STATE OF MAINE SUPERIOR COURT Cumberland, ss. Civil Action Sf Do~ket 1\10. AP-0~-2311 ..~ P.r:; 1,_.•• i'-.. - / \\.', " j 1 ' ; d,;Y:':/( ,
ARLENE MOON and LAURA MOON
Plaintiffs
v.
TOWN OF BRUNSWICK, DECISION AND ORDER ON PLAINTIFFS' 80B APPEAL Defendant
and
DANIEL LIBBY and TINA LIBBY
Parties-in-Interest
BI~FORE THE COURT
Before the court is the appeal of Plaintiffs, Arlene Moon and Laura Moon
(collectively "Plaintiffs"), pursuant to M.R. Civ. P. 80B, of Defendant Town of
Brunswick's Zoning Board of Appeals' ("ZBA") decision affirming the issuance
of a final Certificate of Occupancy by Brunswick Code Enforcement Officer
Jeffrey Hutchinson ("CEO" or "Mr. Hutchinson") to Parties-in-Interest Daniel
and Tina Libby (collectively "the Libbys").
FACTUAL BACKGROUND
Plaintiff Arlene Moon, is a co-owner of property located at 4 Wadsworth
Road, Brunswick. She and her daughter, Laura Moon, are the neighbors of the
Libbys who own and operate a neighborhood store recently constructed at 42
Jordan Avenue, which abuts the Plaintiffs' property. In March 2006, the Libbys
received final Site Plan approval from the Brunswick Planning Board to construct
1 and operate their store. The original Site Plan included a freestanding accessory
covered trash containment structure measuring 8 feet deep by 8 feet wide at the
rear of the store. After the CEO issued a building permit, the store was
constructed in 2007.
In October 2007, the Libbys applied for, and were granted, a modification
in the original Site Plan changing the dimensions of the containment structure to
measure 4 feet deep by 16 feet wide in order to permit the structure to enclose
two compressor units extruding from the rear of the store and associated with
interior refrigeration units. Although the Libbys opposed the modification of the
Site Plan, they did not appeal the modification. The final Site Plan calls for
construction of a "4'x14' covered trash containment" structure at the rear of the
Libbys' store.
On October 17, 2007, the CEO issued a temporary Certificate of
Occupancy to the Libbys and later extended it through January 13, 2008.
According to a letter from the CEO to the Libbys, the extension was granted in
order to allow the "completion of 4'x16' containment structure." R. at Tab 3. The
Libbys erected a frame structure behind their building to contain the trash and
air compressor units. The structure was covered by a blue tarp.
On January 15, 2008, Mr. Hutchinson issued a final Certificate of
Occupancy to the Libbys. Plaintiffs appealed the issuance of that final
Certificate, arguing that (1) the noise level on the Libbys' property violates
Brunswick's Zoning Ordinance; (2) the contour of the Libbys' property violates
the conditions of the Planning Board Approval/ and (3) the accessory structure
1 Plaintiffs apparently abandoned this argument during the hearing before the ZBA.
2 was not completed and, as a result, the final Certificate of Occupancy should not
have been issued.
On May IS, 2008, the ZBA held a hearing on Plaintiffs' appeal at which
Plaintiffs were represented by counsel. Following the hearing, the ZBA denied
Plaintiffs' appeal. Plaintiffs asked the ZBA to reconsider its decision. This
request was heard and denied on June 26, 2008. Thereafter, Plaintiffs filed the
instant appeal under M.R. Civ. P. 80B on the following grounds: (1) the ZBA's
decision that the accessory structure had been completed was not supported by
substantial evidence in the record; (2) the ZBA's decision was arbitrary and
capricious in that it ignored statements in the record that admitted that the
structure was not completed; (3) the ZBA failed to act as an independent tribunal
in that it gave undue deference to the position of the CEO; (4) the ZBA's decision
that the CEO took a proper and accurate noise measurement demonstrating that
the noise level on the Libbys' property did not exceed allowable levels was not
supported by substantial evidence on the record; and (5) the ZBA failed to make
written findings of fact or conclusions of law as required under Maine law.
Thereafter, the Town of Brunswick filed an unopposed motion to remand
the case to the ZBA in order to allow it to make proper written findings and
conclusions. Brunswick's motion was granted and the ZBA made written
findings of fact and conclusions of law which have now been filed with the court.
