# Dyer v. Town of Hudson

> Superior Court of Maine · January 14, 2002

URL: https://www.frixlaw.com/law-library/cases/10807606

## Case

- **Court:** Superior Court of Maine
- **Decided:** January 14, 2002
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Judges:** Jeffrey L. Hjelm
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

STATE OF MAINE SUPERIOR COURT
PENOBSCOT, SS. Docket No. AP-99-17
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Earl F. Dyer, Jr., )

Plaintiff )

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Town of Hudson, )
Defendant ) f

_PENOBSCC COUNTY |

Pursuant to 30-A MLR.S.A. § 2691(3)(G), TowN OF HuDsoN, MAINE BOARD
OF APPEAL ORDINANCE § XII(A) and M.R.Civ.P. 80B, Earl F. Dyer, Jr. appeals
from a decision of the Town of Hudson Zoning Board of Appeals in which it
denied his application for a zoning variance and denied his appeal from a
decision of the Town's Code Enforcement Officer ("CEO") finding Dyer to be
in violation of the Town's zoning ordinances.

The limited record on this appeal provides some limited insight into

the factual and procedural background of this case.! In 1997, the Town

1The question of the record's contents has been the subject of a number of

filings submitted by the parties and orders issued by the court. The orders dated
April 5 and May 23, 2001, identify the material that is properly included in the
record. The May 23 order, however, includes an error. It suggests. that sections
TI(B)(1), IV(G)(1) and IV(G)(2) of exhibit O are part of the record, based on the
plaintiff's request and the agreement of the defendant. Exhibit O is the ordinance
controlling proceedings before the Board. In fact, no such sections exist in that
ordinance. Rather, the defendant had agreed that several sections of exhibit J (the
Town's Land Use Ordinance) should be included in the record on this appeal. A
review of those ordinances makes the court's mistake apparent, and no party appears
or claims to have been prejudiced. (Indeed, neither of the parties sought a
issued Dyer certificates of occupancy to allow the residential occupancy of
an apartment located over his garage (R. A) and to allow that residential
area to be used on a year round basis (R. C). Dyer's residence and the
associated garage are located in a subdivision which had been approved
several years prior to the date when Dyer purchased his lot, in 1994. (R.
F(5).) Pursuant to the terms of the Town's approval of the subdivision, the
lots could be used for "single family residences only." (/d.; R. E.*) Dyer
advised the Town's CEO in 1997 that the apartment was to be used by
Dyer's father. (R. F(5).) It was on this basis that the CEO issued the
certificates of occupancy. (Jd.) In late 1998, the CEO learned that Dyer's
father had vacated the apartment and that it was now rented to a "young
couple." (/d.) Because of this development, the CEO concluded that Dyer's
use of the apartment violated the Town's ordinances because, first, the lot

was not limited to a single family residency, and, second, because the de

correction or clarification of the May 23 order.) Also, as the defendant's April 25,
2001, submission states, the sections that should be included by agreement are
VI(G)(1) and VI(G)(2) (rather than IV). Thus, those three sections of exhibit J are
included in the record.

2Exhibit E of the record consists of handwritten minutes from the Board's

meeting when it considered Dyer's application. Those minutes are difficult to read
and, in fact, indecipherable in some parts. Additionally, some of the photocopied
pages are clearly cut off at the bottom, thus eliminating some of the text. Even
beyond these problems, it is noteworthy that at the testimonial hearing associated
with Dyer's Freedom of Access Act claim, the Board's chair testified that the meeting
ran in excess of two and a half hours. The amount of information contained in the
handwritten minutes clearly would not take that long to present.

