the BOA only considered the first step of the two-part analysis.

In response, the Town first stresses the deferential standard of review that must

be applied to the Board's factual finding that the areas had reverted. It then points to

documentary evidence and oral testimony in the record that it claims shows that those

areas reverted as early as 2013 and that the Town consistently maintained that position

through 2015. Def.'s Br. 12-14. The Town further contends that the Molinellis new

arguments regarding the effective date of the provision fail because: (1) they are waived

because they could have been presented to the BOA but were not, and (2) they were

already on notice that the property had reverted before the May 2, 2016, effective date of

the provision, and; (3) it would not be reasonable to apply the reversion start date as of

May 2, 2016. Def.'s Br. 14-15.

A. The Molinellis' Argument that They Intended to Maintain Their View Easement.

The Molinellis argue that maintenance occurred every year except for when the

Town prohibited it and that because they always intended to maintain their easement,

their property should still be considered exempt from the clearing/ removal provisions

of the ZO. In support of their argument, they offer Henner v. Inhabitants of Glenburn, No.

CV-89-452, 1990 Me. Super. LEXIS 222 (Oct. 24, 1990). In that case, the plaintiff owned a

seasonal cottage in the Shoreland Zone that the Town of Glenburn claimed was a

maintenance within the 2016 or 2017 calendar year. Again, this is an argument that was not advanced before the BOA

10 nuisance or dangerous. Id. at *1-2. To bring the cottage into compliance, the plaintiff

applied for a plumbing permit from the Town's CEO, as required by the ZO. Id. at *2. The

CEO decided that the plaintiff was applying for a renewal of a nonconforming use

because she has not occupied her cottage for over 12 months. Id. at * 3. Because of the

non-use, her application was treated as a request for a variance by the BOA, which had

jurisdiction over changes in nonconforming uses. Id. at * 2-3. The Superior Court

(Penobscot County, Silsby II, J.) held that "[i]t was an error of law to determine that more

than 12 months non-occupancy was an abandonment or discontinuance of the use of the

property as a seasonal cottage." Id. The Court reasoned that while sometimes "a non­

occupancy over a period of time may be a factor in the discontinuance of a use, by itself

it is not sufficient." Id.

Generally, abandonment is a voluntary, affirmative act that includes a clear intent

to give up ownership. Lewis v. Me. Coast Artists, 2001 ME 75,

use, even for lengthy periods of time, is, of itself, insufficient to show an abandonment of

a right especially where the acts manifest an intent contrary to abandonment." Lewis v.

Me. Coast Artists, 2001 ME 75,

claiming abandonment of property by its opponent has the burden to prove intent to

abandon and actual abandonment. Lewis v. Me. Coast Artists, 2001 ME 75,

644.

Here, although the Molinellis advanced this argument before the BOA, it did not

consider the Molinellis' intent to maintain their view easement, 7 and instead decided that

the view easement is irrelevant when it comes to compliance with the ZO, R. 315, and

7 Their intent to maintain the easement is clear. They had hired a forester, had been working on VMPs, and clearly told the Wagners that they intended to maintain the easement. They hired legal counsel years before this suit occurred for the purpose of protecting the view easement.

11 solely focused on the lack of maintenance from September 2015 through November 2017.

R. 316. At the hearing, one board member pointed out that the Molinellis were not doing

any cutting at the direction of the Town, because they were threatened with NOVs if they

maintained the property. R. 285. Despite this, the BOA focused solely on the two-year

time frame that no cutting occurred, and without giving any weight to the reason why,

voted by a majority that the property had reverted. R. 316.

The Town does not attempt any argument against the fact that it was their actions

that caused the just-over two-year lapse in maintenance, but, instead it is the Town's

position that the property had reverted before the two-year lapse in maintenance. In CEO

Dunlap's April 2016 letter to the Molinellis attorney, he stated that the property had

already reverted because Judith Molinelli submitted an affidavit that referred to saplings

one to two feet tall, which would take two to four growing seasons to reach that height.

