Rousselle v. Town Council of the Town of S. Berwick

• Court: Superior Court of Maine
• Decided: September 29, 2006
• Docket: YORap-05-047
• Status: Unpublished

Opinion

STATE OF MAINE SUPERIOR COURT CIVIL ACTION YORK, ss. DOCKET NO. AP-05-047 - ",('3 r' * j L 0'

JOSEPH ROUSSELLE, Code Enforcement Officer of the Town of South Berwick, Maine

and

THE TOWN COUNCIL OF THE TOWN OF SOUTH BERWICK, MAINE, acting as the Municipal Officers of the Town of %uth Benvick, Maine, DONALD 1. GARBRECHT ORDER LAW LIBRARY Plaintiffs

GERALD POIRIER and CAROL POIRIER, Defendants

This matter comes before the Court on Joseph Rousselle's ("Rousselle") 80B

appeal of the Town of South Benvick's grant of a zoning variance to Gerald and Carol

Poirier ("The Poiriers"). Rousselle appeals in his capacity as Code Enforcement Officer ("CEO) for the Town, along with members of the Town Council. Following hearing,

the case is remanded for further proceedings.

FACTUAL BACKGROUND

Thirty years ago, Gerald and Carol Poirier acquired thirty-five acres of land near

York Woods Road in the Town of South Benvick. The Poiriers have since subdivided

that property into several residential lots, which they have given or plan to give to their chldren. Approximately five homes have been constructed in the area, some by parties

other than the Poiriers. In 2005, the Poiriers applied for a building permit and a zoning variance from the requirements set forth in 9140-70.H of the South Benvick Zoning

Ordinance to construct two residences on two new sub-lots. One of the Poiriers' sons

sought to build a residence on his lot, and their other son also intends to construct a

home on his part of the land within ten years. Appendix A of the Ordinance requires

that there can be no more than five residences on a private road that is not part of a

subdivision. Currently, residents access their property via a gravel right of way, but if

the additional homes were approved, the road would have to be upgraded to conform

to Town standards.

The Town denied the permit application on May 12, 2005, citing "access

standards." But, following a public hearing on June 30, 2005, the Board of Appeals

granted the Poiriers' request for a variance so that they could build the homes without

road upgrades. The Board subsequently rejected the Municipal Officers' request for

reconsideration.

Rousselle and members of the Town Council now appeal the Board's decision,

claiming that the Poiriers' evidence was insufficient to justify a variance. Also,

Rousselle is concerned about the implications of this decision for the Town's private

road safety standards, particularly the ability of emergency vehicles to access homes off

this and other substandard private roads. They argue that the property could earn a

reasonable return without this variance, and that any hardship resulted from the

Poiriers' decision to subdivide the land without upgrading the road.

The Poiriers claim that construction of a paved road is financially impracticable

and would create an undue hardship by effectively preventing their sons from building

homes. They argue that both of the two alternatives, petitioning for the road to be designated a town road and invoking subdivision review, would entail prohibitively

costly road work. DISCUSSION

1. Plaintiffs standing.

Rousselle's standing as CEO to challenge his own Board's decision is not in issue

because he appeared before the Board at the hearing and can claim that the decision

caused him a particularized injury in his capacity as CEO. See Wells v. Portland Yacht

Club, 2001 ME 20, ¶4, 771 A.2d 371, 373. A municipal officer may appeal a board's

decision if "aggrieved by [the] decision." Crosby v. Town of Belgrade, 562 A.2d 1228, 1231

(Me. 1989).

2. Standard of Review.

Review of the Board of Appeals' findings is "for an abuse of discretion, error of

law, or findings unsupported by substantial evidence in the record." O'Toole v. City of

Portland, 2004 ME 130, ¶8, 865 A.2d 555, 558. This Court is "limited to determining

whether the record contains evidence to justify the Board's determination." Lewis v.

Maine Coast Artists, 2001 ME 75, ¶14, 770 A.2d 644, 650. The party appealing the zoning

board's decision bears the burden of persuasion. Twigg v. Town of Kennebunk, 662 A.2d

914,916 (Me. 1996).