DISCUSSION
1. Standard of Review
In this case, Plaintiffs have taken issue not only with the ZBA's
substantive decision but also with the deference the ZBA gave to the CEO's
initial decision. According to Plaintiffs, in this case the ZBA "adopted the
3 erroneous view of the CEO, rather than exercising the independent oversight
that the" Brunswick Ordinance requires of them. PIs.' Br. at 7. In light of the fact
that rule 80B requires this court review to the operative decision of the
municipality, Plaintiffs' contention squarely raises a question regarding which
decision is on review - the decision of the ZBA or that of the CEO.
The Law Court has previously addressed the role of municipal Zoning
Boards of Appeal and the circumstances under which they operate either as an
appellate body or a tribunal of original jurisdiction. See e.g. Gensheimer v. Town of
Phippsburg, 2005 ME 22, <[<[ 15-16, 868 A.2d 161, 166; and Stewart v. Town of
Sedgwick, 2000 ME 157, 757 A.2d 773. According to the court in Stewart, "unless
the municipal ordinance explicitly directs otherwise, a Board must conduct a
hearing de novo." Stewart, <[ '7, 757 A.2d at 776. "Thus, in the absence of an
explicit ordinance creating a purely appellate review by the Board, the function
of the Board is to take evidence, make factual findings, and apply the laws and
ordinance to the petition or application at issue, and to do so independently of
the decision, if any, of a lower tribunal." Id. Notwithstanding this general rule,
"[a] municipality may, ... by ordinance, provide that its Board of Appeals hear
appeals in a solely appellate capacity." Id. When a municipal ordinance
prescribes an appellate function,
the Board will review the record of the proceedings before the previous tribunal, review the evidence presented to that body, review the tribunal's written or recorded findings, hear oral or written argument of the parties, and determine whether the lower tribunal erred in reaching its decision. Id.
4 In this case, although Plaintiffs contend that Brunswick's Ordinance
required the ZBA to conduct a de novo review of the CEO's decisions, the court
disagrees. The relevant section of Brunswick's ordinance provides:
In hearing an administrative review appeal from a decision of the Codes Enforcement Officer, Planning Board or Village Review Board, the Zoning Board of Appeals shall:
a. Examine all application documents, Ordinance requirements and Finding of Fact and Conclusions prepared by the Codes Enforcement Officer or Board whose decision is being appealed. b.
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STATE OF MAINE SUPERIOR COURT Cumberland, ss. Civil Action Sf Do~ket 1\10. AP-0~-2311 ..~ P.r:; 1,_.•• i'-.. - / \\.', " j 1 ' ; d,;Y:':/( ,
ARLENE MOON and LAURA MOON
Plaintiffs
v.
TOWN OF BRUNSWICK, DECISION AND ORDER ON PLAINTIFFS' 80B APPEAL Defendant
and
DANIEL LIBBY and TINA LIBBY
Parties-in-Interest
BI~FORE THE COURT
Before the court is the appeal of Plaintiffs, Arlene Moon and Laura Moon
(collectively "Plaintiffs"), pursuant to M.R. Civ. P. 80B, of Defendant Town of
Brunswick's Zoning Board of Appeals' ("ZBA") decision affirming the issuance
of a final Certificate of Occupancy by Brunswick Code Enforcement Officer
Jeffrey Hutchinson ("CEO" or "Mr. Hutchinson") to Parties-in-Interest Daniel
and Tina Libby (collectively "the Libbys").
FACTUAL BACKGROUND
Plaintiff Arlene Moon, is a co-owner of property located at 4 Wadsworth
Road, Brunswick. She and her daughter, Laura Moon, are the neighbors of the
Libbys who own and operate a neighborhood store recently constructed at 42
Jordan Avenue, which abuts the Plaintiffs' property. In March 2006, the Libbys
received final Site Plan approval from the Brunswick Planning Board to construct
1 and operate their store. The original Site Plan included a freestanding accessory
covered trash containment structure measuring 8 feet deep by 8 feet wide at the
rear of the store. After the CEO issued a building permit, the store was
constructed in 2007.
