Armstrong v. Town of Cape Elizabeth

STATE OF MAINE tee ay SE SUPERIOR COURT

CUMBERLAND, ss. Peake CIVIL ACTION

se oO DOCKET NO. AP00-023 ,

_ Rec Cini - 18/31 /ave?

ANTHONY and JULIE ARMSTRONG, :

Plaintiffs

Vv. ORDER ON 80B APPEAL

TOWN OF CAPE ELIZABETH

and DANIEL and DIANE CAPUTO,

Defendants

FACTUAL BACKGROUND »

Mee

On December 13, 1999, Cape Elizabeth Code Enforcement Officer CEO”)

Bruce Smith issued a building permit to Daniel and Diane Caputo for their property

located at 31 Lawson Road. The Caputos’ property is located in the Shoreland

Performance Overlay District, which requires that structures be set back 75’ from the

normal high water line. Any structure that violates the 75’ setback requirement

may not be expanded by more than 30%. 7

The Armstrongs appealed to the Cape Elizabeth Zoning Board of Appeals

(“ZBA”) CEO Smith’s issuance of the permit allowing the Caputos to increase the

vertical height of their home. The Plaintiffs advanced three main arguments at the

hearing. First, CEO Smith incorrectly located the normal high water line on the

Caputos’ property, with the result that only part of the property was included within

the 75 foot setback. Second, the floor area and volume of the structure’s lower level

was incorrectly included in the calculation of the existing floor area. Third, the

zoning ordinance and state law prohibit expansion of a structure within the

shoreland setback area if it would increase the nonconformity of the structure.

CEO Smith provided information consisting of a memo dated January 19,

2000, photographs of the oceanfront adjacent to the Caputo property and a tide chart

for the month of January, 2000 to the ZBA prior to the February 1, 2000 hearing. In

his January 19, 2000 memo, the CEO stated that when determining a normal high

water line he considers the visual markings, vegetation line, man-made features

such as the seawall, and the normal high tide. At the hearing, he testified that he

initially determined the high water line to be 21 feet seaward of the sea wall.

However, this was changed to 16 feet based on a plotted NGVD! of 10 and a revisit of

the site because he felt “3% uncomfortable” with 21 feet but “100% comfortable”

with the high water mark 16 feet seaward of the sea wall. The result of this

determination was that only a portion of the Caputo residence is within the 75’

setback of the normal high water line. The Caputo’s architect David Lloyd testified

at the hearing that the proposed expansion was less than 30%. The CEO determined

the expansion to be 6% of the square footage and 13% of the volume. This

calculation included ‘the lower level of the structure. David Lloyd testified that even

excluding the lower level of the structure, the proposed expansion was still only a

21% enlargement.

The ZBA upheld the issuance of the building permit, finding that CEO Smith

correctly determined the normal high water mark. The Board also found that (1)

1 NGVD 1929, or National Geodetic Vertical Datum, is the zero point for

referencing surface elevation. Bayou Des Familles Dev. Corp. v. United States Corps

of Engineers, 541 F. Supp. 1025, 1034 (E. D. La. 1982).

2

only a portion of the main structure was within the 75’ shoreland setback; (2)

whether the lower level of the Caputos’ home is determined to be a basement or

not, the expansion is still less than the allowable 30% increase; (3) the expansion

would not increase the nonconformity of the structure in violation of the

Ordinance and state law; and (4) the expansion of less than 30% is in compliance

with the Ordinance and state law. The Armstrongs’ administrative appeal was

therefore denied.

DISCUSSION

I. Due Process

The Armstrongs make three primary arguments in support of their claim

that due process was violated. First, that they were denied a fair and impartial

hearing because the ZBA based its decision on documents not in evidence at the

hearing. Administrative hearings, however, are not subject to the rules of evidence.

See, e.g., In re Application of Spurling, 595 A.2d 1062, 1065 (Me. 1991) (noting that

the development of 80B and 80C records are not governed by the Rules of Evidence),

In re Maine Clean Fuels, Inc., 310 A.2d 736, 748 (Me. 1973) (“It is a widely accepted

proposition that the highly technical rules of evidence are not, and should not, be

applicable to administrative proceedings.”).

It is also alleged that because a packet of documents was provided to the Board

prior to the hearing by CEO Smith, that evidence was not part of the record and the

Board could not properly consider it. It is true that only evidence made a part of the

record can be considered by the Board in making its decision. City of Biddeford v.

