# Lewis v. Town of Rockport

> Superior Court of Maine · April 13, 2000

URL: https://www.frixlaw.com/law-library/cases/10806927

## Case

- **Court:** Superior Court of Maine
- **Decided:** April 13, 2000
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Judges:** John R. Atwood
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10806927

## How later opinions describe it (automated extraction)

- finding that approval of a second subdivision application “controls the applicants’ right to develop the parcel” and that, as a result, plaintiffs appeal of the decision to grant the first subdivision application was rendered moot
- noting that parties did not contest that the prior decision by the Law Court was a valid final judgment

## Opinion text

STATE OF MAINE
Knox.S.S.,Clerks Office

STATE OF MAINE SUPERIOR COURT SUPERIOR COURT
KNOX, ss. FES 9 2000 CIVIL ACTION
DOCKET NO. AP-99-001 |

ECEIVEDANDFILED «2 OM ENO O19 Jacee

“~~

Susan Guitette, Clerk ; BONALDL GARSRECHT
PATRICIA LEWIS, CHARLES NEIDIG, 8 LAW LIBRARY
k
and DOROTHY NEIDIG, ce 11 200
Petitioners |

Vv. DECISION AND ORDER

yee

TOWN OF ROCKPORT and MAINE
COAST ARTISTS,

Respondents

This matter is before the court on petitioners’ M.R. Civ. P. 80B appeal of the
January 6, 1999 decision of the Rockport Zoning Board of Appeals which affirmed
the findings of the Rockport Code Enforcement Officer regarding zoning violations
of a building owned by respondent Maine Coast Artists.

I. Facts and Procedural History

The dispute between the parties in this case has a long and complicated
history. Petitioner Patricia Lewis owns two lots of land in the town of Rockport, one
of which is rented by petitioners Charles and Dorothy Neidig. The property rented
by the Neidigs abuts the property owned by respondent Maine Coast Artists
(hereinafter MCA). MCA operates a non-profit art gallery on its property which is a
conforming use for the property under the Rockport Zoning Ordinance. However,
MCA’s property is a grandfathered-nonconforming lot for several reasons: (1) the

lot size is less than the required 12,000 square feet, (2) the building does not meet the
minimum sideyard setback requirement of six feet, and (3) the building exceeds the
maximum height requirement of 34 feet. R. Tab 7 p. 58-59.

On November 10, 1993 MCA applied to the Rockport Zoning Board of
Appeals (hereinafter ZBA) for a “special exception” to rebuild its stairtower and to
build a new elevator enclosure in order to bring the building into compliance with
the Americans with Disabilities Act. R. Tab 5-1. On December 8, 1993 the ZBA
granted MCA’s request for a special exception to build the stairwell and elevator
shaft. R. Tab 5-2 p. 3. The Rockport CEO issued a building permit on June 8, 1996
which authorized the construction. Three days later the Town enacted a new Land
Use Ordinance and a new Building Officials and Code Administrators Code
(hereinafter BOCA Code).

Following the issuance of the building permit, MCA made several revisions
to its plans for modification of its building and on September 18, 1996 it filed an
application to “amend” its 1993 special exception based on these modifications. R.
Tab 5-6. On October 9, 1996 the ZBA granted MCA’s request. R. Tab 7 p. 58-65. The
parties dispute whether this second special exception application was to amend the
1993 special exception based on changes in the planned renovations or whether it
was a new application for a new special exception. Petitioner Patricia Lewis then
filed a Rule 80B appeal from the ZBA’s decision to grant the second special
exception.

MCA asserts that on November 4, 1996, in reliance on the June, 1996 building

permit, they hired Sewall Company, a general contractor, to begin construction on
their building. MCA also claims that they, as well as Sewall, relied on this same
permit in tearing down a wall and part of the foundation that same month for
which Sewall was paid $49,495.

On November 22, 1996 Lewis filed a boundary dispute action against MCA.
The Superior Court entered judgment for Lewis on her claim of adverse possession
concerning the boundary between MCA and her property on August 29, 1997.

