promissory estoppel. crhe Town and Club move to dismiss these independent
claims.
DISCUSSION
"A motion to dismiss tests the legal sufficiency of the complclint." I1cl7(>r v.
Lllcerl/c-;II-;\[nil/e ViI/age Corp" 2000 MI:;: 137, 91 7, 755 A2d 1064, "1066 (quoting
4 McAfcc v. Cofe, 637 A.2d 463, 4(;5 (Me. 1994)). "For purposes of " 12(b)((;) Illotion,
the m"teriCl] i'llleg"tions of the complaint must be ti'lken ClS Cldmitted." McAfce, (;37
A.2d Clt 4(;5. The Court eXClmines "the compl"int 'in the light most fClvorClble to
the plClintiff to determine whether it sets forth elements of Cl cause of action or
alleges bcts that would entitle the pl2lintiff to relief pursuant to some legCll
theory.'" [ohmlsoll v. Dllllllingto7l, 2001 ME 1(;9, 9I 5,785 A.2d 1244, 1245-46
(quoting Til rc Wagc Paylllcn! U!ig. v. Waf-Ajar! Stores, Inc., 2000 ME 162, (If 3, 759
A.2<.1 217, 220).
"Generally, 'the existence of a contract is a question of f"ct to be
determined by the jury.'" Sul/ivall v. Porter, 2004 ME 134, 9, 13, 861 A.2d (;25, 631
(quoting [III1C Rohcrts Agency, Tllc. v. Venturc Props., TIIC., 676 A.2d 4(;, 48 (Me.
199(;)) (quotations omitted). However, in order for Cl contract to exist, a jury must
be "ble to find that "the porties l1lUtUZl1Jy assent[edl to be bound by Clil its
mClterial terms, the assent is either expressly or impliedly manifested in the
contrClct, Clnd the contract is sufficiently definite to enClble the court to clscertZlin
its ex"ct me"ning and fix exactly the legal liabilities of each party." Td. (citing
/-'orrcst Assocs. v. Passalllaqlloddy Tribe, 2000 ME 195, (I[ 9, 760 A.2d 1041, 1(44).
Furthermore, the contrClct must be legell, Lelligfl v, Pittstoll Co., 456 A.2d 355, 3G'j
(Me. 'I (83), and there must be consideration. Laj7an/lllc v. HOfflllall, 148 Me. 444,
450, 95 A.2d 802, 805 (1953).
While it is de"r thClt the parties did re"ch sorne form of Clgreelllent, the
question is whether their mutuClI understanding could have creClted Cl legCllly
binding contract. The Clnswer is no. Giving the Kur1Clnskis the benefit of ,,11
reasonClble inferences, the court could llSSl1111e for the purpose of these rllotions
thelt the Zlttorney representing the Club had authority to bind the Club to"
5 contrC1ct. The CEO, however, could not hC1ve hC1d legC11 authority to enter into C1
contrC1ct on behalf of tIle Town.
The executive C1nd C1dministrative C1uthority of a town is generC1/ly vested
in the board of selectmen, acting as a body. Sirois v. Frenchville, 441 A.2d 291, 294
(Me. 1982) (quoting 30 M.R.S.A. 8 2316 (1978) (current version at 30-A M.R.S.
§ 2635 (2010))). A municipality's code enforcement officer, in contrast, lias limited
authority defined by stC1tute. See id. (discussing the limited C1uthority of selectman
acting alone). This au thority does not C1lJow the officer to enter contracts on the
town's behal f. See 30-A M.R.S. §§ 4451-52 (2000). "All persons contracting with
town or city officers must tC1ke notice at their peril of the extent of the C1uthority
of such officers. Jt is not the town's burden to establish the absence of authority,
but the plointiff's burden to prove the authority." Sirois, 441 A.2d at 294.
The Kurlanskis hC1ve not alleged any bC1sis from which they might prove
that tIle Town's CEO had the clUthority to bind the Town to the alleged contract.
