STATE OF MAINE SUPERIOR COURT CUMBERLAND, ss. CNILACTION Docket No. AP-12-60/ / -r;!' . c--. (}JV) __ ¥!c;/:'c ,' MAYNARD MURPHY, et al,
Plaintiffs
v. ORDER
MARSHALL GOLDMAN, et al, STATE OF MAINE Cumberland, s!S, Clerk's Office Defendants MAY 1;J 2013
RECEIVED Before the court is an appeal by Maynard and Deborah Murphy from a decision
of the Cape Elizabeth Zoning Board of Appeals (ZBA) upholding the issuance of a
building permit issued to Marshall Goldman and Pilot Point LLC for the construction of
an accessory structure consisting of ornamental outdoor granite steps on property
owned by Pilot Point LLC at 27 Pilot Point Road in Cape Elizabeth.1 The Goldman
property faces the ocean, and a paper street runs along the seaward boundary of the
Goldman property.
Four issues are presented on this appeal. The first is whether the ZBA should
have conducted a de novo review of the issuance of the permit. The second is whether
the Murphys have standing to contest the issuance of the permit. The third issue
involves the determination of the "normal high water line" of the ocean in front of the
The record indicates that Marshall Goldman owns Pilot Point LLC, which is the record owner of the property at 27 Pilot Point Road where Goldman resides. In addition to the Town of Cape Elizabeth, Goldman, and Pilot Point LLC, the Cape Elizabeth Zoning Board of Appeals and the Cape Elizabeth Code Enforcement Officer have been named as defendants in this action. The court agrees with the Town that the ZBA and the Code Enforcement officer are not proper parties to this action. Goldman property. 2 The fourth issue is whether, for purposes of applying the limit on
impervious surfaces within the Shoreland Zoning District, all or only a portion of
Goldman's property falls within the Shoreland Zoning District.
De Novo Review
In Stewart v. Town of Sedgwick, 2000 ME 157
Court interpreted 30-A M.R.S. § 2691(3)(D) as requiring municipal boards of appeals to
conduct de novo hearings unless there is a municipal ordinance which expressly directs
otherwise. None of the parties have directed the court to any Cape Elizabeth ordinance
in this case that would limit the ZBA to a purely appellate role. Accordingly, the ZBA
was required to conduct a de novo hearing in this case.
It is apparent from the proceedings below that the ZBA did not conduct a de
novo review. Nothing else explains how a 4-3 majority of the ZBA could have voted
both that "the issuance of the permit was clearly contrary to the Ordinance" (R. Tab 1A
at 2) and that the issuance of the permit was nevertheless supported by substantial
evidence. Id. These contradictory findings can only be resolved if the ZBA was
disagreeing with the issuance of the permit but nevertheless upholding it under a
substantial evidence standard of review. Indeed, the ZBA's recitation of the substantial
evidence standard is alone sufficient to demonstrate that the ZBA was not conducting a
de novo hearing.
2 "Normal high water line" is defined by the Zoning Ordinance as "that line on the shore of tidal waters which is the apparent extreme limit of the effect of the tides, i.e., the top of the bank, cliff or beach above high tide." Ordinance § 19-1-3. Under the shoreland ordinance, the minimum setback for any new accessory structure is 75 feet from the "normal high-water line." Ordinance § 19-6-ll(E). The Murphys contend that if the normal high water line had been correctly determined, the ornamental steps proposed by Goldman would violate the setback requirement.
2 The November 8, 2012 decision of the ZBA must therefore be vacated and the
case remanded for a de novo hearing on the Murphy's appeal. Consistent with Stewart
v. Town of Sedgwick, 2000 ME 157
substantive issues afresh, must undertake its own credibility determinations, must
evaluate the evidence presented, and must draw its own conclusions independent of
the decision made by the Code Enforcement Officer.
Issues on Remand
In light of the remand, the court need not address the other issues raised on this
appeal at this time. On the setback issue, the ZBA will need to consider and determine
the location of the normal high water line as that term is defined in section 19-1-3 of the
ordinance. Citing that definition, the Murphys argue that the normal high water line is
the top of the bank. On this issue the Law Court's decision in Mack v. Town of Cape
Elizabeth, 463 A.2d 717, 722 (Me. 1983), interprets the definition's reference to "the top
of the bank" as an example. It is therefore conceivable that "the apparent extreme limit
of the effect of the tides" could fall short of the top of the bank in a given case, even
after taking into account the effect of the tides beyond the high-tide level of the water
itself. See id.