On November 27, 1996 MCA sought and received site plan approval from the
Planning Board of its “1993 and 1996 Plans for an addition of an elevator to permit
handicapped access, rebuilding staircase and general renovations.” R. Tab 7 p. 72-73,
78-79. On December 2, 1996 MCA applied for and was granted a new building
permit. R. Tabs 5-11 and 5-12. Lewis appealed the Planning Board’s Site Plan
approval and the December, 1996 building permit to the ZBA in January, 1997. Her
appeal was denied and she filed her second Rule 80B appeal on February 24, 1997.

The Superior Court consolidated Lewis’ two Rule 80B appeals and affirmed
both decisions of the ZBA in October, 1997. Lewis appealed to the Law Court which
reversed the Superior Court, finding, in part, that the ZBA erred in granting the
1996 special exception and the December, 1996 building permit because they violated
the zoning ordinance by increasing the building’s nonconformity. Lewis v. Town of
Rockport, 1998 ME 144, { 13, 712 A.2d 1047, 1050. The matter was remanded to the
Superior Court for entry of judgment in favor of Lewis on her appeal of the ZBA’s
“srant of a special exception and the CEO’s grant of the second building permit.” Id.

at 1050.
On November 10, 1998 petitioners filed an action, Lewis v. Town of Rockport,
AP-98-014, against the Town of Rockport alleging, among other claims, that the
Rockport Code Enforcement Officer (hereinafter CEO) had failed or refused to take
any enforcement action against MCA regarding their building’s nonconformance
with the ordinance.! Three days later the CEO issued MCA a Notice of Violations
which listed three violations that needed to be corrected in order for the building to
be in compliance with the ordinance. Petitioners appealed this decision of the CEO
to the ZBA claiming that the notice omitted many of the “most important
dimensional nonconformities on the MCA property.” Id. at 2. The ZBA affirmed
the CEO’s decision on January 6, 1999 and the petitioners filed this Rule 80B appeal.

Petitioners argue here that, as a result of the Law Court’s decision in Lewis,
MCA was left without any valid permits authorizing the expansion of its building.
Therefore, they further argue that in determining the extent of the building’s
nonconformance, the CEO was required to compare the present structure with the
building prior to all of the renovations. If the CEO had done so, petitioners assert
that many more violations would have been found than the three listed by the CEO
in the Notice of Violations. The respondents reply that the 1993 special exception
and June, 1996 building permit are valid, noting that the petitioners never appealed
the granting of either of them to the ZBA. Therefore, they assert that the CEO

properly determined the extent of the building’s nonconformity based on a

1 This action is still pending. On July 19, 1999 the court accepted a stipulated dismissal of Count
II of the complaint which sought an order directing the Town of Rockport to immediately enforce the
Land Use Ordinance by ordering MCA to correct the zoning violations on their property, including those
listed in a letter dated August 4, 1998 from the CEO to MCA.
comparison of the existing building with the design of the building in the
unchallenged 1993 special exception and the June, 1996 building permit. Based on
this comparison, respondents argue that the Notice of Violations includes all of the
building’s violations and therefore the ZBA’s decision sustaining the action of the
Rockport CEO was proper and should be affirmed by this court.
II. Discussion

Ultimately, this court needs to decide whether the CEO properly measured
the extent of MCA’s building’s nonconformance with the zoning ordinance by
comparing the existing building with the building as authorized in the 1993 special
exception and the June, 1996 building permit or whether he should have
determined the extent of nonconformity by comparing the existing building to the
building as it existed prior to all renovations. This decision depends on the current
status of the 1993 special exception and the June, 1996 building permit considering
(1) the Law Court’s decision in Lewis and (2) the fact that a second special exception
and second building permit were issued for the same project. The court must
therefore decide whether principles of res judicata bar the respondents’ reliance on
the 1993 special exception and the June, 1996 building permit because of previous
litigation over permits affecting this building. If res judicata is not applicable, then
the court must determine whether MCA lost its rights under the 1993 special
exception and the June, 1996 building permit in some other manner such as

