Phaiah v. Town of Fayette

STATE OF MAINE SUPERIOR COURT

CIVIL ACTION

KENNEBEC, ss. DOCKET NO. AP-03-38

DRM KEN 2 L He ON

MITCHELL PHAIAH, oo

Petitioner

v. DECISION AND ORDER

TOWN OF FAYETTE,

Respondent

APR 23 2004

This matter is before the court on complaint seeking review of a decision of the

Town of Fayette Board of Appeals pursuant to M.R. Civ. P. 80B and 30-A M.R.S.A.

§ 2691. The decision was a denial of petitioner’s application for a variance to obtain a

permit to construct a residential building near the shore of Lovejoy Pond.

Petitioner purchased the approximately 2.6 acre lot from its two previous co-

tenant owners by two deeds, December of 1991, and June of 1993. In accordance with

the zoning ordinance then in existence, the previous owners had secured a permit to

construct a home on the lot, in the shoreland zone, by a vote of the Fayette Planning

Board on January 8, 1991. According to the terms of the shoreland zoning ordinance

then in effect in Fayette, this permit expired on or about June 8, 1992. No construction

took place. Beginning in 2001, Mr. Phaiah began to consider selling his lot on Lovejoy

Pond and hired an engineer to perform a site evaluation. After meeting with the code

enforcement officer and upon examining the lot, the engineer realized that due to

changes in the land use regulation voted at the June 17, 2000 Town Meeting, an overlap

was caused of the shoreland setback and the road setback on the land in question.

Thus, there was no place on the 2.6 acre lot where a house could be built.

The engineer, as petitioner Phaiah’s agent, applied to the Town of Fayette

Planning Board on February 11, 2002 for a permit. After a site visit and some further

discussion, the Planning Board denied the application on April 22, 2003. An

application for a variance based on undue hardship pursuant to 30-A M.R.S.A. § 4353(4)

and Article 3, § 3(H) of the TOWN OF FAYETTE, LAND USE ORDINANCE, adopted June 17,

2000, was denied by the Town of Fayette Board of Appeals on May 15, 2003.

In regard to an application for a variance, the TOWN OF FAYETTE ZONING AND

LAND USE ORDINANCE provides that the Board of Appeals shall hear and decide

requests for variances. 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 petitioner 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),

Petitioner applied for a variance from the setback requirements found in the

TOWN OF FAYETTE LAND USE ORDINANCE (hereinafter “the ordinance”) adopted in June

of 2000. There is a fifty-foot setback required from roads, Id. at § 6(B), and a one

hundred foot set back from “the high water line of a waterbody or a wetland.” Id. at

§ 6(C)(3). These increased set backs work to deny the petitioner the right to obtain a

permit to construct a building (and, importantly in this case, diminish resale value) as

they overlap. Petitioner had applied, as noted above, for a variance based on hardship.

There is, under Article 3, § 3(H) of the ordinance, a four-part test defining

hardship qualifying for a variance that is identical to that in the relevant statute:

A. The land in question can not yield a reasonable return unless a

variance is granted;

B. The need for a variance is due to the unique circumstances of the

property and not to the general conditions in the neighborhood;

C. The granting of a variance will not alter the essential character

of the locality; and

D. The hardship is not the result of action taken by the applicant or

a prior owner.

30-A M.R.S.A. § 4353(4) (2003).

Petitioner maintains “the Board, after deliberation, found that [he] met the first

three requirements.” RespondentTown of Fayette disagrees with this contention saying

it “simply ignores the Board’s specific finding with respect to the first criteria.”

Petitioner further argues that the Board was incorrect in finding pursuant to 30-A

M.RS.A. § 4353(4) and Article 3, § 3(H) of the ordinance that “the hardship is a result of

action taken by the applicant or a prior owner.” Specifically, the Board found:

" It is the inclusion of the wetland that is the major modification from the previous ordinances.

The prior owners did not take advantage of an approval granted by the

Town in 1991 which would have allowed for the development of the lot

without the need for a variance from setbacks.

Regarding the action/ inaction of the previous owners, petitioner argues that the

new ordinance, promulgated in the year 2000, was the action that made his lot

unbuildable and not an “action taken by the applicant or a prior owner.” The previous

owners, according to petitioner, bought a buildable lot and sold a buildable lot. It

should be noted that for over six months, Mr. Phaiah himself was one of the “previous

owners” as he was a cotenant.

Petitioner argues that he had no expectation that he would not be able to build

on his lot seven years after he gained sole interest in the property. He cites Law Court

cases that state that knowledge of a zoning restriction prior to purchase is no longer

considered a self-created hardship. Twigg v. Town of Kennebunk, 662 A.2d 914, 916 (Me.