The issue presented by this appeal is whether enough evidence supported

granting a variance on the basis that the Poiriers' property could not earn a reasonable

return without the variance and that the hardship was not created by the Poiriers'

actions. The plaintiff did not address the unique circumstances and essential character

prongs of the zoning statute on appeal.

3. Is there enough evidence to show that the Poiriers would experience an "undue hardship" without a variance?

When deciding whether to issue a variance due to "undue hardship," a zoning

board considers whether: (1) the land would not earn a reasonable return absent a variance, (2) a variance is needed due to unique circumstances and not the general

character of the neighborhood, (3) the variance would not change the essential character

of the area, and (4) the hardship was not caused by the actions of the proponent or a

prior owner. 30-A M.R.S.A. §4353(4)(A)-(D)(2005). A party seeking a variance must

prove that he or she can satisfy each of the factors before a variance will be approved.

Goldstein v. City of South Portland, 1999 ME 66, ¶4, 728 A.2d 164, 165.

By statute, a zoning board is required to provide not only a statement of its findings of fact and conclusions of law, but also "the reasons or basis for the findings

and conclusions." 30-A M.R.S.A. §2691(3)(E) (2005). Adequate findings of fact are

crucial to the Court's review of a zoning board's action under Rule 80B because

"[mleaningful judicial review of an agency decision is not possible without findings of

fact sufficient to apprise the Court of the decision's basis." Chapel Road Associates, LLC v.

Town of Wells, 2001 ME 178, ¶9, 787 A.2d 137,140.

a. Does strict application of the ordinance prevent the land from vielding a reasonable return?

One statutory factor is whether refusing to grant a variance would prevent the

property owner from earning a reasonable return on his or her land. 30-A M.R.S.A.

§4353(4)(A). The Law Court has repeatedly noted that a "reasonable return does not

mean [a] maximum return." Rowe v. City of South Portland, 1999 ME 81, ¶6, 730 A.2d

673, 675. To prove that earning a reasonable return is impracticable, "the applicant

must demonstrate that 'strict compliance with the terns of the ordinance would result

in the practical loss of substantial beneficial use of the land."' Goldstein, 1999 ME 66, ¶5,

728 A.2d at 165 (quoting Bailey v. City of South Portland, 1998 ME 54, ¶6, 707 A.2d 391,

393). Here, the Poiriers contend that improving the road in addition to building a new

home would place too heavy a burden on an average prospective homeowner. They

claim that this would result in a practical loss because their sons could not afford to

construct residences, which was the Poiriers' reason for buying the large property years

ago. They have not previously had to upgrade the road because they gave lots to their

children under the family gift exception to the statute in lieu of seeking to subdivision

approval. Also, they apparently testified at the hearing that building costs for a road

would be at least $150 per foot, but the Board did not specifically adopt tlus contention

in its findings (all that is in the record is a summary of this testimony at p. 13).

Rousselle, however, argues in his brief that the Poiriers are simply seeking to

enhance their property's value by building a sixth and seventh residence on what is

technically still one large parcel of land. He contends that, like the setback variance in

Goldstein, a variance is not necessary here because the ordinance does not impose such a

burden that the Poiriers could not earn a reasonable return. Indeed, as in Goldstein,

there is little evidence in the record to indicate how the absence of a variance would

prevent the Poiriers' land from earning a reasonable return, as there have already been

significant improvements to the property. Rousselle would argue that even if this is an

expensive prospect, it does not follow that this amounts to completely preventing a

reasonable return, at least based on the draft minutes in the record.

Even taking a deferential review of the Board's findings of fact, the basis for

those findings remains unclear in this case. Although summaries of supporters' and

opponents' testimony at the hearing were included in the draft minutes, the Board did

not explicitly state whether it was adopting much of the testimony as fact. Other than

specifications about dimensions and feet of frontage, the only substantive part of the

testimony that the Board included in the findings of fact was that, "Based upon testimony the applicants have spent the past 20 years trying to stay within zoning requirements." (R. 14.) This "finding" about past adherence to requirements is not

relevant to determination of the current request for a variance; the Court would have to

speculate about which other parts of the testimony, if any, the Board relied on to make

its findings and conclusions.