expiration, waiver, or abandonment.
A. Res Judicata

Petitioners argue that res judicata bars respondents’ reliance on the 1993
special exception and the June, 1996 building permit as authorization for the
building’s renovations and expansion. They assert that if the 1993 special exception
and June, 1996 building permit provided the necessary authorization for the
renovations and expansion of MCA’s building, then this argument should have
been raised in the Lewis case where the Superior Court and the Law Court were
considering the propriety of MCA’s construction under the 1996 special exception
and the December, 1996 building permit. Petitioners’ theory is that even if the
expansion were prohibited under the 1996 special exception and the December, 1996
building permit, the respondents should have argued in the prior litigation that the
petitioners’ failure to appeal the issuance of the 1993 special exception and the June,
1996 building permit gave MCA the right to carry out the expansion to the extent
authorized in those approvals. Because the respondents failed to raise this
argument in the prior action, the petitioners argue that the respondents are now
barred from relying on the 1993 special exception and the June, 1996 building permit
in seeking to maintain their expansion because res judicata bars them from asserting
that claim now.

“The doctrine of res judicata ‘is a court-made collection of rules designed to
ensure that the same matter will not be litigated more than once.’” Camps
Newfound/Owatonna Corp. v. Town of Harrison, 1998 ME 20, J 11, 705 A.2d 1109,

1113 (quoting Machias Sav. Bank v. Ramsdell, 1997 ME 20, ¥ 11, 689 A.2d 595, 599).
It “prevents a litigant from splitting the litigant's claim and pursuing it ‘in a
piecemeal fashion by asserting in a subsequent lawsuit other grounds of recovery for
the same claim’ that the litigant had a reasonable opportunity to argue in the prior
action.” Id. 4 12, 705 A.2d at 1114 (quoting Kradoska v. Kipp, 397 A.2d 562, 567 (Me.
1979)). “Unlike the related rule of collateral estoppel or ‘issue preclusion,’ which
merely prevents the reopening in a second action of an issue of fact actually litigated
and decided in an earlier case, the doctrine of bar, or ‘claim preclusion,’ prohibits
relitigation of an entire ‘cause of action’... .” Id. | 11, 705 A.2d at 1113 (quoting
Beegan v. Schmidt, 451 A.2d 642, 644 (Me. 1982)). Res judicata, or claim preclusion,
can be asserted to prevent a plaintiff from splitting a cause of action and prosecuting
each of its parts in separate lawsuits, id. J 12, 705 A.2d at 1113, and it can be asserted
to prevent a defendant from splitting his defenses to a particular cause of action.
Paul v. Thorndike, 97 Me. 87, 89, 53 A. 877 (1902). Claim preclusion bars the
relitigation of a claim if: “(1) the same parties or their privies are involved in both
actions; (2) a valid final judgment was entered in the prior action; and (3) the
matters presented for decision in the second action were, or might have been
litigated in the first action.” Camps Newfound/Owatonna Corp., 1998 ME 20, { 11,
705 A.2d at 1113 (quoting Machias Sav. Bank, 1997 ME 20, q 11, 689 A.2d at 599).
1. Identity of parties

In the instant case, there is no dispute that the parties currently before this

court are the same parties that were involved in the prior litigation. See R. Tab 7 pp.

52 and 82 (Complaints filed in the prior Rule 80B appeals list petitioner as Patricia
Lewis and respondents as Maine Coast Artists and the Inhabitants of the Town of
Rockport).
2. Valid final judgment

MCA argues that there has not been a valid final judgment which could
“limit this case concerning the extent of violations.” MCA’s Brief p. 8. They argue
that the Law Court in Lewis “remanded the matter back to Superior Court which in
turn remanded it to the Town.”?. Upon remand to the Town, MCA argues that the
CEO determined for the first time what zoning violations existed on MCA’s
property so that the Law Court's decision in Lewis is not a valid final judgment on
that issue. They further argue that the Law Court’s decision specifically considered
the 1996 special exception and the December, 1996 building permit so it cannot
operate as a valid final judgment regarding the June, 1996 building permit.

