The opinion
SUPERIOR COURT
CIVIL ACTION
Docket No. AP-01-019 -
STATE OF MAINE
ANDROSCOGGIN, ss.
—
GEORGE A. COURBRON, JR. and
MARY ANNE COURBRON,
Plaintiffs
DONALD L. GARBRECHT
Vv. ORDER ~ LAW LIBRARY
TOWN OF GREENE,
Defendant NOV 21 2m
On December 29, 2000, George Courbron Jr. filed an application for change of
use with the Town of Greene. (R.4.) In that application, Courbron requested that he be
allowed to relocate his surveying and land use consulting business to his residence in
Greene’s Shoreland Zoning District. On or about January 21, 2001, Courbron met with
Greene’s Code Enforcement Officer (CEO), William Parquette, to review the
application. At the end of that meeting, Parquette told Courbron that the application
would be approved. Courbron proceeded to make the alterations necessary to create a
space for the business in his residence.
At some point after the alterations were complete, Courbron returned to the
Town Office to obtain a copy of the approval of his application. By that time, Parquette
was no longer the Town’s CEO. The new CEO, James Neagle, was unable to find a file
containing the application, and found no record that the application had been approved.
Neagle refused to grant approval.
Courbron then sought out Parquette, who wrote him a letter on March 27, 2001
stating:
This will confirm the fact that your application dated December 5,
2000, requesting a change of use of an eight hundred and fifty square foot
[] area of the first floor of your home in order to locate your land use
consulting business known as Surveyworks, Inc., was approved by me in
my capacity as Code Enforcement Officer for the Town of Greene, Maine,
on January 17, 2001.
Your request required Code Enforcement Officer Site Plan Review
and such review showed compliance with Sections 6.101.2(A), 6-
102.1(A)(B), 6-501 and 6-601, of the Town of Greene land use Ordinance
adopted March 4, 2000.
(R6.)
In a letter dated May 25, 2001, CEO Neagle notified Courbron that the “town
office has become aware that you have moved your business. . . into your home. ” He
also wrote that this was in violation of the ordinance, and that Courbron had seven
days to contact him before he turned the matter over to the Selectmen for legal action.
(R.7.) On June 13, 2001, Courbron filed a “Variance or Appeal, Request for Hearing”
with the Board of Appeals. In that document, Courbron stated that he was appealing
the CEO’s determination that he was in violation of the Ordinance. (R.8.)
A hearing was held on Courbron’s appeal on August 14, 2001. During the
hearing, Parquette stated that he had not realized that the Ordinance required him to
issue a written decision. He also said that, if he had known a written decision was
required, he would have issued one. At the conclusion of that hearing, the Board
announced it would make a decision on August 16, 2001, went into executive session for
approximately 15 minutes, and then adjourned.
On August 16, 2001, the Board denied Courbron’s appeal, finding that
commercial uses were not allowed in the Shoreland Zone, and that Parquette’s oral
statement did not constitute the formal approval required by the Ordinance. Courbron
filed this timely appeal to the Superior Court. After some delay for purposes of
investigating a possible need for trial of the facts, the matter was briefed, and then
argued on November 12, 2002.
The record and the various memoranda filed by the parties have been reviewed
by the court to determine whether the Board erred as a matter of law, abused its
discretion, or made a factual finding not supported by substantial evidence in the
record. The transcripts of depositions taken while Courbron was attempting to pursue
a trial of the facts have not been reviewed.
DISCUSSION
In his application, Courbron stated that he was requesting permission to allow a
commercial use on his property. It is undisputed that Courbron’s property lies within
an area where commercial uses are banned by both the Land Use Ordinance (LUO) and
by the Shoreland Zoning Ordinance (SZO).’ (R.2, p.12.) In addition, any use or change
of use in that district requires the issuance of a permit. Sections 4-101(F) and
6-102.1(B)(6) of the LUO and Section 16(D) of the SZO require that such permits be
issued in writing. It is undisputed that no written permit was issued by Parquette while
he was employed by the Town as its CEO.
Courbron has asserted, however, that Parquette’s oral statement to him was a
valid authorization of his application. That argument is not persuasive. Both of the
operative ordinances unambiguously mandate the issuance of written permits or
written denials of the permit. The letter written by Parquette, after he was no longer
employed by the Town of Greene, cannot be considered a valid exercise of authority.
Courbron has also argued that the CEO’s oral statement estops the Town from
seeking to enforce its Ordinance. The Law Court has addressed the issue of equitable
estoppel as it applies to land use issues in multiple decisions. See, e.g., Town of Union v.
Strong, 681 A.2d 14 (Me. 1996); H.E. Sargent v. Town of Wells, 676 A.2d 920 (Me. 1996);
F.S. Plummer Co., Inc. v. Town of Cape Elizabeth, 612 A.2d 856 (Me. 1992); City of Auburn v.
‘ Home occupations may be allowed, but only with the approval of the Planning Board.
