Town of Minot v. Starbird

• Court: Superior Court of Maine
• Decided: June 20, 2011
• Docket: ANDap-10-17
• Status: Unpublished

Opinion

STATE OF MAINE SUPERIOR COURT ANDROSCOGGIN, ss. DOCKET NO. AP-10-17 /\l) ( __, '/. _ J;, 'j-:)- !. T' ' - \,_. . / ' ···, ~ "-· . / 1 ( ..._ I ' '-,. f '-.. ... -

TOWN OF MINOT,

Petitioner

v. ORDER

CHUCK STARBIRD,

Respondent.

Petitioner, the Town of Minot ("Town"), appeals pursuant to M.R. Civ. P. 80B

the Town of Minot Board of Appeals' November 9, 2010 reconsideration decision

granting Respondent's, Chuck Starbird, appeal ofthe Town Code Enforcement Officer's

denial of his building permit application to construct a single family dwelling on his

property.

Background

Starbird owns a parcel of land in Minot, Maine, located on a discontinued portion

of the York Road. This portion of the York Road was declared a public easement by the 1 District Court on September 26, 2007.

On May 14, 2010, Starbird submitted a building permit application to the Town

Code Enforcement Officer to construct a singe family home. The CEO denied the permit

on June 11, 2010, citing a lack of frontage on an accepted town street or private right of

way. On July 6, 2010, Starbird appealed the decision to the Town of Minot Board of

1 This Judgment became final on October 17, 2007. Appeals ("Board"). 2 On September 15, 2010, the Board denied the appeal, and the

decision of the CEO was affirmed. Starbird filed a timely request for reconsideration

with the Board. On November 9, 2010, the Board held a hearing and reversed its

September 15,2010 decision and granted Starbird's appeal. On November 15,2010, the

Town Selectmen filed this Rule SOB Appeal ofthe Board's reconsideration decision.

Standard of Review

In appeals brought pursuant to M.R. Civ. P. SOB, the court reviews administrative

decisions directly. Rudolfv. Golick, 2010 ME 106, ~ 7, S A.3d 6S4, 6S6 (citing Logan v.

City of Biddeford, 2006 ME 102, ~ S, 905 A.2d 293, 295). Here, the court reviews the

Board decision because "the Board heard evidence and conducted a de novo review, ...

and therefore the Board acted as fact-finder and decision-maker." !d. (citing Aydelott v.

City of Portland, 2010 ME 25, ~ 9, 990 A.2d 1024, 1026). The burden ofpersuasion in

an action challenging an administrative decision rests on the party seeking to overturn the

decision. See Sawyer Envtl. Recovery Facilities, Inc. v. Town ofHampden, 2000 ME

179, ~ 13, 760 A.2d 257, 260.

The court reviews the Board decision for errors of law, abuse of discretion, or

findings of fact unsupported by substantial evidence on the record. Fitanides v. City of

Saco, 2004 ME 32, ~ 23, S43 A.2d S, 16 (citing Veilleux v. City ofAugusta, 6S4 A.2d

413,415 (Me. 1996)). "Substantial evidence exists if there is any competent evidence in

the record to support a decision." !d. (citing York v. Town of Ogunquit, 2001 ME 53,~

2 Appeals are addressed in Section 9-201.1 ofthe Minot Land Use Code: "When the Board of Appeals reviews a decision of the Code Enforcement Officer the Board of Appeals shall hold a "de novo" hearing. At this time the Board may receive and consider new evidence and testimony, be it oral or written. When acting in a "de novo" capacity the Board of Appeals shall hear and decide the matter afresh, undertaking its own independent analysis of evidence and the law, and reaching its own decision."

2 14, 769 A.2d 172, 178); see also Ryan v. Town ofCamden, 582 A.2d 973, 975 (Me.

1990) (noting that the substantial evidence standard requires the court "to examine the

entire record to determine whether on the basis of all the testimony and exhibits before

the board it could fairly and reasonably find the facts as it did") (quoting Seven Islands

Land Co. v. Maine Land Use Reg. Comm 'n, 450 A.2d 475,479 (Me. 1982)). However,

"[t]he interpretation of a local ordinance is a question of law that the court reviews de

novo." Rudolf, 2010 ME 106, ,-r 7, 8 A.3d at 686 (internal citation and quotation

omitted).