Adams, 1999 ME 49, J 10, 727 A.2d 346, 349 (finding a violation of due process when

the Board members visited the neighborhoods at issue in a tax abatement case after

the Board finished taking evidence but before it began deliberations without

providing the appellants notice and an opportunity to comment). The purpose of

this requirement is to allow a party the opportunity to explain adverse evidence. Id.

“To the extent that an agency relies on information obtained outside of the record

and the proceedings, it has acted improperly.” Id. The informational packet

submitted by CEO Smith was part of the record because, unlike Adams, the

information was received by the ZBA before it finished taking evidence. The Board

did not improperly consider the CEO’s information and did not violate the

Armstrongs’ due process rights.

Second, the Armstrongs allege they were prevented from rebutting the

evidence in the CEO’s packet because it was submitted prior to the hearing, that it

was in error for the CEO to sit with the ZBA and give advice, and that they were

prevented from cross-examining CEO Smith in violation of 30-A M.RS.A. § 2691.7

The Armstrongs were not prevented from rebutting the evidence in the CEO’s

packet even though it was submitted prior to the hearing. Their presentation and

exhibits directly rebutted the CEO’s findings. The fact that the CEO sat with the ZBA

and gave advice was also not in error. CEO Smith was required under the Cape

2 That statute provides “[e]very party has the right to present the party’s case

or defense by oral or documentary evidence, to submit rebuttal evidence and to

conduct any cross-examination that is required for a full and true disclosure of the

facts.” 30-A M.R.S.A. § 2691(3)(D) (1996).

Elizabeth Ordinance to attend the hearing and to submit all evidence relevant to the

ZBA proceedings. See CAPE ELIZABETH, ME., ZONING ORDINANCE ch. 19, art. VIL, § 19-5-

3(B) (1999) (“The Code Enforcement Officer, unless excused, shall attend all hearings

on appeals and applications and shall present to the Board all plans, photographs or

other factual materials which are relevant to the proceeding.”). The record also

reflects that the Armstrongs were not prevented from cross-examining the CEO or

providing rebuttal evidence. The Armstrongs never asserted their right to cross-

examine, despite ample opportunity.

Finally, the Armstrongs allege a due process violation because at least one

Board member made his decision prior to the hearing. After the vote but during a

discussion about potential Board procedures, Board member Joe Frustaci stated

I think it’s very, very important that we have anything on any

case that receive -- that we review to have stuff before us so that

we’re not bombarded with legal issues, cases presented to us or

any other information. It distorts our judgment. Confuses us

after we have spent a weekend reviewing information and

feeling comfortable. I felt comfortable coming into this meeting

tonight that Bruce [Smith] had done ~his homework, that the

Caputos basically had brought a surveyor out there and

established the line. But then to have other information

brought before us I think -- I thought it only complicated the

matter and dragged it out a lot longer.

R. at 117. The Armstrongs admit that it is impossible to tell whether other Board

members made up their minds prior to the hearing or what impact this Board

member’s views had on them. However, they argue, this member was very vocal

from the beginning of the hearing as he attempted to preclude Plaintiffs from

submitting documentary evidence and was extremely hostile to Plaintiffs’ position

throughout the hearing. Although Board member Frustaci objected to the

Armstrongs’ submission of a thick packet of information at the hearing, no

evidence of bias exists in the record. He abstained from the vote to accept the

evidence rather than opposing it. There also is no evidence of hostility toward the

Plaintiff. In fact, Frustaci questioned CEO Smith about whether the height of the

proposed structure conformed with the Town’s height restriction, an issue not

raised by the Plaintiffs. R. at 115.

The fact that member Frustaci relied on information presented to the Board

by the CEO in advance and was potentially swayed by this information does not

amount to bias. In Turbat Creek Preservation, LLC v. Town of Kennebunkport, 2000

ME 109, { 9, 753 A.2d 489, 491, the appellant alleged that the Chair of the Board

demonstrated bias by preparing an outline of the issues and potential findings based

on the appellant’s written materials that were submitted prior to the hearing. The

Law Court held that there is no prohibition on a board member reviewing

documents and preparing a memo of potential findifigs to assist either that member

or the Board as a whole in consideration of issues that may arise at the hearing. Id.

II. Improper Burden-shifting by the ZBA

Relying on Lewis v. Town of Rockport, 1998 ME 144, ¥ 15, 712 A.2d 1047, 1050,

the Armstrongs argue that the ZBA improperly placed the burden on them to prove

a violation rather than requiring the Caputos to prove compliance. The Board

required the Plaintiffs to go first and give their arguments for why the CEO’s

decision had been appealed and never asked CEO Smith to make an official

presentation. Contrary to the Plaintiffs’ assertions, however, the ZBA did require

Mr. Caputo to establish his compliance with the Ordinance. CEO Smith not only

submitted his evidence establishing the Caputos’ compliance prior to the hearing,

he also answered questions posed by the Board. Although the Plaintiffs presented

their case first, the Board did not improperly place the burden of proving

noncompliance on the Plaintiffs.