Assuming that the ornamental steps do not violate the setback provision, the
ZBA on remand will also have to consider how much of the Goldman property falls
within the Shoreland Zone for purposes of the limit on impervious surfaces. On this
issue the ZBA will have to consider the Murphys' argument that the Shoreland Zoning
Map is dispositive on that issue where that map is made a part of the ordinance, see
Summerwind Cottage LLC v. Town of Scarborough, 2013 ME 26
and the contrary argument that section 19-6-11 is a more specific provision that should
3 control. In the latter case, however, the ZBA will have to determine the "upland edge of
coastal wetland" in front of the Goldman property, including "all areas affected by tidal
action," Ordinance§ 19-6-11, in order to determine the 250 foot depth of the shoreland
zone and how much of the Goldman property is within that zone for purposes of the
impervious surface calculation.
The ZBA has already found that the Murphys have standing to contest the
issuance of a permit. (R. Tab 1A at 1).3 On this appeal Goldman and Pilot Point LLC
have contested that finding but they did not file a cross appeal. 4 To the extent that this
issue might be revisited at the hearing on remand, it is likely that standing would be
upheld because abutters need show only a relatively minor adverse consequence to
have standing. Brooks v. Cumberland Farms Inc., 1997 ME 203 <][ 10, 703 A.2d 844. The
Murphys appear to have easement rights over the paper street that passes immediately
in front of the portion of the Goldman property where the ornamental steps would be
located. However, the existing record before the court indicates that some of the facts
relevant to standing were developed during a different hearing on the previous agenda
item, seeR. Tab 4, Tr. at 3. On remand, if Goldman and Pilot Point continue to contest
standing, the easement rights and the nature of the Murphys' injury should be further
developed.
3 The court addressed the de novo hearing question prior to standing because on an SOB appeal standing does not go to the court's subject matter jurisdiction. Norris Family Associates LLC v. Town of Phippsburg, 2005 ME 102
4 The entry shall be:
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STATE OF MAINE SUPERIOR COURT CUMBERLAND, ss. CNILACTION Docket No. AP-12-60/ / -r;!' . c--. (}JV) __ ¥!c;/:'c ,' MAYNARD MURPHY, et al,
Plaintiffs
v. ORDER
MARSHALL GOLDMAN, et al, STATE OF MAINE Cumberland, s!S, Clerk's Office Defendants MAY 1;J 2013
RECEIVED Before the court is an appeal by Maynard and Deborah Murphy from a decision
of the Cape Elizabeth Zoning Board of Appeals (ZBA) upholding the issuance of a
building permit issued to Marshall Goldman and Pilot Point LLC for the construction of
an accessory structure consisting of ornamental outdoor granite steps on property
owned by Pilot Point LLC at 27 Pilot Point Road in Cape Elizabeth.1 The Goldman
property faces the ocean, and a paper street runs along the seaward boundary of the
Goldman property.
Four issues are presented on this appeal. The first is whether the ZBA should
have conducted a de novo review of the issuance of the permit. The second is whether
the Murphys have standing to contest the issuance of the permit. The third issue
involves the determination of the "normal high water line" of the ocean in front of the
The record indicates that Marshall Goldman owns Pilot Point LLC, which is the record owner of the property at 27 Pilot Point Road where Goldman resides. In addition to the Town of Cape Elizabeth, Goldman, and Pilot Point LLC, the Cape Elizabeth Zoning Board of Appeals and the Cape Elizabeth Code Enforcement Officer have been named as defendants in this action. The court agrees with the Town that the ZBA and the Code Enforcement officer are not proper parties to this action. Goldman property. 2 The fourth issue is whether, for purposes of applying the limit on
impervious surfaces within the Shoreland Zoning District, all or only a portion of
Goldman's property falls within the Shoreland Zoning District.
De Novo Review
In Stewart v. Town of Sedgwick, 2000 ME 157
Court interpreted 30-A M.R.S. § 2691(3)(D) as requiring municipal boards of appeals to
conduct de novo hearings unless there is a municipal ordinance which expressly directs
otherwise. None of the parties have directed the court to any Cape Elizabeth ordinance
in this case that would limit the ZBA to a purely appellate role. Accordingly, the ZBA
was required to conduct a de novo hearing in this case.
It is apparent from the proceedings below that the ZBA did not conduct a de
novo review. Nothing else explains how a 4-3 majority of the ZBA could have voted
both that "the issuance of the permit was clearly contrary to the Ordinance" (R. Tab 1A
at 2) and that the issuance of the permit was nevertheless supported by substantial
evidence. Id. These contradictory findings can only be resolved if the ZBA was
disagreeing with the issuance of the permit but nevertheless upholding it under a
substantial evidence standard of review. Indeed, the ZBA's recitation of the substantial
evidence standard is alone sufficient to demonstrate that the ZBA was not conducting a
de novo hearing.
2 "Normal high water line" is defined by the Zoning Ordinance as "that line on the shore of tidal waters which is the apparent extreme limit of the effect of the tides, i.e., the top of the bank, cliff or beach above high tide." Ordinance § 19-1-3. Under the shoreland ordinance, the minimum setback for any new accessory structure is 75 feet from the "normal high-water line." Ordinance § 19-6-ll(E). The Murphys contend that if the normal high water line had been correctly determined, the ornamental steps proposed by Goldman would violate the setback requirement.
