The opinion
STATE OF MAINE SUPERIOR COURT
CIVIL ACTION
KNOx, ss. DOCKET NO. AP-02-004
' a mn g Tey MEN J RA “ KNO- Q|1a/209 S
DWIGHT L. OVERLOCK*
d/b/a OVERLOCK DONALD L. GARBRECHT
EXCAVATION and _ LAW LIBRARY
SHERYL QVERLOCK,
Plaintiffs FEB 14 2005
Vv. DECISION AND ORDER
INHABITANTS OF THE
TOWN OF THOMASTON,
Defendant
This matter is before the court on the defendant’s motion to dismiss the
plaintiffs’ M.R. Civ. P. 80B complaint. The defendant, Town of Thomaston (“town”),
claims in it
and Shery]
Board of 4
consider tk
and is in of
Befa
recite the h
Acc
the town’s
Overlocks
quarry op
allowed in
s motion that the plaintiffs, Dwight L. Overlock, d/b/a Overlock Excavation,
Overlock (Overlocks), failed to file an appeal from a decision of the town’s
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Appeals (“board”) in a timely way so that this court lacks jurisdiction to
1e case. The Overlocks contest the motion; it has been briefed and argued,
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der for disposition.
re addressing the merits of the parties’ arguments, it is first important to
istory of this case which is not in dispute.
ording to the complaint and exhibit A attached to that pleading, Peter Surek,
code enforcement officer (CEO), issued a cease and desist order to the
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op
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era
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the zoning district where the Overlocks’ current gravel pit operation was
October 15, 2001. That order directed the Overlocks to stop any further
tions because they constituted a change of use which would not be
located. ;
appealed t
On
According
legal coun
were pres¢
board, and
decision ar
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various f
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the Maine
defendant’
2001, the a
According to the complaint, { 18, and the Answer, { 21, the Overlocks
his cease and desist order to the board on November 27, 2001.
December 11, 2001, the board convened to consider the Overlocks’ appeal.
to the transcript of that proceeding, the Overlocks’ attorneys, the board’s
sel, the intervenor’s counsel, the CEO, and all five members of the board
nt at this event. At its conclusion, upon the motion of one member of the
i the second of another, the board unanimously voted to uphold the CEO’s
id deny the Overlocks’ appeal.
December 20, 2001, the members of the board signed an order which made
sctual and legal conclusions concerning the Overlocks’ appeal and
ced their previous vote which had denied the appeal.’
January 31, 2002, the Overlocks filed their complaint with this court, asking
review of the board’s action.
By its motion, the town claims that the complaint was filed too late. In support
ament, it cites the court to the provisions of 30-A M.R.S.A. § 2691(3)(G) which
rt “Any party may take an appeal, within 45 days of the date of the vote on the
ision, to Superior Court from any order, relief or denial in accordance with
Rules of Civil Procedure, Rule 80B ... .” (emphasis supplied). Thus, in the
s view, because “the vote on the original decision” occurred on December 11,
ppeal from that event had to have been filed 45 days later, ie., on or before
' The text of
day appeal p
and Develop
appeal to the
* The plainti
21 which was
F Surek’s notice advises the Overlocks that the town’s land use ordinance provides for a 30-
eriod. This representation is confirmed by the record. See R-10, Ch. 7 Thomaston Land Use
ment Ordinance (amend. 6/19/01), p. 29, § 705.3.1. It therefore appears that the Overlocks’
board was late. Neither party addresses this apparent misstep in the appellate process.
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ffs in their memorandum advise that the board mailed its December 20 order on December
then received by the plaintiffs’ counsel on December 26, 2001.
t
2
January 25, 2002. Because, the defendant says, the appeal was filed on January 31, 2002,
it is six days late and may not, therefore, be considered by this court.
The plaintiffs argue that this interpretation of 30-A M.R.S.A. § 2691(3)(G) is only
partly correct. They agree that the appeal period is 45 days, but claim that it began to
run on December 20, 2001, rather than on December 11. In support of this argument
they point out that the appeal period is initiated by a decision and that all decisions
“must include 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
presented and the appropriate order, relief or denial of relief.” 30-A M.R.S.A.
§ 2691(3)(E)!
