The opinion
STATE OF MAINE SUPERIOR COURT
CIVIL ACTION
YORK, ss. : . DOCKET NO. AP-03-028
mAb-4OR LP EM gnu
NEW HERITAGE BUILDERS, INC., , .
Plaintiff / Appellant
VAN 20 onng
TOW MOARCTARINPLTALM at a1
Vidi’ VIA I AA BEACH, Ct ai,
Defendants / Appellees
Before this court is Plaintiff, New Heritage Builders Inc.’s appeal of the Town of
Old Orchard Beach’s Zoning Board of Appeals decision, pursuant to M. R. Civ. P. 80B.
“FACTS
In 1987 and 1988, Colindale Associates submitted a subdivision proposal for a 64-
unit condominium development (“Development”) to be located off the Smithwheel
Road in Old Orchard Beach. On or about May 12, 1988, the Town of Old Orchard
Beach Planning Board (“Planning Board”) granted Colindale Associates, Inc. final
subdivision approval to develop the Property in Phase I of the Colindale Estates
Condominiums. On July 13, 1989, the Planning Board approved Phase Il. In the
Planning Board’s decision it specifically stated that “the applicant has agreed to
contribute $1,500 per unit toward the construction of a new road per the attached letter
dated 7 May 88.” (R. at 25.) In addition, the decision stated that “[t]he applicant has
agreed to contribute $650 per unit towards construction of a new gravity sewer line
along Smithwheel Road per attached letter dated 7 May 88.” Id.
Colindale Associates, however, decided not to construct the Development and
thus did not pay the road and sewer construction contributions. Instead, on March 28,
2000, Colindale Associates conveyed the premises to Plaintiff. Plaintiff obtained
building permits for a total of four buildings and proceeded to construct the
Development as approved. Following this, in 2002, Plaintiff sought Certificates of
Occupancy from the Code Enforcement Officer (“CEO”). The CEO, however, denied
ccupancy because of issues of code noncompliance.
issuance of the Certificates of Oc
Moreover, in October 2002, the CEO advised Plaintiff that the Certificates of Occupancy
would not be issued until it paid the Town the Construction Contributions imposed by
the Planning Board in the 1988 decision.
On November 27, 2002, Plaintiff paid the Construction Contributions under
sentaot Cc
pivieol. Vv
dS
a
0)
jae
fc
rc
o>
0)
ro
En
protest and without prejudice to my client’s rights to challenge the legal basis for, and
legitimacy of, the fees which the Town has alleged are due before you can grant a
Certificate of Occupancy and license to Colindale.” (Supp. R. at 5.) This letter also
requested that the CEO provide Plaintiff with a letter setting forth his reasoning with
respect to these charges. Id. Accordingly, the CEO issued the Certificates of Occupancy
for the Development on January 23, 2003, and on January 27, 2003 the CEO issued a
letter explaining the reason why he had refused to issue the Certificates of Occupancy
until the Construction Contributions were paid.
On February 21, 2003, Plaintiff filed an administrative appeal with the Old
Orchard Beach Zoning Board of Appeals (“ZBA”) challenging the CEO’s decision. The
ZBA heard and ultimately denied the appeal of the Plaintiff. Thereafter, on May 6,
2008, Plaintiff filed this Rule 80B appeal with the York County Superior Court.
First, Plaintiff argues that the Town of Old Orchard Beach acted ultra vires in
assessing an illegal impact fee on Plaintiff in the guise of voluntary contribution.
Second, Plaintiff asserts that the Town is estopped from collecting the Contribution
from it. Next, Plaintiff contends that the ZBA applied incorrect legal standards to
Plaintiff’s appeal and its review of the actions of the CEO. Specifically, Plaintiff argues
t
1 1 A anniied an incarrec widantary ¢ dar rro eterminine tha
tnat the ZBA applied an incorrect evidentiary standar: d tet g that
and erred in deter mang tat
ent
0g
tae Geitiity
certificate of occupancy more than a year after their issuance. Finally, Plaintiff argues
that the Town has waived any right to collect special fees from Plaintiff.
