The opinion
RECEIVED & FILED
STATE OF MAINE SUPERIOR COURT
ANDROSCOGGIN, ss. OCT 17 2002 CIVIL ACTION
ANDR Docket No. AP-00-028
OSCO SG AIT :
SUPERIOR Coun et :
THOMAS R. DESJARDINS and
HELEN M. DESJARDINS
Plaintiffs
v. ORDER ON 80B APPEAL
TOWN OF GREENE and its
CODE ENFORCEMENT OFFICER
and DONALD L. GARBRECHT
MICHAEL POLIQUIN and LAW LIBRARY
STACY LOWELL,
Defendants OCT 30 2002
PROCEDURAL HISTORY
Although he had never applied for a building permit for the installation of a pool —
on his property in Greene, Michael Poliquin filed a “Variance or Appeal, Request for
Hearing,” on August 21, 2000, stating that his request for a permit had been denied by
the Greene Code Enforcement Officer on August 16, 2000. Attached to the request was
the following statement:
We are requesting for an appeal because we do not
feel as though we should be in violation with the land use
ordinance. The reason being is when we had purchased our
swimming pool back in febuary [sic] we also hired the pool
contractor to install it for us when weather permitted. At
that time we needed to start planning where we wanted it
located so the contractor make his plans. In the mean time
[sic] the pool contractor as well as us had checked with the
town of greene [sic] for code requirements. They told us
that there was no permit required and the side setback was
10 ft. from property line. We then felt as though we were all
set to start our plans. Apparently in the mean time the laws
of the land use ordinance had changed that we were not
aware of. We feel as though we did everything we could
have before hand to be within code and did not expect any
changes. We are asking if you would please consider
granting this appeal for we truly did not intend to be against
code regulations.
The Appeals Board apparently held a site visit on October 5, 2000, and then held
public hearings on October 12 and October 17, 2000. At the conclusion of the discussion
on October 17, 2000, the Board voted to grant the appeal. The Board issued its findings
of fact on October 31, 2000.
On November 29, 2000, Thomas and Helen Desjardins filed a Complaint with the
Androscoggin County Superior Court requesting that the court review the October 17,
2000 decision of the Greene’s Zoning Board of Appeals pursuant to M.R.Civ.P. 80B. That
complaint, which had been served upon the Town on November 28, 2000, resulted in
the issuance of a Notice and Briefing Schedule dated November 30, 2000.
On December 6, 2000, the Desjardins filed a “revised” complaint. That
Complaint included no new allegations or requests for relief, but did add Michael
Poliquin and Stacy Lowell to the list of defendants. The revised complaint was served
on Poliquin and Lowell on December 7, 2000. There is no record to show it was ever
served on the Town. On December 15, 2000, Attorney Gregory Cunningham entered
his appearance on behalf of the Town of Greene and its Code Enforcement Officer,
David Leeman. Lowell filed a “response” to the revised complaint on December 27,
2000.
Plaintiffs filed their brief with the court on January 12, 2001. Neither the Town
nor the abutting landowners filed a brief in response, and the plaintiffs never requested
a hearing. On December 3, 2001, the plaintiffs filed a Motion for Default, asserting that
neither the Town nor the abutting landowners had responded to their complaint. The
Town opposed that motion, and it was soon withdrawn. Again, no hearing was
requested.
Oral argument was heard on September 30, 2002. Attorney Richard Lord
appeared on behalf of the plaintiffs. Attorney Cunningham appeared on behalf of the
Town. Poliquin and Lowell were present, pro se. The findings and conclusions below
were made after a review of the record, pertinent case law, and the parties’ arguments.
FINDINGS OF FACTS AND CONCLUSIONS OF LAW
Thomas and Helen Desjardins and Michael Poliquin and Stacy Lowell own
abutting parcels of land in Greene, Maine. On March 4, 2000, the citizens of Greene
adopted a Land Use Ordinance. §3-101.2 of the Ordinance established a 25’ side setback
for single lots, and §4-101.1(A) required that a building permit be obtained before any
swimming pool exceeding 100 square feet in area be constructed.
In May 2000, Poliquin and Lowell built a swimming pool larger than 100 square
feet on their property without a permit to do so, and within the 25’ setback. On June 1,
2000, the Desjardins filed a complaint with the Town of Greene. In their statement, they
alleged that the pool built by their neighbors was within eleven feet of the property
line. The Town CEO visited the site on June 1, 2000.1 He has asserted that he told
Poliquin and Lowell that they needed to obtain a permit during that visit. That
conversation could be deemed oral notice, pursuant to §4-201.1(B)(1), of the violation
and the necessary corrections. Poliquin and Lowell recall the events differently.