As the court noted in the April 2 order that addressed the contents of the
record on this appeal, those minutes -- to the extent they are helpful at all -- cannot
be used to determine what evidence was not presented at the hearing: they may have
been incomplete to begin with, and because of difficult handwriting and poor quality
copies, one cannot legitimately conclude that any omissions from the minutes mean
that, in fact, an issue was not raised or evidence not presented. Rather, the legible
portions of the minutes can be used only to provide content regarding matters that
are reflected in that record.
facto creation of a second lot (namely, a portion of the original parcel

associated with the apartment) did not satisfy the minimum lot size

From this finding of a violation, Dyer filed an application with the
Board for a variance that would allow him to continue his use the
apartment as a rental unit for use by occupants other than family
members. (R. K.) He also filed an administrative appeal from the CEO's
decision to issue the violation. (R. L.) The Board held a hearing on these
matters on March 12, 1999. Dyer and his attorney were present and, along
with other participants, were heard by the Board. After the presentations
were completed, the Board went into a brief executive session,
immediately after which the members returned to the open forum and
voted to deny Dyer's application for a variance and his appeal from the
CEO's decision. (R. D, E.)

_On this appeal, Dyer argues that the Board's executive session was
illegal and that the Board erred in denying his variance request and his
appeal.

A. Executive session

Dyer first contends that the Board violated the Freedom of Access
Act (FOAA) because it went into executive session illegally and, during that
executive session, engaged in discussions that exceeded the scope of
matters that can be addressed properly in that context. See 1 M.R.S.A. §§
405(3), (6). As part of the proceeding at bar, a testimonial hearing was
held on this aspect of Dyer's claim. See Baker's Table, Inc. v. City of
Portland, 2000 ME 7, { 11, n.6, 743 A.2d 237, 241; Underwood v. City of
Presque Isle, 1998 ME 166, { 23, 715 A.2d 148, 155. Although, in its
essence, this action is a review of the municipal proceedings, Dyer's FOAA
claim entitles him to a trial de novo on that limited issue. Baker's Table,
-2000 ME 7, § 11, n.6, 743 A.2d at 241. The evidence presented at the
testimonial hearing, however, is supplemented by evidence also apparent
from the record on appeal. See Order dated April 5, 2001.

At the March 1999 administrative hearing, the Board was constituted
of four members. The hearing was of considerable length. The Board had
heard the presentations of Dyer and other interested parties, and the
Board's members had engaged in a public discussion of the issues raised
during the proceedings. After the meeting had gone on for two and a half
hours, the Board's chair called the remaining members into an executive
session. The Board's members did not vote on the request for executive
session. Dyer's attorney objected to the executive session. The Board's
members then retired to a different room in the same building where the
public meeting was being held, and they remained in executive session for
two or three minutes. In that non-public setting, the chair advised the
members that they had the option of casting their votes by hand, by voice
or by written ballot. Because the Board meets infrequently, the chair
wanted to remind the members of the voting procedure. He called the
executive session for this purpose in order not to embarrass the Board: he
evidently felt that if he provided that reminder publicly to the members, it
might appear that the Board did not know how to conduct itself. At the
hearing on this issue, the chair acknowledged that the executive session
probably was not necessary. While in executive session, the members did
not engage in a discussion of the substantive issues relevant to the hearing,

and no one other than the chair made any statements.
The Board members then returned to the room where the public
meeting was held. The chair stated that the Board had gone into executive
session to review the manner in which the members would cast their
votes. The Board then voted to deny Dyer's applications. Within the next
several days, the chair met with another Board member to prepare the
Board's written decision. The second Board member had the decision form
on his home computer, and so this circumstance was one of convenience.
The text of the written decision was based on information developed at the
March 12 meeting and reflected the Board's decision reached and
announced at the public hearing.

Based on these factual findings, the court concludes that the Town,
through its Board, violated the provisions of the FOAA in one way: the
executive session was not preceded by a "recorded vote of 3/5 of the
members. .. ." 1 M.R.S.A. § 405(3). Rather, the session was instigated
unilaterally by the chair. None of the other Board members objected or
resisted, and, as the chair testified, they tacitly agreed to go into executive
session. The statute, however, requires more that tacit agreement.