Defendants, however, argue that the Plaintiffs Appeal to the ZBA was untimely.
In addition, Defendants assert that the record supports the CEO’s decision and the
TRA‘ allie annn nf thant A : TAT 31 thatre +
404 8 arirmance of tnat aecision. Wile arguing tiat te agreement on Construction
Contributions was valid, Defendants also contend that the Planning Board’s decision to
impose these contributions is Final and not subject to collateral attack in this
proceeding. Additionally, Defendants argue that Plaintiff's equitable estoppel claim is
not properly before this court. Finally, Defendants assert that the record does not
support a claim of waiver.
DISCUSSION
This court, acting in an intermediate appellate capacity, will review the ZBA’s
decision “directly for errors of law, abuse of discretion, or findings not supported by
substantial evidence in the record.” Priesily v. Town of Hermon, 2003 ME 9, § 6, 814
A.2d 995, 997. The Superior Court will affirm the ZBA’s decision unless it is unlawful,
arbitrary, capricious, or unreasonable. Senders v. Town of Columbia Falls, 647 A.2d 93,
94 (Me. 1994). The board’s findings will not be disturbed if supported by substantial
evidence contained in the record. Palesky v. Town of Topsham, 614 A.2d 1307, 1309
(Me. 1992). “Substantial evidence is such relevant evidence as a reasonable mind might
accept as adequate to support the conclusion.” Id. With regard to the factual
determinations made by the ZBA, the burden is on Plaintiff to prove that based on the
evidence the board should have reached a contrary conclusion. Britton v. Town of
York, 673 A.2d 1322, 1325 (Me. 1996).
Plaintiff argues that the court cannot consider this issue because it was not litigated
before the ZBA. The Law Court has held that “[t]he jurisdiction of the Board of Appeals
is a question of law that must be ascertained from an interpretation of municipal
statutes and local ordinances. We review questions of law de novo.” Salisbury v. Town
Maine Law provides that “[t]he issuance or denial of a certificate of occupancy is
a decision subject to judicial review.” Id. at { 13, 788 at 602. Here, both parties agree
that Plaintiff is appealing the decision of the CEO which conditioned the issuance of the
Certificate of Occupancy upon payment of the Construction Contributions. There exists
a dispute, however, as to when the CEO’s decision was actually made. Plaintiff asserts
that the decision was made when the written decision of the CEO was issued on
January 27, 2003. Conversely, Defendants assert that the decision was made in October
2002, when the CEO made his determination to condition the issuance of the Certificate
of Occupancy for the Development on payment of the Construction Contributions.
Section 14.4.1. provides, in part that “[a]dministrative appeals from orders,
decisions or determinations of the Code Enforcement Officer shall be filed... no later
than 30 days after the date of the written order, decision or determination from which
the appeal is taken.” (Old Orchard Beach Ord. § 14.4.1.) The above language requires
that the CEO provide a written order, decision or determination. This is because, the
word “written” modifies the other three terms. Hence, the Plaintiff's appeal on
February 21, 2003, was timely.
B. Issues Before the ZBA?
Ls rofics rifi es £Orcupancy ta
r cat
Turicares Or Uecupancy to
Board in 1988.
First, the Town of Old Orchard Beach’s Ordinance provides that the ZBA can
“hear and decide appeals where it is alleged there is an error in any order, decision or
determination made by the Code Enforcement Officer in writing.” (Old Orchard Beach
Ord. At § 14.3.1)
1988 decision through the ZBA. Instead, Plaintiff’s appropriate means of relief is to
apply to the Planning Board to waive the conditions in question.
Additionally, the Planning Board’s decision was rendered in May 1988. The Old
Orchard Beach Ordinance provides that “[a]n appeal from any decision of the Planning
Board under these regulations may be taken to York County Superior Court under the
Maine Rules of Civil Procedure, Rule 80B.” (Supp. R. at 3.) Rule 80B provides, in part
that an appeal must be “filed within 30 days after notice of any action or refusal to act of
which review is sought.” M. R. Civ. P. 0B. Here, Colindale, the Plaintiff's predecessor,
did not file an appeal, therefore the decision of the Planning Board became final on June
11, 1988.
