Moon v. Town of Brunswick

CourtSuperior Court of Maine
DecidedNovember 21, 2008
DocketCUMap-08-23
StatusUnpublished

This text of Moon v. Town of Brunswick (Moon v. Town of Brunswick) 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
Moon v. Town of Brunswick, (Me. Super. Ct. 2008).

Opinion

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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