R. 114. Although no provision existed in the ZO regarding reversion at that time, 8 the

ZO was modeled off DEP' s regulations, and the DEP informed CEO Dunlap that land

was considered reverted if not maintained for more than 12 months. R. 114. CEO Dunlap

reasoned that two to four growing seasons was more than 12 months, thus, the property

had reverted and had to be maintained within the Shoreland ZO guidelines.

The Molinellis have the better argument. They attempted to work with the Town,

even if not always harmoniously, for years regarding the maintenance of their view

easement. When CEO Dunlap stated that all future plans for cutting had to be approved

by his office, the Molinellis caused a total of three VMPs to be produced and submitted.

Further, it appears that it was within the BOA s power to determine whether the property 1

reverted, not within the CEO's power. As the Molinellis argue, if the Town were prevail

8 The two-year reversion provision was adopted in the May 2016 ZO.

12 in this strict reading of the ZO, it would discourage property owners from working with

the Town in the future. The Town could essentially weed out all nonconforming uses by

ordering that they not occur until certain requirements are met, never approving the

requirements despite an effort by the landowner to comply, and waiting for two years to

pass, thereby removing the property from the exemption provision of the ZO.

Therefore, this Court determines that the BOA made an error of law, or

alternatively, abused its discretion, in determining that the view easement, and the

Molinellis intent to maintain it, did not have an impact on their determination of

reversion under the given circumstances. Because of this, the BOA' s decision to uphold

NOV #10 is reversed and vacated. 9

i. NOV #6. Did the BOA Err in Upholding a Violation of Section 3.11.3.2.1.3, of the ZO: Undergrowth and Ground Cover Less Than Three Feet (3') in Height Was Not Maintained?

NOV #6 pertains to whether vegetation under three feet in height was cut. The

Molinellis' view easement provides that "no vegetation [will be] allowed to grow so as to

interfere or block the view of the Sheepscot River." As immediately discussed prior, the

BOA made an error of law, or abused its discretion, in determining that the property

reverted when it did not take into account the Molinellis' view easement, or why the

Molinellis did not conduct maintenance for that two year period. Because the Court is

reversing and vacating the BOA's decision to uphold NOV #10, NOV #6 is also reversed

and vacated. If the property did not revert, it would not be a violation to maintain

vegetation less than three feet in height.

9 Because the Court is reversing and vacating the BOA's decision to uphold NOV #10 (and NOV # 6 as discussed below) there is no need to address the Molinellis' argument that the exemption provision of the ZO should apply prospectively, which the Town argues is waived, or the Molinellis' assertion that the exemption provision requires a two-part analysis.

13 III. NOV #1. Was a Licensed Forester Necessary to Determine What Vegetation Could be Removed Pursuant to Section 3.11.3.2.1 of the ZO?

The Molinellis argue that the BOA erred as a matter of law in interpreting the ZO

to require a licensed forester for regular maintenance of vegetation on the property, and

not just for maintenance that involves safety hazards. Pl.'s Br. 9-10. Section 3.11.3.2.1

states that

[e]xcept to allow for the development of permitted uses and the removing of safety hazards specifically identified and marked by a Maine licensed forester, a buffer strip of vegetation shall be preserved within a strip of land extending 100 feet from the shoreline of a great pond and 75 feet from any other shoreline.

In response, the Town thinly argues that because at least one tree was cut, and it was not

identified as a hazard tree, that no one can make a hindsight determination of whether

the tree was a hazard tree that would have needed to be identified by licensed forester

before being cut. 10 Def.'s Br. 16-17. They do not argue the Molinellis' interpretation of the

ZO, but instead rely on the deferential review that courts give to a BOA's decision. The

Town asserts that because no one knows whether the tree was a hazard, that this record

does not compel a contrary finding.

A factfinder' s interpretation of a ZO' s requirements is reviewed de novo. Bizier v.

