The opinion
STATE OF MAINE SUPERIOR COURT
CUMBERLAND, ss. CIVIL ACTION
DOCKET NO. A “03-78
2:3 REC Cum 2/8
DAVID RANDALL and
CATHERINE RANDALL,
Petitioners
Vv. ORDER ON 80B REVIEW
THE TOWN OF HARRISON, MAINE, CONALD A.
Respondent La
JUNI? 2004
Petitioner seeks judicial review of the Decision and Order of the Town of
Harrison Board of Appeals’ denial of Petitioner’s variance request.
FACTUAL BACKGROUND
Plaintiffs David and Catherine Randal] purchased a marina on the shore of Long
Lake near the center of Harrison in June 2001, On September 8, 2003 Mr. Randall
applied for a variance to add on to two existing docks at the marina. One dock would
be lengthened by forty-eight feet (for a total of one hundred and forty four feet) and
another dock (the “gas dock”) would have its thirty-two foot length doubled (for a total
of sixty four feet). Under the ordinance, “[nJo pier, docks, or slips shall extend more
than 48 feet from the normal high water mark.” Harrison, Me. Shoreland Zoning
Ordinance § 15(C)(6) (adopted June 30, 1992 and last amended June 13, 2002).
The Harrison Board of Appeals (“Board”) initially granted the variance for both
docks, but after the Harrison Board of Selectmen timely requested reconsideration, the
variance was denied on November 6, 2003.
This action, couched as a Rule 80B petition for review of the decision of the Town
of Harrison Board of Appeals to deny plaintiff a variance, questions the legitimacy of
the Town of Harrison Shoreland Zoning Ordinance (“Ordinance”) to regulate in or over
the waters of Long Lake.
Plaintiffs argue that Harrison lacked jurisdiction to regulate the docks because
prior to April 17, 2003 the border between Harrison and the Town of Bridgton was on
the easterly shore (the Harrison shore) of Long Pond.!
Plaintiffs argue that because Harrison did not readopt its ordinance subsequent
to the effective date of the relocation of the border it was without jurisdiction to regulate
plaintiffs’ dock extensions.
Plaintiffs also assert that they never received written notice of denial of their
application for a variance and therefore pursuant to 30-A M.R.S.A. § 2691(3)(E) the
decision should be overturned.
DISCUSSION
Jurisdiction of the Harrison Board of Appeals
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
" After April 17, 2003 “an Act To Revise the Boundary between the Town of Harrison and the Town of
Bridgton,” P. & S.L. 2003, ch. 5, became effective, establishing the border between the towns in the center
of the lake.
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),
In questioning the Town of Harrison’s jurisdiction, plaintiffs rely on the logic
that a town may only regulate that which is within the town. At the time Harrison
adopted its ordinance’ the waters of Long Lake were not within the Town of Harrison.
Plaintiffs also rely on a 1986 Maine District Court decision, Inhabitants of the Town
of Boothbay Harbor v. Henry Sirois, 86-CV-102 (Me. Dist. Ct. 6, Lincoln 31, 1986) (Pease, J.)
that found an ordinance that prohibited construction of structures on land within 75
feet of the normal high water mark invalid because the Town had acted ultra vires.
Plaintiffs rely on Sirois to support their proposition that defendant acted beyond the
limits of its geographic authority and hence ultra vires.
Although not binding on this court, we examine the Sirois decision for its
proposition that ordinances drafted before a municipality is empowered to regulate are
not valid. Sirois, 86-CV-102, at page 4.
Defendant answers the argument raised by Sirois by noting that the ordinance in
question in Sirois was held ultra vires because it was adopted before the legislature
extended authority to the town to tegulate whereas the Harrison ordinance was
Adopted on June 30, 1992 and most recently amended on June 13, 2002.
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adopted well after such authority was extended to all towns. See, 38 M.R.S.A. § 439-
A(2) (effective January 1, 1989).
This court examines the “Applicability” provision of the Town of Harrison’s
ordinance and finds that the ordinance applies to “all land areas within 250 feet,
horizontal distance, of the normal high-water line of any great pond ... [t]his ordinance
also applies to any structure built on, Over or abutting a dock, wharf or pier, or other
structure extending or located beyond the normal high-water line of a water body or
within a wetland.” Harrison, Me. Shoreland Zoning Ordinance § 3 (adopted June 30,
1992 and last amended June 13, 2002).
The court finds that the Harrison ordinance was written with sufficient flexibility
to cover all shoreland zones within the town and automatically extended regulatory
jurisdiction to the middle of Long Lake when the town border was moved by
Legislative enactment five months before the Randalls applied for this variance. “T]he
Legislature may establish and change the boundaries of towns at will.” Shawmut Mfg.