1995) (“The Board's conclusion that knowledge of zoning restrictions prior to the

purchase of property is tantamount to self-created hardship is an error of law.”);

Rocheleau v. Town of Greene, 1998 ME 59, 95, n.1, 708 A.2d 660 (“Knowledge of zoning

ordinance restrictions by a purchaser of a nonconforming lot, without more, will hardly

ever constitute a self-created hardship.”). Respondent responds that it did not rely on

actual or constructive knowledge of zoning regulations in finding a self-created

hardship. Instead, according to respondent the Board relied on the failure of the prior

owners, including the petitioner, to make use of their building permit.

In response to petitioner’s argument that his variance was denied solely because

he failed to meet the fourth. criteria (hardship not the result of action taken by the

applicant or a prior owner), respondent vigorously asserts that petitioner failed to meet

the first criteria, namely that this land can yield a reasonable return without a variance.

The written decision by the Board of Appeals dated May 15, 2003, and signed by its

chairman and four members follows a preprinted form to be completed by filling in the

blank lines. It includes entries to be made for Findings of Fact, Conclusions of Law,

Decision, among other things. The portion in question is found under part B

Conclusions of Law, (1) Undue Hardship, Dimensional Variance. In the decision in

question, the Board has indicated, “the applicant has not shown that strict application of

the ordinance in the applicant’s property would cause undue hardship.” This decision

is made on the form by circling the words “has not.” Following that entry, the form

called for the Board to state facts that support the decision. The form follows the four

criteria found in the law. The actual decision in that regard is as follows:

(a) The land in question cannot yield a reasonable return unless a

variance is granted; however, applicant has proposed a project that the

Board considers to be more than a reasonable return.

(b) The need for a variance is due to the unique circumstances of the

property and not to the general conditions in the neighborhood; wetlands

in the property create additional setback limitations that are not unique to

the general conditions of the neighborhood.

(c) The granting of a variance will not alter the essential character of

the locality: other lots currently have structures as close; and or closer to

the water and the road.

(d) The hardship is the result of action taken by the applicant or a prior

owner; the prior owners did not take advantage of an approval granted by

the town in 1991 which would have allowed for the development of the

lot without the need for a variance from setbacks.

The first sentence in each finding is preprinted on the form and provides the

Board the opportunity to circle either the affirmative or the negative in the sentence.

This court considers the preprinted form sentences to be the facts and the language

appearing after the semicolons to be specific and supplemental to the decision.

Citing the Board’s finding that “the applicant has proposed a project that the

Board considers to be more than a reasonable return.” Fayette Board of Appeals Notice

of Decision at 3-16 (R. 15), defendant relies on Law Court rulings that they say define

loss of “reasonable return” as “the practical loss of all beneficial use of the land.”

Citing, Twigg v. Town of Kennebunk, 662 A.2d 914, 918 (Me. 1995), which in turn cites

Greenberg v. DiBiase, 637 A.2d 1177, 1179 (Me. 1994).

Respondent notes that petitioner can use this land, under the ordinance, without

further permitting for “non intensive recreation” and that other uses, such as camping

and temporary and/or permanent piers are permitted subject to planning board review.

Petitioner responds in his Reply Brief by citing a case wherein the Law Court reversed

the Town of Scarborough zoning board of appeals. Marchi v. Scarborough, 511 A.2d 1071

(Me. 1986). Petitioner argues that wherein that case the court found the workings of the

set back requirement limiting the petitioner to a construction footprint no larger than

five feet by nineteen feet met the four part test for hardship, surely argues petitioner,

elimination of residential construction meets that test in the present action.

This court finds that the argument by the respondent is irrelevant. The decision

by the Board of Appeals is that the land in question cannot yield a reasonable return

unless a variance is granted. A comment by the Board as to the level of

“reasonableness” provided by the terms of the application is surplusage and fully

ambiguous if the language means to contradict its finding that the land cannot yield a

reasonable return unless the variance is granted. Or is it simply an observation that the

petitioner’s use of the land with his application is more than some level of

reasonableness? Either way, the statutory decision cannot be affected by the additional

language.

The fundamental issue is whether a property owner who obtains a building

permit under terms of a zoning ordinance existing at the time of the application and

who fails to act on the permit by completing the construction within the time limits of

the ordinance, can be foreclosed from obtaining a variance to build on the same

property after a more restrictive ordinance is adopted. Has the petitioner created the

hardship by taking action, in this case, inaction? To so hold would require the court to

conclude that there exists some duty on the part of a property owner to complete the

construction approved by a permit.

An analysis of that question requires the court to consider the purpose of a time

limitation in the issuance of a building permit. The limitation on the life of a permit is a

regulation based upon administrative requirements rather than substantive concerns.