2 The November 8, 2012 decision of the ZBA must therefore be vacated and the
case remanded for a de novo hearing on the Murphy's appeal. Consistent with Stewart
v. Town of Sedgwick, 2000 ME 157
substantive issues afresh, must undertake its own credibility determinations, must
evaluate the evidence presented, and must draw its own conclusions independent of
the decision made by the Code Enforcement Officer.
Issues on Remand
In light of the remand, the court need not address the other issues raised on this
appeal at this time. On the setback issue, the ZBA will need to consider and determine
the location of the normal high water line as that term is defined in section 19-1-3 of the
ordinance. Citing that definition, the Murphys argue that the normal high water line is
the top of the bank. On this issue the Law Court's decision in Mack v. Town of Cape
Elizabeth, 463 A.2d 717, 722 (Me. 1983), interprets the definition's reference to "the top
of the bank" as an example. It is therefore conceivable that "the apparent extreme limit
of the effect of the tides" could fall short of the top of the bank in a given case, even
after taking into account the effect of the tides beyond the high-tide level of the water
itself. See id.
Assuming that the ornamental steps do not violate the setback provision, the
ZBA on remand will also have to consider how much of the Goldman property falls
within the Shoreland Zone for purposes of the limit on impervious surfaces. On this
issue the ZBA will have to consider the Murphys' argument that the Shoreland Zoning
Map is dispositive on that issue where that map is made a part of the ordinance, see
Summerwind Cottage LLC v. Town of Scarborough, 2013 ME 26
and the contrary argument that section 19-6-11 is a more specific provision that should
3 control. In the latter case, however, the ZBA will have to determine the "upland edge of
coastal wetland" in front of the Goldman property, including "all areas affected by tidal
action," Ordinance§ 19-6-11, in order to determine the 250 foot depth of the shoreland
zone and how much of the Goldman property is within that zone for purposes of the
impervious surface calculation.
The ZBA has already found that the Murphys have standing to contest the
issuance of a permit. (R. Tab 1A at 1).3 On this appeal Goldman and Pilot Point LLC
have contested that finding but they did not file a cross appeal. 4 To the extent that this
issue might be revisited at the hearing on remand, it is likely that standing would be
upheld because abutters need show only a relatively minor adverse consequence to
have standing. Brooks v. Cumberland Farms Inc., 1997 ME 203 <][ 10, 703 A.2d 844. The
Murphys appear to have easement rights over the paper street that passes immediately
in front of the portion of the Goldman property where the ornamental steps would be
located. However, the existing record before the court indicates that some of the facts
relevant to standing were developed during a different hearing on the previous agenda
item, seeR. Tab 4, Tr. at 3. On remand, if Goldman and Pilot Point continue to contest
standing, the easement rights and the nature of the Murphys' injury should be further
developed.
3 The court addressed the de novo hearing question prior to standing because on an SOB appeal standing does not go to the court's subject matter jurisdiction. Norris Family Associates LLC v. Town of Phippsburg, 2005 ME 102
4 The entry shall be:
The November 8, 2012 decision of the Cape Elizabeth Zoning Board of Appeals in the above-captioned case is vacated and the case is remanded for the Board to hold a de novo hearing as set forth above. The Clerk is directed to incorporate this order in the docket by reference pursuant to Rule 79(a).
Dated: May ..!..!2 2013
Thomas D. Warren Justice, Superior Court
5 Date Filed _ _;1::.. :2:::_-__,7_--=1:.=:2:____ _ CUMBERLAND Docket No. AP-12-60 County
Action --~8~0~B:....=.!A=...PP=-E~A~L~----------
MAYNARD J MURPHY II MARSHALL GOLDMAN DEBOARH N HOWE MURPHY PILOT POINT LLC BRUCE SMITH TOWN OF CAPE ELIZABETH ZONING BOARD OF APPEALS, TOWN OF CAPE ELIZABETH vs. Plaintiff's Attorney Defendant's Attorney ANDRE DUCHETTE ESQ JOHN WALL III, ESQ. TAYLOR MCCORMACK & FRAME MONAGHAN LEAHY, LLP 30 MILK ST, 5TH FLOOR PO BOX 7046 PORTLAND ME 04101 PORTLAND, ME 04112-7046 (Smith, Town,and Zoning Board) RICHARD BRYANT, ESQ. DAVID SOLEY, ESQ. VAN MEER & BELANGER BERNSTEIN SHUR 20 YORK STREET Date of PO BOX 9729 PORTLAND, ME 04101-4556 Entry PORTLAND, ME 04104-5029 (Goldman/Pilot) ')(11')