Poliquin stated that, during the visit on June 1, Leeman told them that the pool’s
location was fine, and that they merely needed to obtain a permit for an accessory
structure.
The following day, the Town Manager, Judy Biggar, sent a letter to Poliquin and
Lowell, informing them that she understood they had built a pool, without a building
‘David Leeman, the Town’s CEO, stated during the October 12, 2000 hearing that he had visited the
site at least twice during the construction process. Lowell and Poliquin maintain that he never came to
their property before June 1. If Leeman’s statement is accepted as accurate, he twice saw that a pool was
being built without a permit, and within the 25’ setback, yet he took no action.
permit, and within the setback requirements. She requested that they contact her
“about this matter.”
Despite these two notices, neither Poliquin nor Lowell filed an application for a
building permit.
In a letter dated June 13, 2000, Leeman told Poliquin and Lowell that the pool
they built was in violation of the Ordinance. Despite knowing that the pool had already
been completed, he ordered Poliquin and Lowell to cease construction and apply for a
valid permit. Although flawed, that letter would have complied with the requirements
of §4-201.1(B)(2) if it had been sent within twenty-four hours of the oral notice or stop
work order mentioned above. The letter was not even written for nearly two weeks,
and then was not mailed until nearly one month later.
Proof of the date of service of this First Notice was not included in the record
created by the appellants. However, both Poliquin and Lowell acknowledged during
the October 12, 2000 hearing that they received that letter. (10-12-00 hearing, p. 4) Ms.
Lowell recalled “signing for” the notice. (10-12-00 hearing, p. 6). Poliquin told the Board
that he called Leeman the same day he received the letter. During that conversation,
Leeman told Poliquin that he had made a mistake, and that the pool would have to be
removed.
Poliquin and Lowell did not remove the pool as ordered. In a letter dated
August 4, 2000, Attorney Cunningham notified Poliquin and Lowell that the Board of
Selectmen intended to pursue legal action against them unless they applied for a valid
building permit.
Neither Poliquin nor Lowell has ever applied for a building permit. During the
hearing on October 12, 2000, Poliquin stated that they were “in the process” of filling
out the application when they received Leeman’s June 13, 2000 letter. When asked why
they had not sought a permit after receiving that letter, Lowell told the Board that the
CEO had told them their only option was to tear down the pool. The letter itself,
however, told Poliquin and Lowell to apply for a permit. It also provided a citation of
the Ordinance section that permitted them to appeal his decision.
During the hearing on October 12, 2000, Lowell stated that she had spoken to an
unidentified woman at the town office in January or February to find out what she
needed to do before installing her pool. This unidentified woman informed her that it
had to be ten feet back from the property line. A permit was not discussed during that
conversation. Lowell also stated that she attempted to speak with Leeman after they
started getting letters about the pool, but that he had failed to return numerous calls.
The pool contractor, Mr. Pinette, acknowledged that he had not installed another
pool in Greene, and was not familiar with its Ordinance. Like Ms. Lowell, he called
Town Office in February, and another unidentified woman at the town office told him
that no permit was necessary. After the pool had already been finished, Mr. Pinette
went to the town office to acquire a copy of the Ordinance. At that time, the Town
Manager told him directly that a permit was not needed.
DISCUSSION
When the decision of a government body comes under review pursuant to a
Rule 80B Appeal, the Superior Court must independently examine the record and
review the decision for abuse of discretion, error of law, or findings unsupported by
substantial evidence in the record. York v. Town of Ogunquit, 2001 ME 53, { 6, 769 A.2d
172, 175. The interpretation of a zoning ordinance is a question of law to be determined
by the court. Lewis v. Town of Rockport, 1998 ME 144, | 11, 712 A.2d 1047, 1049. The
court must give effect to the legislative history of the statute, consider the plain
language, and construe its “terms or expressions . . . reasonably with regard to both the
object sought to be obtained and to the general structure of the ordinance as a whole.”
Oliver v. City of Rockland, 1998 ME 88, J 8, 710 A.2d 905, 908.
1.Timeliness
A. Desjardins’ appeal to this court
The court may not consider any issue on appeal before first addressing whether
the appeal is timely filed. Pursuant to Greene’s Ordinance, an appeal must be taken
“within 45 days from the date of [sic] the decision is rendered.” §8-101.2(C). The Law
Court has held that the period for appeal begins to run on the date of the public vote by
the Board, even when the Ordinance requires written findings and conclusions.