Dyer's also argues that the executive session was illegal because
during that session, the Board considered matters falling outside of the
parameters established in section 405(6). Section 405(6) permits a board
to retire to executive session and conduct "deliberations" on matters that
are narrowly defined in that statutory subsection. Dyer's argument calls
for the court to determine whether the Board engaged in “deliberations,” as
that term is used in section 405(6), while in executive session. The Law
Court has established the following principles of statutory construction:

"When construing a statute, 'we look to the plain meaning of the language
to give effect to the legislative intent.’. . . Additionally, we consider the
statutory scheme as a whole in order to reach a harmonious
result. . . .Lastly, ‘[w]le avoid statutory constructions that create absurd,

tH

illogical, or inconsistent results. Fairchild Semiconductor Corp v. State
Tax Assessor, 1999 ME 170, J 7, 740 A.2d 584, 587 (internal citations
omitted).

The Legislature has articulated the objectives of the Freedom of
Access Act as requiring that governmental "actions be taken openly and
that the records of their actions be open to public inspection and their
deliberations be conducted openly." 1 M.R.S.A. § 401. Further, the specific
provisions of the FOAA must be construed liberally to accomplish the
Legislature's objectives. Id.; see also Underwood, 1998 ME 166, { 12, 715
A.2d at 152. More specific insight into the Legislature's concept of
"deliberations" is found in the particular types of issues that may be
addressed in executive session. All of those matters, which are
enumerated in sections 405(6)(A)-(H), are substantive: they include
personnel issues that are sensitive, disciplinary matters involving students,
property issues that would affect transactions of those assets, labor
negotiations and other matters.

Here, the sole issue addressed during the brief closed door session
was the mechanism of the voting process. In a public setting, the Board
had already entertained the presentations of the attendees, and it had
already engaged in a public deliberation of the issues raised during the
hearing. The remaining issue was the manner in which the members
would express their votes. This is a qualitatively different issue than the

categories of issues that the Legislature deems can be the subject of
"deliberations." Therefore, the court concludes that while it was in
executive session, the Board did not engage in "deliberations" within the
meaning of section 405(6). See also 1 M.R.S.A. § 409(1) (providing that the
Superior Court shall vacate an action if the "action was taken illegally in an
executive session;" here, the Board did not take any action in executive
session).

The remaining issue is whether Dyer is entitled to relief based on the
Board's failure to precede the executive session with a recorded vote of at
least three of its members.? In the circumstances of this case, there is no
basis to invalidate the Board's vote based on the executive session that was
called improperly. The issue raised during the executive session was
unrelated to the substantive issues raised at the hearing and had no effect
on the Board's ultimate decision. See 1 M.R.S.A. § 409(2). Therefore, the
Board's violation of section 405(3) did not implicate or compromise any of
the principles underlying the importance of public proceedings and the
Legislative's specific expression in section 401. An agency's decision to
invoke the executive session process in the absence of compliance with the
procedural predicates may create an appearance of secrecy and certainly
invites a challenge of the type made here. However, in this case, the
executive session was very brief, it occurred after the members had
publicly discussed the merits of Dyer's applications, and, in fact, it was not
the forum for any deliberations on those merits. The procedural flaw

committed by the Board, under these circumstances, was not of a type or

3Section 405(3) requires that 3/5 of an agency's members must vote in favor of

executive session. Here, four Board members were present. Therefore, to satisfy the
mathematical requirement of section 405(3), approval by three of those four
members would have been required to approve an executive session by a recorded
vote.
magnitude that would warrant vacating the resulting public vote and

decision.*

B. Denial of application for variance

The applicable municipal ordinance authorized the Board to grant a
variance "only where strict application of this Ordinance, or a provision
thereof, would cause undue hardship to the petitioner and his property."
TOWN OF HUDSON, MAINE LAND USE ORDINANCE § VI(G)(1)(a) (R. J at p. 24); see
also TOWN OF HUDSON, MAINE BOARD OF APPEALS ORDINANCE at p. 3 (R. O).° The
ordinance goes on to define "undue hardship" to mean that the petitioner's
property could not yield a reasonable return in the absence of variance,
that the variance is warranted by a unique circumstance not common to
the neighborhood, that the approval of the variance would not change the
"essential character" of the area and that the hardship was not caused by
the petitioner or a predecessor in interest. Id. at § VI(G)(1)(b) (R. J at p.
25). The Town's ordinance is silent on the issue of whether these four
factors germane to "undue hardship" are in the disjunctive or conjunctive.
However, the enabling statute makes clear that a variance may be granted
only when all four factors have been established. 30-A M.R.S.A. § 4353(4).
See also Pepperman v. Town of Rangeley, 659 A.2d 280, 283 (Me. 1995).