In October 2007, the Libbys applied for, and were granted, a modification
in the original Site Plan changing the dimensions of the containment structure to
measure 4 feet deep by 16 feet wide in order to permit the structure to enclose
two compressor units extruding from the rear of the store and associated with
interior refrigeration units. Although the Libbys opposed the modification of the
Site Plan, they did not appeal the modification. The final Site Plan calls for
construction of a "4'x14' covered trash containment" structure at the rear of the
Libbys' store.
On October 17, 2007, the CEO issued a temporary Certificate of
Occupancy to the Libbys and later extended it through January 13, 2008.
According to a letter from the CEO to the Libbys, the extension was granted in
order to allow the "completion of 4'x16' containment structure." R. at Tab 3. The
Libbys erected a frame structure behind their building to contain the trash and
air compressor units. The structure was covered by a blue tarp.
On January 15, 2008, Mr. Hutchinson issued a final Certificate of
Occupancy to the Libbys. Plaintiffs appealed the issuance of that final
Certificate, arguing that (1) the noise level on the Libbys' property violates
Brunswick's Zoning Ordinance; (2) the contour of the Libbys' property violates
the conditions of the Planning Board Approval/ and (3) the accessory structure
1 Plaintiffs apparently abandoned this argument during the hearing before the ZBA.
2 was not completed and, as a result, the final Certificate of Occupancy should not
have been issued.
On May IS, 2008, the ZBA held a hearing on Plaintiffs' appeal at which
Plaintiffs were represented by counsel. Following the hearing, the ZBA denied
Plaintiffs' appeal. Plaintiffs asked the ZBA to reconsider its decision. This
request was heard and denied on June 26, 2008. Thereafter, Plaintiffs filed the
instant appeal under M.R. Civ. P. 80B on the following grounds: (1) the ZBA's
decision that the accessory structure had been completed was not supported by
substantial evidence in the record; (2) the ZBA's decision was arbitrary and
capricious in that it ignored statements in the record that admitted that the
structure was not completed; (3) the ZBA failed to act as an independent tribunal
in that it gave undue deference to the position of the CEO; (4) the ZBA's decision
that the CEO took a proper and accurate noise measurement demonstrating that
the noise level on the Libbys' property did not exceed allowable levels was not
supported by substantial evidence on the record; and (5) the ZBA failed to make
written findings of fact or conclusions of law as required under Maine law.
Thereafter, the Town of Brunswick filed an unopposed motion to remand
the case to the ZBA in order to allow it to make proper written findings and
conclusions. Brunswick's motion was granted and the ZBA made written
findings of fact and conclusions of law which have now been filed with the court.
DISCUSSION
1. Standard of Review
In this case, Plaintiffs have taken issue not only with the ZBA's
substantive decision but also with the deference the ZBA gave to the CEO's
initial decision. According to Plaintiffs, in this case the ZBA "adopted the
3 erroneous view of the CEO, rather than exercising the independent oversight
that the" Brunswick Ordinance requires of them. PIs.' Br. at 7. In light of the fact
that rule 80B requires this court review to the operative decision of the
municipality, Plaintiffs' contention squarely raises a question regarding which
decision is on review - the decision of the ZBA or that of the CEO.
The Law Court has previously addressed the role of municipal Zoning
Boards of Appeal and the circumstances under which they operate either as an
appellate body or a tribunal of original jurisdiction. See e.g. Gensheimer v. Town of
Phippsburg, 2005 ME 22, <[<[ 15-16, 868 A.2d 161, 166; and Stewart v. Town of
Sedgwick, 2000 ME 157, 757 A.2d 773. According to the court in Stewart, "unless
the municipal ordinance explicitly directs otherwise, a Board must conduct a
hearing de novo." Stewart, <[ '7, 757 A.2d at 776. "Thus, in the absence of an
explicit ordinance creating a purely appellate review by the Board, the function
of the Board is to take evidence, make factual findings, and apply the laws and
ordinance to the petition or application at issue, and to do so independently of
the decision, if any, of a lower tribunal." Id. Notwithstanding this general rule,
"[a] municipality may, ... by ordinance, provide that its Board of Appeals hear
appeals in a solely appellate capacity." Id. When a municipal ordinance
prescribes an appellate function,
the Board will review the record of the proceedings before the previous tribunal, review the evidence presented to that body, review the tribunal's written or recorded findings, hear oral or written argument of the parties, and determine whether the lower tribunal erred in reaching its decision. Id.
