Violette v. Town of Winslow

STATE OF MAINE SUPERIOR COURT

CIVIL ACTION

KENNEBEC, ss. DOCKET NO. AP-03- 63

DEM = KEN bff 204

TODD VIOLETTE,

Plaintiff

y. DECISION AND ORDER |

TOWN OF WINSLOW, a

LEN POULIN, INC. and COMALT Loco: ees

LEONARD D. POULIN, JR., bei ere

Defendants JUN1°7 2004

This matter is before the court on defendant Town of Winslow’s motion to

dismiss plaintiff’s 80B petition and the merits of plaintiff's 80B petition.

This case concerns the proper uses of an old chicken hatchery pursuant to the

Town of Winslow zoning ordinance (‘the ordinance”) and the jurisdiction of the

Winslow zoning board of appeals (“ZBA”).

Plaintiff, Todd Violette, lives on land in Winslow that is in the Medium Density

Residential District. Property abutting his land, owned by Leonard D. Poulin, has an

old chicken hatchery that Mr. Poulin uses to store trucks, equipment and supplies for

his excavation contracting business. Mr. Poulin’s land is in Winslow’s Rural District.

See, Winslow, Me. Zoning Ordinance § 12-48 (March 8, 1999). On March 3, 2003,

plaintiff complained to Winslow’s code enforcement officer (“CEO”), Frank Stakovitz,

about Mr. Poulin’s storage of equipment and materials for his business inside and

outside the old hatchery building. Plaintiff asserted to the CEO that Mr. Poulin’s use

the property violated the ordinance’s permitted uses in the Rural District.

Plaintiff reports that the CEO told him that he informed Mr. Poulin that he

would need approval from the Winslow planning board to continue to operate his

business in and around the former chicken hatchery. After consulting with the

Attorney for the Town of Winslow, the CEO was informed that in the Town attorney's

opinion low intensity light manufacturing or warehousing was permitted in the Rural

District.

On April 7, 2003, the CEO sent Mr. Poulin a letter retracting his opinion that

conditional use approval from the planning board was needed for continuation of his

use of his property for storage, repair, etc. related to his excavation business. On May 7,

2003, plaintiff filed an appeal of the CEO’s April 7, 2003, letter with the Winslow ZBA.

On September 16, 2003, the ZBA held a hearing, including consideration of evidence,

and concluded that plaintiff's complaint was “not open to appeal of the permit process”

because the CEO’s action or inaction was a discretionary act of enforcement. The ZBA

also held that even if the CEO’s decision not to require Mr. Poulin to seek a conditional

use permit from the planning board was appealable, it was correct. Further, the ZBA

held that Mr. Poulin was not running a truck and heavy equipment repair, sales and

service establishment or an automobile service or repair business as defined in the

ordinance. Winslow, Me. Zoning Ordinance § 12-68 (March 8, 1999).

On October 30, 2003, plaintiff filed an 80B complaint with this court seeking

review and reversal of the ZBA’s September 16, 2003 decision. Plaintiff further seeks

remand of this matter to the CEO with an order that he issue a Notice of Violation

ordering defendant Poulin to “cease repair and storage of commercial trucks and

construction equipment at this location.”

Winslow filed a_ motion to dismiss. pursuant to M_R. Civ. P. 12(b)(1) and (6) on

March 9, 2004."

"No opposition to this motion has been filed.

A motion to dismiss for failure to state a claim tests the legal sufficiency of the

complaint. Plimpton v. Gerrard, 668 A.2d 882, 885 (Me. 1995). When reviewing a motion

to dismiss, the material allegations of the complaint are accepted as true. Id. In ruling

on a motion to dismiss, the court should “consider the material allegations of the |

complaint as admitted and review the complaint in the light most favorable to the

plaintiffs to determine whether it sets forth elements of a cause of action or alleges facts .

that would entitle the plaintiffs to relief pursuant to some legal theory.” Bussell v. City

of Portland, 1999 ME 103, 7 1, 731 A.2d 862.

Dismissal for failure to state a claim is appropriate only where it appears beyond

doubt that the plaintiff is entitled to no relief under any set of facts which he might

prove in support of his claim. Dutil v. Burns, 674 A.2d 910, 911 (Me. 1996). The legal

sufficiency of a complaint is a question of law. Sargent v. Buckley, 1997 ME 159, { 10, 697

A.2d 1272, 1275.