III. Definition of “Normal High Water Line of Coastal Waters”

The meaning of a term in a zoning ordinance is a question of law. H.E.

Sargent, Inc. v. Town of Wells, 676 A.2d 920, 923 (Me. 1996). The ZBA’s

interpretation of its own ordinance must be reasonable, based on facts in the record,

and consistent with the Zoning Ordinance as a whole. See Your Home, Inc. v. City

of Portland, 432 A.2d 1250, 1260 (Me. 1981). The definition of “normal high water

line of coastal waters” in the Ordinance is “[t]hat line on the shore of tidal waters

which is the apparent extreme limit of the effect of the tides, i.e. the top of the bank,

cliff or beach above high tide.” CAPE ELIZABETH, ME., ZONING ORDINANCE ch. 19, art. I, §

19-1-3 (1999) (emphasis added). Based on Mack v. Municipal Officers of the Town of

Cape Elizabeth, 463 A.2d 717 (Me. 1983), the Armstrongs argue that the Ordinance

definition was incorrectly. interpreted not to include waves and sea spray. In Mack,

the Law Court interpreted the Cape Elizabeth Zoning Ordinance term “normal high

water mark”? to be that line upon which the extreme limit of the effect of the tide is

3 In 1983, the definition of “normal high water mark” was identical to the

current Cape Elizabeth Ordinance definition of “normal high water line.” See Mack

v. Municipal Officers of the Town of Cape Elizabeth, 463 A.2d 717, 721 (Me. 1983);

visually recognizable, rejecting an interpretation that the phrase means the exact

still-water level of the extreme limit of the tide itself. Id. at 721.

Defining sea wall as “a strong wall or embankment to prevent the

encroachment of the sea, serve as a breakwater, etc.,” the Armstrongs argue that the

only conclusion that may be reached is that the sea wall is the apparent extreme

limit of the effect of the tides. Therefore, they argue, the ZBA erred when it

determined that the line was 16 feet seaward of the sea wall. However, a man-made

structure is not necessarily the apparent extreme limit of the tide’s effect. In Mack,

the town building inspector located the normal high water mark by observing “a

line of vegetation, beyond which the topography is characterized by jagged ledge and

small pools.” Id. at 721. As in this case, a visual determination of the apparent

extreme limit of the effects of the tides was a sufficient means of determining

“normal high water mark” in Mack. See id. The Board correctly interpreted the

Ordinance by focusing on the apparent effects of the tide rather than by assuming

that the sea wall, by default, necessarily establishes the normal high water line.

IV. Substantial Evidence

“Substantial evidence exists when a reasonable mind would rely on that

evidence as sufficient support for a conclusion; the possibility of drawing two

inconsistent conclusions does not render the evidence insubstantial.” Adelman v.

Town of Baldwin, 2000 ME 91, J 12, 750 A.2d 577, 583. In addition, “[t]he Board is not

bound to accept any particular evidence as true; as fact-finder, it has the obligation to

CAPE ELIZABETH, ME., ZONING ORDINANCE ch. 19, art. I, § 19-1-3 (1999).

determine credibility.” Id. | 14. The Armstrongs argue that, based on the evidence

in the record, the ZBA could not fairly and reasonably reach the conclusion that the

normal high water line is 16 feet seaward of the sea wall. They contend that the

evidence compels the conclusion that the normal high water line is the sea wall.

The ZBA decision is supported by substantial evidence in the record. The

photographs submitted by the Armstrongs show vegetation inland of the line

drawn by CEO Smith as well as untouched snow on the shoreline near the sea wall.

R. at 36-40. The photographs submitted by CEO Smith prior to the hearing show a

snow line inland of the 16 foot normal high water line, even after an astronomical

high tide. CEO Smith’s 1/25/00 Memo to ZBA. Mr. Caputo testified that there were

rose bushes growing on the seaward side of the sea wall and Mr. Armstrong testified

that grass grows on the seaward side of the sea wall. R. at 99,101. The existence of

contrary evidence in the record does not compel the conclusion that the ZBA’s

decision was based upon insubstantial evidence.

