Opinion

Seymour v. Inhabitants of the Town of Levant

Court: Superior Court of Maine
Filed: Dec 23, 2005
Status: Unpublished
On the bench: Jeffrey L. Hjelm
Cited by: 0 cases
Authority: More cited than 34.1%

a municipality is collaterally estopped by previous planning board determinations from relitigating claims in an enforcement action

How later courts described this case

a municipality is collaterally estopped by previous planning board determinations from relitigating claims in an enforcement action

Written by the judges who cited it.

The opinion

STATE OF MAINE SUPERIOR CObRT

PEIVOBSCOT, SS. CIVIL ACTION

1 FILED & ENTERED

SUPERIOR COURT

Laurie Mullen Seymour, DEC 2 7 2005

Appellant

PENOBSCOT COUNTY

v. (Docket No. AP-04- 17)

Inhabitants of the Town of Levant,

Appellee

Inhabitants of the Town of Levant,

Appellant

(Docket No. AP-04- 18)

Laurie Mullen Seymour,

Appellee

In these consolidated appeals brought pursuant to 30-A M.R.S.A. 3 2691(3)(G),

3 7 (Board of Appeals

TOWNOF LEVANT,MAINEBOARDOF APPEALSORDINANCE

Ordinance) and M.R.Civ.P. 80B, Laurie Mullen Seymour and the Inhabitants of the

Town of Levant each challenge aspects of a decision issued by the Town of Levant

Planning Board, in which it concluded that Seymour was entitled to extract gravel from a

pit located on land she owns in that municipality without a permit that the Board would

issue. After the parties submitted their written arguments on appeal, Seymour filed a

motion to dismiss the appeal filed by the Town (AP-04-18), contending that the Town's

contentions were rendered moot when the Planning Board granted her application for a

permit to conduct the excavation activities that the Board ruled previously did not require

such a permit. The court has considered the parties' written arguments on the merits of

their respective appeals and on Seymour's motion to dismiss.

A portion of the factual and procedural background of this case is set out in

several court opinions, including this court's order on appeal dated June 9,2003, issued

in Inhabitants of the Town of Levant v. Seymour (AP-02-26, Penobscot County) and the

Law Court's decision in a related land use enforcement proceeding based on M.R.Civ.P.

80K, Town of Levant v. Seymour, 2004 ME 1 15, 855 A.2d 1 159. Developments post-

dating those opinions have relevance here as well.

Seymour is the record owner of land in Levant. The property is bisected by the

Tay Road, which runs in an east-west orientation. Although the portion of her parcel

north of the Tay Road has been subdivided, the entirety of the subject premises had been

included within a single deed description. In 1991, Seymour applied to the Town's code

enforcement officer for a permit to remove loam from one of the parcels that is located to

the north of the Tay Road. The CEO granted her such a permit, and Seymour then

nyIVbbbUbU

r n c n o A n r l .rr; h tLllC,

h o nrn

~ c cre AF

yl ~,,,,, ,,,,, .

,s ,rnmn-r;nn ,,,,, ,,,,,, ,,,, y,l ce!.

IA-m frnm thn n o r

On June 26,2002, the CEO issued a stop work order to Seymour because, he

alleged, Seymour had exceeded three of the restrictions created by the ordinance: first,

she had removed more than 1,000 cubic yards of material without first obtaining Planning

Board approval (because the permit she obtained in 1991 had been issued by the CEO

rather than by the Board, by the terms of the ordinance, she could remove no more than

1,000 cubic yards of material in a calendar year); second, she had removed material

below the seasonal high water table'; and finally, she had removed material within 150

feet of a property line. Seymour filed an appeal from this order on July 9. Three days

later, the CEO issued a second stop work order, this one based on his finding that

Seymour violated the municipal ordinance because she removed material below the level

of and within 150 feet of the Tay Road. At a meeting held in August 2002, the Board

considered Seymour's appeal, which was deemed to cover both stop work orders. By a

vote of 3-1, with a fifth member abstaining, the Board concluded that the CEO has issued

' At the hearing held before the Board, the CEO advised the Board that there was

insufficient evidence to support that claim. He and the Town pressed the other grounds

the led to the issuance of the stop work orders.

both stop work orders "without the CEO finding his facts before issuing them." On that

basis, the Board vacated the orders. The Town filed an appeal from the Board's decision.

This court concluded that the nature of the Board's proceeding was ambiguous because it

exhibited characteristics of both an appellate process and a de novo, fact-finding process.