This argument confuses the doctrines of res judicata (claim preclusion) and
collateral estoppel (issue preclusion). It is argued that if the Law Court in Lewis did
not actually consider and decide an issue, that decision cannot operate as a valid
final judgment as to that issue. This argument is based on principles of collateral
estoppel - not res judicata. “Collateral estoppel bars [a party] from asserting an issue
of fact or law that was actually litigated on the merits and determined by a valid

final judgment in a prior action if the issue was essential to the judgment.” Sargent

2 The Law Court remanded the matter to the Superior Court to enter judgment for petitioner.
The Superior Court complied with this order on June 16, 1998 when it entered this order: “Judgment is
entered for the Plaintiff, Patricia Lewis, in both cases, on her appeal of the board’s grant of a special
exception and the CEO’s grant of the second building permit.” R. Tab 7. p. 96. Contrary to MCA’s
argument, the Superior Court did not remand the matter back to the Town.
v. Buckley, 1997 ME 159, 6, 697 A.2d 1272, 1274 (emphasis added). Conversely, res
judicata or claim preclusion bars the relitigation of a claim only if “the matters
presented for decision in the second action were, or might have been litigated in the
first action.” Camps Newfound/Owatonna Corp., 1998 ME 20, ¥ 11, 705 A.2d at 1113
(emphasis added). Consequently, the fact that the Law Court did not actually
consider or decide the issues regarding the extent of nonconformity or the June, 1996
building permit does not mean that that decision is not a valid final judgment.
Whether or not an issue was litigated, although pertinent to other elements of res
judicata and collateral estoppel, is unrelated to the determination of whether there
is a valid final judgment. The Law Court’s decision in Lewis is a valid final
judgment because that decision effectively ended the prior litigation. See Camps
Newfound/Owatonna Corp., 1998 ME 20, ¥ 13, 705 A.2d at 1114 (noting that parties
did not contest that the prior decision by the Law Court was a valid final judgment).
Accordingly, MCA’s argument that the Law Court's decision in the earlier Lewis case
was not a final judgment cannot prevail.
3. Matters which were or might have been litigated

In determining whether the matters presented for decision in the instant
action were or might have been litigated in the prior action, this court must
consider “whether the same ‘cause of action’ was before the court in the prior case.”
Camps Newfound/Owatonna Corp., 1998 ME 20, 11, 705 A.2d at 1113 (quoting
Connecticut Nat'l Bank v. Kendall, 617 A.2d 544, 547 (Me. 1992)). The Law Court has

adopted a “transactional test” to define a cause of action:
[T]he measure of a cause of action is the aggregate of connected
operative facts that can be handled together conveniently for purposes
of trial. A prior judgment bars a later suit arising out [of] the same
aggregate of operative facts even though the second suit relies on a
legal theory not advanced in the first case, seeks different relief than
that sought in the first case, and involves evidence different from the
evidence relevant to the first case.

Id. The Law Court has made the following comments regarding this transactional
test:

Maine cases have always acknowledged that the doctrine of res judicata
is justified by concerns for judicial economy and efficiency, the stability
of final judgments, and fairness to litigants. The transactional test for a
cause of action best advances those goals. Requiring a plaintiff to
pursue all rights he may have against a given defendant that grow out
of the “transaction or series of transactions” from which his suit arises
promotes judicial economy and the public perception of the stability
and finality of court decisions. It eases both the financial and
psychological burdens on a defendant, who can rest assured that no one
will sue him more than once over the same incident or occurrence.
And it is fair to the plaintiff, as well: He as well as the defendant will
benefit economically--by saving counsel fees and other litigation
expenses--if he consolidates as many of his factual allegations and legal
theories as possible into one lawsuit. And the rules that have
governed civil litigation in Maine since December 1, 1959, provide the
plaintiff, as well as the defendant, with “ample procedural means for
fully developing the entire transaction in the one action going to the
merits to which the plaintiff is ordinarily confined.”

Beegan v. Schmidt, 451 A.2d 642, 646 (Me. 1982) (citations omitted). In making these
comments the Law Court noted that “a broad and practical concept of ‘cause of
action’ will best promote” the interest of the courts, public and litigants “in [the]
sound application of res judicata to the end that there be stability in . . . final
judgment[s] rendered on the merits and that repetitive litigation be avoided.” Id. at

646 n.6.

