The opinion
STATE OF MAINE SUPERIOR COURT
CIVIL ACTION
SAGADAHOG , ss. DOCKET NO. AP- 04- 005
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NORRIS FAMILY ASSOCIATES,
LLC., et al.,
Plaintiffs
Vv. DECISION AND ORDER
THE TOWN OF PHIPPSBURG
and NANCY STIMSON CHESTER,
Defendants
Pending before the court are three motions: plaintiff's motion to determine
record on appeal, defendant Stimson Chester’s (“Stimson”) motion to dismiss, and the’
plaintiffs’ motion for leave to amend complaint. Because Stimson’s motion is
dispositive of the case, it will be addressed here first.
In her motion to dismiss, defendant Stimson offers two bases on which she
claims that this Rule 80B action ought to be dismissed. The first of these is that
plaintiffs Norris Family Associates, LLC (“NFA”) and Philip Jermain (“Jermain”) never
appealed the issuance of her building permit to the Phippsburg Board of Appeals
(“BOA” or “board”) so have no legal basis to appeal its decision to this court. While the
plaintiffs do not quarrel with the assertion that they did not appeal the code
enforcement officer’s (“CEO”) issuance of this permit to the board, they argue that they
were not required to do so because they participated at the hearing as abutters and
showed particularized injury as a result of the CEO’s action.
Stimson’s second argument is that the plaintiffs did not establish standing before
the BOA as they have contended and therefore cannot appeal its adverse decision here.
Because the court finds that Stimson’s first argument is meritorious, it will focus
its attention on this claim, although her second assertion will also be addressed briefly
here.
In order to determine the proper role of a board of appeals and the parties who
may there appear, it is necessary to look at the statute which authorizes a municipality
to establish a board as well as the town’s own ordinances. Stewart v. Town of Sedgwick,
2000 ME 157, { 6, 757 A.2d 773, 775.
A municipality is empowered to establish a board of appeals by specific
legislative authorization. 30-A M.RS.A. § 2691(1). The jurisdictional authority
conferred by the legislature on such a board is described in this way:
4. Jurisdiction. Any municipality establishing a board of appeals may
give the board the power to hear any appeal by any person, affected
directly or indirectly, from any decision, order, regulation or failure to act
of any officer, board, agency or other body when an appeal is necessary,
proper or required. No board may assert jurisdiction over any matter
unless the municipality has by charter or ordinance specified the precise
subject matter that may be appealed to the board and the official or
officials whose action or nonaction may be appealed to the board... .
30-A M.R.S.A. § 2691(4).
Consistent with this statute Phippsburg has established a board of appeals.
Phippsburg Shoreland Zoning Ordinance (SZO) sec. 16(A)(2), and has empowered it to
hear and decide appeals where it is alleged that there is an error in any order, decision
or determination made by the CEO. Id. sec. 16 (G)(1)(A). The town has also prescribed
the procedure to be followed in prosecuting an appeal. It reads in pertinent part as
follows:
3. Appeal Procedure.
a. Making an Appeal.
(i) An administrative or variance appeal may be taken to
the Board of Appeals by an aggrieved party from any
decision of the Code Enforcement Officer or the Plannin
Board. Such appeal shall be taken within thirty (30) days
of the date of the decision appealed from, and not other-
wise, except that the Board, upon a showing of good cause,
may waive the thirty (30) day requirement.
(ii) | Such appeal shall be made by filing with the Board of
Appeals a written notice of appeal which includes:
(1) A concise written statement indicating what
relief is requested and why it should be granted ...
(4) The Board of Appeals shall hold a public
hearing on the appeal within thirty-five (35) days
of its receipt of an appeal request.
SZO, sec. 16(G)(3)(a)(@i), (i)(1), (4).
At any hearing before the BOA the person filing the appeal shall also have the
burden of proof. Id. sec. 16(G)(3)(b)(3). Finally, the ordinance provides that:
4, Appeal to Superior Court
Any aggrieved party who participated as a party during the proceedings
before the Board of Appeals may take an appeal to Superior Court in
accordance with State laws within forty-five (45) days from the date of any
decision of the Board of Appeals.