At oral argument, counsel for Rousselle and the Town argued that in variance

cases, the trend has been to reach the merits of the ZBA's decision even in the absence

of adequate factual findings in the record. He contends that this Court should overturn

the variance in h s case because the Poiriers' situation does not satisfy the statutory

criteria, even if the ZBA's findings are somewhat lacking. Counsel for the Poiriers

argued that because the record provided by the Town was inadequate, there is an

insufficient basis for overturning the variance on appeal; consequently, it should be

upheld. Both counsel seem to contend that the Court need not remand this matter for

further fact-finding based on two prior Law Court decisions.

On an 80B appeal, this Court is "limited to determining whether the record

contains evidence to justify the Board's determination." Lewis v. Maine Coast Artists,

2001 ME 75, 914, 770 A.2d 644, 650. Adequate findings of fact are crucial to the Court's

review of a zoning board's action under Rule 80B because "[m]eaningful judicial review

of an agency decision is not possible without findings of fact sufficient to apprise the

Court of the decision's basis." Chapel Road Associates, LLC v. Town of Wells, 2001 ME 178,

¶9,787 A.2d 137,140.

1. Applicability of Driscoll v. Gheewalla

Nevertheless, counsel points to a 1982 decision in which the Law Court reached

the merits of an appeal without the findings of fact now required per Chapel Road.

Driscoll v. Ghemalla, 441 A.2d 1023 (Me. 1982). In Driscoll, the Court ordered a variance reinstated after the Superior Court had overturned it. Id. at 1025. Applicants had been

granted a variance from the setback requirements so they could build on a larger

portion of their lot, and the abutters brought an BOB appeal. Id. Although the ZBA did

not explicitly make a finding that there could be no reasonable return without the

variance, the Law Court stated that the record "implicitly supports such a finding." Id.

at 1029. The Court did advise boards to clearly state legal conclusions and factual bases

for decisions, but the absence of a specific finding did not prevent the Court from

reaching the merits. Id. at 1030, n. 5.

The cases following Driscoll cite it for deferential review of findings, but not all of

those cases involved variances, nor can it be said that they constitute a green light for

review despite incompleteness of findings at the ZBA level.' While it is true that the

Law Court has in several cases gone on to evaluate the grant of a variance even where

there are unsatisfactory factual findings, this is not necessarily a trend. The Court

seems to employ a case-by-case analysis turning on the degree of support for a ZBA

finding. When the Court has found some legitimate factual basis, it tends to uphold

ZBA decisions because review of fact-finding is deferential. But, when the factual basis

is almost completely lacking or conclusory, the Court tends to remand for further

factual development.

Indeed, in cases decided more recently than Driscoll, a 1982 case, the Court has

explicitly discussed the need for zoning boards to improve their factual findings and

legal conclusions, and has remanded numerous cases to ZBAs to do just that. The

turning point in this area came in Christian Fellowship & Renewal Ctr, v. Town of

Limington, a case in which the Law Court remanded for further fact-finding regarding a

1 Most cases citing Drisco22 were decided in the late 1980s and early 1990s, though some more recent cases do rely on it for the standard of review.

7 property tax decision made by commissioners who did not explain their reasoning.

2001 ME 16, ¶19, 769 A.2d 834, 840-841. There, the Court acknowledged that lines of

cases shifted between remanding to the administrative agency and "assum[ing] that the

agency found all facts necessary to support its decision." Id. P[¶ll-12,769 A.2d at 838.

While the Court was reluctant to craft a strict remand rule, it found that remand

was appropriate on the facts of that case because the Court was unable and unwilling to

infer a factual basis for the tax authority's concl~sion.~ Id. q19, 769 A.2d at 840. Also,

the Court discussed at length the policy reasons supporting thorough factual

development and called for a conservative judicial approach when such factual detail is

absent. Id. ¶14, 769 A.2d at 838-839. Specifically, the Court indicated that findings are

crucial for courts to conduct a proper review; that courts should ensure that local

boards satisfy statutory directives to support their decisions with proper findings, and

that other jurisdictions tend to remand rather than implying findings3. Id. ¶P[14-16, 769

A.2d at 838-840. These policy reasons prompted a remand in that case and guided the

Court in Chapel Road and other, more recent decisions than Driscoll. Moreover, even in

Driscoll, the Court "recognize[d] that an appellate court, in reviewing zoning board

action, is not free to make findings of fact independent of those explicitly or implicitly

found by the" ZBA, demonstrating the importance of thorough factual development.

