Ray Ledges, LLC v. The Inhabitants of the Town of Harpswell

• Court: Superior Court of Maine
• Decided: June 7, 2017
• Docket: CUMap-17-03
• Status: Unpublished

Opinion

STATE OF MAINE SUPERIOR COURT CUMBERLAND, ss. CIVIL ACTION DOCKET NO. PORSC-AP-2017-03

RAY LEDGES, LLC, a Maine ) Limited Liability Company of ) Canton, Oxford County, Maine, and ) ORDER ON PLAINTIFFS' BOB APPEAL JJCF, LLC, a Maine Limited Liability ) Company of Canton, Oxford Count y ) ) Plaintiffs, ) ) , STATE OF MAINE V. ) Curnh.-:irl~nrl ~~ Clerk's Offtce ) JUN o7 2011 : sctfnv\ THE INHABITANTS OF THE ) 11 TOWN OF HARPSWELL ) ) tiECEIVED Defendant. )

Plaintiffs appeal from a decision by the Town of Harpswell Board of Appeals

("BOA") pursuant to Maine Rule of Civil Procedure BOB.

I. Background

On April 14, 2016, Plaintiffs Ray Ledges, LLC and JJCF, LLC recorded a notice,

pursuant to 23 M.R.S. § 3032, of their alleged ownership of half of a proposed,

unaccepted way ("paper street") abutting their property which they claimed had been

vacated by The Town. (Pl.'s Compl.

to build a septic system, a portion of which would be on the abutting paper street. (PL' s

Compl.

District (within 75 feet of the shoreland buffer; D.'s Br. 2-3), and as such, their removal

was subject to the Shoreland Zoning Ordinance. Harpswell, Me., Shoreland Zoning

Ordinance (June 14, 2007). The permit was granted on May 10, 2016, and on June 1,

2016, Plaintiffs cut trees on the site. (Pl.'s Compl.

receiving calls from neighbors questioning Plaintiffs' right to cut trees in the paper

street, the Code Enforcement Officer (CEO) issued a verbal stop work order. (Pl.'s Br. 5.)

1 of 4 Plaintiffs-John Conway, Esq. Defendant-Amy Tchao, Esq. On August 31, 2016, Plaintiffs applied for a permit to build a redesigned septic system

that was not on the paper street, which was granted on September 15, 2016. (Pl.' s

Compl.

2016), the CEO notified Plaintiffs that their June 2016 tree cutting was in violation of the

Shoreland Zoning Ordinance, and ordered that the trees be replanted. (Pl.'s Compl.

15.) On December 14, 2016, the BOA denied Plaintiffs' appeal to vacate the violation,

and upheld the tree replanting plan. (Pl.'s Compl.

on January 25, 2017, and submitted a brief on March 6, 2017. The Town submitted a

brief on April 3, 2017. On April 19, 2017, Plaintiffs submitted a reply brief.

II. Standard of Review

The Superior Court independently examines the record and reviews the decision

of municipal boards for abuse of discretion, error of law, or findings unsupported by

substantial evidence in the record. Somerset Cnty. v. Dep't of Corr., 2016 ME 33,

A.3d 1006; Alden v. Town ofHarpswell & Walter Scott Moody, No. AP-03-076, 2005 Me.

Super. LEXIS 159, at *3 (Nov. 22, 2005). The substantial evidence standard requires the

court to examine the entire record to determine whether the board could have rationally

decided as it did, based on the facts presented to it. Alden, 2005 Me. Super. LEXIS 159, at

*3; Ryan v. Town ofCamden, 582 A.2d 861,863 (Me. 1991). Substantial evidence is

evidence that a reasonable mind could accept as sufficient to support the conclusion

reached. Cheney v. Unemployment Ins. Comm'n, 2016 ME 105,

2005 Me. Super. LEXIS 159, at *3. A court is not permitted to substitute its own

judgment for that of the board. Cheney, 2016 ME 105,

Super. LEXIS 159, at *3. The board's decision is not wrong simply because facts in the

record are inconsistent or a different conclusion could be drawn from them. Id. To

succeed on appeat the burden is on the plaintiff to prove that the evidence compels an

2 of 4 opposite conclusion. Rossignol v. Me. Pub. Emples. Ret. Sys., 2016 ME 115,

1175; Shure v. Town ofRockport & Eleanor Boyd, No. AP-98-005, 1999 LEXIS 141, at *23

(Me. Super. Ct. May 11, 1999).

