Thompson v. Town of Casco

SUPERIOR COURT

CIVIL ACTION \

9

STATE OF MAINE

CUMBERLAND, ss.

DOCKET NO. AP-02-0

Teh ~CUM~ afi. Janoz,

MARK THOMPSON and

JILL THOMPSON-STETZ

Plaintiff,

Vv. DECISION AND ORDER

TOWN OF CASCO,

Defendant. DONALD L. GARR PECHT

and LAW Ley bps

BILLEO, INC.,

APR g 2ut.

Intervenor.

This matter is before the court on appeal of the plaintiffs from the

decision of the Town of Casco’s Planning Board ("Board") and Zoning Board of

Appeals ("ZBA") approving the subdivision plan of the intervenor Billeo, Inc.

("Billeo").! M.R. Civ. P. 80B.

BACKGROUND

In June 2001, Billeo submitted an application to the Board for a seven

lot major subdivision in Casco, Maine known as Kettle Cove Estates

Subdivision, together with a 200’ dock facility in Kettle Cove on Sebago Lake.

The proposed subdivision is located in a Residential and Resource Protection

Zone within the Shoreland District of Sebago Lake. The plaintiffs own land

abutting Billeo's property.

l1Leo Menard was the original intervenor in this action, but was properly

replaced by Billeo after Bileo acquired all of Menard's rights and interests in the

subdivision at issue. Billeo adopted the arguments made by Mr. Menard, as did the

Town of Casco.

On December 12, 2001, the Board approved Billeo's subdivision plan and

dock facility. The Board's decision was the culmination of an extensive review

spanning several meetings at which opinions were solicited, concerns were

expressed, and professional and expert findings were received and weighed.

On the advice of the Town’s Code Enforcement Officer, the plaintiffs

appealed the Board’s subdivision and dock decisions to the ZBA. On January

28, 2002, the ZBA voted to deny the appeal. On February 27, 2002, the

plaintiffs appealed the ZBA's denial to this court.

On appeal, the plaintiffs argue that the Board failed to make factual

findings sufficient to satisfy the statutory requirements for subdivision

approval, and failed to address the environmental impact of the dock and the

resulting boat traffic. They seek a remand, a stay of any development, costs,

and an evidentiary hearing.

DISCUSSION

A. Subdivision Approval

The Town of Casco's Subdivision Ordinance ("Subdiv. Ord.") governs the

subdivision application and approval process. SeeR. at 428-502. It is separate

and distinct from the Town's Zoning Ordinance ("Zon. Ord."). See R. at 503-

680; see also Levesque v. Inhabitants of Town of Eliot, 448 A.2d 876, 877 (Me.

1982) (“subdivision ordinances are not zoning ordinances”). Applications for

subdivision approval are made to the Board. Because the Subdivision

Ordinance does not set forth a procedure for appeal from decisions by the

Board, anyone aggrieved by its subdivision decisions must appeal directly to

the Superior Court. See M.R. Civ. P. 80B.

The Board’s decision to approve the Billeo subdivision was made on

December 10, 2001. The plaintiffs had thirty days in which to file an appeal

with the court. M.R. Civ. P. 80B. Their appeal was filed on February 27, 2002,

and, therefore, was not timely.

B. Approval of Shoreland Permit for Dock Facility

Applications for a shoreland permit for a dock facility are also made to

the Board but are governed by the Zoning Ordinance. Zon. Ord., R. at 621.

Although Billeo sought to erect the dock facility in conjunction with its

subdivision application, the dock presented the Board with discrete issues that

it had to consider under the Zoning Ordinance, which also provided that an

appeal of the Board's decision had to be taken to the ZBA, and from there to

the Superior Court. Id. The ZBA's decision regarding the dock facility was

made on January 28, 2002, and the plaintiffs appeal of that decision to this

court was timely.

In this case, the ZBA served as an appellate administrative tribunal

deciding whether “there is error” in the decision being appealed. Zon. Ord., R.

at 623. When the ZBA serves in an appellate capacity the Superior Court

reviews the decision of the Board and not that of the ZBA. Sproul v. Town of

Boothbay Harbor, 2000 ME 30, 1 8, 746 A.2d 368 (quoting Veilleux v. City of

Augusta, 684 A.2d 413, 415 (Me.1996)). The court reviews the Board’s decision

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, I 10, 763 A.2d 266. The court must 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, I. 11, 760 A.2d 266. This Court may not

substitute its judgment for that of the Board. Id.

Remand is only appropriate if the Board’s findings of fact are

insufficient. Christian Fellowship and Renewal Ctr. v. Town of Limington, 2001

ME 16, I 14-19, 769 A.2d 834 (holding insufficient findings regarding

organization’s charitable status made judicial review inappropriate and

possibly detrimental to legal determinations). “In some cases, however, ‘the

subsidiary facts may be obvious or easily inferred from the record and the

general factual findings, and a remand would be unnecessary.” Wells v.

Portland Yacht Club, 2001 ME 20, 1 10, 771 A.2d 371 (finding adequate support

for the factual findings in the communications among the Board, the

Defendant, and the Plaintiffs) (quoting Christian Fellowship and Renewal Ctr. v.

Town of Limington, 2001 ME 16, II 14-19, 769 A.2d 834).

