The opinion
SUPERIOR COURT
STATE OF MAINE
CIVIL ACTION
YORK, ss. DOCKET NO. AP-02-012
Cappo p= Ve Lee
THOMAS LEAKE, JONEL THAMES LEAKE,
EDWIN LEAKE, MARGERY LEAKE, DONALD L. GARBRECHT
JOHN RUMMLER, GEORGE SIMMONS, LAW UBRARY
LYNN SEWARD & AARON HENDERSON,
JAN 9 203
Plaintiffs
ORDER
TOWN OF KITTERY, RONALD SPINNEY,
& JEAN SPINNEY
Defendants
Thomas Leake, Jonel Thames Leake, Edwin Leake, John Rummler, George
Simmons, Lynn Seward and Aaron Henderson (collectively, the Plaintiffs) have brought
this M.R.Civ.P. 80B appeal.
FACTS
The present case came about because the Plaintiffs believe that at some point
between 1977 and September 21, 1984, Ronald and Jean Spitiney, defendants in this
action, or others, unlawfully expanded their “grand-fathered” non-conforming use by
adding picnic tables at their restaurant located on the Chauncey Creek Road in Kittery
Point, Maine, known as the Chauncey Creek Lobster Pier. The Plaintiffs alleged that the
restaurant's additional seating capacity generated a higher volume of traffic in their
neighborhood, which in turn caused congestion and parking problems.
In 1977 the Town of Kittery adopted a Land Use and Development Code Zoning
Ordinance (Ordinance), which included a non-conforming use provision. Under the
Ordinance, the Spinney’s restaurant was classified as a non-conforming use.
Essentially, the Plaintiffs claim that the Spinneys’ seating capacity should be limited to
what it was in 1977. The following series of events occurred leading up to the Plaintiffs’
appeal to this court:
1)
2)
3)
4)
5)
In September of 1984, the Spinneys went to the Town of Kittery’s Zoning
Board of Appeals (ZBA) to request a variance to expand the restaurant’s
parking lot onto a neighboring lot. The ZBA met and unanimously approved
the variance with the condition that the present facilities not be expanded.
This decision was never appealed.
Jonel Thames Leake filed a written complaint dated June 13, 2001, with the
Town of Kittery’s Code Enforcement Officer (CEO), requesting an
investigation to determine whether the Spinneys’ restaurant, which had its
seating expanded after 1977, violated the zoning laws. Ms. Leake noted that
the earlier ZBA approval of the Spinney’s variance request stated that the
restaurant facility would not be expanded.
In a letter dated July 5, 2001, the CEO replied that the Spinneys were in
compliance with zoning laws and decisions of the ZBA, but that he might re-
assess his findings if additional, credible information came to light.
Nevertheless, the CEO investigated whether the Spinneys had unlawfully
expanded the Restaurant’s seating capacity after 1984. The CEO concluded
that the seating had been expanded and therefore he issued the Spinneys a
written Notice of Violation on July 27,2001.
The Spinneys appealed the Notice of Violation to the ZBA, which held a
hearing on September 11, 2001. In a unanimous vote, the ZBA concluded that
the seating at the Spinney’s restaurant had not increased after 1984,
overturning the CEO’s Notice of Violation.
6) The following day, Ms. Leake faxed the CEO a new request to issue the
Spinneys a Notice of Violation based on evidence presented at the September
11 hearing in which Ronald Spinney and others admitted adding picnic tables
to the restaurant between 1977 and 1984.
7) On September 13, 2001, the CEO wrote back to Ms. Leake, informing her that
Spinneys were not in violation of the Ordinance. In particular, the CEO
stated that the Spinneys had not violated a section of the Ordinance, made
effective February 14, 1985, that prohibited the expansion of a non-
conforming use.
8) On October 11, 2001, Ms. Leake appealed the CEO's refusal to take action
against the Spinneys. Asa result, the ZBA met on November 13, 2001 to hear
testimony regarding the Plaintiff's appeal, continuing the matter to December
11, 2001. On the latter date the ZBA unanimously voted to dismiss Ms.
Leake’s appeal because there was a lack of jurisdiction based on Ms. Leake’s
failure to appeal the 1984 ZBA decision.