A jury would hC1ve to speculC1te that tIle CEO's action had been C1l1thorized or
rC1tified at some unidentified meeting of the Board of Selectmen. Sec Bell AI!. Corp.
v. Twolllbly, 550 U.S. 544, 555 (2007) (pll'C1ding must allege more than speculative
grounds for relief in order to C1void dismissC1I). The Kl1rlanskis hC1ve thus foiled to
C1l1ege C1 prin1C1 fC1cic CC1se for breoch of contrC1ct agC1inst the Town.
r~ven assuming thC1t C111 pC1rties were represented by ogents with cldequC1te
cluthority, the Lillegcd contrC1ct must fail for lack of mutuC11 C1ssent to be bound
Lind C1 rclC1ted wC1nt of consideration. Confusion on this point C1ppeC1rs to stem
from the terms of the alleged agreelliellt reC1ched in 2000. The KurlC1nskis C1l1ege
thC1t the CEO found thC1t the Club's usc of Lot 2 up to that point hC1d violLlted the
ordinance. Hov\,ever, the CI~O also determined th<1t parking CMS on Lot 2 for no
6 more than three events per year would be occasional use not violating the
ordinance. The Club declared that it would conform its usc of the Lot to meet the
CEO's interpretation of the ordilllll1Ce, but expressly reserved its right to
challenge the CEO's interpretation in the future if llnd when it gained more
information regarding Lot 2's history.
It is clear from the above that the Club did not assent to be bound or offer
any other form of consideration. The Club only agreed to conform its behavior to
what the CEO interpreted the law to demand. Perfornlance of an existing legal
obliglltion, in this Cllse by refraining to usc the Lot for general pllrking, cannot
serve as considerlltion for a reciprocal promise in a contract. PI711I7S0Ilic COllIlIIC'IIS
ti Sys. Co. v. Dept. of Admin, 1997 ME 43, 9114,691 A.2d 190, 195 (citing
Restatement (Second) of Contracts § 73 (l9R1)). Even this promise was illusory,
bec,luse the Club 'llso expressly reserved its right to chllllenge the CEO's
interpretlltion of the ordinance or develop new evidence that would change how
the ordinance applied. Ultimately, the Club only agreed to comply with the
CEO's interpretation of the law until it felt like it didn't have to. This is not II
promise.
Silllilllrly, the CEO did not promise to refrain from enforcing the
ordinance.~ Assuming thllt he could hllve made such II promise, lllJ the C[~O did
was interpret the ordin{1nce llS {1llowing occasional use of the Lot for parking. In
the CEO's opinion, using Lot 2 for overflow pllrking on no more thlln three
events per summer would fllil short of establishing II parking ,lrea without prior
llpprov,ll, llnd thus not violate the ordinance. So long {1S the Club did not attempt
~ The court cannot llsclTtain the limits of the CEO's prosecutorial discretion without reference to the Town of Falmouth's ordinllnce. Sec Arfl7l115 v. Tml111 of BrtlllSwick, 201 0 ME 7, (j[91 8-9, 987 A.2d 502, 506. 7 to usc the Lot more frequently and thereby establish a parking area, there would
be no violation and the CEO could not initiate an enforcenlent tlction.
As alleged in the complaint, the supposed promise to not enforce the
order of October 19, 1999 was really nothing more than a promise not to bring tin
enforcement action so long as there WtlS no violation. Like the Club's promise to
obey the lelW, the CEO's promise to enforce the law only when there was a
vjolotion connot constitute considerotion for 0 contract.
Finillly, the Kurltlnskis allege that they tlgreed to refrain from filing a
complclint with the CEO or seeking relief in the nature of a writ of mandJmus so
long elS the Club limited its use of Lot 2 to three events per year. Only the Town
could actuolly initiate an enforcement action, so the Kur1anskis retllly promised
to refrain from two actions. Herrle v. Town ojWnferborCJ, 2001 ME 1, 1f 1"1, 763 A.2d
1159,1102 (citing 30-A M.R.S. § 4452(4)).