The Town's ordinance charges the Board with acting on an

4In its written argument, the Town properly notes the important role of
volunteer citizens such as the Board's members here. That commendable
participation in public affairs, however, does not relieve board officials of their
obligation to comply with the applicable requirements of law, such as those set out in
the FOAA.

5In the photocopy of the Board of Appeal Ordinance included in the record, a

portion of the page with this section is cut off. The section number therefore is not
apparent.
application for a variance in a de novo capacity, because the Board has

- original jurisdiction within the municipality to consider such an issue.
Town oF Hupson, MAINE LAND USE ORDINANCE § VI(G)(1)(a) (R. J at p. 24).
Here, the Board concluded that Dyer had not established any of the four
factors necessary to support a variance. (R. D.) On this appeal, the Board's
decision not to allow a variance will be affirmed unless Dyer demonstrates
that the evidence presented to the Board “would compel a positive finding

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that the applicant [Dyer] has established undue hardship by all four o
criteria set forth in section 4353(4)(A)-(D)." Pepperman, 659 °A.2d at 283
(citation omitted; emphasis in original).

Here, for two reasons, Dyer has failed to make such a showing. First,
because of its poor quality, the record on appeal cannot be treated as a
comprehensive memorialization of the evidence presented to the Board. In
order to demonstrate that the record evidence compelled the Board to
make particular findings, one needs to know what that evidence was. Such
an understanding cannot be gleaned from this record. Therefore, because
Dyer has not submitted a record that would allow the court to analyze the
entire body of evidence presented to the Board, he necessarily fails on this
issue.

Further, the existing record in fact supports the Board's decision to
deny Dyer's application for a variance. For example, the minutes of the
Board's meeting reflect the concerns of interested persons that if Dyer
were permitted to use the apartment as a rental unit, the character of the
neighborhood would be substantially changed from its single family
residential nature. See also R. F(5). By itself, this evidence precludes Dyer

from establishing on this appeal that the Board was compelled to find that
the variance would “not alter the essential character of the locality." TOWN
oF HuDSON, MAINE LAND USE ORDINANCE § VI(G)(1)(b)(3); 30-A M.R.S.A. §
4353(4)(B).

Therefore, Dyer has not shown that the Board erred in denying his
application for a land use variance.

C. Administrative appeal

In addition to the variance application, Dyer filed an appeal to the
Board from the CEO's decision that he was in violation of the Town's
ordinance when he used the apartment as a rental unit for non-family
members. The Board denied this appeal, and here Dyer asserts that the
Board erred.

The Town's "Board of Appeals" ordinance authorizes the Board to
hear appeals from decisions made by the CEO. See R. O at pp. 3-4. In its
substance, however, such an "appeal" is a de novo factfinding process. See
id. at § IX. Additionally, the Board's decisions must include a statement of
the Board's "findings and conclusions." Jd. at § X(B). The Board is then
authorized to reverse the CEO's decision if the Board concludes that it was
"unsupported by substantial evidence in the record” or if was unlawful
under the provisions of the Town's ordinances. Id. at § X(E).

Title 30-A M.R.S.A. § 2691 establishes the procedure controlling
proceedings before municipal zoning boards of appeal. A board of appeals
is required to conduct a de novo hearing on a matter originating with a
municipality's CEO, “unless the municipal ordinance explicitly directs
otherwise. . . ." Stewart v. Town of Sedgwick, 2000 ME 157, 9 7, 757 A.2d
773, 776. Here, the Town's ordinance does not "explicitly direct[]" that the

Board's role is limited to an appellate review of the CEO's decision.

10
Therefore, because of the holding in Stewart and because, under a
functional analysis, the Board engages in a de novo process, this court
directly reviews the Board's decision that Dyer's apartment was in
violation of the Town's ordinance.

Dyer argues: that the Board's written decision denying his
administrative appeal was insufficient, that the Town is estopped from
finding a violation and that the Board's assertion of a violation is not
supported by the record.