9) On January 25, 2002, pursuant to M.R.Civ.P. 80B, thé Plaintiffs filed the
present appeal from the ZBA decision on December 11, 2001. On March 6,
2002, this court granted the Plaintiff’s motion to join as Defendants, Ronald
Spinney and Jean Spinney.
DISCUSSION a
When acting in an intermediate appellate capacity, this court will review the
decision of the ZBA to determine whether it had abused its discretion, erroneously
interpreted the law, or made findings that were unsupported by substantial evidence in
we
the record. See Rockland Plaza Realty Corp. v. City of Rockland, 2001 ME 81, {7, 772
A.2d 256, 259. This court will affirm the ZBA’s decision unless it was “unlawful,
arbitrary, capricious, or unreasonable.” Senders v. Town of Columbia Falls, 647 A.2d
93, 94, (Me. 1994).
The facts developed in the record show that the September, 1984 ZBA decision
dealt with a variance for additional parking and did not directly address the issue of
whether the seating capacity had been increased since 1977. It explicitly stated that the
“present business facilities will not be expanded”, but there is no clear finding that they
had been expanded since 1977. Hence, for present purposes, the lack of an appeal from
the 1984 ZBA decision is not a bar to a claim that the non-conforming use has been
expanded without proper authority sometime between 1977 and 1984.
Nonetheless, I must determine whether the Plaintiffs’ failure to appeal the ZBA
decision of September 11, 2001 had a res judicata effect.
At the September meeting, the Plaintiffs were represented by an attorney who
spoke out on the issue of whether the Spinneys were in violation of the Ordinance prior
to 1984, as opposed to post 1984. In addition, some of the Plaintiffs were able to present
their views to the ZBA at the meeting. Throughout the proceedings on September 11,
2001, however, the Chairman made it clear that the only issue the ZBA would decide
was whether the Spinneys were in violation of a variance issued on September 21, 1984.
The Chairman also stated that the Spinneys’ expansion since 1977 could be dealt with in
a separate proceeding. The ZBA’s conclusions did not address the expansion of the
__restaurant’s seating prior to September 1984. Most importantly, the subject matter of
the September 11, ZBA hearing was the Spinneys’ appeal of the CEO’s July 27
determination that they had expanded the business beyond that authorized by the 1984
decision. The CEO’s decision did not address pre-1984 expansion. Thus, the ZBA chair
was legally correct when he opined at the September 11 hearing that the ZBA’s
jurisdiction relating to pre-1984 expansion had not been invoked in the appeal then
under consideration before the ZBA. The Plaintiffs, by trying to raise the pre-1984
expansion issue at the September 11 ZBA hearing, contributed to this confusion.
However, in the final analysis, if the ZBA did not have subject matter jurisdiction of the
pre-1984 expansion at its September 11 hearing, then the failure to appeal that ZBA
decision cannot be a bar to this appeal.
Finally I must also determine whether the Plaintiffs failed to timely appeal the
CEO’s decision embodied in his letter to Ms. Leake on July 5, 2001. The issue is whether
the CEO’s letter was a final decision. Although the CEO states that he deemed the
Spinneys to be in compliance with the Ordinance, he left open the possibility that
additional, credible information might cause him to re-assess his findings. This letter
was one of a series of communications between Plaintiffs and the CEO; was not
captioned as an “order” or “decision”; was equivocal in nature and did not provide
notice of appeal rights. Therefore, the CEO did not render a final decision which,
because it was not appealed, bars this claim. See Town of Freeport v. Greenlaw, 602
A.2d 1156, 1159-60 (Me. 1992).
WHEREFORE, this court shall GRANT the Plaintiffs’ 80B appeal insofar as it
vacates the December 11, 2001 decision of the ZBA, remanding the matter back to the
ZBA for a further evidentiary hearing pertaining to the issue of the expanded seating
capacity at the Spinney’s restaurant between 1977 and September 1984.
Dated: January L , 2002 /) }
LAINTIFFS: Karyn Forbes, Esq. Uf
SHAHEEN & GORDON / G. Arthur Brennan
PO BOX 977 . :
DOVER NH 03821-0977 _ Justice, Superior Court
DEFENDANTS: Ronald & Jean Spinney
JEFENDANT: KITTERY: Duncan McEachern, Esq. Sanford Roberts, Esq.
MCEACHERN & THORNHILL 5 PO Box 4608
PO Box 360 Portsmouth NH 03802-4608
Kitterv Me 03904-0360