First, the Kurlanskis promised not to bring an action oS abutters to compel
the CEO to enforce the October 19, 1999 order, assuming that they could do so
under the ordinonce. The problem here is that the order of October 19, 1999 was
issued in response to the Club's supposed attempt to establish a parking area. So
long as the Club did not regularly park GlrS on the Lot, there would be no
violation to enforce the order against, so the promise was empty. The Kurltlnskis'
second promise WelS to refrain from challenging the CEO's detennineltio!l that
pJrking on Lot 2 during three events per year would not violote the ordinance,
agelin assuming they could do so. This IntlY conceivably have constituted legell
considerJtion, but it would htlve been non-mutual elnd therefore insufficient to
bind the other parties to a contreLCt. The illusory nature of the alleged contract in this case becomes clear if the
court tries "ascertain its exact meaning and fix exactly the legal liabilities of each
party." SuI/ivan, 2004 ME 134,
the agreement by parking motor vehicles on the Lot more than three times per
year, the Kurlanskis would be free to file a complaint with the Town CEO LlgC1inst
the C111eged breach of the ordinallce. The CEO would then determine whether the
Club's increased use violated the ordinLlnce, C1nd be free to initiC1te an
enforcement action if the law was being violated. Either the Kurll1nskis or the
Club could appeal the CEO's decision to the ZBA. This is exactly whLlt would
hC1ppen in the ordinary course without the Lllleged contract, and is exactly wh
hC1ppened in this CLlse.
Giving the Kurlanskis the benefit of ell! reasonable inferences, they hC1ve
fLliled to lll1ege fLlcts thC1t could prove the existence of the Lllleged contrC1ct
between the pC1fties. Their Count VI for breLlch of contrC1ct is dismissed.
In C1dd i tion to their contract clC1im, the KurlLlnskis contend that the
defend,:mts C1re bound by their alleged promises through the doctrine of estoppel.
Maine hllS adopted the RestC1tement dcfini tion of promissory estoppel, \lvhich
states:
A promise which the promisor should rellsonC1bly expect to induce C1ction or forbeLlrance on the pC1rt of the promisee or el third person C1nd which does induce such action or forbearC1nce is binding if injustice CC1n be C1voided only by enforcement of the promise. The remedy granted for breLlch mllY be limi ted C1S justice reqlllres.
Harvey v. Dow, 2008 ME 192, Clf 11, %2 1\.2d 322, 325 (quoting RestC1ternent
(Second) of ContrC1cts § 90(1) (19B1)). The Kurlanskis argue thC1t the Club
promised them and the CEO that it would limit its use of Lot 2, and that the C[~O
promised to refnlin from enforcing the October 19, 1999 order so long
9 was so limited. The Kurlanskis, reasonably relying on these promises, refrained
from seeking enforcement of their complaint and the October 19,1999 order.
The promissory estoppel claim suffers from many of the same deficiencies
as the contract claim. Assuming that the Kurlanskis reasonably believed the
defendants' statements were directed at them, the only written evidence of the
Club's alleged promise shows that it expressly reserved the right to increase its
use of Lot 2 for parking in the future. This is not a promise, and it would be
unreasonable to view it as such. Similarly, the CEO merely interpreted the
ordinance and promised to enforce its terms. The Kurlanskis could not
reasonably hClve read anything extraordinary into this statement from a town
offi cial.
The Kurlell1SkiS have also not alleged tllat they materia]]y changed their
legal position in reliclllce on the defendants' Cllleged promises. Here it is
irnportant to note that private citizens cannot enforce an ordinance. Herrle, 2001
ME 1, 9[11, 763 A.2d at 1162. The Kurlanskis could have filed a new complaint if
they felt the Club was at any time using Lot 2 in violation of the ordinance, or
they could have sought mandamus to compel action on the CEO's prior order if
they felt it was not being enforced. See RI7Y v. TaWil afCl7l11dell, 533 A.2d 912,9'13
14 (Me. 1987). "[M!andamus can only overcome a failure to act and set the
deliberative process in motion, assuJ1l.ing the applicant is entitled to have the
process performed." Jr!. elt 914. It cannot guaranty an outcome.
While the Kurlanskis did refrain from taking the above elctions while the
Club limited overflow parking on Lot 2 to three events per year, they initiclted
this current complaint as soon as the Club began to use the Lot lllo,-e extensively.
They have not alleged any undue prejudice arising from this delay, nor have
10 they shown any injustice resulting from the seven-year detente between the
parties. The Kurlanskis have not alleged a viClble claim for promissory estoppel,
and their Count vn is dismissed.