4 In this case, although Plaintiffs contend that Brunswick's Ordinance
required the ZBA to conduct a de novo review of the CEO's decisions, the court
disagrees. The relevant section of Brunswick's ordinance provides:
In hearing an administrative review appeal from a decision of the Codes Enforcement Officer, Planning Board or Village Review Board, the Zoning Board of Appeals shall:
a. Examine all application documents, Ordinance requirements and Finding of Fact and Conclusions prepared by the Codes Enforcement Officer or Board whose decision is being appealed. b. Determine on the basis of the entire record presented to the Codes Enforcement Officer or the Board whose decision is appealed from whether the Codes Enforcement Officer of such Board could reasonably have found the facts and reached the conclusions upon which the decision under appeal was based. c. Determine whether the prior Board's decision was based on substantial evidence. d. Not substitute the judgment of the Zoning Board of Appeals for the judgment of the Codes Enforcement Officer or the Board whose decision is under appeal. e. If the Zoning Board finds that the Codes Enforcement Officer or the Board was not erroneous in its review of the application, the original determination shall be upheld.
Brunswick, Me., Zoning Ordinance § 703.4(C)(1) (R. at Tab 17).
Under the express language of Brunswick's ordinance, the ZBA in this
case was required to review the CEO's decisions in an appellate capacity rather
than as a tribunal of original jurisdiction. As such, this court will review the
CEO's decision under the standard applicable to 80B appeals. See Mills v. Town of
Eliot, 2008 ME 134, <]I 16, 955 A.2d 258, 264 (concluding that the decision of the
Code Enforcement Officer is the operative decision on review). Under that
standard, this court reviews an administrative decision for errors of law, abuse of
discretion or findings of fact unsupported by the record. Yates v. Town of
Southwest Harbor, 2001 ME 2, <]I 10, 763 A.2d 1168. When "reviewing an
5 administrative ... decision, the issue before the court is not whether it would
have reached the same conclusion as the [administrative tribunal], 'but whether
the record contains competent and substantial evidence that supports the result
reached."' Seider v. Bd. of Exam'rs of Psychologists, 2000 ME 206, 9I 8, 762 A.2d 551,
555 (quoting CWCO, Inc. v. Superintendent of Ins., 1997 NIE 226, 9I 6, 703 A.2d
1258, 1261). "Substantial evidence is evidence that a reasonable mind would
accept as sufficient to support a conclusion." York v. Town of Ogunquit, 2001 ME
53, 9I 6, 769 A.2d 172, 175. The court may not substitute its own judgment for
that of the administrative tribunal. See id.; and Brooks v. Cumberland Farms, Inc.
1997 ME 203, 9I 12, 703 A.2d 844, 848. The administrative decision is not wrong
because the record is inconsistent or a different conclusion could be drawn from
it. Twigg v. Town of Kennebunk, 662 A.2d 914, 916 (Me. 1996). The burden of
persuasion in an action challenging an administrative decision rests on the party
seeking to overturn its decision. See Sawyer Envtl. Recovery Facilities, Inc. v. Town
of Hampden, 2000 ME 179, 9I 13, 760 A.2d 257, 260.
II. Did the CEO Err When He Issued the Final Certificate of Occupancy?
Moving to the merits of the decisions on appeal, Plaintiffs contend that the
Certificate of Occupancy was issued in error for two reasons. First, Plaintiffs
argue that the air compressors contained by the accessory structure emit a noise
level that exceeds permissible levels under the ordinance and, therefore, the final
Certificate should not have been issued. Second, Plaintiffs contend that the
structure was not complete and therefore the issuance of the final Certificate was
improper.
6 A. Noise Levels2
Although the CEO did not make express findings of fact and conclusions
of law when he issued the final Certificate of Occupancy, he did file a "staff
report" with the ZBA in which he explained the bases for his decision to issue the
final Certificate. (See R. at Tab 6.) According to the staff report, on the day that
he issued the final Certificate of Occupancy, the CEO"conducted a noise level
study" at the Libbys' property "to determine compliance with the Town's noise
standards." Id. The CEO used "an Extech Instruments Digital Sound Level
Meter meeting ANSI Type II standards and tested the sound levels at the Libbys'
rear property line." Id. He found the sound levels to be between 41.8 and 44.6
dBA, which he concluded are compliant with the standards outlined in the
ordinance. Id.
