The opinion
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4 ono) DOCKET NO. AP-99-025
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STATE OF MAINE
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STEVEN SAHL, et alsé.
Plaintiffs
ORDER
Vv. AND
DECISION
TOWN OF YORK, et als.,
Defendants
The defendant E.F.H., Inc. owns commercial real estate containing the
Cuttysark Motel on Long Beach Avenue in York. The defendants Peter Hughes and
Patrick Hughes are the operators and developers of the motel. The plaintiffs Steven
Sahl and Andrea Sahl and Barry Crafts and Helen Crafts own nearby residential
property.
Apparently in 1991, but certainly before May 9, 1992, a shoreland permit along
with other permits were issued to allow construction activities at the motel. It was
decided by the owners that the motel would be built in phases. Phase I with 20 units
has been completed. A planned second phase has not yet been started.
The Town of York amended its zoning ordinance on November 4, 1997 to
include a new provision which is found at Section 18.2.8. The relevant portion
states, “For all Shoreland Permits issued prior to May 9, 1992, all improvements
identified in the approved Shoreland Permit must be completed by November 5,
1998 or the Permit shall lapse and become void on November 6, 1998. As the
November 1998 deadline approached it became clear that the motel owners could
not start and finish construction by November 5, 1998. The York Code Enforcement
Officer requested in October of 1998 that they not begin construction and that they
bring their problem before the Board of Appeals. This advice was memorialized in a
letter to the attorney for the owners dated November 20, 1998 following a letter from
the owners’ lawyer. An appeal and variance request were presented to the Board
which first granted a variance and denied the appeal, then reconsidered and
rescinded the variance and reconsidered the appeal, and then granted the appeal.
The applicants then withdrew the variance request. The plaintiffs have appealed
the decision to grant the appeal. -
The first issue, that has been raised both in the appeal and in two motions for
attorney’s fees, is whether each set of plaintiffs has standing to appeal. In order to
have standing to appeal the plaintiffs must have participated before the Board and
must have made a showing of particularized injury. See, Department of
Environmental Protection v. Town of Otis, 1998 Me. 214, 77, 716 A.2d 1023, 4-5 and
Brooks v. Cumberland Farms, Inc., 1997 Me. 203, 18, 703 A.2d 844,7.
In this case the Board held proceedings on February 10, 1999 and on March 10,
1999. Attorney Robert Mongue appeared at both hearings and made it clear on
February 10, see record pages 22-3, that he represented Steven Sahl and the Crafts.
At the second hearing he made it clear that he represented the Sahls and had been
“contacted by the people who own the lot right next door to them, I believe, but they
have not formally retained me. They did contact me and asked me to express their
views. But its basically the Sahls.” Record at page 63. I am satisfied that all four
plaintiffs, through attorney Mongue, participated before the Board. I also find that
they have made a showing of particularized injury when they claimed that
additional units at the Cuttysark would affect their view and that there would be
additional traffic which would effect them. While not an abutter the plaintiffs are
reasonably close by and have made a reasonable allegation of a potential for
particularized injury. See the more modern cases of Brooks at q10, Christy’s Realty
Ltd. Partnership v. Town of Kittery, 663 A.2d 59, 61-2 (Me. 1995), Forester v. City of
Westbrook, 604 A.2d 31,2 (Me. 1992) and Pearson v. Town of Kennebunk, 580 A.2d
535,7 (Me. 1991). Standing exists and the requests for attorney’s fees by the Cuttysark
owners is denied as is the request by the plaintiffs for fees to reimburse them for the
expense of responding to the motions.
A reading of ordinance Section 18.2.8 initially suggests that, since the work
was not completed on time, the shoreland permit expired. There is nothing in the
ordinance which even remotely suggests that the time limitations apply only to
residential construction or that they do not apply to commercial projects. On the
face of the ordinance the plaintiffs should prevail. Is there any other reason why
they should not?
I find nothing wrong in the Code Enforcement Officer’s request in early
October of 1998 that construction on Phase II not begin.. The property owners were
free to ignore his request. The owners had had years to complete their project even
when probate, financial and environmental difficulties are considered. The
ordinance gave an additional year for work to be completed.
Likewise, I find nothing in the history of this case which would allow the
) clear provisions of the ordinance to be superseded by either the doctrine of equitable
estoppel or vested rights. The owners built their project in phases as much for their
benefit as the Town’s. They were never promised, and certainly not in writing, that
they could take forever to complete their project or that new rules might not be
enacted. They had a long time to build Phase II and a full year to build once the
ordinance changed. They moved too slowly on their own account and not because
of anything that the Town forced on them. There is nothing that the Town or the
owners did that would allow the use of either the veSted rights or equitable estoppel
doctrines. While the owners present a sympathetic case, a majority of the Board
erred in granting the appeal.
Wherefore, the entry is:
) Motion of Defendants E.F.H., Inc., Peter Hughes and
Patrick Hughes for attorney’s fees against plaintiffs Steven
Sahl and Andrea G. Sahl is denied.
Motion of Defendants E.F.H., Inc., Peter Hughes and
Patrick Hughes for attorney’s fees against plaintiffs Barry
S. Crafts and Helen F. Crafts is denied.
The decision of the York Board of Appeals to grant the
appeal of Peter and Patrick Hughes is vacated.
Dated: February 2, 2000
AINTIFFS: DEFENDANT-TOWN OF YORK EP, Le Lo.
BERT E MONGUE ESQ DURWARD PARKINSON ESQ Le L ne KI
BOX 916 BERGEN & PARKINSON : °
NNEBUNK ME 04043 62 PORTLAND RD Paul A. Fritzsche
KENNEBUNK ME 04043 Justice, Superior Court
ENDANTS EFH INC., PETER & PATRICK HUGHES
N S UPTON ESQ
KINS THOMPSON HINCKLEY & KEDDY
BOX 426
™“~ ME 04112-0426 4