On appeal, this court independently examines the record and reviews the

decision of the municipality for “error of law, abuse of discretion, or findings not

supported by substantial evidence in the record.” Yates v. Town of Southwest Harbor,

2001 ME 2, 410, 763 A.2d 1168, 1171 (citing Sproul v. Town of Boothbay Harbor, 2000 ME

30,8, 746 A.2d 368, 372. The substantial evidence standard requires the court to examine

the entire record “to determine whether on the basis of all the testimony and exhibits

before the [board] it could fairly and reasonably find the facts as it did.” Ryan v. Town of

Camden, 582 A.2d 973, 975 (Me. 1990) (quoting Seven Islands Land Co. v. Maine Land Use

Regulation Comm., 450 A.2d 475, 479 (Me. 1982)). _

The court is not permitted to “make findings independent of those explicitly or

implicitly found by the board or [to] substitute its judgment for that of the board.”

Perrin v. Town of Kittery, 591 A.2d 861, 863 (Me. 1991). “The board’s decision is not

wrong because the record is inconsistent or a different conclusion could be drawn from

it.” Twigg v. Town of Kennebunk, 662 A.2d 914, 916 (Me. 1995). To prevail, the plaintiff

must show “not only that the board’s findings are unsupported by record evidence, but

also that the record compels contrary findings.” Total Quality v. Town of Scarborough,

588 A.2d 283, 284 (Me. 1991).

The court considers four issues raised by plaintiff by argument in his 80B brief:

1 The ZBA had jurisdiction in this matter as it was not within the

prosecutorial discretion of the CEO.

2. The ZBA erred in concluding that defendant Poulin’s use of his property

is a permitted “re-use of agricultural structures” per the ordinance.

3. The ZBA erred in concluding that defendant Poulin’s use of his property

is not “truck and heavy equipment repair, sales and service.”

4, The ZBA erred in concluding that the uses that defendant Poulin is

making of this property that do not qualify as “re-use of agricultural structures” are

permitted as “accessory uses and structures for principal uses.”

Leaving aside the jurisdictional issue, plaintiff basically argues that defendant

Town of Winslow is misinterpreting and misapplying its ordinance. Plaintiff asserts

that defendant Poulin’s use of the old chicken hatchery was not a “re-use of agricultural

structures” as per § 12-48 of the ordinance. Plaintiff cites language from the ordinance

that describes the purpose of the Rural District as “to preserve and encourage existing

open space ... while at the same time allowing very low density residential and some

limited commercial development.” Winslow, Me. Zoning Ordinance § 12-48(a) (March

8, 1999). Plaintiff then points to a list of principal uses allowed in the Rural District, id.

at 12-48(c), and notes that none of these uses include concentrations of heavy

machinery.

Plaintiff notes that the ordinance defines “re-use of agricultural structures” as

“Itlhe use of existing agricultural structures such as barns, dairy barns, chicken barns

and other similar structures for low intensity light manufacturing or warehousing.”

Winslow, Me. Zoning Ordinance § 12-48(a) (March 8, 1999). Plaintiff further notes that

under the heading “General Performance Standards” the ordinance expressly prohibits

“the permanent outside storage of goods, equipment, and materials.” Id. at 12-67(c).

Arguing that according to a 2002 Law Court ruling, “the Court must construe an

ordinance in accordance with its objective,” plaintiff's brief at page 9; citing, Griffin v.

‘Town of Dedham, 2002 ME, { 10, 799 A.2d 1239, 1243, plaintiff asserts that this court is

“left with no discretion by the plain wording of the Ordinance” that the outside storage

of goods, etc. is prohibited.

Before recounting defendant’s counterarguments, the court notes that the actual

quote from Griffin is “the ordinance must be construed with regard to its objectives.” Id.

Construing “with regard to an objective” is quite different than “construing in

accordance” with an objective. The former suggests following guidelines mindful of the

general goals outlined. The later suggests following orders. Defendant Poulin avers

that ZBA’s decision to uphold the CEO’s determination that Poulin’s use of the old

chicken hatchery is a proper reuse of an agricultural structure under the ordinance is

supported by the record. The ZBA, defendant notes, found that Mr. Poulin’s activities

inside the old hatchery were “warehousing” and the storage of equipment and

materials outside the building was not “permanent.” While the ordinance does not

... define “permanent” it does define “warehouse” to mean “’ [t]he storage, deposit or

stocking of goods and materials, but excluding retail or wholesale sales on the

premises.” Id. at § 12-68.