On appeal, Plaintiffs assert that the CEO improperly measured the sound
levels because he failed to take his measurements at the top of a fence running
along the back of the Libbys' property. According to Plaintiffs, because the
CEO's measurement failed to account for the movement of noise over the top of
the fence, his measurement was erroneous. Plaintiffs further contend that a
sound measurement that they completed using a device from Radio Shack
demonstrates that the noise levels emanating from the Libbys' property exceed
allowable limits under the Ordinance. According to Plaintiffs, their
2Although one issue raised by Plaintiffs is that the ZBA erred when it concluded that the issue of noise levels was not properly before it, the court need not decide this issue. In light of the court's conclusion that the operative decision on~eview in this case is that of the CEO, rather than the ZBA, and in light of the fact that the CEO's staff repcrt indicates he considered noise levels when deciding whether to issue the final Certificate of Occupancy, the court will consider whether his findings in that regard are supported by substantial evidence on the record.
7 measurements, conducted a month after the final Certificate of Occupancy was
issued, yielded readings of 57 and 59 dBA.
Under Brunswick's Ordinance, "[t]he equivalent sound level measured in
dBA resulting from any activi~y shall not exceed at any point on or beyond the
lot line" 55 dBA during the day and 45 dBA at night in Town Residential Areas,
the zone in which the Libbys' property is located. (R. at Tab 17 p. 19.) The
Ordinance further provides that sound measurements must be taken with meters
that meet "Type I or Type II specifications for ANSC standards." 3 Id.
Plaintiffs do not take issue with the meter used by the CEO. Rather, they
take issue with where the CEO conducted his measurements. According to
Plaintiffs, the CEO's failure to measure the noise levels at or above the top of the
fence was improper and, as a result, his determination that the noise emanating
from the Libbys' property did not exceed permissible levels was clearly
erroneous. The court disagrees.
Although the Ordinance provides that nOIse levels may not exceed
permissible levels "at any point on or beyond the lot line," it does not prescribe
where, precisely, noise level measurements are to be taken. (R. at Tab 17 p. 19.)
(emphasis added). In this case, the CEO took his measurement on the Libbys' lot
line using a machine that met the requirements of the ordinance. There is no
evidence in the record demonslrating that the noise emanating from the Libbys'
property prior to the issuance of the Certificate of Occupancy, either at the lot
line or beyond it, exceeded allowable levels. 4 Based on the language of the
3 Although the court notes that Brunswick's ordinance requires meters to meet "ANSC" standards and the CEO's staff report references "ANSI" standards, Plaintiffs do not take issue with this discrepancy. 4While Plaintiffs' appeal to the ZBA was accompanied by a "noise statement" indicating that Plaintiffs had conducted their own measurement on February 14,2008 and had measured noise levels exceed ing those
8 ordinance and the evidence in the record, the court cannot conclude that the
CEO's measurement or his determination that the Libbys' property was
compliant with the ordinance was clearly erroneous.
B. Completion of the Accessory Structure
In addition to their arguments regarding noise levels, Plaintiffs also take
issue with the issuance of the final Certificate of Occupancy because, according
to Plaintiffs, the accessory structure was not complete when the Certificate was
issued.
The issuance of Certificates of Occupancy is governed by Section 704.2(B)
of Brunswick's Ordinance. Section 704.2(B) provides, in pertinent part:
An applicant for a building permit shall also make application for a Certificate of Occupancy, which application must be received before a building permit may be issued. Upon completion of the work permitted by the building permit, the Codes Enforcement Officer shall issue the Certificate of Occupancy upon a finding that the building, structure or land and the use or occupancy thereof comply with the provisions of this Ordinance, with all provisions of any site plans or subdivision plans approved by the Planning Board or Board of Appeals....
Brunswick Ordinance § 704.2B (emphasis added).