Holding that the proper function of the Board was to conduct a de novo hearing on the

issues presented to them, the court remanded the case to the Board.

On remand, the Board held a hearing that spanned several dates, the last of which

was on May 19, 2004. On September 23,2004, the Board issued a written decision. For

purposes of proceeding at bar, the Board's central finding was that Seymour was not

required to obtain a permit from the Board for the extraction operation on the north side

of the Tay Road, because such an operation was within the scope of the nonconforming

use that predated the enactment of the Town's land use ordinance that otherwise would

apply and control. The Board based this conclusion on the fact that Seymour's land, both

on the north and south sides of the road, constituted a single parcel. The Board also

coilciiided that as a general maiiei-, ilie exiiaciioii opeiaiions on the north side of the road

would be subject to the setback limitations established in the Town's ordinances. In

response to the bases for the CEO's stop work orders, the Board found that Seymour had

extracted gravel within the 150 foot setback associated with the road and, in that sense,

increased the nonconformity generated by the existence of the gravel pit on her land to

the south of the Tay Road. The Board further found, however, that Seymour had

remediated that condition and thus took no action in response to it. Finally, the Board

concluded that the stop work order was insufficient to allege that she had breached the

150-foot setback for abutting parcels.

Prior to the time the Planning Board issued its decision in 2002, the Town

commenced an enforcement action against Seymour in the District Court, pursuant to

M.R.Civ.P. 80K. After two days of trial, the court found that the excavation site on the

north side of the Tay Road was not part of an ongoing non-conforming use tied to the

gravel pit on the south side of the road but rather constituted a new excavation site that

required Planning Board approval. The court also found that the pit on the north side of

the road was within the 150-foot setbacks for the road and the adjoining properties. On

this basis, the court ordered Seymour to remediate the offending uses of the property and

imposed monetary penalties. Seymour appealed this judgment to the Law Court, which,

by in an opinion dated August 3 1, 2004 (roughly three weeks prior to the date the Board

issued its written decision on remand), affirmed it. Town of Levant v, Seymour, 2004 ME

1 1 5 , 8 5 5 A.2d 1159.

While the instant appeals were pending and subsequent to the submission of briefs

on appeal, Seymour moved to dismiss the Town's appeal (AP-04-18) because she notes

that she applied to the Board for a land use permit to conduct excavation activity on the

portion of her property located to the north of the Tay Road, and the Board issued such a

permit. The issuance of this permit, she argues, renders the Town's challenges to her

activity, previously not permitted by the Board, to be moot. The court first addresses this

motion.

"Courts should decline to decide issues which by virtue of value and recognizable

supervening circumstances have lost their controversial vitality." State v. Dhuy, 2003

ME 75, IJ 6, 825 A.2d 336, 340 (citation and internal punctuation omitted). T h e record at

bar dces cot estab!ish that the Tc?wnYsc!alms are ~ c c because

t the Board issued 2 r-------

n~rmit

to Seymour. The court places significance on Seymour's choice to seek dismissal only of

the Town's appeal from the Board's 2004 decision. Although one could argue, as

Seymour has here, that the future consequences of activity that was not the subject of a

Board permit would lose some significance once that activity becomes permitted, the

same argument applies with equal force to the challenges that Seymour raises to the

Board's decision in her own appeal. Even though, in opposing the motion to dismiss, the

Town notes the lack of symmetry in Seymour's motion, she has not responded by seeking

to subject her appellate rights to the same disposition she seeks for the Town's. If the

issuance of a permit marginalizes the Planning Board's earlier decision that she does not

need a permit, then the same wou!d be true with respect to Seymour's own arguments on

appeal if in fact each of the findings that she challenges here relate to the circumstances

of the extraction that now would be allowed under the permit issued to her. That

Seymour has not acted to dismiss her own case - and that she has not suggested that she

would d o so if the Town's appeal were dismissed - is a telling insight into the limits of

what the Board may have allowed through its permit.

The problem is compounded because the record of the Board's permit process

submitted by Seymour here is not complete. The record supporting her motion consists

of Seymour's permit application, some Board meeting minutes that are skeletal in part,

and the permit ultimately issued by the Board. That record material, however, makes

reference to documents and other submissions, such as maps, deeds and a sketch plan,

that have not been submitted here. Thus, it is impossible to determine whether all issues

raised by the parties on appeal have been subsumed by the permit.