Defendant Poulin notes that the ZBA record showed Mr. Poulin’s business

involves working off site digging etc. (“The nature of my business is to go elsewhere to

work, to do site work.”). The fact that equipment and materials are moved regularly or

even occasionally to job sites makes their tenure at the old chicken hatchery less than

“permanent.”

While plaintiffs arguments construing the ordinance as forbidding Mr. Poulin’s

activities are not without merit, they do not compel a contrary result and this court

must uphold the ZBA and construe the Winslow ordinance “with regard to its

objectives” by finding the ZBA decision supported by substantial evidence in the

record. The same support by substantial evidence in the record can be found for the

ZBA finding that “Lenny Poulin is not in any way running a ‘Truck and Heavy

Equipment Repair, Sales and Service’ establishment, nor an ‘Automobile Service and

Repair’ business.” There is extensive support in the record for the proposition that Mr.

Poulin is using this building and its surroundings as a place to store his trucks,

machinery and supplies between offsite jobs and at night. No evidence of commercial

repairs or any repairs other than repairs to his own equipment is contained in the

record.

Where plaintiff asserts that the plain meaning of the ordinance leaves no room

for interpretation by the ZBA or this court, both the court and the ZBA are specifically

charged with construing the terms of the ordinance “with regard to its objectives.”

Griffin v. Town of Dedham, 2002 ME, { 10, 799 A.2d 1239, 1243. Upholding the decision

of the Winslow ZBA, based upon findings supported by substantial evidence in the

record, will do just that.

In 1979 our Law Court stated, in a case not cited by either party, "[j]urisdiction is

the essential basis upon which all court powers rest, and even willing submission by the

parties of their dispute cannot confer it." Fletcher v. Feeney, 400 A.2d 1084, 1089 (Me.

1979). Both defendants assert that the ZBA lacked jurisdiction to hear plaintiff's appeal

of the CEO’s decision not to require defendant Poulin to either cease operations or

obtain a conditional use permit. Defendant Town of Winslow further asserts that this

court lacks jurisdiction to review what is essentially prosecutorial discretion.

Defendant Poulin cites statutory authority for the proposition that a board’s

jurisdiction is limited to matters specified in the ordinance. “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...” 30 M.R.S.A.

§ 2691(4).

Plaintiff points to language in the ordinance that states “[alnyone with standing,

not satisfied that the Code Enforcement Officer has made a proper decision in regard to

permits may bring an appeal...” Winslow, Me. Zoning Ordinance § 12-15(a) (March 8,

1999). Plaintiff asserts that the decision of CEO that was appealed was the CEO’s letter

of April 7, 2003. Plaintiff asserts that this letter when taken in conjunction with

Winslow’s town attorney’s letter of April 7, 2003, is clearly “in regard to permits.”

Defendant Poulin points to language in the ordinance stating that the ZBA shall

“hear and decide appeals concerning alleged errors in any final decision made my the

code enforcement officer or planning board for conditional uses.” Winslow, Me. Zoning

Ordinance-§ 12-20(a) (March 8, 1999). Defendant argues that nowhere in the ardinance

does it state or suggest that the ZBA has jurisdiction to hear appeals of decisions of the

CEO related to enforcement.

The ZBA stated in its September 16, 2003 decision: “the Appellant here is seeking

an administrative appeal of the [CEO’s] exclusive prosecutorial discretion to interpret

and enforce building and zoning violations.” Defendant Town of Winslow argues that

plaintiff is attempting an “end run” around the holding in Paterson v. Town of St. Albans,

552 A.2d 549 (Me. 1989) (complaints regarding enforcement issues that develop after the

issuance of a permit “are properly subject to the enforcement sections of the zoning

ordinance and not open to attack through appeal of the permit issuance.” Id.).

In sum, both defendants assert that the ZBA decision of September 16, 2003, was

advisory only. Defendant Town of Winslow cites a 1995 Law Court ruling for the

proposition that enforcement provisions of an ordinance do not provide for an

administrative appeal of a CEO’s violation determination. Pepperman v. Town of

Rangeley, 659 A.2d 280, 282 (Me. 1995).