In this case, there is no dispute that, at the time the final Certificate was
issued, the accessory structure had been framed using wood materials but was
enclosed by a blue tarp rather than by more permanent roofing and siding
materials. Plaintiffs contend that the lack of permanent roofing and siding
rendered the accessory structure incomplete and, therefore, the issuance of the
final Certificate of Occupancy was improper.
permitted under the ordinance, that measurement was taken after the Certificate of Occupancy was issued. Therefore, that measurement does not bear on the measurement taken by the CEO or on his issuance of the Certificate of Occupancy on January 15,2008. Moreover, Plaintiffs conducted their measurements with a device that does not appear to comply with the requirements of the ordinance.
9 In response, Brunswick argues that the CEO's decision should be affirmed
because there was no requirement that the structure be enclosed with more
permanent material. According to the Staff Report issued by the CEO, although
the Planning Board's approval of the accessory containment structure
contemplated that the structure would be "covered," the Planning Board had not
specified what type of material needed to be used. According to the CEO, the
combination of the lack of specification from the Planning Board regarding
construction materials and his determination that the blue tarp adequately
abated any noise issuing from the air compressors supported a conclusion that
the accessory structure was sufficiently complete to justify the issuance of the
final Certificate of Occupancy. (See R. at Tab 6.)
A review of the Planning Board decision approving the modification to
the dimensions of the accessory structure confirms that the Board's decision was
limited to a determination that the Libbys could "swap" an 8x8 accessory
structure for a 4x16 accessory structure. (R. at Tab 7, p. 4.) No mention was
made in that decision of which materials must be used to construct the accessory
structure. Similarly, the Site Plan, which indicates that the accessory structure is
to be "covered," does not specify how that requirement is to be accomplished.
The Board did, however, order that "prior to construction, the applicant shall
provide a building plan to be approved by the Code Enforcement Officer and the
Fire Chief." Id. The record before the court does not contain any such building
plan.
In the context of appeals of Certificates of Occupancy, the Law Court has
previously explained that the issuance of such certificates is indeed an
appealable issue. Salisbury v. Town of Bar Harbor, 2002 ME 13, 788 A.2d 598. The
10 court has also clarified, however, that "[a]n appeal of a certificate of occupancy
may not ... substitute for an appeal of the underlying permit. ld.
at 602 (citing Juliano v. Town of Poland, 1999 ME 42,
According to the court in Salisbury,
[i]f the permittee has complied with the terms of a valid permit, an abutter may not challenge the issuance of the certificate of occupancy based on a defect in the permit. If, however, the permittee has meaningfully exceeded the authority contained in the permit, or otherwise violated conditions of the permit, the issuance of the certificate of occupancy may be challenged. ld.
In this case, a determination of whether the accessory structure could
properly be deemed complete if enclosed with a tarp rather than with more
permanent materials depends entirely on the Site Plan, any building permit
issued by the Code Enforcement Officer and his approval of any modified
building plan relating to the accessory structure.
In this case, the only specifications in the record regarding the Libbys'
property and the construction of their store are contained in the Site Plan. The
record before the court does not contain a copy of a building permit nor does
there appear to be any other indication of what the building specifications for the
accessory structure were. s
As outlined above, as the party appealing the issuance of the CEO's
decision, it is the Plaintiffs' burden to demonstrate that his decision was
unsupported by substantial evidence on the record. Although the court
recognizes that a blue tarp may not be the most permanent material with which
to cover an accessory structure, there is no evidence in the record suggesting that
5 For example, the record does not contain the Brunswick Building Code or any other guideline specifying
which building materials must be used to build or "cover" an accessory structure.
11 the Libbys' were required to do anything other than "cover" the structure. The
CEO's staff report outlines his determination that covering the structure with a
tarp was not prohibited by the ordinance or counter to the Site Plan approved by
the Planning Board. In the absence of any record evidence demonstrating
something to the contrary, the court cannot conclude that the CEO's decision on
that point was erroneous.
Therefore, the entry is:
The decision of the Code Enforcement Officer for the Town of Brunswick issuing a final Certificate of Occupancy to Parties-in-Interest, Daniel and Tina Libby, is hereby AFFIRMED.
The clerk shall incorporate this Order into the docket by reference pursuant to M.R. Civ. P. 79(a).
November 20, 2008
12 Cumberland \..JOUlIlY P.O. Box 287 Maine 04112-0287 ortlan d ,
DANIEL LIBBY TINA LIBBY 2 WADSWORTH RIJ BRUNSWICK ME 04011
laine 04112-0287
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