(1) Sufficiency of the Board's written decision

The Board's written decision is entitled, “Notice of Variance Decision."
The text of the decision is geared toward the variance issue. Nonetheless,
in the section of the decision entitled "Decision," the Board reported that it
"has voted to.deny your application for a variance and for an
Administrative appeal.”®

The Town's ordinances and state statute (1 M.R.S.A. § 407) required
the Board to issue a written explanation of its decision and supporting
factual findings. In certain limited circumstances, however, an agency's
failure to issue such a writing does not provide a basis for judicial relief.
When an agency fails to make written findings or conclusions that, on the
face of such a filing, would reveal the basis for the agency's decision, then
court may nonetheless look to the record to identify the subsidiary facts or

the basis for the agency's decision. Christian Fellowship and Renewal

6Eight months later -- while this action was pending--, Dyer's attorney

requested the Board to supplement its written decision and expressly address the
issues relevant to Dyer's appeal from the CEO's decision. (R. I.) However, the Law
Court has made clear that the burden rests on the agency to explain its decision,
rather than on a party to request such findings and conclusions. Christian
Fellowship and Renewal Center v. Town of Limington, 2001 ME 16, { 17, 769 A.2d 834,
840.

11
Center v. Town of Limington, 2001 ME 16, 7 19, 769 A.2d 834, 840;
Pearson , 590 A.2d at 537 n.1; Driscoll v. Gheewalla, 441 A.2d 1023, 1027
(Me. 1982). Here, because the plaintiff has failed to present a record on
this appeal that would permit the court to meaningfully review the
presentations at the hearing and the nature of the Board members’
consideration of those presentations, the court cannot say here that’ the
Board's failure to set out its findings and conclusions on the administrative
appeal in writing requires that the case be remanded. See Christian
Fellowship and Renewal. Center, 2001 ME 16, { 19, 769 A.2d at 840 ("It is
not our intention to declare a hard and fast rule that whenever agencies
fail to articulate factual findings on contested issues of fact, a reviewing
court should remand the matter to the agency.").

(2) Equitable estoppel

In Dyer's appeal from the CEO's decision finding that he was in
violation of the ordinance, he alleged that the Town was estopped from
finding such a violation, because in 1997 the Town issued him a certificate
of occupancy for the apartment. (R. K.) Dyer argues that the Town is now
estopped from basing a violation on the use of that apartment that it had
previously allowed.

The Board received evidence that Dyer's property may be used for
"single family residences only." (R. F(5).) This restriction is contained in the
subdivision plan that the Town approved prior to Dyer's acquisition of. his
property. (/d.) Although the certificate of occupancy issued in 1997 does
not, on its face, include any conditions or limitations regarding the
occupants of the apartment, the Board received evidence that the 1997

permit was issued because Dyer's father intended to live there. (R. F(5).)

12
An abutter advised the Board that he considered this arrangement to fall
within the single family requirement. (R. E.) The CEO concluded that Dyer
was in violation of the restriction only after he (the CEO) learned that
Dyer's father had vacated the apartment and that a "young couple"
(presumably unrelated to Dyer) now occupied the premises. (R. F(5).)

The Town argues that Dyer is not permitted to invoke the notion of
equitable estoppel because, it contends, he is invoking the doctrine
offensively rather than defensively. In Buker v. Town of Sweden, 644
A.2d 1042, 1044 (Me. 1994), the Law Court held that a property owner
could not use equitable estoppel as the basis for an affirmative claim for
relief. Rather, the doctrine was available only as a defense. Here, that is
the application invoked by Dyer. The Town has found Dyer to be in
violation of its land use ordinance, and, as a defense to that decision, Dyer
claims that the Town is equitably estopped from making such a finding.
Thus, unlike the claim in Buker where the property owner's permit

application was grounded on an argument of equitable estoppel, Dyer
relies on this legal principle from a defensive posture.

