Overlock v. Inhabs. of the Town of Thomaston

Opinion

STATE OF MAINE SUPERIOR COURT CIVIL ACTION KNOx, ss. DOCKET NO. AP-02-004 ' a mn g Tey MEN J RA “ KNO- Q|1a/209 S DWIGHT L. OVERLOCK* d/b/a OVERLOCK DONALD L. GARBRECHT EXCAVATION and _ LAW LIBRARY SHERYL QVERLOCK, Plaintiffs FEB 14 2005 Vv. DECISION AND ORDER INHABITANTS OF THE TOWN OF THOMASTON, Defendant This matter is before the court on the defendant’s motion to dismiss the plaintiffs’ M.R. Civ. P. 80B complaint. The defendant, Town of Thomaston (“town”),

claims in it and Shery] Board of 4 consider tk and is in of

Befa recite the h

Acc the town’s Overlocks quarry op

allowed in

s motion that the plaintiffs, Dwight L. Overlock, d/b/a Overlock Excavation, Overlock (Overlocks), failed to file an appeal from a decision of the town’s

| Appeals (“board”) in a timely way so that this court lacks jurisdiction to

1e case. The Overlocks contest the motion; it has been briefed and argued, |

der for disposition.

re addressing the merits of the parties’ arguments, it is first important to

istory of this case which is not in dispute.

ording to the complaint and exhibit A attached to that pleading, Peter Surek,

code enforcement officer (CEO), issued a cease and desist order to the

|

op |

era |

the zoning district where the Overlocks’ current gravel pit operation was

October 15, 2001. That order directed the Overlocks to stop any further

tions because they constituted a change of use which would not be

2

located. ; appealed t

On According legal coun were pres¢ board, and decision ar

On various f memoriali;

On

for judicial

of this argu reads in pa original dec the Maine defendant’

2001, the a

According to the complaint, { 18, and the Answer, { 21, the Overlocks

his cease and desist order to the board on November 27, 2001.

December 11, 2001, the board convened to consider the Overlocks’ appeal. to the transcript of that proceeding, the Overlocks’ attorneys, the board’s sel, the intervenor’s counsel, the CEO, and all five members of the board nt at this event. At its conclusion, upon the motion of one member of the i the second of another, the board unanimously voted to uphold the CEO’s id deny the Overlocks’ appeal.

December 20, 2001, the members of the board signed an order which made sctual and legal conclusions concerning the Overlocks’ appeal and ced their previous vote which had denied the appeal.’

January 31, 2002, the Overlocks filed their complaint with this court, asking

review of the board’s action.

By its motion, the town claims that the complaint was filed too late. In support

ament, it cites the court to the provisions of 30-A M.R.S.A. § 2691(3)(G) which rt “Any party may take an appeal, within 45 days of the date of the vote on the ision, to Superior Court from any order, relief or denial in accordance with Rules of Civil Procedure, Rule 80B ... .” (emphasis supplied). Thus, in the s view, because “the vote on the original decision” occurred on December 11,

ppeal from that event had to have been filed 45 days later, ie., on or before

' The text of

day appeal p and Develop appeal to the

* The plainti 21 which was

F Surek’s notice advises the Overlocks that the town’s land use ordinance provides for a 30- eriod. This representation is confirmed by the record. See R-10, Ch. 7 Thomaston Land Use ment Ordinance (amend. 6/19/01), p. 29, § 705.3.1. It therefore appears that the Overlocks’

board was late. Neither party addresses this apparent misstep in the appellate process.

| ffs in their memorandum advise that the board mailed its December 20 order on December then received by the plaintiffs’ counsel on December 26, 2001. t

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January 25, 2002. Because, the defendant says, the appeal was filed on January 31, 2002,

it is six days late and may not, therefore, be considered by this court.

The plaintiffs argue that this interpretation of 30-A M.R.S.A. § 2691(3)(G) is only

partly correct. They agree that the appeal period is 45 days, but claim that it began to

run on December 20, 2001, rather than on December 11. In support of this argument

they point out that the appeal period is initiated by a decision and that all decisions

“must include a statement of findings and conclusions, as well as the reasons or basis

for the findings and conclusions, upon all the material issues of fact, law or discretion

presented and the appropriate order, relief or denial of relief.” 30-A M.R.S.A.

§ 2691(3)(E)!