From a substantive point of view, absent a change in the law, what difference does it

make whether a person erects a structure within six months of receiving the permit or

six years? As long as conditions remain the same, it should have no effect on the

orderly control of development by a community. On the other hand, it is inherent in

the law that legal and regulatory matters not be open-ended and that there be a finality

to the decision process. It is based upon concerns of public policy and administrative

efficiency. In the instant case, in the absence of the limitation of the effectiveness of the

permit, the petitioner was entitled to erect a structure in accordance with the original

permit under the original ordinance up until the change in the ordinance modifying the

setback requirements. There is nothing in the record to indicate that upon the

expiration of the 1991 permit, the petitioner would not have been granted a similar

permit under the then-existing ordinance and the same conditions. At the very least, he

would have met the then-existing set back requirements. Therefore, while the

opportunity existed, petitioner was under no duty to proceed with construction.

Fundamentally, the petitioner purchased a buildable lot and was under no duty

to build. The permit expired as a matter of administrative finality. Hardship is caused

by the change in the ordinance on an existing lot rather than any “action” by the

petitioner. Taking liberties with the language found in Marchi v. Town of Scarborough,

511 A.2d 1071, 1073, a landowner has the right not to develop his land; he has a right to

sell it.

In the absence of any other portions of the record relating to the decision of the

Board of Zoning Appeals, the court assumes that the language articulated in its written

decision of May 15, 2003, is all of its findings and conclusions. “All boards of appeals

decisions become a part of the record unless they 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...“ 30- M.R.S.A. § 2691(3)(E) as

cited in Rocheleau v. Town of Green, 708 A.2d 660, 662. Having concluded that the Board

determined that the petitioner had not shown that strict application of the ordinance

would cause undue hardship based upon the single entry that the hardship is a result of

action taken by the petitioner and having found that, as a matter of law, the Board may

not make that conclusion solely on the basis that the petitioner and his prior owners did

not fully execute an approval granted in 1991, the entry will be:

In the matter of Notice of Decision — Variance dated May 15, 2003,

regarding Mitchell Phaiah by the Town of Fayette Board of Appeals is

REVERSED; the matter is REMANDED to the Town of Fayette Board of

Appeals to issue its Certificate of Variance in accordance with law.

Dated: February &Y 2004

fe

oO ale

Donald H. arden

Justice, Superior Court

Date Filed __ 6/30/03 KENNEBEC Docket No. AP03-38

County

Action 80B APPEAL

MITCHELL PHATAH vs. TOWN OF FAYETTE

Plaintiff's Attorney Defendant’s Attorney

RONALD COLBY ESQ David M. Sanders, Esq.

PO BOX 1051 P.O. Box 271

AUGUSTA MAINE 04332 Livermore Falls, Maine 04254

KEITH R VARNER ESQ

Date of

Entry

6/30/03 Complaint (Rule 80B Appeal), filed. s/Colby, Esq.

mece , Notice of briefing schedule mailed to atty.

7/18/03 Original Summons with service made on Ann Grenier for Town of

Fayette with service made on 6/30/03, filed.

7/21/03 Answer, filed. s/Sanders, Esq. (filed 7/18/03)

8/4/03 Motion to Enlarge Time to File Brief with Proposed Order, filed.

s/R. Colby, Esq.

8/11/03 ORDER ENLARGING TIME TO FILE BRIEF, Marden, J. (dated 8/8/03)

Time extended to August 25, 2003.

Copies mailed to attys of record.

8/26/03 Plaintiff's Brief, filed. s/Colby, III, Esq. (filed.8/25/03)

Record, filed. s/Colby, Esq.

9/11/03 Fayette Shoreland Zoning Ordinance (which should be included as exhibit 20

filed. s/D. Sanders, Esq.

9/17/03 Defendant's Brief, filed. s/Sanders, Esq.

9/26/03 Plaintiff's Reply Brief, filed. s/Colby, Esq.

12/17/03 Hearing had on oral arguments with Hon. Justice Donald Justice Marden,

presiding.

R. Colby, Esq. for the Plaintiff and D. Sanders, Esq. for the Defendant.

Court to take matter under advisement.

2/20/04 Letter entering appearance, filed. s/Varner, Esq.

2/25/04 DECISION AND ORDER, Marden, J. (Dated 2/24/04)

In the matter of Notice of Decision-Variance dated May 15, 2003, re-

garding Mitchell Phaiah by the Town of Fayette Board of Appeals is

REVERSED; the matter is REMANDED to the Town of Fayette Board of Appeals

to issue its Certificate of Variance in accordance with law.

Copies mailed to attys of record.

Copies mailed to Deborah Firestone, Garbrecht Library and Goss.

Notice of removal of record mailed.