Opinion

Sahl v. Town of York

Court
Superior Court of Maine
Filed
Feb 2, 2000
Status
Unpublished
On the bench
Paul A. Fritzsche
Cited by
0 cases
Authority
More cited than 34.1%

The opinion

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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rescinded the variance and reconsidered the appeal, and then granted the appeal.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

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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