10
As defined by the Law Court, a cause of action is “the aggregate of connected
operative facts that can be handled together conveniently for purposes of trial.”
Camps Newfound/Owatonna Corp., 1998 ME 20, { 11, 705 A.2d at 1113. Both the
prior and current litigation between these parties arise out of the same set of general
facts - namely MCA’s expansion of its building and whether that expansion
complied with the Rockport Land Use Ordinance. The special exceptions and
building permits issued with respect to that expansion are a “series of transactions”
growing out of the MCA expansion. In this context, it would have been easy and
convenient for the respondents to have argued in the first case that even if the
expansion was not authorized by the 1996 special exception and the December, 1996
building permit, it was authorized by the 1993 special exception and the June, 1996
building permit because the petitioners failed to appeal the decisions granting those
earlier approvals.°

The respondents argue that they were not required to raise the issue of the
authorization for the expansion under the 1993 special exception and the June, 1996
building permit because petitioner Lewis was precluded from challenging those
approvals as the result of her failure to timely appeal their issuance. Petitioner

Lewis did attempt to challenge the issuance of the first building permit before the

3 Cf, Pacific Greyhound Lines v. Brooks, 220 P.2d 477 (Ariz. 1950) (“If Sun Valley [Bus Lines]
relied upon certificate No. 5234 as authority for its operations in the territory heretofore enjoined in
[the prior action] it had the bounden duty to come forward and assert it in that suit. Having failed to
do so, the judgment in that case has become final and conclusive as to all matters therein decided as
well as all matters and issues that were germane or could have been decided . . . Sun Valley was then
relying upon certificates numbered 5278, 5295 and 5296 as authority for its operations. It certainly
would create an intolerable situation for it to now be permitted to say it was really operating in that
territory under certificate No. 5234.”).

11
Law Court. However, the Law Court found that because Lewis did not appeal that
action to the ZBA, that issue was not properly before it. Lewis, 1998 ME 144, 7 n.2,
712 A.2d 1047, 1049. This circumstance weighs in favor of requiring MCA to have
raised the validity and the significance of the 1993 special exception and the June,
1996 building permit in the first action. If they had, petitioner Lewis might have
had no defense to the validity of those approvals and MCA could have prevailed on
that issue, thereby providing authorization for a large portion of the expansion of
their building. See R. Tab 10 (sketch plan showing modifications to the building
under both sets of approvals granted in this case); R. Tab 5-6 (decision granting 1996
special exception noting that the amendments to the 1993 special exception are
“minor”).

In adhering to the Law Court’s admonition that “a broad and practical concept
of ‘cause of action’ will best promote” the interest of the courts, public and litigants,
Beegan, 451 A.2d at 646 n.6; this court concludes that respondents are barred by res
judicata from relying on the 1993 special exception and the June, 1996 building
permit as authorization for the expansion of the MCA building because they failed
to raise this argument in the prior litigation. Consequently, MCA is without any
valid approvals for the expansion of their building and the building’s
nonconformity with the zoning ordinance must be measured by comparing the

existing building to the building prior to all renovations.

12
B. Waiver or Abandonment

Even if principles of res judicata cannot be interpreted to bar the respondents’
“defense,” this court finds that respondents have waived or abandoned their rights
under the June, 1996 building permit. Under Maine law, if a municipality grants a
building permit in reliance on sketches or other graphical representations of the
project, the permit holder may only build the project represented in the plans and
deviations from that plan are not allowed. See City of Hallowell v. Morais, 629 A.2d
55 (Me. 1993). Thus, MCA was required to seek a new building permit when they
made changes to their renovation plans. When MCA obtained the December, 1996
building permit, they waived or abandoned their plans as represented in the June,
1996 building permit and their right to conduct renovations on the property was
then defined by the new building permit.4 Consequently, when the Law Court
invalidated the December, 1996 building permit, MCA was left without a valid
building permit authorizing the expansion of its building. Therefore, even if res
judicata does not bar the respondents from relying on the June, 1996 building
permit, they are precluded from relying on that permit in this action as the result of

their waiver or abandonment of the rights they had under that permit.