Town of Turner, 2011 ME 116, CJ[ 14, 32 A.3d 1048. A ZO is examined for its plain meaning

and its terms are construed reasonably "in light of the purposes and objectives of the

ordinance and its general structure." Id. When an ordinance is "clear on its face" the court

10 "Safety hazard" is not defined by the ZO, but a "hazard tree" is a tree with a structural defect, combination of defects, or disease resulting in a structural defect that under the normal range of environmental conditions at the site exhibjts a high probability of failure and loss of a major structural component of the tree in a manner that will strike a target. R. 334-35. Trees that pose a seriou and imminent risk to bank stability are hazards, and "target" is further defined by the ZO. R. 334-35.

14 need look no further than its plain meaning. Id. Although interpretation of an ordinance

is a question of law, the court accords substantial deference to the fact finder's

characterizations and determinations as to what meets a ZO's standards. Id.

Here, the BOA made no findings of fact that indicate a safety hazard existed, just

that the Molinellis did not use a licensed forester. R. 315,

argue, is clear on its face. Worded differently, but still keeping the same meaning, the ZO

provides that a buffer strip of vegetation must be preserved, except in two situations: (1)

to allow for the development of permitted uses and (2) when a safety hazard that has

been specifically identified and marked by a licensed forester must be removed.

The BOA incorrectly interpreted its own ZO to mean that a licensed forester must

be used for any maintenance activities, not just for identifying and removing hazards,

which is an error of law. It made no factual findings that a hazard existed (or even might

have existed) that would have required the use of a licensed forester. Because of this, the

BOA's decision to uphold NOV #1 is reversed and vacated.

IV. NOV# 8. Did the BOA Err in Upholding the Violation of Section 3.11.3.2.1.5: None of the Trees Removed Were Determined to be Storm Damaged, Diseased, or Dead?

In its entirety, section 3.11.3.2.1.5 of the ZO provides that [i]n order to maintain a buffer strip of vegetation, when the removal of storm-damaged, diseased, unsafe, or dead trees results in the creation of cleared openings, these openings shall be replanted with native tree species Lmless existing new tree growth is present.

R. 322. The Molinellis first argue that no "trees," as defined by the ZO, were cut, except

for possibly one, which the BOA found after its site visit. 11 Pl.'s Br. 11. They further argue

11 According to the ZO, a tree is "a woody p erennial plant with a well-defined trunk(s) at leas t two (2) inches in diameter at four and one half (4.5) feet above the ground, with a more or less definite crown, and reaching a height of at least ten (10) feet at maturity."

15 that for this section of the ZO to apply, there mus!,be a storm-damaged, diseased, unsafe,

or dead tree that is subsequently removed. Next, they contend that if one of these trees

was determined to have existed and then been removed, this section of the ZO still does

not apply unless a cleared opening was created, which the BOA expressly rejected as it

did not uphold NOV #2: a cleared opening in the forest canopy exceeded two hundred

fifty square feet. Pl.'s Br. 12.

The Town does not address whether the tree that was cut was storm damaged,

dead, diseased, or unsafe, or whether its removal created a cleared opening. 12 In fact,

they do not address this NOV in any specific way, but instead lump it together with

NOVs #1, #4, and #5. 13 However, giving the Town the benefit of the doubt because of

the deferential level of review that must be applied by this Court, its argument about

hazard trees could apply to this NOV. The BOA did find that at least one tree had been

cut, but made no determination regarding whether it was a hazard tree. Def.'s Br. 17. The

Town further argues that the Molinellis have not shown that the Record evidence

compels a contrary finding.