Woodward v. Town of Newfield, 634 A.2d 1315 (Me. 1993) The Greene Ordinance, by
comparison, does not require the Board to issue written findings and conclusions,
although it does require the Board to inform the appellant, the Planning Board, CEO
and Selectmen of its decision, in writing, within 30 days. §8-101.3(B)(4)
The date of the Board’s decision was October 17, 2000. The Desjardins had until
December 1, 2000 to file their appeal. The amended complaint relates back to the date
the original Complaint was filed, pursuant to M.R.Civ.P. 15(c). The original complaint
filed by the Desjardins was timely filed and therefore, the court may entertain the
complaint.
B. Poliquin’s appeal to Board of Appeals
Greene’s Ordinance created a Board of Appeals with jurisdiction to process
appeals in accordance with 30-A M.R.S.A. § 4353. §8-101.2 of the Ordinance explains that
the Board has jurisdiction over administrative appeals, defined as “alleged errors in
procedures by the building inspector, code enforcement officer or planning board,” and
variance appeals, “where a relaxation of this Ordinance would not be contrary to the
public interest.” For either type of review, the appeal must be filed with the Town Clerk
not more than thirty days after the date of the decision being appealed. Ordinance §
8.101.3(A).
During its deliberation, the Board must first determine whether an appeal has
been timely filed. The decision appealed by Poliquin and Lowell was made either on
June 1, 2000, when Leeman told them they had to get a permit, or on June 13, 2000,
when he wrote the First Notice. As was mentioned above, Poliquin filed his appeal on
August 21, 2000. A close reading of the minutes from the October 17, 2000 hearing
reveals the Board’s finding that the appeal was not timely. At that second hearing,
Chairman Kippax asked if the Board should even consider the appeal, since it was “filed
after the time limits set forth by the Ordinance (§8-101.3).” The response was that, by
“going to this point,” the Board had waived the timeliness requirement. Unfortunately,
this conclusion reflects both an error of law and an abuse of discretion. The Board
cannot simply waive a time limit imposed by the Ordinance because it has spent some
time reviewing the case.
2. Notice
Upon receipt of a timely appeal, the Board is required to schedule a public
hearing, and then provide written notice of the hearing to abutting property owners,
by certified mail, at least twenty days before the hearing. Ordinance § 8.101.3(B)(3). The
Desjardins claim that no such notice was provided in this case. However, the Town’s
appeal file, which was not made part of the record here, apparently contains a return
receipt from just such a notice. The Desjardins did learn of the hearing and were
present on October 12, 2000. Based on the Record provided, the court finds that the
Town did comply with the notice provisions of its Ordinance.
3. Equitable estoppel
As mentioned above, the Board of Appeals is the administrative body charged
with hearing and deciding “alleged errors in procedures by the .. . Code Enforcement
Officer or Planning Board in the administration or enforcement of this Ordinance.”
Ordinance § 8-101.2(A). The myriad errors committed by the CEO might have
provided grounds for review if they had occurred before the pool was built, and before
Poliquin had requested and been denied a building permit, but only if the appeal from
that denial had been timely filed. Here, however, there was no application, the CEO’s
errors occurred after the pool had been completed, and the appeal was not filed in a
timely fashion.
Poliquin and Lowell built this pool without a permit, and within the 25’ setback. °
They apparently did so in reliance on the opinion of some unidentified employee of the
Town Office. Relying on the oral unauthorized representations of a municipal
employee, i.e., anyone other than the CEO, that a written building permit is not
required, is simply not reasonable, particularly in light of the unambiguous language of
the Ordinance. F.S. Plummer Co. v. Cape Elizabeth, 612 A.2d 856, 861 (Me. 1992). Persons
who wish to build a pool in Greene cannot be allowed to hide behind the lack of
expertise among the municipality’s office staff.
The actions and statements of a CEO, unlike those of the unnamed member of
the office staff, might give rise to a cognizable claim of equitable estoppel. The Board’s
findings that the Town had committed significant errors in the enforcement of the
Ordinance, and that it had failed to provide clear instructions in how to remedy a
violation are both supported by the evidence in the record.? The CEO failed to provide
2
If Leeman is still the CEO for the Town, the court strongly urges the Town to provide him with
training in the appropriate enforcement of its Ordinance.
a first notice of violation within 24 hours, as required by §4-201.1(B)(2). He did tell them
they had a right to appeal his decision, but may have ignored their requests for further
assistance.
Although equitable estoppel may be applied to the activities of a municipal
official, it may only be based upon a “factual determination that the declarations or acts
relied upon must have induced the party seeking to enforce the estoppel to do what
resulted to his detriment and what he would not otherwise have done.” Shackford v.