SZO, sec. 16(G)(A4).
Precedent teaches that the power of a local body such as a board of appeals is
delimited by the authority given it by the legislative body, in this case, the town
meeting. Stucki v. Plavin, 291 A.2d 508, 510 (Me. 1972); 30-A M.RS.A. § 2691(4). Thus,
in order for the BOA in Phippsburg to act on an appeal, it and any aggrieved party
must follow its ordinance.
In the court’s view, plaintiffs NFA and Jermain did not follow any of the appeal
procedures in Phippsburg so that its board would have the authority to consider their
grievances. They never appealed the CEO’s decision to issue a permit to Stimson to the
BOA. SZO, sec. 16(G)(3)(a)(i). They filed no notice of appeal indicating what relief
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would be requested. Id. sec. 16(G)(3)(a)(i)(1).. The BOA never had before them, nor did
they consider or hold a public hearing on, any appeal filed by the plaintiffs, id. sec.
16(G)(3)(4), and the latter were never called upon or endeavored to establish via its
burden of proof that the CEO’s decision was in error. Indeed, the plaintiffs’ only
compliance with Phippsburg’s SZO appeal process is that they filed their appeal here
within the time limit specified by its ordinance, even though they did not present
themselves as “an aggrieved party” before the BOA. Id. secs. 16(G)(4); 16(G)(3)(a)(i).
In contrast, former plaintiff Suzanne Nusbaum (“Nusbaum”) adhered to each
step of Phippsburg’s SZO appellate process and it was her, and not the plaintiffs’
grievances, which the board addressed at the hearing and in its final decision. See R.,
tab 1; tab 45, pp. 1-3; tab 48.
While there is little Maine law on point, it is nevertheless clear that our law
requires that a party who wishes to invoke action by a local BOA must adhere to the
local appellate procedures, including time limits, in order to do so. Wright v. Town of
Kennebunkport, 1998 ME 184, {{ 4-6; 715 A.2d 162, 164-65. Thus in Wright, the Law
Court reversed this court’s judgment affirming the decision of Kennebunkport’s BOA
which had considered an aggrieved party’s appeal even though she had failed to file
her appeal within the 30 days prescribed by that town’s land use ordinance. From this,
one learns that not only must one adhere to local procedures in order to prosecute an
appeal there, the failure to do so will not permit that appeal to be entertained here or in
the Law Court.
The Wright decision is not only binding on this court, it is consistent with earlier
precedent to the effect that a party aggrieved by the issuance of a building permit must
' Although Nusbaum timely appealed the BOA’s decision to this court, she withdrew that appeal and her
claims here were dismissed on July 21, 2004.
appeal to the local zoning board first before turning to this court. Gagne v. Lewiston
Crushed Stone Co., Inc., 367 A.2d 613, 618-19 (Me. 1976). See also Brackett v. Town of
Rangeley, 2003 ME 109, {{ 21-24, 831 A.2d 422, 428-429.
The plaintiffs offer several arguments why their failure to appeal to the BOA
should not disqualify their appeal to this court. The first of these is that because the
BOA was required to conduct a de novo hearing on Nusbaum’s appeal, it was not a
purely appellate matter and it could consider new material at its hearing including,
presumably, claims by new parties, all of which can be considered by this court on
appeal.
