Town of Mount Vernon v. James Landherr

2018 ME 105

• Court: Supreme Judicial Court of Maine
• Decided: July 24, 2018
• Status: Published

Opinion

MAINE SUPREME JUDICIAL COURT Reporter of Decisions Decision: 2018 ME 105 Docket: Ken-17-478 Argued: June 14, 2018 Decided: July 24, 2018

Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.

TOWN OF MOUNT VERNON

v.

JAMES LANDHERR et al.

SAUFLEY, C.J.

[¶1] James Landherr and Valerie Center, whom we refer to as the

landowners, appeal from a judgment entered by the District Court (Waterville,

Stokes, J.) in favor of the Town of Mount Vernon on its land use violation

complaint filed pursuant to 30-A M.R.S. § 4452 (2017) and M.R. Civ. P. 80K. The

dispute between the landowners and the Town centers on a relatively large

generator that the landowners had installed on their small lot on Minnehonk

Lake before seeking a permit or a variance.

[¶2] Prior to the proceedings before us, on appeal from a decision of the

Town’s code enforcement officer, the Mount Vernon Board of Appeals

determined that the landowners’ generator was a “structure” pursuant to the

Town’s Land Use Ordinance. When the landowners did not appeal that decision 2

and yet failed to comply with the Town’s request for the removal of the

generator because that structure was placed on the lot in violation of the

Ordinance, the Town filed a land use violation complaint. The court determined

that the previous decision of the Board of Appeals was res judicata as to

whether the generator met the definition of “structure” in the Town’s Land Use

Ordinance and found the landowners in violation of the Ordinance, assessing a

penalty and attorney fees. We affirm the judgment of the court.

I. BACKGROUND

[¶3] In early 2015, after experiencing a number of power outages, the

landowners installed a generator on their lakefront property. The generator

was set on a concrete pad and was connected to the house by underground

electric and gas lines. The landowners did not consult with the Town or apply

for a permit before installing the generator.

[¶4] The Town’s Land Use Ordinance requires that all new and accessory

“structures” be set back at least 100 feet from the normal high-water line of any

great pond within the shoreland zone. Mount Vernon, Me., Land Use Ordinance

§ 5(C)(2)(a) (June 13, 2015).1 The Ordinance further provides that “[n]o person

1 The Ordinance defines “structure” as “[a]nything temporarily or permanently located, built,

constructed or erected for the support, shelter or enclosure of persons, animals, goods or property of any kind, together with anything constructed or erected on or in the ground.” Mount Vernon, Me., 3

shall engage in any activity, land use, or placement of a structure . . . requiring a

permit in the district in which such activity or use would occur . . . without first

obtaining a permit.” Id. § 11(B). There is no dispute that the landowners’

generator was placed less than 100 feet from the lake.

[¶5] On July 15, 2015, the Town’s CEO sent a letter to the landowners

advising them that “[a]ll structures located in a shoreland district require a

permit” and stating that a generator on their property appeared to be in

violation of the Ordinance’s setback requirements. The letter ordered them to

either remove the generator or apply for a permit on or before August 10, 2015.

[¶6] The landowners filed an application for an after-the-fact permit to

maintain the generator in its location. By letter dated August 12, 2015, the CEO

denied the permit, stating that “the structure is nonconforming from side, front

and rear setbacks on the lot.” The CEO provided the landowners with

instructions for appealing his decision and applications for hardship and

administrative variances. They timely appealed the CEO’s denial of their permit

to the Mount Vernon Board of Appeals, arguing that their generator was not a

“structure” as defined by the Town’s Land Use Ordinance.

Land Use Ordinance § 3 (June 13, 2015). “Accessory structure” is defined as a “structure 100 square feet or greater, except in the shoreland zone, where there is no minimum size.” Id. 4

[¶7] In September 2015, the Board of Appeals held a public hearing on

the appeal. The landowners attended the hearing, where they were provided

an opportunity to argue their position. At the conclusion of the hearing, the

Board of Appeals unanimously voted to uphold the CEO’s decision and issued a

written decision concluding that the generator was a “structure” after finding

that “the generator sits on a pad, has underground propane pipes and [a] power

line, and was intended to remain in place.” The landowners did not appeal the

decision of the Board of Appeals to the Superior Court.2 See 30-A M.R.S.