It is important that the BOA did not uphold NOV #2. 14 In reversing that NOV, it

determined that there were no cleared openings in the forest canopy. R. 317. Also, during

discussions, at least some of the BOA members stated that they did not see a cleared

opening of 250 feet. Because of the Town's lack of argument on this NOV, the lack of

12 "Cleared opening" is not defined in the ZO, but section 3.11.3.2.1.1 provides that no cleared openings bigger than 250' may exist in the Shoreland Zone. 13 As will be discussed below, this Court finds the Town's arguments regarding NOVs #4 and #5 unconvincing. 14 NOV #2. Violation of Section 3.11.3.2.1 of the ZO: Cleared openings in the forest canopy exceeded two hundred fifty square feet (250 sq. ft.).

16 . .

findings about any damaged trees that would qualify as a violation of this subsection,

and the express rejection of any cleared opening, the evidence does compel a contrary

result. This is not merely an inconsistency in the record, but instead a total lack of

evidence that would be required for the BOA to uphold a violation of this section. The

Court reverses and vacates the BOA's decision to uphold NOV# 8.

V. NOV #4 and #5. Was the BOA Correct in Upholding Violations of Subsections of the Shoreland Overlay Zone and Watershed Overlay Zone After It Declined to Uphold NOV# 3?

The Molinellis argue that NOVs #4, section 3.11.3.2.1.2.1 of the ZO, and #5, section

3.11.3.2.1.2.2, cannot stand because they are merely subsection definitions of NOV #3,

section 3.11.3.2.1.2, which governs requirements for the selective cutting of trees within

the buffer strip. 15 Def.'s Br. 13. They argue that NOVs #4 and #5 are reliant on the

upholding of NOV #3, which the BOA declined to do. Def.'s Br. 13.

In response, the Town asserts that the Molinellis have not shown that the evidence

in the record compels a contrary finding because at least one tree was cut and there is no

dispute that other natural vegetation was cut. Def.'s Br. 16-17. Like NOV #1, the sections

of the ZO that are the foundation of NOV #4 and NOV #5 are clear on their face. It is

easiest to see this clarity by viewing the sections of the ZO that were allegedly violated

as a whole. Page 56 of the Record shows these sections as they appear in the ZO.

Viewing the subsections that are the bases for NOV #4 and #5 against the ZO as a

whole, it is clear that the Molinellis are correct in their argument. The Board did not

uphold NOV #3 regarding the selective cutting of trees. The sections that NOVs #4 and

#5 are based upon are clearly explanatory subsections to NOV #3 because they are both

15 NOV #3. Violation of Section 3.11.3.2.1.2 of the ZO: Selective cutting was not followed and a "well distributed stand of trees" was not maintained.

17 . '

below and indented from the parent section, and define terms found in the parent

subsection. Further, the sequential numbering of the NOVs indicate that #4 and #5 are

subsets of NOV #3. Although it is slightly confusing because of all the periods in the ZO,

no one would seriously argue that sections 3(11)(3)(2)(1)(2).W and 3(11)(3)(2)(1)(2)ill

were not subsections of 3(11)(3)(2)(1)(2). Therefore, NOVs #4 and #5 cannot stand

because they are mere subsections of NOV #3 that the BOA declined to uphold.

The BOA misinterpreted a part of the ZO that was clear on its face by finding that

there could be violations of subsections of the selective cutting of trees after it determined

that no selective cutting of trees occurred, and declining to uphold NOV #3 relating to

the cutting. This is an error of law. The Court reverses and vacates the BOA's decision to

uphold NOVs #4 and #5.

VI. NOV #11. Did the BOA Err in Upholding the Violation of Section 3.9.7.1.3.2 That a Permit Was Required and That Any Clearing Had to Comply With the Clearing and Removal Requirements of Section 3.11.3?