Gooch, Inc. v. Town of Kennebunk, 486 A.2d 102, 103-104 (Me. 1984). In this case, the pool
was built before Leeman took any action whatsoever. Poliquin and Lowell did not build
their pool without a permit and within the setback as a result of something Leeman told
them. All of his errors occurred after the pool had been completed and might, at best,
have provided the Board with a rationale for imposing either minimal fines or no fines
at all. Therefore, the Board erred, as a matter of law, when it concluded that Leeman’s
errors could allow it to ignore the clear language of the Ordinance.
The Board also discussed the lateness of the CEO’s notice. Immediate notice of a
violation allows the landowner to stop a project before its completion, providing an
opportunity for correction without demolition. Here, however, the pool was complete
by June 1. The delay did not result in an additional outlay of time or money by Poliquin
or Lowell. The Board correctly noted that the CEO had failed to provide a second notice
of violation. Poliquin and Lowell received the First Notice from Leeman, and the second
notice from the Town’s attorney. Again, the point of the second notice is to allow the
violators a final opportunity to correct the problem without resort to legal proceedings.
Attorney Cunningham’s letter told Lowell and Poliquin that the Board of Selectmen
intended to pursue legal action against them unless they applied for a valid building
permit. They still failed or refused to do so and, based upon the Board’s own finding,
failed to make a timely appeal of the CEO’s order to the Board of Appeals.
Finally, in its October 31, 2000 decision, the Board determined that Poliquin and
Lowell made good faith attempts to find out if a building permit was required. The
Record simply does not support this finding. Poliquin and Lowell never bothered to
read the Ordinance. They relied upon out-of-date information given to them by
someone other than the CEO in February, although they did not begin construction
until May. Town Meetings are well advertised and open to all citizens. Their decision to
ignore the Town Meeting and the Ordinance adopted by the Town’s citizens during that
meeting cannot be used to shield them from the application of the Ordinance.
ORDER
For the reasons stated above, the court finds that the August 21,
2000 appeal to the Board was not timely. The court further finds that the
Board’s decision must be vacated because it is based upon abuses of
discretion, errors of law, and findings unsupported by substantial
evidence in the record.
Plaintiffs’ appeal upheld. Pool shall be removed within thirty (30)
days.
The clerk is instructed to incorporate this order by reference in the docket for
this case.
DATED: fopet |F, Wow.
Elldn A. Yorman
Justice, Mainé Superior Court
10
Date Filed _November 29, 2000 ANDROSCOGGIN Docket No. __AP-00-28
County
Action __80B APPEAL
THOMAS R. DESJARDINS and CODES ENFORCEMENT OFFICER FOR THE >
HELEN M. DESJARDINS TOWN OF GREENE and
Greene, Maine THE TOWN OF GREENE
and (amended 12-6-00)
MICHAEL POLIQUIN and STACY LOWELL
Greene, Maine
VS.
Plaintiff’s Attorney Defendant’s Attorney (TOG Code Enf.
Richard A. Lord, Esq. BAR #664 Gregory M. Cunningham, Esq. Officer)
52 Maine Street BERNSTEIN, SHUR, SAWYER & NELSON BAR #77!
Brunswick, ME 04011 100 Middle St., P.O. Box 9729
Portland, ME. 04104-5029
Michael Poliquin and Stacy Lowell (Pro Se
238 Sullivan Road (12-27-00)
Greene, ME. 04236
Date of
Entry
2000
Nov. 30: Received 11-29-00.
Summary sheet filed. (signed by Plaintiff)
Filing fee paid. ($120.00) Rec. #11-29-00 #5
Complaint Under M.R.C.P. 80B, filed.
Summons filed showing officer's return of service on 11-28-00 upon defendant
through Ronald Grant, Head Selectman.
wom Received 11-30-00.
Summary sheet, filed. (signed by Attorney Lord) '
vo" On 11-30-00.
Notice and Briefing Schedule 80B Appeal of Governmental Action mailed
Richard A. Lord, Esq., Codes Enforcement officer c/o Town Manager, Town of
Greene and Town of Greene, c/o Town Manager on 11-30-00.
(Plaintiff's Brief is due on before January 8, 2001.)
Dec. 7: Received 12-6-00.
Amended Complaint under M.R.C.P. 80B, filed.
Dec. 18: Received 12-15-00.
Defendants Codes Enforcement Officer for Town of Greene and Town of Greene,
Appearance, filed.
Gregory M. Cunningham, Esq. appears on behalf of Codes Enforcemnt Officer an
Town of Greene.
Dec. 21: Received 12-21-00.
Summonses (2) filed showing officer's returns of service on 12-7-00 upon
Defendants Michael Poliquin and Stacy Lowell
On 12-21-00.
Copy of Notice and Briefing Schedule 80B Appeal of Governmental Action mailed
Michael Poliquin and Stacy Lowell, 238 Sullivan Road, Greene, ME. 04236 on
12-21-00.