While it is true that the Phippsburg board conducted a de novo review of the
merits of the propriety of the Stimson permit, it did so only in the manner authorized,
namely an appeal from CEO action by “an aggrieved party” consistent with the
procedures required by its ordinance. As noted, infra, this had to have been, and was,
generated by the filing of a written notice of appeal, a hearing on its merits, and a
decision addressed to the aggrieved party and her claims. Because the plaintiffs
invoked none of these procedures, neither the board nor the permittee was aware of, or
could have responded to, the plaintiffs’ grievances which may have been unique to
them or the location of their property. So, if the plaintiffs were now to be recognized as
“aggrieved parties,” SZO, secs. 16(G)(4), 16(G)(3)(a)(i), the court would, in essence, be
considering the merits of an appeal which was never addressed by the BOA or
contested by Stimson. Such would be contrary to an important principle of
administrative appeal practice where the record and issues are developed locally but
reviewed here via M.R. Civ. P. 80B and 30-A M.RS.A. § 2691(3)(G). Thus, even though
the case of Stimson’s permit was reviewed ona de novo basis by the Phippsburg BOA,
it did so based on the case presented to it, namely Nusbaum’s properly assembled claim
that the CEO erred in issuing this permit. The plaintiffs, however, as noted infra, never
told the BOA that they were aggrieved parties by filing the necessary notice of appeal or
presenting themselves as such at the hearing. Accordingly, de novo matter or not, the
plaintiffs never followed the procedural steps at the local level to appeal the issuance of
Stimson’s permit and cannot do so here. Wright v. Town of Kennebunkport, id.
The second argument advanced by the plaintiffs to save their appeal is that the
defendant has waived any objection to their appeal by failing to object to their
participation at the hearing before the BOA. However, as here observed, neither the
BOA nor the Stimsons would have reason to know that the plaintiffs were parties before
the BOA because they never filed an appeal there and never identified themselves as
grievants before the board. Instead, a fair reading of the record would show that not
only did Jermain have no role at the hearing, Steve Norris (“Norris”), apparently a
partner in NFA, identified himself at the hearing as an abutter called as a witness by
Nusbaum to support her appeal. R., tab 45, pp. 2, 15. In the latter capacity, he was
examined by Nusbaum, and cross-examined by Stimson’s attorney and board members.
Id. pp. 15-17, 24, 29-31. While it is obvious that during these proceedings Norris was
sympathetic to and supportive of Nusbaum’s cause, this circumstance and the presence
of his attorney would not, in the court’s view, have alerted Stimson or the board that
NFA, Norris’ partnership, or Norris, was an aggrieved party who wished the board to
address his complaint with the issuance of the permit.” That being so, it would be
unjust to now find that Stimson waived any objection to Norris’ role as a party at the
board level when there was good reason to believe he did not then have that status.
* Another attorney representing a neighbor was at the hearing as were other owners of lots in the vicinity
of the lot where Stimson wishes to build. See, e.g., R., tab 45, pp. 23, 40, 48-49.
From all this, then, the court concludes that the case must be dismissed because
the plaintiffs never appealed the issuance of the building permit to defendant Nancy
Stimson Chester to Phippsburg’s BOA and that “their” sole role before that board was
as a witness. Accordingly, the court must find that it lacks subject matter jurisdiction
and therefore may not consider this Rule 80B appeal. Singal v. City of Bangor, 440 A.2d
1048, 1050 (Me. 1982). Finally, the court concludes that the defendant has not waived
any objection to the plaintiffs’ participation in this appeal because they did not do so at
the board hearing.
Because the case is to be dismissed on this basis, the other reason for favorable
action cited in the motion to dismiss and the other two motions need not be addressed.
Nevertheless, the court believes it would be prudent to briefly address the merits of
these other claims in order to accommodate the parties’ potential desire for appellate
review. That is, if the plaintiffs appeal and are successful in overturning this court’s
decision as it relates to the dismissal of the complaint because they did not appeal
Stimson’s building permit’s issuance to the BOA, it would be more efficient to have the
Law Court review the remaining issues on their merits rather than postpone this
endeavor via a remand. Thus, if the court has here erred, and NFA and Jermain could
legally appeal the BOA decision affirming the issuance of the Stimson permit to this
court, even though they had no appeal before that board, is their case nevertheless
subject to dismissal, as the defendant claims, because these plaintiffs lacked standing
before the board?