V. The Nonconformity of the Structure “

The Armstrongs argue that any expansion of a nonconforming structure is

prohibited by Lewis v. Town of Rockport. In Lewis, Maine Coast Artists were

granted a special exception to expand and modify its art gallery. Lewis, 1998 ME 144,

qT 2, 712 A.2d at 1048. Section 505 of the Rockport land ordinance provided that

“fu]pon approval of the Zoning Board of Appeals, a nonconforming aspect of a lot,

structure or use may be changed such that it is less nonconforming or no more

nonconforming than the existing situation.” Id. {4 n.1. The then-existing building

was twenty feet higher than permissible and encroached on the six-foot sideyard

setback by less than one foot. Id. { 10, 712 A.2d at 1049. The zoning board,

employing a “limit of nonconformance” theory, reasoned that as long as the

addition to the building would not encroach more than the several inches into the

sideyard than it already did and it would not be taller than the then-current height,

the completed building would be no more nonconforming than the original

structure. Id. The Law Court rejected this reasoning, holding that to increase the

square footage or volume within a setback area is to increase the nonconformity of

the structure. Id. { 13, 712 A.2d at 1050.

Applying that holding to this case, the Armstrongs argue that because the

expansion to 31 Lawson would increase both the volume and square footage of the

existing nonconforming structure, it violates both § 19-4-4(B)(1) of the Ordinance

and 38 M.RS.A. § 439-A(4). Unlike the Rockport ordinance, however, the Cape

Elizabeth Ordinance expressly allows for expansion of non-conforming structures.

The Ordinance provides that -

A nonconforming structure may be added to or expanded after

obtaining a permit from the Code Enforcement Officer, provided that

such addition or expansion does not increase the nonconformity of the

structure.

a. After January 1, 1989, if any portion of a structure does not

meet the required setback from the normal high-water line of a

water body or wetland upland edge, that portion of the structure

shall not be expanded in floor area or volume by more than 30%

during the lifetime of the structure.

CAPE ELIZABETH, ME., ZONING ORDINANCE ch. 19, art. IV, § 19-4-4(B)(1) (1999) (emphasis

added).

10

The Armstrongs contend that the portion of the Ordinance permitting

expansion of a non-conforming structure up to 30% should be ignored because it

contradicts the provision that an expansion cannot increase the non-conformity of

the structure. The Cape Elizabeth Ordinance provides “Tw]lhenever another

provision of this Ordinance conflicts with or is inconsistent with another provision

of this Ordinance or any other ordinance, regulation or statute, the more restrictive

and specific provision shall control.” CAPE ELIZABETH, ME., ZONING ORDINANCE ch. 19,

art. X, § 19-10-1 (1999). When an ordinance contains a general provision which

would include matters embraced in a specific provision contained in the same

ordinance, “the general provision must be understood to affect only those cases

within its general language that are not within the provisions of the specific

provision. The result is that the specific provision controls.” Ziegler v. American

Maize-Products Co., 658 A.2d 219, 222 (Me. 1995); see also Camps

Newfound/Owatonna Corp. v. Town of Harrison, 1998 ME 20, { 19, 705 A.2d 1109,

1115 (“[S]pecific statutory provisions take precedence over general provisions.”).

The provision restricting expansions of nonconforming structures to 30% is more

specific than the general provision that an expansion may not increase the

nonconformity. The more specific provision therefore prevails.

The proposed expansion also does not violate 38 M.R.S.A. § 439-A(4). That

statute provides

Notwithstanding any provision in a local ordinance to the

contrary, all new principal and accessory structures and

substantial expansions of such structures within the shoreland

zone...must meet the water setback requirements approved by

11

the board...For purposes of this subsection, a substantial

expansion of a building is an expansion that increases either the

volume or floor area by 30% or more. This subsection is not

intended to prohibit a municipal board of appeals from granting

a variance...nor is it intended to prohibit a less than substantial

expansion of a legally existing nonconforming structure, as long

as the expansion does not create further nonconformity with the

water setback requirement.

38 M.R.S.A. § 439-A(4) (Pamph. 1999) (emphasis added).

The statute’s limitation on expansions creating further nonconformity with

as opposed to within the water setback requirement indicates an intent to prohibit

expansion toward the water, but not an intent to prohibit all expansions within the

setback. The setback in the Ordinance is 75 feet for new principal structures, but the

setback is what it is for preexisting structures. CAPE ELIZABETH, ME., ZONING

ORDINANCE ch. 19, art. VI, § 19-6-11(E)(2) (1999). Setbacks are the “shortest horizontal

distance from the foundation, sills or other supports of a building or other structure,

or from the edge of the improved areas of any other improvement, to the normal

high-water line.” CAPE ELIZABETH, ME., ZONING ORDINANCE ch. 19, art. VI, § 19-6-

11(E)(2)(e) (1999). The setback is therefore a distance; in this case, 54 feet. R. at 43.