Thus, because “the decision” of December 11, 2001, did not, in the

4

plaintiffs’ view, contain all these elements, it did not qualify as a decision from which

an appeal could be taken. Instead, they say, such a decision was not produced until December 20 when the board articulated the reasons for its action as section 2691(3)(E) requires. Accordingly, the appeal period began on that date and the complaint filed with this rourt on January 31, 2002, would be within the prescribed 45 days and, therefore, timely.

This exposition of the dispute can be reduced to this question -- when did the appeal period begin to run in this case - on December 11, 2001 when the the board voted, or bn December 20, 2001, when they provided a detailed explanation of their action? In the court’s view, it is the former date. The nhost compelling argument which favors this result stems from the language of the statute quoted, infra; that is, that an appeal is to be taken within 45 days “of the

original decision.” 30-A M.R.S.A. § 2691(3)(G). This can only mean the vote

vote on the

taken on ]

important]

December 11 because that is the only date a vote was taken, but, more

y, that was the date the decision denying the Overlocks’ appeal was

4

“originally that day 1 WEBSTER’S 20 order of its decisio which ady Fact.. . ré on Decemk|

The v. Town of resemblan; § 2411(3)(F decision w publicly cé

board’s let

intended t

would beg

appeal per

vote on the

wished to

decision w

have done

Mor

“original d

7

ln

n

| made. In contrast, no vote was taken on December 20, and the decision

was not “original,” i.e., “preceding all others in time.” See “Original,”

I NEW RIVERSIDE UNIVERSITY DICTIONARY, 829 (1984). Instead, the December the board was supplemental in nature in that it provided the confirmation of |

of December 11. This is corroborated by the “Agenda” for December 20

ises that the action that night was to “Review and approve the Findings of

garding the Administrative Appeal of the Code Enforcement Officers order

per 11, 2001.” R. 7.

conclusion reached here is similar to the decision of the Law Court in Vachon Kennebunk, 499 A.2d 140, 141-42 (Me. 1985), a case which bears considerable bg to this matter. As to that case, the statute then in effect, 30 M.R.S.A. ), provided that an appeal was to be taken within 30 days after a board as “rendered.” In the view of the Law Court, this meant the date the board ast its vote rather than the date on which the appellant had received the ter notifying him of its decision. According to Vachon, if the Legislature had o identify a different event to mark the time at which the appeal period in to run, it could have done so just as it had, for example, when it set the

od after a decision of a state agency.

So, t00, here, the Legislature has selected a specific, identifiable event, namely the

original decision, as the occasion on which the appeal period begins. Had it select a different event, such as the date a board supplements or confirms its ith further findings prescribed by subparagraph E of section 2691(3), it could 50, eover, just as in Vachon, the public hearing on an appeal at which the ecision is made” is an event at which all parties are present, and “that time is

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easily dete ordinarily Nothing in December a public v appeal wh 2691(3)(G)

Nex court to di subparagri via P.L. 19 so and the Murphy v. purpose cc “original” running of municipal therefore r event whic defined as to section 2

Mok reconsider

occur with

MRSA. §

rmined and precisely fixed and ... all parties to the public proceeding will know of the Board’s public vote at the time it is taken.” Id. 499 A.2d at 142. 1 the record suggests that the same would be true as to the board meeting of 20, 2001. Thus, the action on December 11, which all would understand to be ote on the merits of the Overlocks’ appeal, represented a decision on that

ich could then be appealed by “any party” to this court. 30-A M.R.S.A. §

t, to accept the plaintiffs’ interpretation of these provisions would require the scount the importance of the word “original” which modifies “decision” in aph G of subsection 3. That word was added to its text by legislative action 91, ch. 234, It must be assumed that the Legislature had a purpose in doing added word “must be given [its] plain, common and ordinary meaning.” Board of Environmental Protection, 615 A.2d 255, 258 (Me. 1992). Such a nuld only have been to clarify and better define the word “decision,” which modifies, so that it would be understood what board action would trigger the the appeal period. In the context of the statutorily prescribed procedures for boards of appeal and the facts of this case, the word “original” must nean, as noted infra, the decision in the case which preceded all others, an h may be easily determined by a party who wishes to appeal. This is further the occasion on which the vote was taken by virtue of the same amendment 691 which added the word “original.” See P.L. 1991, ch. 234.