A well-founded principle in Maine law is that in order to appeal the decision of a
board of appeals to this court, a party must have standing. Sproul v. Town of Boothbay
Harbor, 2000 ME 30, { 6, 746 A.2d 368, 371. To establish standing, the party “must (1)
have appeared before the board of appeals; and (2) be able to demonstrate a
- particularized injury as a result of the board’s action.” Id. (quoting Rowe v. City of South
Portland, 1999 ME 81, { 4, 730 A.2d 673, 674-75). “When the party appealing is an
abutter, the party need only allege ‘a potential for particularized injury’ to satisfy the
standing requirement.” Id. (quoting Pearson v. Town of Kennebunk, 590 A.2d 535, 537
(Me. 1991)).
Does the record show that NFA or Philip Jermain meet these tests? The answer
as to Jermain is clear. The court can find no reference in the record to his participation
at the BOA hearing or any information there that he owns property which might be
affected by the Stimson permit? Accordingly, there is no basis on which to find that
Philip Jermain established standing at the BOA hearing so that he may now appeal its
decision. That being so, the motion to dismiss as to this “party” would have to be
granted.
As to NFA’s status in this case, if one were to infer from the record, and without
reference to Stephen Norris’ affidavit, that Stephen Norris is associated with the Norris
Family Association, then standing would be establishedt This is because the Law
Court has permitted an entity to seek review on behalf of one of its members or an
individual plaintiff to satisfy the standing requirement for a partnership. See New
England Herald Development Group. v. Town of Falmouth, 521 A.2d 693, 695-96 (Me. 1987).
So while neither Stephen Norris nor his family’s attorney ever specifically identified
NFA as a grievant, the case cited would permit the court to find that it may proceed
* With their opposition to the motion to dismiss, the plaintiffs filed an affidavit by Stephen Norris which
identifies Philip Jermain as his cousin with whom he has a one-third interest in “other lots abutting the
Stimson property.” Affidavit of Stephen S. Norris, ¢ 4. Obviously, the court cannot consider this
affidavit as a basis to establish Jermain’s standing because standing must be established at the board level
and not here. Sproul v. Town of Boothbay Harbor, id.
* The portions of the record which would lead one to believe that Stephen Norris is associated with the
Norris Family Association are slim but include attorney Ferdinand telling the board he was there
representing the Norris’ (sic), evidently a family, R. Tab. 45, p- 2; and the representation by Nusbaum that
Steve Norris’ family owns lot 68 which abuts the Stimson land, id, p. 15.
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here as a plaintiff because it appears from the record that Stephen Norris may be a part
of that family association.
With that assumption, it appears that NFA, through Stephen Norris, “appeared”
before the BOA: As has been outlined in the plaintiffs’ memorandum, Norris offered
testimony at the BOA hearing supportive of Nusbaum’s appeal and, it may be inferred,
in opposition to the Stimson building permit.> As such, the court concludes that Norris
did “participate” at the Phippsburg BOA to offer information concerning the CEO’s
issuance of a building permit to Stimson,
As an abutter to Stimson’s land, all Norris needed to show Was a potential for
particularized injury to his family’s land.® “Because of the abutter’s proximate location,
a minor adverse consequence affecting the party’s Property, pecuniary or personal
rights is all that is required for the abutting landowner to have standing.” Sproul v,
Town of Boothbay Harbor, id. at { 7; 746 A.2d at 371. In the court’s view, the record shows
that Norris met this minimal requirement.
The record shows that Stimson’s Proposed house would be situated 32 feet from
Norris lot 68 and its septic system would be less than 20 feet from its property line. R.,
tab 1. Given that Norris has claimed that situating a house where Stimson proposes is a
wetland that is often flooded, it may be readily understood that an abutting property
owner may be affected by the location of a house at such a site. Thus, if it is true that
the water table at the Stimson property is high and that it experiences periodic flooding,
then the construction of a house there may displace the water and move it elsewhere,
45, pp. 4, 15-17, 20, 30.
§ R., Tab 38, is a site plan which shows two lots labeled “N/F Norris.” One, lot 632, is across a “paper
street” from Stimson’s proposed building lot, the other, lot 68, is bordered on two of its four sides by the
Stimson property. Thus, it appears clear that NFA or Norris is an abutter. See also, R., tab 1, tab. 9.