Although the Board's written findings are sparse, it is clear from the

record that the Board considered substantial evidence concerning

environmental impacts (including conformance with the Shoreland Zoning

Statute), and the impact of the dock and attendant boat traffic on water

quality. The record of the Board's five meetings on Billeo's application

demonstrate a substantial effort to address all issues presented by the

plaintiffs, other individuals, and organizations. The Board generated more

than 400 pages of minutes, plans, correspondence, deliberations, compromises,

findings and conclusions. Wells v. Portland Yacht Club, 2001 ME 20, I 10, 771

A.2d 371 (finding that some facts may be inferred from the record and the

general factual findings). In this overall context, the court cannot conclude

4

that the Board's determinations and decision were not not supported by

substantial evidence in the record, or were not consistent with the applicable

ordinances and goals of the Town of Casco.

The court also concludes that the Board and the ZBA did not abuse their

discretion or commit any errors of law. Rockland Plaza Realty Corp. v. City of

Rockland, 2001 ME 81, I. 7, 772 A.2d 256, 259.

2. Equitable Estoppel

Finally, the court does not agree with the plaintiffs argument that they

reasonably relied on the Code Enforcement Officer’s advice to appeal the

Board’s subdivision decision to the ZBA, and that the Town is equitably

estopped from arguing that the appeal was inappropriate. “Proper application

of equitable estoppel rests on a factual determination that the declaration 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.” F.S. Plummer Co. Inc. v. Town of Cape Elizabeth, 612 A.2d 856, 860 (Me.

1992) (quoting Shackford & Gooch, Inc. v. Town of Kennebunk, 486 A.2d 102,

103-104 (Me.1984). However, “[t]he facts must also show that the reliance was

reasonable.” Id. (emphasis added).

Plaintiffs rely on City of Auburn v. Desgrosseilliers, 578 A.2d 712, 714 (Me.

1990), which held that plaintiffs’ reliance on the CEO’s recommendation and

subsequent expenditure of $500,000 was sufficient to equitably estop the

Defendant municipality from enforcing an ordinance against plaintiff.

Desgrosseilliers is distinguishable from the instant case. In Desgrosseilliers the

plaintiff relied on the town official’s advice in seeking a zoning change to allow

property to be used as a nursery/landscaping business. The advice was

specifically related to permitted uses in different zoning districts. In the

present case, the plaintiffs sought legal advice from the town’s CEO. Such

reliance is not reasonable. Shackford & Gooch, Inc. v. Town of Kennebunk, 486

A.2d at 106 (Me. 1984) (holding that the improper verbal representations of the

building inspector did not estop the Zoning Board of Appeals from taking

action against plaintiff); F.S. Plummer Co. Inc. v. Town of Cape Elizabeth, 612

A.2d at 861 (Me. 1992) (holding reliance on “oral unauthorized representations

of a municipal official, where a written building permit is required for a project,

is unreasonable as a matter of law”); Fitzgerald v. City of Bangor, 1999 ME 50,

q 14, 726 A.2d 1253, 1256 (“Equity will not protect a party who has .. . failed

to act with reasonable diligence.”).

DECISION

Based upon the foregoing, and pursuant to MLR. Civ. P. 79(a), the Clerk

is directed to enter this Order on the Civil Docket by a notation incorporating

it by reference and the entry is

The decisions of Town of Casco Planning Board and Zoning Board

of Appeals are AFFIRMED, and the matter is remanded for

proceedings consistent with this Decision and Order.

Dated: February 10, 2003 \ 4 /

Justice, Superior Court

Action

Date Filed _

02-27-02 Cumberland AP-02-09

Docket No.

County

80B Appeal

MARK A. THOMPSON

JILL THOMPSON-STETZ

TOWN OF CASCO

LEO MENARD, JR., Intevenor/Appellee

VS.

Plaintiff’s Attorney

FRANCIS X. QUINN, JR., ESQ.

P.O. Box 418

Portsmouth, NH 03802-0418

(603) 436-4010

Defendant’s Attorney

NATALIE L. BURNS, ESQ. (Town of Casco)

Ten Free Street, P.O. Box 4510

Portland, ME 04112

(207) 775-7271

WILLIAM S. KANY, ESQ.

P.O. BOX 1179 (Leo Menard, Jr.)

SACO, MAINE 04072

Date of

Entry

2002

Feb. 27 Received 02-27-02:

Summary Sheet filed.

" " Plaintiff's Complaint for Administrative Appeal Pursuant to Rule 80B with

Exhibits A-B filed.

Feb. 28 On 2-28-02.

Briefing schedule mailed. Plaintiff's brief and record due by 4-8-02.

Mar. 5 Received 03-05-02:

Leo Menard, Jr.'s Consented to Motion to Intervene (M.R.Civ.P. 24(a)

filed.

" " Proposed Order filed.

Mar.. 5 Received 03-05-02:

Revised Summary Sheet to comply with the new ADR rules filed.

" " Plaintiff's Amended Complaint for Administrative Appeal Pursuant to

Rule 80B filed.

Mar. 7 Received 03-07-02:

Defendant's Answer filed.

Mar. il Received 03-07-02: |

Order filed. (Humphrey, J.).

The Court hereby ORDERS that Leo Menard, Jr. is shall be permitted to

intervene in this matter pursuant to M.R.Civ.P.24(a), Mr. Menard«shall be

entitled to file pleadings and briefs and shall be entitled to receive

servcie of all documents as if an original party to this action.

On 03-11-02 Copies mailed to Natalie L. Burns, Esq. and Francis X. Quinn,

Esq.

3-15-02 copy mailed to: Aaron Burns Esq

March 14 |Received 3-14-02.

Summons with attached Notice and Acknowledgement for Servite by Mail and

Acknowledgment of Receipt of Summons and Complaint filed showing service on

3-5-02 upon Town Clerk (signature illegible)