Section 3.9.7.1.3 .2, the basis for NOV #11, is a land use table that shows the clearing

of vegetation requires a permit in Shoreland Overlay Zones, and that section 3.11.3,

Clearing and Removal of Vegetation in the shoreland zone, provides supplemental

standards. Supp. R. 397-98. The Molinellis argue that they should not have been required

to obtain a permit because they were clearing vegetation in compliance with the

exemption sections 3.11.8 and 3.11.8.1. Pl.'s Br. 15. Together, those sections provide that

the requirements of 3.11.3 do not apply to the removal of vegetation occurring at least

once every two years to maintain legally existing nonconforming areas. 16 The Molinellis

16 The Molinellis attempt to categorize their clearing activity as involving storm damaged, dead, or cLseas d trees, because then, under certain circumstances, no permi t is required per section 3.11 .7.1.3 to remove them . However, this argument i purely speculative and meritless. As they argu ed before, there isno way to m ake a hindsight determination of w hether a tree was a h azard

18 argue, but provide no cite to the ZO, that because they have a legally grandfathered view

easement over the area, they are exempt from obtaining a permit for maintenance of the

easement due to 3.11.8 alone.

The Town argues for a plain reading of the land use table and the ZO as a whole.

Def.'s Br. 11-12. The land use table is clear that a permit is required to remove vegetation

in a Shoreland Zone. Vegetation is defined in the ZO as "[a]ll live trees, shrubs, and other

plants including without limitation, trees both over and under 4 inches in diameter,

measured at 4 1 /2 feet above ground level." R. 345. The Town correctly asserts that the

Molinellis' did not obtain a permit for the November 2017 clearing, and that there was

clearly vegetation removed. R. 223-24, 226. The Town refutes the Molinellis' assertion that

they are exempt from obtaining a permit for maintenance of the view easement because

nothing in the land use table (which supplies the permit requirement), or the section of

the ZO providing the exemption from compliance with section 3.11.3, state that no permit

is required for such maintenance.

This Court reviews the interpretation of a ZO de novo, but looks to the plain

meaning of the ZO and strives to construe its terms "reasonably in light of the purposes

and objectives of the ordinance and its general structure. Stewart v. Town of Sedgwick, 2002

ME 81, 9I 6, 797 A.2d 27. The Town has the stronger argument on NOV #11. The BOA

made findings of fact that no permit was obtained for the 2017 clearing and that none of

the Molinellis' proposed Vegetation Maintenance Plans were approved. R. 315. It decided

tree in this case. Also, the Molinellis did not argue before the BOA that the one tree that the BOA determined to be cut was affected by any of those conditions. If anything, section 3.11.7.1.3 shows that the Town knew how to exempt certain types of clearing from the permit requirement in the land u e table and chose not to exempt the r moval of vegetation from legally existing n.onconfo1ming areas from the permit requirement.

19 to uphold most of the NOVs, including #11, based at least in part on "the lack [of] a permit

for any of the clearing activity." R. 317.

Although the BOA did not explicitly spell out its reasoning for upholding NOV

#11, there is relevant evidence in the Record to reasonably support its conclusion. Had

the town wished to not require a permit for exempt maintenance it could have indicated

so in section 3.11.8.1, just as it did with certain hazard trees in section 3.11.7.1.3. However,

it did not. Although section 3.11.8 provides that specific activities are exempt from the

clearing and vegetation removal standards set forth in section 3.11.3, this does not

necessarily equate to being exempt from the permit requirements set forth in land use

table in the different section of 3.9.7.1.3.2. Because there is substantial evidence in the

Record to support the BOA's decision to uphold NOV #11, this Court will not disturb

that decision.

CONCLUSION

In coming to its conclusion, the Court considered the additional sections of the

2017 ZO contained in 394-409 of the Supplemental Record, but did not consider pages

347-393. The Court denies the Plaintiffs' Rule SOB appeal regarding NOV #11. The Court

grants the Plaintiffs' Rule SOB appeal and reverses and vacates the decision of the BOA

relating to NOVs #1, #4, #5, #6, #8, and #10.

The Clerk is requested to enter this Order on the docket for this case by incorporating it

by reference. M.R. Civ. P. 79(a). . ------- / '­

-~ ; ~\ )(/) ,,...-) / / pated: February 4, 2019 ~~ ./ / Daniel I. Billings, Justice 0 ' Maine Superior Court