lebver, the applicable statute allows such an original decision to be od, and therefore modified, enlarged, or changed, but that such action must in 30 days of the seminal event of “the vote on the original decision.” 30-A

2691(3)(F). Thus, even if the “original decision” is changed or modified 30

6

days after vote was t. extra two ¥ Southwest §

This plaintiffs < decision be the reasons law or dis M.R.S.A. § demonstra member ei why each | conducted relevant to entered an these actia appeal cot (board’s d record). T

order on [

itis made, the appeal period begins to run on the same occasion — when the aken on the “original,” i.e., first, decision. This allows an aggrieved party an veeks to file his appeal after the original decision was made. Forbes v. Town of arbor, 2001 ME 9, ¥ 12, 763 A.2d 1183, 1187.

; construct of the relevant provisions of the statute notwithstanding, the assert that the “original decision” of December 11 does not qualify as a -cause it does not include “a statement of findings and conclusions, as well as : or basis for the findings and conclusions upon all the material issues of fact, bretion presented and the appropriate order, relief or denial of relief.” 30-A 5 2691(3)(E). The record of the proceedings of December 11, however, tes that the board did adhere to these requirements. R. 4, pp. 84-92. Each ther expressed how the Overlocks’ operation violated the town ordinance, or pelieved it was a quarry, or why each found that the activities the Overlocks amounted to a change of use. Having made these findings on the topics their consideration, and interpreted their ordinance in this regard, the board appropriate order which denied the plaintiffs any relief. In the court’s view ns satisfy the prescription for the content of “a decision” from which an id be taken.’ Laverty v. Town of Brunswick, 595 A.2d 444, 446 (Me. 1991) iscussion on permittee’s exceeding time limit for construction a sufficient

he fact that the board later memorialized their findings in a more expansive

December 20 does not affect the necessity of calculating the running of the

° If a petitio satisfy the ele

3(F). That a

event of the v

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ner before a board believed that the original decision was incomplete because it did not ements of subsection 3(E), the remedy would be a request for reconsideration via subsection ction, however, as discussed, infra, would nevertheless not change the significance of the ote on the original decision which begins the time limits in section 2691.

| appeal pe biod from “the date of the vote on the original decision.” 30-A M.R.S.A. § 2691(3)(G), Further, even if the order of December 20 is to be considered a decision for

purposes ¢ Instead, it

calculation

of the requirements of this law, it is not, of course, the “original decision.” is| akin to a reconsidered decision, the issuance of which does not change the

| of the appeal period. 30-A M.R.S.A. § 2691(3). Indeed, just as in Vachon, “a

decision” i

officials. I they could other indi board dec legislative A M.RS.A the provis subsection vote which

In re may end | jurisdictior 1981). Int read with “original” occurred o

not perfect

Town of Ket

sued via subsection (3)(E) is sent only to the petitioner and certain municipal d., 499 A.2d at 142. Thus, only they would have notice of this event so that appeal from it. This, of course, would effectively negate the opportunity of Liduals, such as abutters or other interested parties, from acting to appeal a ision. Such an application of subsection (3)(E) contradicts the obvious intent that “[a]ny party may take an appeal . . . on the original decision.” 30- § 2691(3)(G). From this, the court concludes that the only way to reconcile . ions in potential conflict here is to apply the unmistakable meaning of (3)(6) and hold that it is the date of the decision first expressed by a board's begins the period within which an appeal may be taken.

caching this conclusion, the court is mindful that the appeal of the plaintiffs rere. However, “[alll statutory requirements for perfecting an appeal are nal and require strict compliance.” Rice v. Amerling, 433 A.2d 388, 391 (Me. he court’s view the plain meaning of 30-A M.R.S.A. § 2691(3)(G), even when subsection (3)(E), requires the filing of an appeal 45 days from the first, ie., vote of a board on the merits of a local zoning contest. In this case that n December 11, 2001, so that the appeal filed here on January 31, 2002, was ed in a timely fashion, and the appeal must therefore be dismissed. Vachon v.

mebunk, id., 499 A.2d at 143.

| Based on the foregoing, the clerk is to make the following entry:

' Motion to Dismiss by defendant, Town of Thomaston, is

GRANTED. Case is DISMISSED. Kite

So ordered.

Dated: February tt, 2003

ohn R. Atwood Justice, Superior Court