When "reviewing an administrative ... decision, the issue before the court is not

whether it would have reached the same conclusion as the [administrative tribunal], 'but

whether the record contains competent and substantial evidence that supports the result

reached."' Seider v. Bd ofExam 'rs ofPsychologists, 2000 ME 206, ,-r 8, 762 A.2d 551,

555 (quoting CWCO, Inc. v. Superintendent ofIns., 1997 ME 226, ,-r 6, 703 A.2d 1258,

1261). The court may not substitute its own judgment for that of the administrative

tribunal. See id,· accord, Brooks v. Cumberland Farms, Inc., 1997 ME 203, ,-r 12,703

A.2d 844, 848. In other words, an administrative decision is not wrong because it is

inconsistent with parts of the record or because the court might have come to a different

conclusion. See Twiggv. Town of Kennebunk, 662 A.2d 914,916 (Me. 1996). Similarly,

"local characterizations or fact-findings as to what meets ordinance standards will be

accorded substantial deference." Rudolf, 2010 ME 106, ~ 7, 8 A.3d at 686 (internal

citation and quotation omitted). However, if a board "fails to make sufficient and clear

findings of fact [as] are necessary for judicial review," the court must remand the matter

back to the board for those findings. Comeau v. Town of Kittery, 2007 ME 76, ~ 9, 926

3 A.2d 189, 192 (quoting Carroll v. Town of Rockport, 2003 ME 135, ~ 30, 837 A.2d 148,

157).

DISCUSSION

In its Conclusions of Law the Board recites part of section 4-501.8, and then

concludes: "The right-of-way referred to in §4-501.8 of the Land Use Code includes a

public easement." (R. at I, Findings of Fact and Conclusions of Law, at 2.) The Town

argues that the Board erred as a matter of law in its interpretation. Specifically, the Town

asserts that "[t]he result of that decision, if upheld, is that the Code Enforcement Officer

of the Town of Minot will issue a building permit for the construction of a single family

residence on a public easement despite the explicit language in the Code that limits

construction on public easements to certain grandfathered parcels (of which the Property

is not one) with the approval of the Planning Board." (Town's Brief at 3.) Starbird

disagrees, arguing that the Board correctly interpreted the term "right-of-way" to include

public easements.

The Minot Land Use Code states:

Back lots may be developed for uses permitted in the District if they are or can be provided with a right-of-way that connects with a public street, a privately-owned street which privately-owned street meets the standards contained in Chapter 8 ... or in an approved subdivision and which complies with the following provisions:

If a back lot is accessible only by a legally enforceable right-of-way, it may be used if the following conditions are met:

A. The right-of-way must be conveyed by deed recorded in the Androscoggin County Registry of Deeds to the owner of the back lot and be a minimum of 3 3 feet in width. B. A legal description ofthe right-of-way by metes and bounds shall be attached to any building permit application for construction on the back lot. C. Except for lots recorded on the effective date of the Ordinance, the right-of- way deed must be recorded in the Androscoggin County Registry of Deeds at the time the back lot is first deeded out as a separate parcel.

4 D. Creation of the right-of-way to serve the back lot shall not create a non- conforming front lot by reducing such lot's required road frontage below the minimum, or, if the front lot is already non-conforming, with respect to road frontage, reduce its road frontage at all. Where the right-of-way is conveyed by easement or irrevocable license, or some grant less than a fee interest, the land over which such servitude is placed may not be counted toward meeting road frontage requires for the front lot. E. The right-of-way may serve only one principal use or structure except the right-of (sic) may serve two dwelling units if a common driveway is constructed meeting the standards of Chapter 4-501.3. If the right-of-way is to serve more than two dwelling units a road meeting the requirements of Chapter 8 is required. F. No more than one right-of-way for back lot development may be created out of a single lot fronting on a state or town maintained road or private road unless each subsequent right-of-way is created out of at least an additional frontage as required in the District, and the right-of-way entrances to such road are at least the required frontage plus half of the right of way width. G. Each principal structure on back lots shall be located within the area defined by a circle with a minimum diameter equal to the required road frontage as required in the District.