441 A.2d at 1026.

2 The Court pointed out that "[rlecitation of the parties' positions or reiteration of the evidence presented by the parties do not constitute findings and are not a substitute for findings." Id. 97, 769 A.2d at 837. 3 A recent Maine Bar Journal article addresses this seeming shift in the Court's approach to analyzing ZBA findings and attempts to advise local boards and attorneys regarding how to ensure proper findings and anticipate problems. See Bryan Dench & Curtis Webber, Guidancefrom the Widewaters Case: How Should Local Boards Meet Their Duty to Issue Findings?, 18 Me. Bar. J. 136 (2003). The Board's fact-finding in this case is simply lacking, and remanding this matter

would be more consistent with the Court's recent emphasis on the need for improved

fact-finding.

2. Applicabilitv of Time Enouph, Inc. v. Town of Standish

Counsel for the Poiriers points this Court to another case discussing adequacy of

the record, in which the Law Court reversed the Superior Court's decision vacating a

variance. Time Enough, Inc. v. Town of Standish, 670 A.2d 918, 919 (Me. 1996). There,

applicants received a variance to put a mobile home on their land. Id. The ZBA held

two hearings on the matter, but the BOB appellate record only included minutes from

the second meeting, despite the Board's reliance on findings of fact from the first

meeting. Id. Reminding the parties that the appellant must submit a proper record for

review, the Court stated that the Superior Court "could have dismissed the action." Id.

at 920. The primary reasons for remanding with instructions to supplement the record

were that abutters protesting the variance did not have notice of the first hearing, and

the ZBA made decisive findings of fact at that meeting, on which it later relied. Id.

Though the Court noted that "inadequacy of a board's findings" would not

justify vacating a variance, it did state that "the record must contain sufficient evidence

to support the board's finding that each requirement has been met." Id. Again, more

recent cases have indicated that inadequate findings are often a basis for remand.

By contrast, the Law Court remanded for outright denial of a variance where the

record was "devoid of evidence to support" it. McGhie v. Town of Cutler, 2002 ME 62, $

7, 793 A.2d 504, 506. In that case, the ZBA mentioned the statutory scheme used to decide whether a variance is appropriate, but those references were conclusory and

there was no analysis of whether an undue hardship existed. Id. ¶¶6-7,793 A.2d at 506. Counsel for the Town suggested at argument that this case indicates the Court's

willingness to reach the merits even without adequate fact finding. McGhie is

distinguishable from the instant case, however. There, the Court remanded for a denial

because there was absolutely no evidence to support granting a variance and no

consideration of the four statutory factors for variances. Here, the record does indicate

that the Board relied on at least two of the factors to make its decision, but the factual

basis for its conclusions remains unclear. The record merely contains the secretary's

recordation of minutes, which typically has not been sufficient to allow for "meaningful

appellate r e ~ i e w . " ~In this case, there is not enough evidence in the record to either

uphold or overturn the variance; therefore, remand for additional fact-finding by the

ZBA is appropriate.

Dated: September q ,2006

PLAINTIFF : CHRISTOPHER L . VANIOTIS, ESQ. BERNSTEIN SHUR SAWYER & NELSON PO BOX 9729 PORTLAND ME 04104-5029 I hG. Arthur rennan Justice, sgperior Court

DEFENDANT : THOMAS R KELLY ESQ ROBINSON KRIGER MCCALLUM PO BOX 568 PORTLAND ME 04112-0568

4 In a case involving board approval of a subdivision plan, the Law Court stated that "[tlhe Board of Appeals secretary's paraphrasing of the reasons given by some . . . Board members for their votes . . . are not findings." Carroll v. Town of Rockport, 2003 ME 135, q[31,837 A.2d 148,157.