Thus, because “the decision” of December 11, 2001, did not, in the
4
plaintiffs’ view, contain all these elements, it did not qualify as a decision from which
an appeal could be taken. Instead, they say, such a decision was not produced until
December 20 when the board articulated the reasons for its action as section 2691(3)(E)
requires. Accordingly, the appeal period began on that date and the complaint filed
with this rourt on January 31, 2002, would be within the prescribed 45 days and,
therefore, timely.
This exposition of the dispute can be reduced to this question -- when did the
appeal period begin to run in this case - on December 11, 2001 when the the board
voted, or bn December 20, 2001, when they provided a detailed explanation of their
action? In the court’s view, it is the former date.
The nhost compelling argument which favors this result stems from the language
of the statute quoted, infra; that is, that an appeal is to be taken within 45 days “of the
original decision.” 30-A M.R.S.A. § 2691(3)(G). This can only mean the vote
vote on the
taken on ]
important]
December 11 because that is the only date a vote was taken, but, more
y, that was the date the decision denying the Overlocks’ appeal was
3
“originally
that day 1
WEBSTER’S
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its decisio
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“original d
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| made. In contrast, no vote was taken on December 20, and the decision
was not “original,” i.e., “preceding all others in time.” See “Original,”
I NEW RIVERSIDE UNIVERSITY DICTIONARY, 829 (1984). Instead, the December
the board was supplemental in nature in that it provided the confirmation of
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of December 11. This is corroborated by the “Agenda” for December 20
ises that the action that night was to “Review and approve the Findings of
garding the Administrative Appeal of the Code Enforcement Officers order
per 11, 2001.” R. 7.
conclusion reached here is similar to the decision of the Law Court in Vachon
Kennebunk, 499 A.2d 140, 141-42 (Me. 1985), a case which bears considerable
bg to this matter. As to that case, the statute then in effect, 30 M.R.S.A.
), provided that an appeal was to be taken within 30 days after a board
as “rendered.” In the view of the Law Court, this meant the date the board
ast its vote rather than the date on which the appellant had received the
ter notifying him of its decision. According to Vachon, if the Legislature had
o identify a different event to mark the time at which the appeal period
in to run, it could have done so just as it had, for example, when it set the
od after a decision of a state agency.
So, t00, here, the Legislature has selected a specific, identifiable event, namely the
original decision, as the occasion on which the appeal period begins. Had it
select a different event, such as the date a board supplements or confirms its
ith further findings prescribed by subparagraph E of section 2691(3), it could
50,
eover, just as in Vachon, the public hearing on an appeal at which the
ecision is made” is an event at which all parties are present, and “that time is
4
easily dete
ordinarily
Nothing in
December
a public v
appeal wh
2691(3)(G)
Nex
court to di
subparagri
via P.L. 19
so and the
Murphy v.
purpose cc
“original”
running of
municipal
therefore r
event whic
defined as
to section 2
Mok
reconsider
occur with
MRSA. §
rmined and precisely fixed and ... all parties to the public proceeding will
know of the Board’s public vote at the time it is taken.” Id. 499 A.2d at 142.
1 the record suggests that the same would be true as to the board meeting of
20, 2001. Thus, the action on December 11, which all would understand to be
ote on the merits of the Overlocks’ appeal, represented a decision on that
ich could then be appealed by “any party” to this court. 30-A M.R.S.A. §
t, to accept the plaintiffs’ interpretation of these provisions would require the
scount the importance of the word “original” which modifies “decision” in
aph G of subsection 3. That word was added to its text by legislative action
91, ch. 234, It must be assumed that the Legislature had a purpose in doing
added word “must be given [its] plain, common and ordinary meaning.”
Board of Environmental Protection, 615 A.2d 255, 258 (Me. 1992). Such a
nuld only have been to clarify and better define the word “decision,” which
modifies, so that it would be understood what board action would trigger the
the appeal period. In the context of the statutorily prescribed procedures for
boards of appeal and the facts of this case, the word “original” must
nean, as noted infra, the decision in the case which preceded all others, an
h may be easily determined by a party who wishes to appeal. This is further
the occasion on which the vote was taken by virtue of the same amendment
691 which added the word “original.” See P.L. 1991, ch. 234.
lebver, the applicable statute allows such an original decision to be
od, and therefore modified, enlarged, or changed, but that such action must
in 30 days of the seminal event of “the vote on the original decision.” 30-A
2691(3)(F). Thus, even if the “original decision” is changed or modified 30
5
days after
vote was t.
extra two ¥
Southwest §
This
plaintiffs <
decision be
the reasons
law or dis
M.R.S.A. §
demonstra
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why each |
conducted
relevant to
entered an
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appeal cot
(board’s d
record). T
order on [
itis made, the appeal period begins to run on the same occasion — when the
aken on the “original,” i.e., first, decision. This allows an aggrieved party an
veeks to file his appeal after the original decision was made. Forbes v. Town of
arbor, 2001 ME 9, ¥ 12, 763 A.2d 1183, 1187.