Co. v. Benton, 123 Me. 121, 124, 122 A. 49, 50 (1923).
Plaintiffs offer no authority to refute defendant's assertion that the jurisdiction of
the ordinance and hence the jurisdiction of the Board is conterminous with and expands
or (by the same logic) contracts with the borders of the municipality.
By plaintiffs’ logic the United States would have to readopt all federal laws (and
perhaps the Constitution) with the admission of each new state or territory. Speaking
to the question of the effect of annexation upon the reach of municipal ordinances in
particular, the United States Supreme Court has stated: “The ordinances of the city
extended over the annexed territory immediately upon annexation.” Blair v. Chi., 201
U.S. 400, 489 (1906). This court finds that the ordinance, not limited by metes and
bounds, expanded the Board’s jurisdiction to cover the new territory added to Harrison
by the enactment of P. & $.L. 2003, ch. 5.
sufficiency of Board decision — lack of written notice
Plaintiffs cite a recent Law Court ruling for the proposition that because they
never received written notice of denial of their application for a variance on
reconsideration, the Board’s decision was insufficient pursuant to 30-A M.RS.A. §
2691(3)(E) and Maine Freedom of Access law and should be overturned. Carroll v. Town
of Rockport, 2003 ME 135, 837 A.2d 148.
30-A M.R.S.A. § 2691(3)(E) states:
The transcript or tape recording of testimony, if such a transcript or tape
recording has been prepared by the board, and the exhibits, together with
all papers and requests filed in the proceeding, constitute the public
record. All decisions become a part of the record and 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.
Notice of any decision must be mailed or hand delivered to the petitioner,
the petitioner's representative or agent, the planning board, agency or
office and the municipal officers within 7 days of the board's decision.
The relevant section of the Freedom of Access law states:
CONDITIONAL APPROVAL OR DENIAL. Every agency shall make a
written record of every decision involving the conditional approval or
denial of an application, license, certificate or any other type of permit.
The agency shall set forth in the record the reason or reasons for its
decision and make finding of the fact, in writing, sufficient to appraise the
applicant and any interested member of the public of the basis for the
decision. A written record or a copy thereof shall be kept by the agency
and made available to any interested member of the public who may wish
to review it.
1 MLRS.A. §407(1).
The Carroll court did not rely on the provision of 30-A M.RS.A. § 2691(3)(E)
regarding written notice to petitioner.’ The provisions of 1 M.R.S.A. §407(1) are met in
this case by the findings that the board made as part of their November 6, 2003 decision
that were supplied to plaintiffs. Nonetheless, plaintiffs make a valid point in objecting
to the failure of the board to supply them with a timely written copy of the decision.
Defendant does not deny that it failed to deliver a copy of the decision to
plaintiffs. Instead it argues that failure to deliver was not pled in the original 80B
complaint and therefore not properly raised and further argues that since plaintiffs
were in attendance at the Board hearing on November 6, 2003 there has been no
prejudice to them.
The Law Court has stated that “notwithstanding the fact that a statutory notice
requirement may be couched in terms of the mandatory "shall," certain statutory
requirements respecting the details of the notice of claim, such as its verification and
service, could be regarded as directory.” Seider v. Board of Exam'rs of Psychologists, 1998
ME 78, 15, 710 A.2d 890, 892. The Court went on to state “the language of a statutorily-
required notice must be given mandatory, not directory, effect when such language is
"of the very essence of giving notice" or if the rights of the interested parties would be
prejudiced.” Id.
Here, plaintiffs make no claim of prejudice due to lack of notice. In fact, both Mr.
Randall and his attorney were at the November 6, 2003 meeting and therefore received
actual notice. The Board's failure to mail written notice, though a significant procedural
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error, does not require the court to reverse or remand this matter and plaintiffs’
jurisdiction arguments are unsupported by law.
Therefore the entry is:
Decision and Order of the Town of Ne of Appeals is AFFIRMED.
Dated: June 4 , 2004 A
Robert E. Crowley
Justice, Superior Court
Date Filed _ 12-09-2003 Cumberland AP-03~78
Docket No.
County
Action __80B Appeal
DAVID RANDALL THE TOWN OF HARRISON, MAINE
CATHERINE RANDALL
Vs.
Plaintiff’s Attorney Defendant’s Attorney
Peter J. Malia, Jr. William L. Plouffe Esq.
Hastings Law Office, P.A. P.O. Box 9781
376 Maine Street Portland, Maine 04104-5081
P.O. Box 290 (207)772-1941
Fryeburg, ME 04037-0290
207-935-2061
Date of
Entry