The opinion
STATE OF MAINE SUPERIOR COURT
SOMERSET, ss. CIVIL ACTION
Docket No. AP-99-016
EAGs- Soi - 2/2 fed Lae
INHABITANTS OF THE TOWN OF 7
SMITHFIELD,
Plaintiffs,
Vv. ORDER
ROBERT CLOUD and
SHARON CLOUD. —
Defendants.
PROCEDURAL HISTORY
In an application dated July 8, 1998, Robert Cloud requested a building permit
"from the Town of Smithfield. In the application, Mr. Cloud said that he wished to
build an additional deck and ramp on property owned by Wayne and Betty Barr.
The Town's Planning Board discussed Mr. Cloud's application at a meeting held
July 15, 1998. Mr. Cloud was not present at that meeting, apparently due to some
health problems. The Planning Board tabled the application because Mr. Cloud did
not own the property.’
Sometime after July 15, 1998, some friends of Mr. Cloud constructed a deck
and ramp on the land. Neither the Clouds nor the Barrs had obtained a permit to
build the deck or the ramp. The land in question is within 100 feet of a great pond,
1Although Mr. Cloud argued that he was never notified that the permit
request had been tabled, the Application itself states that: "Applicant or a
representative should be present during planning board meeting to answer any
questions pertaining to this application. If the applicant or a representative is not
present and the board is unable to make a clear determination, the application may
be tabled until the next meeting.” In addition, Mr. Cloud acknowledged during the
July 26, 1999 Appeals Board meeting that he had been given oral notice that the
application had been tabled because he was not the owner. R. 5, p. 3.
so its use is governed by the Town's Shoreland Zoning Ordinance. That Ordinance
mandates that no building or rebuilding within the Shoreline Zone be done
without a permit from the Planning Board.
When the Town's Code Enforcement Officer, Kenneth Hogate, learned of the
deck in the fall of 1998, he sent a letter to Mr. and Mrs. Cloud. In that letter, Mr.
Hogate ordered the Clouds to remove the portions of the deck between the camp
and the water, and either get a permit for the rest of the deck or remove that, also.
Mr. Hogate warned the Clouds that, if compliance had not occurred by October 20,
..1998, he would take further enforcement action. Mr. Cloud responded by writing to
“the Town Selectmen, and asking for additional time to deal with the issue. The
Selectmen responded that he would have to deal directly with Mr. Hogate.
The following June, the Clouds requested that the Town's Board of Appeals
("BOA") "review" Mr. Hogate's order, and also requested they be granted a variance.
The BOA granted an after-the-fact variance after its meeting on July 26, 1999, and
instructed the Clouds to apply for a permit. The BOA refused to rescind that ruling,
despite a request from the Planning Board and the Selectmen.
On August 4, 1999, the Clouds filed an application for an after-the-fact permit
for the deck and ramp. The Planning Board denied that application on August 11,
1999. The Clouds appealed that denial to the BOA and, on August 31, 1999, the BOA
again granted the variance.
CONCLUSIONS OF LAW
1. The BOA erred when it granted a variance on July 26, 1999 for two reasons:
2
> A.) As the Planning Board had never acted upon Mr. Cloud’s request for a
permit, the Clouds’ request for a variance was premature, and the BOA had
no authority to take action; and,
B) The Clouds failed to prove that, absent a variance, the land could not yield
a reasonable return.
As mentioned above, construction within 100 feet of great ponds is regulated
throughout the State of Maine. State law requires municipalities to adopt zoning
and land use control ordinances that meet minimum guidelines set by the Board of
Environmental Protection for the protection and preservation of shoreland areas. 38
_.M.RS.A. §§ 435 & 438-A. The town of Smithfield apparently met that requirement
“when it adopted the Ordinance mentioned above. Although the entire Ordinance
has not been made part of the record, all parties seem to agree that, in order to
> legally build a deck, the Clouds needed to obtain a building permit from the
Planning Board. Because the Planning Board never had an opportunity to act on Mr.
Cloud’s request for a permit after he acquired ownership of the property, the BOA’s
action in granting a permit was premature and ultra vires.
Even if the BOA had jurisdiction to act on the variance request, however, it
erred, as a matter of law, when it granted the Clouds a variance in July 1999. The
Appeals section of the Ordinance is found at pages 25 through 28. Section G(2)(c)
states that:
The Board shall not grant a variance unless it finds that:
2 Even if the court assumes, for the sake of argument, that Mr. Hogate's letter
was a denial of a permit and that, therefore, the Clouds had standing to appeal to the
BOA, their appeal was not filed within thirty (30) days after the "denial."
