Town of Mount Vernon v. Landherr

190 A.3d 249
CourtSupreme Judicial Court of Maine
DecidedJuly 24, 2018
DocketDocket: Ken-17-478
StatusPublished
Cited by8 cases

This text of 190 A.3d 249 (Town of Mount Vernon v. Landherr) is published on Counsel Stack Legal Research, covering Supreme Judicial Court of Maine primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Town of Mount Vernon v. Landherr, 190 A.3d 249 (Me. 2018).

Opinion

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 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 *251or 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 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.

[¶ 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 generator by November 30. The notice stated that they "must *252notify 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 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 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.

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Cite This Page — Counsel Stack

Bluebook (online)
190 A.3d 249, Counsel Stack Legal Research, https://law.counselstack.com/opinion/town-of-mount-vernon-v-landherr-me-2018.