The opinion
STATE OF MAINE wet S OFFICE SUPERIOR COURT
CUMBERLAND, ss. CIVIL ACTION .
i? CLT 29 D> 3 DOCKET NO. AP -02-17,
REC ~C Wh’ “10/2 44 OO 82.
DAVID CAIRNS, and /
PORTLAND COVER, LLC,
Plaintiffs,
ORDER ON 80B APPEAL
“ DONALD L. GARBRECHT
TOWN OF GORHAM, LAW LIBRARY
Defendant.
DEC 3 2m
FACTUAL BACKGROUND
Plaintiffs Cairns and Portland Cover filed an appeal with the Defendant Zoning
Board of Appeals (Board) to improve.a non-conforming structure. The improvement
entailed raising the ceiling of the first floor by two and one-half feet and constructing a
second floor on the existing building at 669 Main Street in Gorham. The Plaintiffs’
appeal, “requesting a permit to enlarge a non-conforming structure,” was granted on
September 13, 2001 ( First Decision). In its approval, the Board included a statement
that the Site Plan Review Committee would review the plan and address “special
exception criteria which are of concern to the Board.”* The Site Plan Review Committee
met in February of 2002, but did not reach a conclusion until after the second Board
decision, which was dated March 21, 2002 (Second Decision).
Plaintiffs applied to the Board for a permit pursuant to chapter 1, section II.4
(nonconformance permit) of the Town of Gorham’s Land Use and Development Code.
The Plaintiffs did not apply for a variance nor was one required if the Zoning Board of
Appeals approved the permit application pursuant to chapter 1, section II.4. The Town,
1 Gorham’s “Special Exceptions Standards” provide a framework for evaluating applications for
special exceptions, as in this case. The ordinance lists six standards, only two of which apply in
the present case: vehicular and pedestrian traffic impact and creation of a nuisance because of
~ however, issued a certificate of variance to the Plaintiff, which, according to the town
ordinance, would expire if not recorded within ninety days of approval. The town
ordinance also provides that one’s right to construct pursuant to a nonconformance
permit, will expire within six months if construction has not commenced, and within
one year if construction is not substantially completed.
In March of 2002, Plaintiffs resubmitted the application to the Board because the
six-month period had lapsed and the Site Review Committee had not yet ruled on the
project. This plan was different from the plan approved in September 2001. Plaintiff
contends that the changes merely incorporated recommendations of a traffic engineer
in an attempt to address the traffic concerns, which the Board referred to the Site Plan
Review Committee to address. The Board denied the appeal in March 2002 by a vote of
three to three; the Chair was absent.
Plaintiffs now appeal, pursuant to M. R. Civ. P. 80B, from the Board’s Second
Decision denying Plaintiffs’ application for an expansion of a non-conforming structure.
They argue the Board’s conduct (1) made it impossible to comply with both the
variance, for which they did not apply, and the conditions of the permit approval (i.e.
Site Plan Review Committee approval); (2) was arbitrary because the Board approved
the permit in September and denied it the following March; and (3) was based in part
on “errors of law” committed by the Board when voting.
DISCUSSION
A decision of the Board of Appeals is reviewed for an error of law, abuse of
discretion, or findings of fact not supported by substantial evidence in the record. Yates
v. Town of Southwest Harbor, 2001 ME 2, 7 10, 763 A.2d 266, 269. The court must
noise, odors, hours of operation, etc. TOWN OF GORHAM LAND USE & DEVELOPMENT CODE, ch. 1, §
IV.E.1, 4.
~ review only the record established before the Board in order to determine whether the
standards have been met. Sahl v. Town of York, 2000 ME 180, J 11, 760 A.2d 266, 269.
This Court may not substitute its judgment for that of the Board. Id. Remand is
appropriate if the government agency’s findings of fact are insufficient. Christian
Fellowship and Renewal Ctr. v. Town of Limington, 2001 ME 16, {1 14-19, 769 A.2d
834, 839 (holding insufficient findings render judicial review inappropriate and possibly
detrimental to legal determinations at issue).
In the instant case, the Board’s findings of fact in the Second Decision are devoid
of any support for the one-line conclusion: “The Special Exception criteria have not been
met.” Pls.’ Br., Ex. 11. The “facts” do indicate what the Plaintiffs’ plan is and what the
continuing nonconforming result will be.’ Id. The facts do not address any of the
special exception criteria, on which the Board bases its conclusion. Id.; see supra note 1.
The facts also indicate that the project “is currently undergoing minor site plan review.”
Pls.’ Br., Ex. 11. This reference indirectly acknowledges the evaluation of the special
exception criteria referred to the Site Plan Review Committee by the Board in
September of 2001. Nonetheless, the Board took final action and denied the second
appeal. The record lacks the requisite support for any conclusion that the Board may
have reached, including denial of the appeal. The case must be remanded to the Board
for additional findings of fact to support the conclusions and reasoning of the Board.
Plaintiffs argue “the same plan was already approved” and a denial of the plan
following its approval six months earlier is arbitrary and intrinsically unfair. Pls.’ Br. at
6. In their Reply Brief, Plaintiffs also raise the argument of issue preclusion. They argue
? The decision outlines the plan to replace the existing single story structure with a two-story
structure for a use permitted in that zoning district. Pls.’ Br., Ex. 11. “The existing building is
non-conforming because it is 21’ from a side property line which requires a 30’ setback per the
current code.” Id.
the Board’s determination in September 2001 regarding traffic concerns precludes it
from revisiting the issue in March of 2002. These arguments need not be addressed
because the project submitted to the Board in March 2002 is different from that
approved by the Board in September of 2001. Pls.’ Br. at 3, 4, 6, 7, 8, 9 (stating that the
plan was “amended,” “had several changes,” and had “[s]ignificant changes” made). A
successful argument for issue preclusion requires prior “adjudication” of “a legal or
factual issue.” Town of North Berwick v. Jones, 534 A.2d 667, 670 (Me. 1987) citing
RESTATEMENT (SECOND) OF JUDGMENTS § 83 (1982). The amended project creates a new
issue for the Board to determine. Pls. Br. at 8-9 (“Significant changes were made to the
originally approved plan, which increased the safety of the site and reduced any traffic
impact .. . .”) (emphasis added). The two projects were different; therefore, these
arguments are invalid and unpersuasive.
The entry is
Plaintiffs’ 80B Appeal is REMANDED to the Gorham Zoning Board of Appeals for
additional findings of fact and conclusions.
Dated at Portland, Maine this 28th day of October, 2002.
Robert E. Crowley
Justice, Superior Court
Date Filed ___04-19-02
Cumberland Docket No. AP-02-17
County
Action 80 B APPEAL
DAVID CAIRNS d/b/a
PORTLAND COVER, LLC TOWN OF GORHAM PLANNING BOARD
VS.
Plaintiff's Attomey
Defendant’s Attorney
NEAL L. WEINSTEIN, ESQ.
NATALIE L. BURNS, ESQ.
P.O. Box 660 Jensen Baird Gardner & Henry
Old Orchard Beach, ME 04064-0660
P.O. Box 4510
(207) 934-2173
Portland, Maine 04112
(207) 775-7271
Date of
Entry’