For these reasons, the court denies Seymour's motion to dismiss and consequently

addresses the merits of the parties' appeals. In doing so, this court reviews the Board's

decision directly for errors of law, abuse of discretion, or findings not supported by

substantial evidence in the record. Peregrine Developers, LLC v. Town of Orono, 2004

M E 9 5 , f 8, 854 A.2d 216, 219. For the reasons set out below, the court concludes that as

a matter o f % & ' L T Court's decision issued in August 2004 embodies the conclusive

determination of thei&es that were also presented to the Board for consideration and

decisi~n;that the Bo.r.1,'~ decisicn was contrary to the L a y C011rt's disnnqitinn

r-uA--- of the

issues now at bar; and that Seymour is barred from relitigating those issues in the present

context.

The current Levant Land Use Ordinance was adopted on June 22, 1996. Section

1220(B)(2) states that all excavations "greater than 1000 cubic yards in a calendar year

shall require Planning Board approval before the activity is commenced." Section

1220(A) states that, "existing gravel pits may continue to operate as long as the extraction

does not make the pit more non conforming." An existing non-conforming use is defined

as one that "lawfully existed immediately prior to the enactment of this Ordinance . . . ."

MAINELANDUSE ORDINANCE

TOWNOF LEVANT, (Land Use Ordinance) § 910. The

ordinance also establishes that "ltlhe following requirements shall apply to mineral

exploration activities . . . . (6) Extraction operations shall not be permitted within one

hundred fifty feet (150') of any property line. . . . (10) Excavation may not occur below

road level within one hundred fifty feet (150') of a road right-of-way." Land Use

Ordinance $8 1220(D)(6), (10). Because the gravel pit existed on the south side of the

Tay Road prior to the effective date of the ordinance but excavation on the northern side

of the road did not begin until 2002, both the Board and District Court were called to first

decide whether the northern pit "existed" before the ordinance was adopted in 1996. If it

did "exist" then, it did not require Planning Board approval to continue to operate as long

as it did not become more "nonconforming." In either case, the Board then had to decide

whether and how to apply the setback requirements of section 1220(D).

Invoking the doctrine of res judicata, the Town argues that the Board's decision

should be vacated and that Seymour should be barred from litigating issues that were

adjudicated adversely to her in the District Court judgment that had been affirmed by the

Law Court on August 3 1,2004, and thereby became final prior the time the Board issued

its decision.

The doctrine of res judicata is a court-made collection of rules that ensures that

the same matter will not be litigated more than once. The doctrine has developed

two separate components, issue preclusion and claim preclusion. Issue

preclusion, also referred to as collateral estoppel, prevents the relitigation of

factual issues already decided if the identical issue was determined by a prior final

judgment, and . . . the party estopped had a fair opportunity and incentive to

litigate the issue in a prior proceeding. Claim preclusion bars relitigation if: ( I )

the same parties or their privies are involved in both actions; (2) a valid final

judgment was entered in the prior action; and (3) the matters presented for

decision in the second action were, or might have been litigated in the first action.

Macomber v. MacQuinn-Tweedie, 2003 ME 122,g 22, 834 A.2d 131, 138-39 (citing

Machias Sav. Bank v. Ramsdell, 1997 ME 20,g 11, 689 A.2d 595, 595). "The effective

date of a final judgment is the date of its rendition without regard to the date of the

commencement of the action in which it is rendered or the action in which it is to be

given effect." RESTATEMENT 5 14 (1982). As applied here,

(SECOND)OF JUDGMENTS

these principles combine to give conclusive and determinative weight to the Law Court's

adjudication of issues that were or could have been submitted to the Board for its

subsequent determination.

A party is collaterally estopped from relitigating an issue arises "only if the

identical issue necessarily was determined by a prior final judgment." Button v. Peoples

Heritage Savings Bank, 666 A.2d 120, 122-23 (internal quotations omitted). A review of

the District Court judgment and the Law Court's affirmance of it reveal that the District

Court adjudicated the same issues relating to factual matters and questions of the

ordinance's construction as those presented to the Board. More particularly, just as the

Board was required to do in the administrative proceeding now on appeal, in the rule 80K

enforcement action the District Court was required to determine whether Seymour's

northern pit was being used in violation of sections 1220(A) and 1220(D) and how those

sections should be properly interpreted and applied. The District Court proceeding

thereby generated factual issues (i.e., when excavation began in the two pits; the

dimensions of the northern pit; its proximity to Tay Road, property lines and the southern

pit; the layout of the area; and the amount of material excavated from the northern pit) as

well as legal issues (i.e., whether the northern pit was "grandfathered" under section

1220(A); and whether the setback requirements of section 1220(D) apply to the northern

pit). Thus, the enforcement action resulted in a dispositive adjudication of the very issues

that Seymour attempts to argue here.