4 See Gagnon v. Planning Comm'n of the City of Bristol, 608 A.2d 1181, 1183 (Conn. 1992)
(finding that approval of a second subdivision application “controls the applicants’ right to develop
the parcel” and that, as a result, plaintiffs appeal of the decision to grant the first subdivision
application was rendered moot); Baumer v. Zoning Comm’n of the Borough of Newtown, 697 A.2d 704,
706 (Conn. 1997) (relying on Gagnon and finding that plaintiff’s appeal of an initial site plan approval
was rendered moot when a revised site plan was approved by the Zoning Commission and that
approval was not appealed).

13
Ill. Conclusion
) Therefore the entry will be:

Petitioners’ appeal is GRANTED. The matter is remanded to the
Rockport CEO for a determination of the nonconformity of the Maine
Coast Artist’s building with the Rockport Land Use Ordinance in
accordance with this decision.

Dated: February & , 2000 fe Ka oD
J

ohn R. Atwood
Justice, Superior Court
- STATE CE MAINE

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PATRICIA LEWIS, CHARLES NEIDIG, .
and DOROTHY NEIDIG,
. APR 14 2000
Petitioners
v. DECISION AND ORDER

TOWN OF ROCKPORT and MAINE
COAST ARTISTS, ,

Respondents

This matter is before the court on respondent Maine Coast Artists’ M.R. Civ.
P. 52 motion for further findings of fact and conclusions of law.
I. Facts and Procedural History
On February 8, 2000, this court issued an order granting petitioners’ M.R. Civ.
P. 80B appeal and remanding the matter to the Rockport CEO for a determination of
the nonconformity of respondent Maine Coast Artists’ (MCA) building with the
Rockport Land Use Ordinance in accordance with that decision. The court
determined that “MCA is without any valid approvals for the expansion of their
building and the building’s nonconformity with the zoning ordinance must be
measured by comparing the existing building to the building prior to all
renovations.” Order at 12. Thereafter, MCA filed a Rule 52 motion for additional
findings of fact and conclusions of law and amendment of the decision and order

asserting that the court failed to “address the petitioners’ appeal of the CEO’s and the

ZBA’s quantitative conclusions concerning the extent of violations of the Rockport

Land Use Ordinance.”
IL Discussion

This court determined in its order that the respondents were barred from
relying on the 1993 special exception and the June, 1996 building permit as
authorization for the building’s renovations and expansion on grounds of res
judicata and waiver/abandonment. , The CEO’s and ZBA’s decisions regarding the
extent of the building’s nonconformity with the ordinance were based on a
comparison of the existing building with the design of the building in those
approvals. By finding that respondents were precluded from relying on those
approvals, the petitioners’ appeal of the CEO’s and ZBA’s decisions was rendered
moot. Specifically, this court was not required to review the violation
determinations made by the CEO and the ZBA because those determinations were
made in reliance on a set of approvals which this court found could not be relied on
as authorization for the construction. Stated differently, this court would have been
required to review the violation determinations made by the CEO and the ZBA only
if it found that the 1993 special exception and the June, 1996 building permit
authorized the construction and could be relied upon by the respondents’ at this
point in the litigation. By finding that respondents were barred from relying on
those approvals, there was no cause for this court to review the CEO’s and the ZBA’s
decisions. Therefore, MCA’s Rule 52 motion seeking, in effect, to have this court

review those decisions must be denied.

Therefore the entry will be:

Respondent MCA’s MLR. Civ. P. 52 motion is DENIED.

JL

ohn R. Atwood
Justice, Superior Court

Dated: April /2, 2000

1/25/99 Knox

Docket No. AP-99-001

Date Filed
County

Action Rule 80B

PATRICIA LEWIS, CHARLES NEIDIG and
DOROTHY NETDIG

VS.THE TOWN OF ROCKPORT and MAINE COAST ARTISTS

Plaintiff's Attorney

John C. Bannon, Esq.

P. O. Box 9785

Portland, Maine 04104-5085

Date of
Entry

Defendant’s Attorney

Clifford H. Goodall, Esq.
45 Memorial Circle
Augusta, Maine 04330-6432
622-3693

Paul L. Gibbons, Esq.
P.O. Box 616

Camden, ME 04843-0616
236~3325

(MAINE COAST ARTIST

(ROCKPORT)

riaer inn

rianr inn ne

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10806927. Public record. Not legal advice.