(R. at J, Town of Minot Land Use Code, § 4-501.8.)

A "right-of-way" is "[a] persons' legal right, established by usage or contract, to

pass through grounds or property owned by another." BLACK's LAw DICTIONARY 1326

(7th ed. 1999). A "public easement" is statutorily defined as "an easement held by a

municipality for purposes of public access to land or water not otherwise connected to a

public way, and includes all rights enjoyed by the public with respect to private ways

created by statute prior to the effective date of this Act. ... " 23 M.R.S. § 3021(2) (2011);

see also BLACK'S LAW DICTIONARY 528 (7th ed. 1999) ("public easement. An easement

for the benefit of an entire community, such as the right to travel down a street or a

sidewalk."). Therefore a public easement is a type of right-of-way, and the Board did not

err in finding that "[t]he right-of-way referred to in §4-501.8 of the Land Use Code

includes a public easement."

5 It is unclear why the Board, however, after concluding that a public easement is a

legally enforceable right-of-way, did not continue with its analysis and determine

whether or not the public easement at issue here, York Road, met the additional

conditions of section 4-501.8. 3 Section 4-501.8 requires more than just a determination

that a right-of-way includes a public easement. Section 4-501.8 clearly states: "If a back

lot is accessibly only by a legally enforceable right-of-way, it may be used if the

3 At oral argument counsel for both parties argued that the Board discussed these conditions and made sufficient findings of fact, however, these discussions are not reflected in the record. For example, the Board minutes from the November 9, 2010 Reconsideration Hearing state in part:

• Tab 9 (Section 4-50 1.8) (Back Lots) was then discussed and how it referenced Right of Ways and the recording of the deed for the Right of Ways. There was a lengthy discussion on Section 4-501.8. • Mr. Lynch also pointed out to the Board that Section 4-501.9 (Tab 8) was a nonconformity provision that treated public easements as Rights of Ways and that because under Section 4-501-9 a Right of Way included a public easement, then under Section 4-501-8, a public easement was included as a Right of Way. • Mr. Murphy questioned if the use of a public easement met the conditions of the ordinance and also asked if the public easement could be done away with and what happens. Mr. Rattey responded that the town can do away with public easements, however they would be required to pay damages to the property owners. (emphasis added). • Mr. Lynch requested the Board reconsider the previous decision of Sept. 15, 2010. Mr. Murphy asked the following: ... Challenged the time frame of lot creation. (emphasis added). • All of the above were discussed in detail along with Section 4-501.8 (again). Mr. Murphy pointed out for the record the (sic) he had concerns about Mr. Franchetti conveying the easement to Mr. Starbird and that he was not the owner of the easement and that he felt that Mr. Franchetti had no legal right to convey the easement. Mr. Lynch then challenged the reasons for denying the appeal on Sept. 15, 2010. Mr. Hermansen stated that public easements do not require a deed, but did agree that our ordinance does require a recorded deed for the right of way and that the recorded court judgment stating that the York Road was a public easement was not a deed. (emphasis added).

(R. at H, November 9, 2010 Minutes.) The court concludes that these minutes, as highlighted by the above-mentioned emphasized excerpts, are not sufficient to constitute findings on each of the conditions listed in section 4-501.8 ofthe Code. Although the conditions may have been discussed at the hearing, the record does not reflect these discussions nor establish the reasons why the Board concluded that Starbird's application met the Code requirements such that his appeal should be granted. Based on this record, the court is unable to discern why the Board made the decision it did. See Seider, 2000 ME 206, ~ 9, 762 A.2d at 555 ("An administrative decision will be sustained if, on the basis ofthe entire record before it, the agency could have fairly and reasonably found the facts as it did.") (citing CWCO, Inc.,~ 6, 703 A.2d at 1261).

6 following conditions are met ...." (R. at J, Town of Minot Land Use Code,§ 4-501.8)

(emphasis added). The Board failed to make a determination as to whether these

conditions were met. As a result, a meaningful judicial review of the decision is not

possible. Where the record and the Board's findings are insufficient, courts may remand

the matter to the Board for further findings. See Sanborn v. Town ofSebago, 2007 ME

60, ~ 14,924 A.2d 1061, 1065-66; see also Carroll v. Town of Rockport, 2003 ME 135, ~

27, 837 A.2d 148, 156 (noting that without sufficient findings to review the court is in

danger of "'judicial usurpation of administrative functions."') (citing Gashgai v. Bd of

Registration in Medicine, 390 A.2d 1080, 1085 (Me. 1978)).