§ 2691(3)(G) (2017); M.R. Civ. P. 80B.

[¶8] Approximately one month later, the CEO sent a letter requesting

that the landowners agree in writing to either remove the generator by

November 30, 2015, or incur a penalty for every day after November 30 that

the generator remained in violation of the Ordinance. On November 11, 2015,

after the landowners failed to respond to his letter and the time for filing an

appeal had expired, the CEO sent them a notice of violation pursuant to

30-A M.R.S. § 4452, requiring the landowners to sign and return a consent

agreement, which would require that they pay a $1,000 fine and remove the

2 The landowners also applied for a variance, which the Board of Appeals denied after a public

hearing. They do not appeal from that decision. 5

generator by November 30. The notice stated that they “must notify the Code

Enforcement Officer when corrective action is taken so that a compliance check

may be made” and warned that a failure to comply would “result in court

action.” (Emphasis in original.) The landowners responded with an email to

the CEO, acknowledging the notice of violation and stating that they planned to

make the generator mobile, but that it was unlikely that the work would be

completed by November 30, and that they would update the CEO when the

expected date of completion became known. They did not have any further

communication with the CEO.

[¶9] On February 3, 2016, the Town filed a land use citation and

complaint in the District Court pursuant to 30-A M.R.S. § 4452 and M.R.

Civ. P. 80K, alleging that the generator had not been removed as required by the

notice of violation and order for corrective action dated November 11, 2015.

The Town sought a permanent injunction and order for the removal of the

generator as well as attorney fees and civil penalties. The landowners denied

the allegations and the matter was set for trial.

[¶10] Prior to trial, the Town moved for summary judgment on the issue

of whether the generator was a “structure” as defined by the Town’s Land Use

Ordinance, see M.R. Civ. P. 56, asserting that the decision of the Board of Appeals 6

was a valid, final judgment and that relitigating the matter was barred by

principles of res judicata, see 30-A M.R.S. § 2691(4) (2017). Landherr and

Center objected.

[¶11] The court held a one-day trial in April 2017. After hearing

argument, the court granted the Town’s motion for summary judgment.

Because the landowners did not dispute that the generator was located within

100 feet of a great pond in violation of the Town’s Land Use Ordinance, the trial

proceeded to the dispositional phase during which the landowners asserted

that the Town should be equitably estopped from prosecuting the violation and

that the violation was de minimis. On August 21, 2017, the court entered a

judgment in favor of the Town. The court found that the landowners failed to

present sufficient evidence to prove their equitable defenses, ordered them to

pay a minimal civil penalty of $500, and awarded the Town attorney fees and

costs totaling $2,264.73. The landowners timely filed a notice of appeal. See

14 M.R.S. § 1901 (2017); M.R. App. P. 2A, 2B.

II. DISCUSSION

[¶12] The landowners contend that the court erred by concluding that

the decision of the Board of Appeals precluded them from relitigating the issue

of whether their generator was a “structure” as defined by the Town’s Land Use 7

Ordinance, arguing that summary judgment was inappropriate in a Rule 80K

proceeding and that they were entitled to a de novo hearing on the merits. They

urge us to determine that, as a matter of judicial policy, it would be better for

the public to be able to litigate issues anew in any land use violation litigation.

[¶13] The effect of a prior judgment on a present action is a question of

law that we review de novo. State v. Thompson, 2008 ME 166, ¶ 8, 958 A.2d 887.

Preliminarily, we reject the landowners’ contention that Rule 80K prohibits the

use of summary judgment in land use violation proceedings. See M.R.

Civ. P. 80K(a) (stating that “[e]xcept as otherwise provided in this rule, [the

Rules of Civil Procedure] shall apply to proceedings in the District Court

involving alleged violations of land use laws and ordinances”).