; construct of the relevant provisions of the statute notwithstanding, the
assert that the “original decision” of December 11 does not qualify as a
-cause it does not include “a statement of findings and conclusions, as well as
: or basis for the findings and conclusions upon all the material issues of fact,
bretion presented and the appropriate order, relief or denial of relief.” 30-A
5 2691(3)(E). The record of the proceedings of December 11, however,
tes that the board did adhere to these requirements. R. 4, pp. 84-92. Each
ther expressed how the Overlocks’ operation violated the town ordinance, or
pelieved it was a quarry, or why each found that the activities the Overlocks
amounted to a change of use. Having made these findings on the topics
their consideration, and interpreted their ordinance in this regard, the board
appropriate order which denied the plaintiffs any relief. In the court’s view
ns satisfy the prescription for the content of “a decision” from which an
id be taken.’ Laverty v. Town of Brunswick, 595 A.2d 444, 446 (Me. 1991)
iscussion on permittee’s exceeding time limit for construction a sufficient
he fact that the board later memorialized their findings in a more expansive
December 20 does not affect the necessity of calculating the running of the
° If a petitio
satisfy the ele
3(F). That a
event of the v
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ner before a board believed that the original decision was incomplete because it did not
ements of subsection 3(E), the remedy would be a request for reconsideration via subsection
ction, however, as discussed, infra, would nevertheless not change the significance of the
ote on the original decision which begins the time limits in section 2691.
6
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appeal pe biod from “the date of the vote on the original decision.” 30-A M.R.S.A.
§ 2691(3)(G),
Further, even if the order of December 20 is to be considered a decision for
purposes ¢
Instead, it
calculation
of the requirements of this law, it is not, of course, the “original decision.”
is| akin to a reconsidered decision, the issuance of which does not change the
| of the appeal period. 30-A M.R.S.A. § 2691(3). Indeed, just as in Vachon, “a
decision” i
officials. I
they could
other indi
board dec
legislative
A M.RS.A
the provis
subsection
vote which
In re
may end |
jurisdictior
1981). Int
read with
“original”
occurred o
not perfect
Town of Ket
sued via subsection (3)(E) is sent only to the petitioner and certain municipal
d., 499 A.2d at 142. Thus, only they would have notice of this event so that
appeal from it. This, of course, would effectively negate the opportunity of
Liduals, such as abutters or other interested parties, from acting to appeal a
ision. Such an application of subsection (3)(E) contradicts the obvious
intent that “[a]ny party may take an appeal . . . on the original decision.” 30-
§ 2691(3)(G). From this, the court concludes that the only way to reconcile .
ions in potential conflict here is to apply the unmistakable meaning of
(3)(6) and hold that it is the date of the decision first expressed by a board's
begins the period within which an appeal may be taken.
caching this conclusion, the court is mindful that the appeal of the plaintiffs
rere. However, “[alll statutory requirements for perfecting an appeal are
nal and require strict compliance.” Rice v. Amerling, 433 A.2d 388, 391 (Me.
he court’s view the plain meaning of 30-A M.R.S.A. § 2691(3)(G), even when
subsection (3)(E), requires the filing of an appeal 45 days from the first, ie.,
vote of a board on the merits of a local zoning contest. In this case that
n December 11, 2001, so that the appeal filed here on January 31, 2002, was
ed in a timely fashion, and the appeal must therefore be dismissed. Vachon v.
mebunk, id., 499 A.2d at 143.
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Based on the foregoing, the clerk is to make the following entry:
' Motion to Dismiss by defendant, Town of Thomaston, is
GRANTED. Case is DISMISSED.
Kite
So ordered.
Dated: February tt, 2003
ohn R. Atwood
Justice, Superior Court