C. Is the Town Estopped From Collecting the Contribution?
Plaintiff argues that the Town of Old Orchard Beach should be equitably
estopped from requiring payment of the road and sewer cost contributions. This is
because Plaintiff contends that the Town Planner and the CEO made certain conflicting
representations which it relied on to its detriment.
First, it is necessary for this court to address whether or not Plaintiff failed to
specifically assert the equitable estoppel argument at the ZBA hearing. Plaintiff
specifically questioned the ZBA members at the hearing regarding whether or not “the
xara onxe > fearac aoa td Ly ot thee ant that jt ana hy jean Ty
own in any way [was] bound by the commitment that it made by issuing [] building
permits and Certificates of Ocetrpancy in the year 2000.” (R: at 48.) Based on this, the
441229 ALLL Lite / Labrcis it 2 bait Viet. Lido
PN a J y 4 Madd, Li
a
Plaintiff at least impliedly raised the estoppel argument before the ZBA.
1
However, the Defendants argue that equitable estoppel does not apply in this
case. The Law Court has held that:
[pJroper application of the doctrine of equitable estoppel rests on the
factual determination that the declaration or acts relied upon must have
induced the party seeking to enforce the estoppel to do what resulted to
his detriment, and what he would not otherwise have done. One who has
induced another to believe what is untrue may not later assert the truth.
Furthermore, the reliance upon which estoppel is claimed must have been
reasonable.
City of Auburn v. Desgrosseilliers, 578 A.2d 712, 714 (Me. 1990) (quotations and
citations omitted).
In the case at bar, Plaintiff purchased property from Colindale Associates with
the intent of building the Development. First, the Town CEO told Plaintiff that it would
be obligated to pay the Contributions and later the Town Planner informed the Town
CEO that Plaintiff was not subject to such Contributions. Plaintiff decided to build the
development. Ultimately, however, the CEO determined that Plaintiff was subject to
the Construction Contributions. In the face of conflicting advice from Town officials it
was unreasonable for the Plaintiff to build without first seeking more formal
clarification of this conflicting advice. Shackford & Gooch, Inc. v. Town of Kennebunk,
486 A.2d 102 (Me. 1984).
D. Did the ZBA use Incorrect Legal Standards?
Plaintiff argues that the ZBA erred in determining that the CEO had the
authority to reconsider the issuance of the building permits and a certificate of
underlying permit.” Salisbury, 2002 ME 113 at | 14. “If, [] the permittee has
meaningfully exceeded the authority contained in the permit, or otherwise violated
conditions of the permit, the issuance of the certificate of occupancy may be
challenged.” Id. In the present case, the Plaintiff has not paid the Construction
Contributions as required by the
of the permit. Hence, the CEO was able to challenge and reconsider the issuance of the
certificate of occupancy more than a year after its issuance.
E. Waiver?
Finally, Plaintiff asserts that the Defendants have waived any right to collect
special fees from it, because its representatives indicated to Plaintiff that the
Development was not subject to the Contribution Costs and allowed building permits
to issue. A waiver is a relinquishment of a known right. Severance v. Choate, 553 A.2d
1288, 1291 (Me. 1987). Here, the Planning Board imposed the Construction
Contributions as conditions of the approval of the Development. Although the Plaintiff
argues that the CEO waived this known right when it issued the building permits to it, -
the CEO did not possess the authority to waive these Planning Board conditions.
Instead, it was the right of the Planning Board to waive these conditions.
Thus, the entry will be as follows:
Appeal Denied.
The clerk may incorporate this order in the docket by reference.
Dated: January 14, 2004
PLAINTIFF:
David R. Ordway, Esq.
SMITH ELLIOTT SMITH AND GARMEY
PO Box 1179
Saco Me 04072
DEFENDANTS:
Christopher Vaniotis, Esq.
BERNSTEIN SHUR SAWYER AND NELSON
PO Box 9729
Portland Me 04112-5029