[¶14] We note, however, that the Town was not required to file a motion

for summary judgment in order to have the court apply the decision of the

Board of Appeals. The issue could have been addressed in a more

straightforward manner by a request from the Town that the court take judicial

notice of that decision. See M.R. Evid. 201; see also Manguriu v. Lynch, 794 F.3d

119, 121 (1st Cir. 2015) (noting that courts may take judicial notice of agency

determinations); Furnari v. Warden, Allenwood Fed. Corr. Inst., 218 F.3d 250,

255-56 (3d Cir. 2000) (same); Opoka v. INS, 94 F.3d 392, 394-95 (7th Cir. 1996) 8

(citing cases from several federal circuit courts of appeals supporting the

“well-settled principle that the decision of another court or agency, including

the decision of an administrative law judge, is a proper subject of judicial

notice”); cf. United States v. Jones, 29 F.3d 1549, 1553 (11th Cir. 1994) (“[A]

court may take judicial notice of a document filed in another court not for the

truth of the matters asserted in the other litigation, but rather to establish the

fact of such litigation and related filings.” (quoting Liberty Mut. Ins. Co. v. Rotches

Pork Packers, Inc., 969 F.2d 1384, 1388 (2d Cir. 1992))).

[¶15] Ultimately, regardless of the vehicle by which the issue was

brought to the court, the court correctly determined that the decision of the

Board of Appeals was binding on the landowners. An issue of law or fact

litigated and decided in a valid, final judgment is conclusive in a subsequent

legal proceeding between the same parties. Town of N. Berwick v. Jones, 534

A.2d 667, 669 (Me. 1987). That form of res judicata known as “collateral

estoppel” or “issue preclusion” prevents the relitigation of issues already

decided “if the identical issue was determined by a prior final judgment, and

the party estopped had a fair opportunity and incentive to litigate the issue in

a prior proceeding.” Macomber v. MacQuinn-Tweedie, 2003 ME 121, ¶ 22, 834

A.2d 131 (alteration omitted) (quotation marks omitted). The doctrine of res 9

judicata applies to decisions made by municipal bodies as well as to judgments

issued by the court. See 30-A M.R.S. § 2691(4) (“Any such decision that is not

timely appealed is subject to the same preclusive effect as otherwise provided

by law.”); Jones, 534 A.2d at 670 (establishing that res judicata applies to “a final

adjudication in an administrative proceeding before a quasi-judicial municipal

body”).

[¶16] Each of the elements of issue preclusion was established in this

case. See Macomber, 2003 ME 121, ¶ 22, 834 A.2d 131. First, the landowners

had a fair opportunity and incentive to litigate the issue of whether their

generator was a “structure” before the Board of Appeals. A review of the

minutes of the public hearing reveals that they had notice and an opportunity

to be heard. They did, in fact, advocate assertively for their position. Second,

after the Board of Appeals issued its decision and the period for filing a Rule

80B appeal expired without an appeal, the Board’s decision became a valid,

final judgment. See 30-A M.R.S. § 2691(3)(G), (4). Third, the issue before the

Board of Appeals—whether the landowners’ generator is a “structure” as

defined by the Town’s Ordinance—is the identical issue that they sought to

litigate in the District Court in the land use violation trial. Based on these

facts—which the landowners do not dispute—and for these reasons, the court 10

did not err by concluding that they were precluded from relitigating the issue

of the generator as a structure pursuant to the Ordinance.3

[¶17] Finally, the landowners’ argument that the application of the

principles of res judicata in these circumstances will make municipal land use

compliance more difficult and more expensive for landowners is not

persuasive. To the contrary, knowing the Town’s interpretation of the

Ordinance before the initiation of a land use violation complaint pursuant to

Rule 80K allows a landowner to take corrective action before risking the

potentially draconian penalties flowing from the filing of a land use violation

complaint, if the landowner is willing to work with the Town toward a solution.

See 30-A M.R.S. § 4452(3) (allowing penalties to be assessed “on a per-day

basis”).

[¶18] Pursuant to the final decision of the Mount Vernon Board of

Appeals, the generator on Landherr and Center’s property is a structure. It

must meet the requirements of Mount Vernon’s Land Use Ordinance regarding

structures. It does not. The court did not err in finding that the landowners

were in violation of the Ordinance and assessing a modest penalty.

3 The landowners also argue that the court erred by finding that they had failed to carry their

burden of proof in establishing their equitable defenses. We are not persuaded by their argument and do not address it further. 11

The entry is:

Judgment affirmed.

Robert E. Sandy, Jr., Esq. (orally), Sherman & Sandy, Waterville, for appellants James Landherr and Valerie Center

David M. Sanders, Esq. (orally), Sanders & Hanstein, Farmington, for appellee Town of Mount Vernon

Waterville District Court docket number CV-2016-11 FOR CLERK REFERENCE ONLY