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such as on to a neighbor’s lot. Similarly, an abutter such as Norris may be concerned
that a septic system on such a lot close to his own may be flooded and cause its contents
to migrate. See R., tab 45, pp. 4, 13, 15-20. This being the circumstances of this case as
they may be gleaned from the record, the court believes that the plaintiffs, as abutters,
have met the low threshold of showing the potential for particularized injury to their
property by the issuance of the building permit to Stimson.
Accordingly, if the court were not dismissing the case on other grounds, it would
dismiss the matter as to Jermain but not as to NFA for the reasons here stated.
The motion to amend must also be denied as moot. However, again, if the court
erred in dismissing this case on jurisdictional grounds, it would deny the motion to
amend in any case because a motion to amend is not favored as a means to join or
substitute parties. Cushing v. Cohen, 420 A.2d 919, 927, n.7. Instead, MLR. Civ. P. 21 is
preferred as the means to add or substitute a party; Rules 19 and 20 would also be
vehicles which could be used for this purpose. See Field, McKusick & Wroth, Maine
Civil Practice, § 21.2 (24 ed. 1970).
Because Rule 21 allows the addition or removal of parties at any stage of the
proceedings by motion or on the court’s own initiative, it is obviously a remedy which
is to be liberally applied. Accordingly, the court would permit the plaintiffs or the
defendant to add Stephen Norris as an individual co-plaintiff. The holding in the case
of New England Herald Development Group v. Town of Falmouth, id. would be consistent
with this result as it would allow an individual to be substituted for a partnership in a
case such as this or vice versa. It would be unfair to the defendant, however, to permit
the addition of other plaintiffs such as Jermain. This is because other individuals such
as Jermain had their opportunity to establish standing at the board hearing but failed to
do so. Were they permitted to join this action now, the defendant would be called upon
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to file new motions to dismiss to challenge their standing. With Norris himself or NFA,
that standing has been established and the addition or substitution of one party for the
other would not prejudice the defendant. Thus, as noted if it be error to dismiss this
case, the court would permit the plaintiffs to add or substitute Stephen Norris as a party
via M.R. Civ. P. 21, but would deny the motion to amend as the vehicle to accomplish
this.
With respect to the motion to determine record on appeal,’ this motion, too, must
be denied as moot as the complaint will be dismissed. However, if this were not the
result, the court would grant this motion.
The plaintiffs’ request by this motion is to add to the record various submissions
sent to the board after it sustained the CEO’s issuance of the building permit. These
submissions were apparently forwarded to the board in an effort by the plaintiffs to
have it reconsider its action. The board never responded to the plaintiffs’ request for
reconsideration but the court understands that the submissions in question were
received by the town.
Among the plaintiffs’ grievances expressed in their complaint is the claim that
the BOA “failed to take action on the request for reconsideration.” Complaint, p. 3, Le.
Arguably, one manner of demonstrating that it was an abuse of discretion to refuse to
act on the request for reconsideration is to show what evidence there was to support the
request. Because this “evidence” is not in the record and its propriety for review is in
dispute, MLR. Civ. P. 80B(e) may be relied upon to ask the court for an expansion of the
record. Thus, contrary to the town’s position in this debate, a request for trial of the
facts was not necessary, and the plaintiffs’ motion can serve as an appropriate vehicle to
add to the record in order to support the claim that the BOA abused its discretion by
” This is the only motion which the defendant town actively opposed.
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declining to respond to a request for reconsideration. Accordingly, the court would
have granted this motion and the material referenced in the motion would have been
added to the record.
For the reasons cited herein, the clerk is DIRECTED to make the following
entries:
The Motion to Dismiss is GRANTED on the grounds that the court
lacks subject matter jurisdiction. The Motion to Dismiss is GRANTED as
to Plaintiff Philip Jermain. The Motion to Amend is DENIED as moot.
The Motion to Determine Record on Appeal is DENIED as moot.
So ordered.
Dated: December 3 2004 ips ko JLFc1e ee
g
John R. Atwood
Justice, Superior Court