The en try is:
The PortlCllld Y
The Town of FCllmouth's motion to dismiss Counts V anted. Datc Filcd 12-07-10 Cumb e r-=-l,..,ac=:n:.,-d'-- _ Docket No. AP-10-44 County
Action 80B Aj:>LP-=e=a=l _
KATHLEEN KURLANSKI TOWN OF FALMOUTH ZBIGNIEW J. KURLANSKI THE PORTLAND YACHT CLUB
Ys.
Plaintiff's Attorncy Dcf'cndant's Attorney AARON BURNS ESQ (TOWN OF FALMOUTH) ZBIGNIEW J. KURLANSKI, ESQ. DAVID LOURIE ESQ (PORTLAND YACHT CLUB) PO BOX 46 PORTLAND, ME 04112
PETER M. MCGEE, ESQ. 80 EXfHANGE STREET Datc of PORTLAND, ME 04101 Entry 2010 STATE OF MAINE SUPERIOR COURT CUMBERLAND, ss. CIVIL ACTION DOCKET NO: AP-10-0~ r< A G- "'\.1 -- ?1; / o.;-">.c' c.cu ', -, 2 KATHLEEN KURLANSKI STATE OF MAINE and Cumberland,ss,Crerk's Office
ZBIGNIEW KURLANSKI MAY 0 9 2012
Plaintiffs, RECEIVED V. ORDER TOWN OF FALMOUTH
and
PORTLAND YACHT CLUB
Defendants.
Kathleen and Zbigniew Kurlanski's Rule SOB appeal of the Town of Falmouth Board of
Zoning Appeal's decision is before the court.
BACKGROUND 1. Factual Background
Prior to 1965, the Portland Yacht Club (PYC) purchased property located on the
shore of Casco Bay in Falmouth, Maine. Part of this property was paved and used as a
parking area for its members and guests. In the early 1960s, Clifton and Albertina
Bryant owned two lots and used them for residential purposes. They had a house on
lot 1. Lot 2, which abutted lot 1 and PYC' s parking area, contained a pond and grassy
area. On June 10, 1983, PYC purchased lot 2.
The parties presented contradicting regarding the use of the property while the
Bryants owned lot 2, however, several members of PYC recall lot 2 being used for
1 occasional overflow parking prior to 1983. On December 16, 1983, Kathleen and
Zbigniew Kurlanski (the Kurlanskis) purchased lot 1 and use it as their primary
residence. PYC continues to own lot 2.
2. Procedural Background
In 1998 or 1999 PYC submitted an application regarding the construction of a
boathouse on its existing paved parking area. (R. 278.) In the application, PYC claimed
"that it could utilize open space that it purchased in 1983 from the Bryant estate for
overflow parking in the event that the paved parking lot had reached its capacity for
parking motor vehicles." (Pet's Br. 3.) The Falmouth Planning Board approved the
application and the Kurlanskis appealed the approval to the Superior Court and then to
the Law Court. (R. 286, 255.) The Law Court remanded the decision "for site plan
review as required by the applicable ordinance." (R. 255.)
On September 12, 1999, the Kurlanskis filed a complaint with the Town of
Falmouth Code Enforcement Officer (CEO) regarding PYC's use of lot 2 for overflow
parking. (R. 228.) After hearing from PYC's attorney, the CEO issued a decision asking
PYC to "cease parking on the lawn area in question." (R. 231.) The letter also stated,
"You also have the right to appeal this decision to the Zoning Board of Appeals." (R.
232.) After receiving this decision, PYC did not appeal the decision. Instead, it
"agree[d] to limit its use of the Field for overflow parking to three (3) events
representing incidental use of the Field." (R. 233.) The CEO approved that plan, but
encouraged PYC to formalize the plan through the planning board. (R. 235.) Although
the planning board never considered the agreement, it was followed without issue
through 2006.
In 2007 the use of the lot increased while the Kurlanskis were out of the country.
In 2008, after the Kurlanskis returned home, they met with the new CEO. On April 2,
2 2009, the Kurlanskis sent a formal letter to the CEO complaining about the excessive use
of the lot for overflow parking. (R. 2S.) The CEO responded on August 6, 2009, stating
that the use of the lot as overflow parking is a permissible non-conforming use. (R. 52.)