D
(1) The proposed use would meet the provisions of Section 15
except for the specific provision which has created the non-
conformity and from which relief is sought; and
(2) The strict application of the terms of this Ordinance would result
in undue hardship. The term “undue hardship” shall mean:
(a)
(b)
(c)
(d)
The Law Court has consistently applied the language of these ordinances very
strictly. In order to grant a variance, the Town authority must be prepared to find
that compliance with the Ordinance would result in the “practical loss of substantial
That the land in question cannot yield a reasonable return
unless the variance is granted;
That the need for a variance is due to the unique
circumstances of the property and not to the general
conditions in the neighborhood;
That the granting of a variance will not alter the essential
character of the locality;
That the hardship is not the result of action taken by the
applicant or a prior owner. . |
beneficial use of the land.” Leadbetter v. Ferris, 485 A. 2d 225, 228 (Me. 1984)
During the meeting in July, one of the members of the BOA (Mr. Downing)
stated that, while he recognized that state law did not support the granting of a
variance, it was “the right thing to do.”R.5, p.5. The discussion held among the
other members demonstrates that all of them were aware that the reasonable return
criterion had not been established by the Clouds. Despite their clear understanding
of the law, the BOA granted a variance after the July meeting.
2. The BOA erred when it granted a variance on August 31, 1999 because
4
there was no showing that the land could not yield a reasonable return unless a
variance was granted.
In its Notice of Variance Decision dated September 1, 1999, the BOA
determined that the reasonable return criterion was not applicable to the request for
-a variance. This determination is clear error, and mandates a finding that the
variance is invalid. .
_ While the Ordinance appears to be a well-crafted attempt to meet all of the
purposes espoused by Title 38, it can only be effective when it is applied logically and
consistently. All of the persons charged with the interpretation and enforcement of
. the Ordinance, except the CEO, are volunteers. The members of the Planning Board
and the members of the Board of Appeals are elected or appointed public servants
who are not paid for their services. Given the complexity of zoning and land use
laws, it must be expected that, despite their best intentions, public servants will
make errors in interpretation or application. However, that does not include
ignoring the Ordinance or holding that portions of it do not apply. It is unfortunate
that the BOA decided to act outside the law, despite its obvious understanding that
the Clouds had failed to prove that their request met each criterion mandated by the
Ordinance.
ORDER
Having reviewed the record and the submissions from the parties, the court
finds that the BOA made a substantive error of law when it granted a variance to the
Clouds. Both of the variances are vacated and set aside. The deck and ramp are to be
5
> removed or brought into compliance with the Ordinance.
This Order is to be incorporated into the docket by reference, in accordance
with M.R.Civ.P. 79(a).
DATED: July 6, 2000
Date Filed
09/09/99 Somerset Docket No. __AP-99-016
&
County
Action ___ Appeal - Governmental Body ~ 80B
BONALD L. GARGRECHT
LAW LIBRARY
jut 14 20
Robert Cloud &
Town of Smithfield vs. Sharon Cloud
Plaintiff’s Attorney Defendant’s Attorney:
Philip Mohlar, Esq. Bantel—-Berrier;—Esq.
PO Box 417 PO-Bex-708
Norridgewock ME 04957 44—-Ebm—Street
Tel: #634~2800 Wetervitte ME-04903-0708
Bar: #7093 Fekl:—-#673-0184
Bar hPPTe+
Date of
>. Entry
Robert Cloud & Sharon Cloud, Pro Se
3073 Seven Lakes West
West End NC 27376
09/13/99
09/21/99
10/18/99
10/19/99
11/16/99
11/29/99
Complaint, Complaint Summary Sheet, and $120.00 Filing Fee alt received
and filed 09/09/99.
Notice and: Briefing Schedule forwarded to Philip Mohlar, Esq. and Daniel
Bernier, Esq. on this day.
Letter to Clerk received and filed 09/20/99: "I received a notice
of briefing schedule in this matter. However, I have not entered
an appearance in this matter. To my knowledge the Cloud's have
not yet been served with a complaint pursuant to rule 4. I did
represent the Cloud's before the planning board, but the clouds
are still debating whether or not they can afford further legal
representation. After the clouds have been properly served, the
notice of briefing schedule should be sent directly to them:unless
I enter an appearance." Very truly yours, Daniel J. Bernier, Esq.
Forwarded Notice and Briefing Schedule to the Cloud's this day.
Letter received and filed from Robert Cloud considered as his Brief.
Brief on Behalf of Town of smithfield and Record for Review received
and filed 10/19/99.
Brief on Behalf of Robert Cloud & Sharon Cloud and Supplement to
Record for Review received and filed 11/15/99.
‘Letter received and filed to Clerk: "Please find enclosed Town of.
Smithfield vs. Robert Cloud, et al., AP-99-016 which is scheduled’
for oral argument on the December 7, 1999 motion day in Somerset
County Superior Court. Upon review of the file, it has been discovered
that the appellees did not sign their brief. M.R.Civ.P. 11 requires
pro se litigants to sign their pleadings and provides that pleadings
which are not signed “shall not be accepted for filing." Accordingly,
appellees' brief needs to be removed from the file, returned to them,
and the docket corrected to reflect this action. The case should
also be removed from the December 7, 1999 motion list. If you have
any questions, please feel free to call. Thank you, Yours truly,