Desgroseilliers, 578 A.2d 712 (Me. 1990); and Shackford and Gooch v. Town of Kennebunk,
486 A.2d 102 (Me. 1989). To establish equitable estoppel, the party claiming reliance
upon a declaration or act of the Town must establish that the reliance was reasonable.
F.S. Plummer Co., 612 A.2d at 860. The Court has held that reliance upon the
unauthorized act of a municipal officer is not reasonable, and that the act cannot be
grounds for estopping a municipality from enforcing its ordinance. Shackford, supra. In
Shackford, the Court considered a code enforcement officer’s oral representations
authorizing the building of a deck without a permit:
The only element of estoppel at issue is the reasonableness of
Dockside’s reliance. The zoning ordinance does not authorize the building
inspector to issue a permit without a written application. The ordinance
also provides:
No building, sign, or other structure shall be erected, altered,
moved or demolished in Kennebunk without a written
permit issued by the Building Inspector.
Kennebunk, Me., Zoning Ordinance §7.1(A). Under the ordinance, the
building inspector can either issue a written permit or deny a permit
application. We do not consider Dockside’s reliance on the inspector’s
spoken permission to build a deck to be reasonable reliance. Moreover,
the unauthorized act of a municipal officer cannot be grounds for
estopping the municipality. See Lewiston v. Grant, 120 Me. 194, 202, 113 A.
181, 185 (1921). The improper verbal representations of the building
inspector do not estop the Zoning Board of Appeals from enforcing
violations of the provisions of the zoning ordinance.
Shackford., 486 A.2d at 106.
As discussed above, the Greene Ordinance also requires written permits. Both
the LUO and the SZO unambiguously prohibit commercial uses in the zone where
Courbron built his house. Parquette’s oral representation was patently insufficient and
improper, and Courbron’s reliance upon it was not reasonable.
Finally, Courbron has asserted that the Board deliberated on the merits of his
appeal during an executive session, in violation of Maine’s Freedom of Access Act.
Because this claim was not made within thirty (30) days after the August 14, 2001
executive session, it is not timely and may not be considered. Courbron did not file this
appeal until October 1, 2001. M.R. Civ. P. 80B.
ORDER
For the reasons stated above, the decision of the Board of Appeals
is affirmed. Courbron’s appeal is denied.
So ordered.
The clerk is instructed to incorporate this order by reference in the docket for
this case.
DATED: Naud [2 2002
Viwayue
Ellen A. & A. RA. Gorman
Justice, Maine Superior Court
Date Filed October 1, 2001 ANDROSCOGGIN Docket No. _ AP-01-19 _
County
Action __80B APPEAL
GEORGE A. COURBRON, JR., and INHABITANTS OF THE TOWN OF GREENE
MARY ANNE COURBRON
. Greene, Maine
VS.
Plaintiff's Attorney Defendant’s Attorney
Bryan M. Dench, Esq. BAR #1005 Lee K. Bragg, Esq. BAR #543
SKELTON, TAINTOR & ABBOTT Gregory M. Cunningham, Esq. BAR #7718
95 Main St., P.O. Box 3200 BERNSTEIN, SHUR, SAWYER & NELSON, P.A.
Auburn, ME 04212-3200 146 Capitol St., P.O. Box 5057
Augusta, ME. 04330
Date of
Entry
2001
Oct. 2: Received 10-1-01.
Filing fee paid. ($100.00) Rec. #10-1-01 #16.
Summary Sheet, filed.
Complaint, Rule 80B M.R.Civ.P., filed.
Copy of unserved summons, filed.
mon On 10-2-01.
Notice and Briefing Schedule 808 Appeal of Governmental Actions mailed
Bryan M. Dench, Esq. and Steven Eldridge, Town Manager for Town of Greene,
on 10-2-01. (Plaintiff's brief is due on or before November 10, 2001.)
nou Received 10-2-01.
Summons filed showing officer's return of service on 9-28-01 upon Defendant
Inhabitants of the Town of Greene through Town Manager, Stephen Eldridge.
Oct. 18: Received 10-18-01.
Appearance, filed.
Gregory M. Cunningham, Esq. and Lee K. Bragg, Esq. appear for Defendant.
Oct. 23: Received 10-23-01.
Plaintiff's Notification of Discovery Service, filed.
Notice to Take Oral Deposition of Gary Buzzell including Notice to Produce,
M.R.C.P.303; Notice to Take Oral Deposition of Michael Brousseau including
Notice to Produce, M.R.C.P.30; and Notice to Take Oral Deposition of Michael
Webber including Notice to Produce, M.R.C.P.30 served on Lee K. Bragg, Esq. on
October 22, 2001.
Oct. 31: Received 10~23-01.
Plaintiffs' Motion for Trial of Facts Pursuant to ME.R.Civ.P. 80B(d) with
Incorporating a Memorandum of Law in Support Thereof, with attached Order,
filed.
Nov. 6: Received 11-6-01.
- Plaintiff's Notification of Discovery Service, filed.
Notice to Take Oral Deposition and Subpoena of Gary Buzzell including Notice
to Produce, M.R.C.P. 30; Notice to Take Oral Deposition and Subpoena of