The Kurlanskis appealed the decision. On April27, 2010, the Town of Falmouth
Board of Zoning Appeal (the Board) determined that it had jurisdiction to hear the
appeal. At the July 20, 2010, hearing the Kurlanskis learned that the new CEO was on a
leave of absence and would not be able to testify. A de novo hearing took place. On
October 26, 2010, the Board determined that "[o]verflow parking on lot 2 is
grandfathered up to S events per year." (R. 11.) The Kurlanskis filed a motion for
reconsideration, which was denied. On December 7, 2010, the Kurlanskis filed a Rule
SOB complaint with the Superior Court. This court dismissed Counts VI and VII on
April2S, 2011. Additionally, the court denied the Kurlanskis' motion for a trial on the
facts on August 17, 2011.
DISCUSSION 1. Standard of Review
When reviewing governmental action under M.R. Civ. P. SOB, the Superior Court
reviews the operative decision of the municipality for "abuse of discretion, errors of
law, or findings not supported by the substantial evidence in the record." Camp v. Town
of Shapleigh, 200S ME 53,
62,
accept as sufficient to support a conclusion." Toomey v. Town of Frye Island, 200S ME 44,
36S). "That inconsistent conclusions can be drawn from evidence does not mean that a
finding is not supported by substantial evidence." Id.
3 2. Rule SOB Appeal
The Kurlanskis dispute the Board's findings on three grounds. First, they argue
that PYC is precluded from disputing the CEO's decision from October 1999. Second,
they argue that the Board violated the town ordinance by conducting the hearing de
novo. Third, they argue that PYC' s use of lot 2 as a parking area is not a nonconforming
use and, therefore, is in violation of the zoning ordinance. After reviewing these three
arguments, the court upholds the Board's determination.
a. Preclusion
The Kurlanskis argue that PYC is precluded from disputing the CEO's decision
from October 1999, but PYC argues that the 1999 decision did not provide proper notice
to constitute preclusion. "The doctrine of res judicata prevents 'the relitigation of
claims that were tried or could have been tried between the same parties or their privies
... in an earlier suit on the same cause of action.' An administrative proceeding that
includes the essential elements of adjudication is given the same preclusive effect as an
adjudication in court." Town of Boothbay v. Jenness, 2003 ME 50,
(quoting Town of Ogunquit v. Cliff House & Motels, Inc., 2000 ME 169,
731).
"[A]dequate notice of the proceeding and of the risk of failing to appear are
'essential elements' for preclusion." Jenness, 2003 ME 50,
to constitute adequate notice, a "CEO's order must, at a minimum, contain" notice
informing the violator of a right to appeal, how to appeal, and the consequences of the
failure to appeal. Id. at
(Me. 1992)). The October 1999 CEO decision did not specify the consequences of a
failure to appeal, and therefore its outcome is not subject to preclusion.
4 b. De Novo Hearing
The Kurlanskis assert that the Board violated the Town's ordinance when it
conducted the hearing de novo, instead of conducting a legal review based on the
CEO's findings. (Pet's Br. 19.) The Kurlanskis have waived this argument, however,
since they did not raise it before the Board. 1
"[A] party in an administrative proceeding must raise any objections it has
before the agency to ensure that the agency, and not the court, has the first opportunity
to pass upon the claims of the parties." Oliver v. City of Rockland, 1998 ME 88,
A.2d 905. "An issue is considered raised and preserved for appeal'if there is sufficient
basis in the record to alert the court and any opposing party to the existence of that
issue."' Wells v. Portland Yacht Club, 2001 ME 20,
Town ofWashburn, 1997 ME 218,
Here, the issue was not raised before the Board. Instead the Kurlanskis fully
participated in the de novo hearing without dispute. 2 Therefore, they waived this
argument since the Board was not given the opportunity to address it.
c. Existence of Non-Conforming Use
Finally, the Kurlanskis argue that the Board's finding that lot 2 permitted
parking eight times a year as a nonconforming use is not supported by substantial
evidence. A nonconforming use is one that existed prior to the effective date of the
ordinance. Falmouth, Me. Zoning Ordinance§ 2.119 (Feb. 28, 1983). Additionally, the
1 Additionally, the Board was correct to hear the case de novo. A board of appeals "may receive any oral or documentary evidence," unless there is an explicit local ordinance to the contrary. . 30-A M.R.S. § 2691 (3)(D) (2011); Stewart v. Town of Sedgwick, 2000 ME 157, <[ 7, 757 A.2d 773. Upon review of section 8 of the Town's ordinance, there is no explicit indication that the Board should not review the case de novo. 2 The Kurlanskis argue that the new CEO was biased in his decision and that he did not properly review the situation. They also argue that since he was not present at the hearing, they were unable to properly question him. Any of his possible biases were overcome, however, since the Board considered the evidence de novo.