Defendant Town of Winslow also argues that Mr. Violette’s appeal is barred by

the workings of res judicata (actually “collateral estoppel” claim preclusion in this

instance). Defendant points to the 1995 decision by the ZBA in an appeal by plaintiff of

a decision by the Winslow planning Board to grant a conditional use permit to Mr.

Poulin’s predecessor in ownership to conduct “light manufacturing and warehousing”

at the former chicken hatchery.

While the previous owner did obtain a permit based on the conclusion that his

activities would constitute “light manufacturing” and “warehousing,” this defendant

(Mr. Poulin) presents a very different set of uses. Also, defendant Town of Winslow has

not offered support for the proposition that the Johnson decision contained the

“essential elements of adjudication.” See, Town of Ogunquit v. Cliff House & Motels, Inc.,

2000 ME 169, ¥ 11, 759 A.2d 731, 735.

The argument that the decision of the ZBA was advisory only is supported both

by citation to the ordinance and by Law Court rulings affirmatively stating that ZBA’s

lack jurisdiction to hear appeals of enforcement decisions. See, e.g., Herrle v. Town of

Waterboro, 2001 ME 1, {J 6-9, 763 A.2d 1159, 116-61; Pepperman, 659 A.2d at 282.

As of April 14, 2004 this motion has not been opposed by plaintiff. For the

reasons discussed above, the entry will be:

Defendant’s motion to dismiss plaintiff's 80B petition is

GRANTED; the decision of the Town of Winslow Zoning Board of

Appeals is AFFIRMED.

Dated: June__¢ _, 2004 pple

Donald H. Marden

Justice, Superior Court

Date Filed _ 10/ 30/03

Kennebec Docket No. APQ3--63

County

Action Rule 80C

+ MARDEN

Todd Violette Vs. Town of Winslow, Len Poulin, Ine

Plaintiff’s Attorney

Clifford H. Goodall, Esq.

61 Winthrop Street

Augusta, Maine 04330

Date of

Entry

Defendant’s Attorney

105 Farm Brook Road

Sidney, Maine 04330-2503

P.O. Box 9729

Portland, Maine 04104

10/31/03

10/31/03

11/13/03

11/17/03

11/20/03

12/10/03

12/23/03

1/16/04

2/13/04

2/17/04

2/18/04

2/19/04

3/9/04

3/10/04

Rule 80B Complaint, filed. s/Goodall, Esq.

(filed on 10/30/03)

Notice of briefing schedule mailed to atty.

Entry of Appearance on behalf of Defendants Len Poulin, Inc

- and

Leonard Poulin, Jr., filed. s/G. Cunningham, Esq.

Letter entering appearance, filed. s/Beckerman, Esq.

Acceptance of Service, filed. s/Beckerman, Esq.

Acceptance of Service, filed. s/Cunningham, Esq.

Motion to Amend Briefing Schedule, filed. s/Goodall, Esq.

Proposed Amending Briefing Schedule, filed.

AMENDING BRIEFING SCHEDULE, Marden, J.

The plaintiff's brief is due 70 days. after October 30, 2003.

Copies mailed to attys of record.

Administrative Record, filed. s/Goodall, Esq.

Plaintiff's Brief, filed. s/Goodall, Esq.

Town of Winslow Motion for Continuance, filed. s/Beckerman, Esq.

Defendants Leonard D. Poulin and Len Poulin,

of Time, filed. s/Cunningham, Esq.

TOWN OF WINSLOW MOTION FOR CONTINUANCE, Marden, J. -

Motion granted. (time extended to 2/17/04)

Copies mailed to attys of record.

MOTION FOR EXTENSION OF TIME, Marden, J.

Responsive brief to be filed no later than March 9, 2004.

Copies mailed to attys of record.

Brief of Defendants Len Poulin, Inc and Leonard Poulin, Jr., filed.

s/G. Cunningham, Esq.

Town of Winslow's Responsive Brief and Motion to Dismiss Under Rules 12(b

(1) and (6) and Incorporated Memorandum, filed. s/Beckerman, Esq.

Request for Hearing, filed. s/Beckerman, Esq.

Prannead ONrdar

D. Poulin, Jr.

- Peter M. Bickerman, Esq. (Winslow)

- Gregory M. Cunningham, Esq. (Poulins)

Inc.'s Motion for Extension