The Caputos’ proposed enlargement does not increase the nonconformity with the

setback because it does not encroach closer than 54 feet. Instead, the expansion

involves an increase from 24 feet to 30 feet in height. R. at 2. Because the

enlargement does not create further nonconformity with the setback requirement,

the state statute is not violated.

This interpretation is consistent with the Maine Department of

Environmental Protection (“DEP”) interpretation as well as the Cape Elizabeth

12

Ordinance. The DEP profile* explains that while both volume and floor area can be

expanded within the 75 foot setback up to the 30% limitation, expansions that

reduce the already non-conforming setback are not permitted. Maine Department of

Environmental Protection: Non-Conforming Structures in the Shoreland Zone

Issue Profile, available at http: / /janus.state.me.us/dep/blwq/docstand/ip-slz.htm

(Oct. 1996). The DEP explains the statute in terms of a limitation rather than a total

prohibition on expansions within the setback.” Id. Viewing the statute as limiting

rather than prohibiting all-expansions of nonconforming structures within the

setback is also consistent with the Cape Elizabeth Ordinance, which limits expansion

of the nonconforming portion of a structure to a 30% expansion. See CAPE

ELIZABETH, ME., ZONING ORDINANCE ch. 19, art. IV, § 19-4-4(B)(1) (1999).

This interpretation of the statute is also not inconsistent with Lewis v. Town

4 The Non-Conforming Structures in the Shoreland Zone Issue Profile is part

of the Issue Profile online publication that provides DEP interpretations and

opinions on various environmental topics. See Maine DEP Online Publications,

available at http://janus.state.me.us/dep/mdep_pub.htm#DEP_Issue_Profiles.

5 The Non-conforming Structures in the Shoreland Zone Issue Profile is in

question-and-answer format, providing an interpretation of the Mandatory

Shoreland Zoning Act, 38 M.R.5S.A. § 439-A(4). See

http://janus.state.me.us/dep/blwq/docstand/ip-slz.htm (Oct. 1996). This profile

explains that non-conforming structures can be expanded. “The law prohibits any

portion of a structure which does not meet the shoreline setback requirement

(typically 75 or 100 feet) from being expanded by 30% or more in floor area and

volume. In addition, such structures cannot be expanded closer to the shoreline.”

Id. This “expansion limitation...applies only to that part of the structure which is

non-conforming. It does not apply to that part of the structure which meets the

setback requirement.” Id. In addition, the DEP explains that “[b]oth the volume and

floor area [of a fully non-conforming structure] may be expanded up to the 30%

limitation. However, neither the floor area nor volume expansions can exceed the

limitation.” Id.

13

of Rockport, 1998 ME 144, [ 4n.1, 712 A.2d at 1048. The Lewis Court, in interpreting

the Rockport ordinance, which prohibited a change unless it was “less

nonconforming or no more nonconforming,” found that “[a]ny modification of or

addition to a building that would increase the square footage of nonconforming

space within the building, even if it would not increase the linear extent of

nonconformance, does make the building more nonconforming.” Id. J 13, 712 A.2d

at 1050. The state statute in this case, on the other hand, provides that an expansion

of a nonconforming structure may not create “further nonconformity with the

water setback requirement.” 38 M.R.S.A. § 439-A(4) (emphasis added). While the

Rockport ordinance prohibits all expansions of a nonconformity, the state statute’s

language is a prohibition on creating further nonconformity only as it pertains to

the water setback requirement.

The entry is

Plaintiff’s 80B appeal is DENIED.

Dated at Portland, Maine this 21st day of December, 2000.

Robert E. Crowley

Justice, Superior Court

14

Date Filed 03-17-00 CUMBERLAND Docket No. AP-00-023

County

Action APPEAL 80(B)

NALD L. CARBREGHT MUNICIPAL OFFICERS OF THE TOWN

ANTHONY AND JULIE ARMSTRORO LAW USRAGT OF CAPE ELIZABETH

DANIEL AND DIANE CAPUTO

JAN 3 2004

VS.

Plaintiff's Attorney Defendant’s Attorney

PRO SE MICHAEL HILL, ESQ. (Cape E)

32 LAWSON ROAD oe Ss 95 EXCHANGE STREET

CAPE ELIZABETH, MAINE PORTLAND, MAINE 04112

774-3906

JOHN MCVEIGH, ESQ.

. P.O. BOX 9546 (Caputos)

PORTLAND, MAINE 04112-9546

791-3000

Date of

Entry