5 earlier use must have been actual and substantial. Town of Orono v. Lapointe, 1997 ME
185, <][ 13, 698 A.2d 1059. The Law Court set forth a three-part test to determine whether
a property's use is nonconforming:
(1) whether the use reflects the 'nature and purpose' of the use prevailing when the zoning legislation took effect; (2) whether there is created a use different in quality or character, as well as in degree, from the original use, or (3) whether the current use is different in kind in its effect on the neighborhood. Keith v. Saco River Corridor Comm'n, 464 A.2d 150, 155 (Me. 1983).
The date PYC acquired the lot is irrelevant to the analysis of nonconforming
status since "it is the building or the land that is 'grandfathered' and not the owner."
Keith, 464 A.2d 150, 154 (Me. 1983). The Board considered how the lot was used prior to
the enactment of the relevant ordinance provision, but the parties disagree about the
facts concerning the property's prior use.
At the hearing Ellen Snyder, the daughter of the former owner of lots 1 and 2
who lived on the property for several years, testified on behalf of the Kurlanskis
regarding parking on lot 2 prior to 1983. (PYC's Br. 2; R. 315.) She testified that she did
not recall any events where PYC used lot 2 for parking while she lived on the property.
(R. 321.) PYC presented multiple witnesses who testified that PYC used the lot for
parking several times a year. (R. 322-324.) One witness said "there were eight to ten
times a season when they would use this property to park, but most would be for a
Saturday daytime only." (R. 323.) The Kurlanskis admit that "there may have been
occasional' actual' permissive use of lot 2 and other surrounding properties for
overflow parking for special events" but they deny that the use was substantial. (Pet.' s
Br. 28.)
Regarding the conflicting testimony the Board said it "finds the testimony of
witnesses to be irreconcilable in certain instances and respects. In making its findings,
6 the Board assessed and weighed the credibility of witnesses, and reviewed documents
and correspondence of the parties included in the record, including correspondence
made at or about the time of important dates in the long standing dispute that has
simmered, if not boiled, for over a decade." (R. 4.) Concerning prior use the Board
found that PYC used lot 2 for overflow parking on an occasional basis for special events
and as necessary for Thursday night races or extremely busy weekends. (R. 5.)
Based on the evidence before it, the Board allowed PYC to use the lot for
overflow parking, but limited the use to up to 8 events per year. 3 Although an
inconsistent conclusion could be drawn from the evidence, the Board's decision is
properly supported with substantial evidence.
The entry is:
The Town of Falmouth's Board of Zoning Appeal's decision is AFFIRMED.
3 The Kurlanskis also argue that the nonconforming use changed after the enactment of the zoning ordinance because the lot was only used for parking up to three times a year for several years. The facts indicate that the number of times the lot is used for parking throughout the years has varied. Using the lot for eight events per year is still occasional use, which is supported by substantial evidence.
7 Date Filed 12-07-10 Cumberland Docket No. _...::A=P_-...::1-=-0_-_:.._44.:____ County
Action _ _8=-0:::..:B:o--.::A=-:P::..
KATHLEEN KURLANSKI TOWN OF FALMOUTH ZBIGNIEW J. KURLANSKI THE PORTLAND YACHT CLUB
vs. Plaintiff's Attorney Defendant's Attorney AARON BURNS ESQ (TOWN OF FALMOUTH) ZBIGNIEW J. KURLANSKI, ESQ. PO BOX 46 DAVID LOURIE ESQ (PORTLAND YACHT CLUB) PORTLAND, ME 04112
KRISTINA KURLANSKI ESQ/20 FEDERAL STREET BRUNSWICK PETER M. MCGEE, ESQ. 80 EX~GE STREET Date of PORTLAND, ME 04101 Entry