III. Discussion

Plaintiffs ask this court to vacate the replanting order and the violation notice,

issued pursuant to the Shoreland Zoning Ordinance, where "the cutting or removal of

vegetation [in a Resource Protection District] shall be limited to that which is necessary 1 for uses expressly authorized in [the] district ." (PL's Compl.

Zoning Ordinance§ 15.15.1.) Plaintiffs argue that they had a valid permit when the

trees were removed, and that there were no conditions on the permit. (PL's Br. 6, 9; Pl.'s

Reply Br. 2-3.) Plaintiffs argue that the BOA ~id not have sufficient evidence to find that

the permit was invalid. (PL's Br. 6, 9; Pl.'s Reply Br. 1-3.)

In upholding the violation notice and replanting order, the BOA explicitly set out

in the record ("Rec.") its reasons for denying the appeal. Cf Shure, 1999 LEXIS 141, at

*20. The BOA found that the first permit was conditional in June 2016 when Plaintiffs

removed the trees, where on its face, it expressly indicated under the section entitled

"This Application Requires" that a "Legal Deed Easement [was] Required to Site [their

septic] System in [the] Paper Street." (Pl.'s Compl.

September 25, 1997, The Town had registered a notice2 extending The Town's right to

accept the paper street, putting into question any right, title, and interest in and to the

portion of the paper street Plaintiffs may have had pursuant to their April 14, 2016

1 The record does not contain the Shoreland Zoning Ordinance, but Plaintiffs provided the relevant sections. (Pl.'s Br. 7; See Lauze v. Town ofHarpswell, No. AP-05-079, 2006 Me. Super. LEXIS 177, at *2 n. 2, (Aug. 28, 2006). 2 Municipalities could extend the deadline for the automatic vacation of proposed, unaccepted ways for 20 years. 23 M.R.S. § 3032(2).

3 of 4 recording under 23 M.R.S. § 3032. (Pl.'s Br. 10; Rec. 1-4, 5-7.) Contrary to Plaintiffs'

argument, the reason their recording did not satisfy the permit's condition was not that

their alleged property transfer was an operation of law which could not meet the CEO's

request for a deed, (Pl.'s Br. 3), but that their recording did not demonstrate their right,

title, and interest in the land, (D.'s Br. 6; Rec. 42). As a result, the BOA found that

Plaintiffs did not have a valid permit that satisfied the required expressly authorized

use under the Shoreland Zoning Ordinance. (Rec. 42.) Plaintiffs did not appeal the stop

work order, nor did they submit additional information to prove their ownership of the

paper street as requested by the CEO, (Rec. 26), but instead, redesigned their plans and

sought another permit, (D.'s Br. 8; Rec. 16-25, 42.)

There are adequate facts of record to support the findings by the Town that there

was a violation, and this Court will not substitute its judgment for that of the BOA. See

Tousst v. Town ofHarpswell, 1997 ME 189, Cf[ 9,698 A.2d 1063. Further, it unnecessary for

this Court to decide whether the first permit was abandoned, (Pl.'s Br. 8-9), as the

violation occurred when Plaintiffs removed vegetation without a permit. (Rec. 42.)

IV. Conclusion

Based on the foregoing, Plaintiffs' appeal from a decision by the Town of

Harpswell Board of Appeals pursuant to Maine Rule of Civil Procedure SOB is denied.

The decision of the Town of Harpswell Board of Appeals is affirmed.

The Clerk is directed to enter this Order on the civil docket by reference pursuant

' to Maine Rule of Civil Procedure 79(a).

Date: June 7, 2017

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