LaRose v. City of Biddeford

OTrmon

STATE OF MAINE SUPERIOR COURT

YORK, ss. Civil Action

Docket No. AP-02-053

SIMONE LAROSE, )

)

Plaintiff )

Tort tae “yo > -~=-BECISIGON AND ORDER

v. )

)

THE CITY OF BIDDEFORD, and )

PETER E. PETIT and KIMN. PETIT, ) |

) SEF 5 As

Defendants )

This matter came before the Court for hearing on February 14, 2003. At that

time, the Court requested that the parties meet to attempt to reach a mutually satisfactory

resolution to some or all of the issues raised in this case. Counsel have reported to the

Court that Plaintiff and Defendant Peter Petit have met but have been unable to agree

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upon a resolution. Becaus:

have requested that the Court continue its review of this matter.

Defendants Peter E Petit and Kim N. Petit are the owners of property located at 20

Forest Street in Biddeford, Maine. This property is located in the R-1-A zoning district.

On April 8, 2002, the City’s Code Enforcement Officer sent a Notice of Violation to

Defendant Peter Petit. This Notice of Violation instructed Defendant Peter Petit to store

all business related equipment, “including but not limited to tools, vehicles and trailers, in

an approved enclosed storage area. Defendant Petit appealed the Notice of Violation to

the Zoning Board of Appeals. At the same time, Rhonda and Steven Hebert, who were

then owners of property abutting the Petit property, appealed the decision, arguing that

the commercial use of the property was not permitted.

The Zoning Board of Appeals heid separate hearings on the two appeals. At the

conclusion of the hearing on the Heberts’ appeal, the Board voted to deny the appeal.

That decision was not appealed. At the same time, the Board continued the hearing on

Defendant Petit’s ‘S appeal. The Board conducted a 2 public hearing on Defendant Petit’s

appeal o on July 10, 2002. At that time, the Board, 4, following its standard practice, did not

allow Plaintiff or any other members of the e public to participate in the hearing.

According to a letter from Defendant E Petit’s counsel to the Board, the Board only heard

testimony from the appealing party. However, if that person was someone other than the

property owner, then the property owner would be allowed to present testimony. No one

else, including abutting property owners, could speak at the public hearing.

At the conclusion of the hearing, the Board voted to grant Defendant Petit’s

appeal. The Board’s findings of fact set forth the owner and location of the iot and what

ppeal. The findings did not discuss the decision of the

Code Enforcement Officer or any of the information submitted to the Board conceming

the historical use of the lot. It also did not address the Zoning Ordinance’s provisions

governing nonconforming uses. The Board’s decision stated that Defendant Petit could

continue the commercial storage of outside equipment, provided that he place screening

along the southwesterly property line. Plaintiff filed this appeal.

Both in her Brief and at oral argument, Plaintiff has challenged the decision of the

Board as well as the procedures utilized at the Board’s hearing on Defendant Petit’s

administrative appeal. Some of these challenges involve the legal interpretation of the

City’s applicable Zoning Ordinance and the application of that Ordinance to the facts in

this case. However, I cannot reach those arguments at this time due to the failure of the

o enter sufScient Gndince af fact andr nly af lew ta annarnice the On our at nf

iG enter Suiicient imdings of fact and conclusions of law to apprise tne Court of

the basis of its decision. At issue in this case was the Code Enforcement Officer’s order

to cease outside storage on the property. The Board’s decision does not address whether

such outside storage was lawfully created or any other relevant considerations. It simply

allows the use to continue if screening is 1S added t to the property, This does not answer the

fundamental issue in this case. If the outside storage was not lawfully created through

some method reco enized in the Zoning Ordinance, it may not continue under the

provisions of that Ordinance. The Board’s decision does not address this issue.

The findings and conclusions do not meet the requirements of 30-A M.R.S.A.

§ 2691(3)(E), which requires a “statement of findings and conclusions, as well as the

reasons or basis for the findings and conclusions, upon all the material issues of fact, law

or discretion and the appropriate order, relief or denial of relief. The written findings of

_ record of every conditional approval or denial of an application, “sufficient to appraise

the applicant and any interested member of the public of the basis for the decision.”

Because the Board’s findings and conclusion fail to meet these standards, this matter

must be remanded to the Board. See Chapel Road Associates, L.L.C. v. Town of Wells,

2001 ME 178, { 12, 787 A.2d 137, 140-141 (remedy for an agency's failure to make

sufficient and clear findings of fact is a remand to the agency for findings that

permit meaningful judicial review).

Furthermore, I find that the Board’s decision to exclude the testimony of anyone

other than Defendant Petit was an error of law that requires a new hearing by the Board.

Section 2 of the Zoning Ordinance defines Plaintiff as an abutter to the Petit property.

that her property interests are impacted by the use of the Petit property. Because of this,

she was entitled to participate as a party in the hearing. See Fitanides v. City of Saco,

684 A.2d, 421, 423 fn. 1 (Me. 1996) (abutting property owners entitled to procedural due

process rights).

Plaintiff has indicated that she does not want the Court to remand this matter. She

- has stated a concer that the Board of Appeals has already made its decision in this case

and will not be willing to listen to her testimony or consider the evidence that she has

already attempted to present, both on her own and through her son. These concems are

addressed by the requirement of this Order that the Board conduct a new hearing and

allow full participation of neighboring property owners and their attorneys or other

representatives.

For the reasons stated, the decision of the Board of Appeals is vacated and

remanded to the Board for a new hearing on Defendant Petit’s appeal. The Board shall

allow neighboring property owners to participate in the hearing, through both oral

testimony and submission of evidenc e.

This Court shall retain jurisdiction over this matter pending the action of the

(Ch fa

J ystice, Superior Court

Board of Appeals.

Dated: s/, 29-22

PLAINTIFF: co”

Natalie Burns, Esq.

JENSEN BAIRD GARDNER AND HENRY

PO Box 4510

Portland Me 04112

DEFENDANTS PETITS

John Turcotte, Esq.

LEVIS & HULL

409 Alfred St

Biddeford Me 04005

ALL DEFENDANTS

Harry Center, Esq.

SMITH ELLIOTT SMITH AND GARMEY

PO Box 1179

Saco Me 04072