The opinion
STATE OF MAINE . SUPERIOR COURT
CIVIL ACTION
YOR, _ DOCKET NO. AP-00-028
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JOHN C. DESARIO, .
: DONALD L. GananecHT
Plaintit LAW LSSARY
ORDER
" AND wr 5 m0
. DECISION
TOWN OF YORK,
Defendant
The plaintiff is the owner of a 2.9 acre parcel of land on Raynes Neck Road in
York that is in the residential 1A zone in York. That zone requires 2.0 acres for each
dwelling.
In 1983 the plaintiff, after receiving a building permit, built a structure which
included a shop on the ground floor and a residence above. After obtaining a
certificate of occupancy in 1984 he and his family moved into the area above the
shop. .
Mr. Desario applied for and received a second building permit in April of 1986
to construct a second home. The plot plan that was submitted with the request for
the building permit did show the “existing building” but did not explicitly state that
the “existing building” would or would not be continued to be used, in part, as a
residence once the new larger home was built. The following March the plaintiff
obtained permission to amend the second building permit to expand the original
plans. The new plans again did not state what the existing building would be used
for. However, it appears that the then Code Enforcement Officer was aware through
conversations that the existing building would continue to be used for residential
purposes and voiced no objection.
Construction on the new home was slow and it took until 1992 for the house
to be framed and the roof completed. In June of 1992 the plaintiff approached the
Town to see if the building permit was valid. The answer was yes but the plaintiff
was told that he could have only one residence on the property, and that he must
agree to discontinue the residential use of the first building once the second was
done or face revocation of the building permit. ‘The plaintiff apparently reluctantly
agreed to this in a handwritten agreement of June 10, 1992 which is at Record,
Exhibit 4 at the bottom of the 1986 building permit.
The new home was finished in 1998 and a temporary occupancy permit was
issued conditioned upon “removal of shop dwelling.” That was followed by the
issuance of a permanent occupancy permit with the condition that, “The former
shop with finished space above cannot be used or rented as a dwelling”. The
plaintiff requested permission to maintain the residence in the first building. That
request was denied by the Code Enforcement Officer and an appeal from that
decision, following intermediate proceedings before the Board of Appeals and this
Court, was denied on remand from this Court by the Board of Appeals. A separate
request for a variance was also denied but has not been appealed.
The central issue on appeal is whether the Board of Appeals was correct in
denying the appeal, which would allow both buildings to be used as residences,
pursuant to the doctrine of equitable estoppel.
The law regarding equitable estoppel is set out in a number of Law Court
cases. In F.S. Plummer Co. v. Town of Cape Elizabeth, 612 A.2d 856 (Me. 1992) the
Court restated that equitable estoppel can be applied to activities of a governmental
official in discharge of governmental functions. The Court also stated that in
reviewing claims of equitable estoppel it was necessary to“... review the totality of
the circumstances involved, including ‘the nature of the government official or
agency whose actions provide the basis for the claim and the governmental function
being discharged by that official or agency.” See 860 and Maine School
Administrative District No. 15 v. Raynolds, 413 A.2d 523, 533 (Me. 1980) which states
the same principle with different words. In order for the doctrine of promissory
estoppel to be properly utilized there must be a determination that the declaration
or acts relied upon induced the plaintiff in this case to do something that resulted to
his detriment and what he would not have otherwise done. The reliance must be
reasonable. See page 860. Lastly, the burden of proof on the plaintiff is greater
because ‘of “the [florceful public reasons [that] militate against restricting the
enforcement of municipal zoning ordinances.” Plummer at 860-1 quoting City of
Auburn v. Desgrosseilliers, 578 A.2d 712, 715 (Me. 1990).
The Plummer case disposes of the argument that since both buildings have
been taxed by the Town as if they could be used for residential purposes then they
should be allowed to be used for residential purposes. Plummer at 861 says the
remedy, under this argument, is a tax abatement.
The Plummer principles are restated in H.E. Sargent, Inc. v. Town of Wells,
676 A.2d 920, 924-5 (Me. 1996). In considering the reasonableness of any reliance in
the totality of the circumstances the accuracy of the information provided by the
applicant can be considered. Also see Town of Union v. Strong, 681 A.2d 14, 19 (Me.
1996) which is a case where the property owner, who was told in mid-construction
that the construction violated the zoning ordinance, continued to build.
The determination of facts, if supported by substantial evidence, is for the
Board. The issue of whether promissory estoppel should be applied is a legal
question. The Board was within its discretion and is supported by the evidence in
denying the appeal as the plaintiff never read the ordinances, was told in 1992 that
two residential buildings were not permitted | and did not challenge that
determination, and gave unclear or perhaps incorrect information to the code
enforcement officer regarding the use of the “existing building” and the nature of
the septic system. The decision of the Board of Appeals to deny the appeal is upheld.
The entry is:
Decision of the York Board of Appeals to deny the
administrative appeal of John Desario is affirmed. -
Dated: October 4, 2000
PLAINTIFFS: (Fa eR
William S. Kany, Esq. bye we
SMITH ELLIOTT SMITH & GARMEY Paul A. Fritzsche
PO Box 1179 | Justice, Superior Court’
Saco, ME. 04072
DEFENDANTS:
Durward W. Parkinson, Esq.
BERGEN & PARKINSON
62 Portland Rd.
Kennebunk, ME. 04043 4