A remand to the Board for a finding of facts explaining whether the application

meets all of the requirements of the Code, and the basis for the decision, would allow for

further judicial review.

Activity on Remand

The purpose of the remand is for the Board to re-examine the entire existing

record, consider the issues that it did not address, and make the findings that it omitted, as

set forth above.

When the Board has made decisions on the issues identified in this order, it

should issue an amended decision. Depending on what the Board concludes, the

amended decision may uphold the previous reconsideration decision granting the appeal,

or it may rescind that decision and deny the appeal. In either case, the amended decision

shall include the Board's findings and conclusions. The parties shall also ensure that all

requisite municipal action required by Rule 80B has occurred prior to filing another

7 appeal. See Rockland Plaza Realty Corp. v. City of Rockland, 2001 ME 81, ~ 6 772 A.2d

256, 259. 4

Conclusion

For the reasons stated, it is hereby ORDERED:

1. The appeal is sustained.

2. This matter is remanded to the Town of Minot Board of Appeals for further

proceedings consistent with this Order.

Pursuant to M.R. Civ. P. 79(a), the clerk is hereby direc!ed to incorporate this

Order of Remand by reference in the docket.

DATED:q/c:tJ/11

4 In Rockland Plaza Realty Corp. the Law Court addressed the Petitioner's appeal of the Board's interpretation of the Ordinance, even though the Petitioner did not wait for the remand from the Board to the Commission who had to issue the final approval of the application, as well as the requested permit. 2001 ME 81, ,-r 6, 772 A.2d 256, 258-59. The Law Court stated that, although the appeal was not from the ''final approval of the plan, as would generally be required, we nevertheless agree to take and decide [Petitioner's] appeal as a matter of law in the interest of judicial economy and to prevent further delay because all that remains ... is the ministerial act of final approval." Id. (emphasis in original). The court notes that this action is also missing the "ministerial act" of final permit approval or denial, and directs the parties to ensure that all required municipal action has occurred prior to filing another appeal. See e.g. Farrell v. City of Auburn, 2010 ME 88, ,-r 8, 3 A.3d 385, 388 ("Judicial review pursuant to Rule 80B ... is not appropriate when the decision of the municipal board being appealed has no legal consequences for the parties; that is, when it is merely advisory in nature.").

8 Date Filed 11-19-10 Androscoggin Docket No. AP-10-17 County

Action BOB Complaint

TOWN OF MINOT CHUCK STARBIRD

VS.

Plaintiff's Attorney Defendant's Attorney

Norman Rattey, Esq. Scott Lynch, Esq. SKELTON TAINTOR & ABBOTT HORNBLOWER, LYNCH, RABASCO & VANDYKE P.O. Box 3200 P.O. Box 116 Auburn, ME 04211 Lewiston, ME 04243

Date of Entry

2010 Nov 22 Received 11-19-10: Complaint Rule BOB filed. $150.00 filing fee paid Nov 22 On 11-22-10: Notice and Briefing Schedule BOB filed. Plaintiff's Brief is due on or before January 3, 2011. Copies mailed to parties on 11-22-10. Dec 2 Received 11-29-10: Answer to Complaint filed.

Dec 7 ~ec'd on 12/6/10 Acknowledgement of Acceptance of Service signed by Scott Lynch, Esq.

Dec 14 Received 12-14-10: Defendant's Motion to Dismiss for Lack of Standing filed. ($200.00 fee pd)

Dec 20 Received 12-20-10: Plaintiff's Motion for Trial of Facts filed. Offer of Proof and Statement of Material Facts of Plaintiff in Support of the Motion for Trial of the Facts filed. Dec 29 Rec'd on 12/29/10 Defendant's Objection to Plaintiff's Motion for Trial of the Facts. 2011 Jan 5 Rec'd on 1/4/11 Plaintiff's Opposition to Defendant's Motion to Dismiss. Reply to Defendant's Objection to Plaintiff's Motion for Trial of Facts.