The question of whether a governmental agency may be estopped is
one of law for the court. Town of Union v. Strong, 681 A.2d 14, 19 (Me.
1996). The Law Court has further ruled:

In assessing a claim of equitable estoppel against a governmental
entity we consider the totality of the circumstances, including the
nature of the particular governmental agency, the particular
governmental function being discharged, and any considerations of
public policy arising from the application of estoppel to the
governmental function. . . .Furthermore, we have cautioned that the
doctrine of equitable estoppel should be ‘carefully and sparingly
applied,. . .and that a party seeking to estop the enforcement of a
zoning ordinance bears a greater burden of proof because of the

13
"forceful public reasons that militate against restricting the
enforcement of municipal zoning ordinances."

Id. (citations omitted).

Here, irrespective of whether the CEO properly issued the 1997
certificate of occupancy, the Town is not estopped from finding that Dyer is
in violation of its ordinance by renting the apartment to third parties. Tn
1997, based on the CEO's conversations with Dyer, the CEO issued a
certificate of occupancy with the expectation -- based on information that
Dyer himself provided to the CEO -- that Dyer's father would live in the
apartment. In December 1998, the CEO learned (from a source not
identified in the record) that the apartment was then being leased to other
people. Thus, Dyer himself created a change in circumstances that took the
activity authorized by the CEO outside of its anticipated parameters. The
apartment was no longer occupied by a family member, which meant that
the property was not longer used as a single family residence. This
represents a substantial deviation from the situation that the Town
allowed in 1997 because it changed the character of the apartment to a
commercial application. In Turbat Creek Preservation, LLC v. Town of
Kennebunkport, 2000 109, J 17, 753 A.2d 489, 493, the Law Court held
that a town is not equitably estopped from finding a land use violation if
the property owner misled the town regarding the nature of his conduct
and the intended use of the property. Here, Dyer materially changed the
use of the apartment, and the Town therefore is not estopped from
asserting a violation on the basis of change.

Further, if the Town were estopped from finding Dyer in violation,

then the result would be a non-conforming use of the property. Non-

14
conforming uses are disfavored. Oliver v. City of Rockland, 1998 ME 88, ]
9, 710 A.2d 905, 908. Therefore, particularly when one considers the
change in Dyer's use of the apartment after the Town issued its 1997
certificate of occupancy, important policy considerations fatally weaken
Dyer's estoppel argument.

(3) Sufficiency of the evidence

Finally, Dyer argues more generally that the Board erred when it
found that his use of the apartment violated the Town's ordinance. A
board's decision is reviewed for an abuse of discretion, errors of law or
findings not supported by substantial evidence in the record. Chapel Road
Associates, L.L.C. v. Town of Wells, 2001 ME 178,99, A.2d _, __
"Substantial evidence means such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion." Veilleux v. City of
Augusta, 684 A.2d 413, 415 (Me. 1996) (citation and internal punctuation
omitted).

As with Dyer's challenge to the factual basis for the Board's denial of
his variance application, the inadequacies of the record on this appeal
preclude any finding that the Board was compelled to find him free of any
violations. Further, evidence presented to the Board, to the extent that
such evidence is revealed by this record, provides an affirmative basis for
the Board's finding that the rental apartment violated the Town's .

ordinances. See e.g., R. F(5).

The entry shall be:

For the foregoing reasons, the decision of the Town's Zoning Board of

15
Appeals is affirmed.

1

Dated: January 11, 2002 OH | WO

Justice, Maine Superior Court
Jeffrey L. Hje

16
Date Filed 4/14/99 PENOBSCOT Docket No. AP-99-17

County

Action CIVIL - 80B APPEAL 11/13/00 - COUNT 4 DISMISSED
Assigned to Justice Jeffrey L. Hjelm

EARL F. DYER, JR. INHABITANTS OF THE TOWN OF HUDSON
VS.
Plaintiff’s Attorney Defendant’s Attorney
Peter M. Beckerman, Esq.
ROBERT E. MILLER, ESQ. 105 Farm Brook road
P O BOX 414 - 17 N. MAIN STREET Sidney, Maine 04330

OLD TOWN, ME 04468

Date of
Entry

4/14/99 Complaint filed - Exhibits A, B, C & D not included.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10807606. Public record. Not legal advice.