Further, in the rule 80K issues, Seymour had a fair opportunity and incentive to

litigate these issues that are common to the administrative proceeding, thus satisfying this

separate element that is a predicate to the application of collateral estoppel.

Seymour argues that she should not be collaterally estopped from relitigating the

issues that the L a w Ccurt sett!ed because, she urges, that action constituted a:

enforcement proceeding, while the administrative proceeding had a different purpose.

However, the difference in remedies that may be available in separate proceedings does

not foreclose the effects of collateral estoppel. Cline v. Me. Coast Nordic, 1999 ME 72,

I l J 10-13,728 A.2d 686,688-89. Cf. Town of North Benvick v. Jones, 534 A.2d 667,

670-71 (Me. 1987) (a municipality is collaterally estopped by previous planning board

determinations from relitigating claims in an enforcement action).

Seymour also argues that the Town has waived any res judicata argument because

it failed to raise the bar at the administrative level. This contention fails for two reasons.

First, the Law Court issued its decision after the Board had completed its hearing process

but prior to date it issued its written decision. Because of this sequence, the Town had no

opportunity to argue that the Law Court's decision has the preclusive effect discussed

here. Second, the notion of res judicata is one of law, and the absence of administrative

consideration of its effect does not hinder the court from considering its legal

implications here.

The second aspect of res judicata, namely, claim preclusion, bars litigation of

issues that might have been adjudicated in the prior action. The question of claim

preclusion arises because Seymour makes two arguments here that, to the extent revealed

by the record, she did not raise in the enforcement action: whether the relevant

requirements of the ordinance are preempted by certain regulations promulgated by the

Maine Department of Environmental Protect, and whether section 1220(D)(10) is

rendered inapplicable because the excavation north of the Tay Road is actually not a

"mineral exploration" activity and thus does not fall subject to the road setback restriction

set out in section 1220. The court concludes that the three elements of claim preclusion

as set out in Macomber and other similar cases are satisfied here and that Seymour is

barred from raising those new issues here and now.

Because the parties in the two proceedings are identical and because the prior

proceeding spawned a final judgment, the first two elements have been met. The

remaining question is whether the two issues that Seymour advances here are ones that

could have been raised in that prior proceeding, even though she did not do so. The Law

Court has adopted a "transactional test" where the causes of action are deemed to be

identica! and thus trigger claim p:ec!usicn. Under that test, inquiry is made tc determine

if they arose out of the "same nucleus of operative facts." Town of Ogunquit v. Cliff

House & Motels, Inc., 2000 ME 169, 12,759 A.2d 731, 735. Here, the administrative

and enforcement actions arose out of the identical factual setting where the same factual

and legal issues were at stake. Seymour's DEP preemption and ordinance interpretation

arguments bear directly on the questions of whether the ordinance's setback requirements

should be applied to the northern pit and, if so, the effects of that application.

Consequently, Seymour's failure to raise these contentions in the enforcement action,

where she could have done so, precludes her opportunity to assert them here.

Finally, the Town challenges the Board's conclusion that the stop work orders

issued by the CEO in 2002 were insufficient to put Seymour on notice of a claim that she

had excavated gravel within the 150 foot setbacks associated with the boundaries of her

abutters. Instead, the Board concluded that the order was sufficient only to allege a

violation of the setback associated with the Tay Road. The stop work order dated June

26, 2002, expressly alleged that Seymour was in violation of the municipal ordinance "by

extracting material. . .within one hundred fifty feet (150') of a property line (Section

D.6)." Section 1220(D)(6) creates a setback that is based on "any property line" of

property owned by someone else. The setback created by the presence of a road is

established in a provision other than the one cited by the CEO, namely, section

1220(D)(10). Thus, because of the specific reference to section 1220(D)(6) in the stop

work order, the court concludes that the Board's decision was contrary to the clear

evidence in the administrative record.

Ordinarily, this court would remand the matter to the Board for an adjudication of

the Town's factual contention that Seymour violated the property line setback created in

section 1220(D)(6). However, because that violation has been conclusively established

in the enforcement action, no such administrative proceedings are necessary or proper

The result of this appellate process is the conclusion that the Board erred in

making factual findings that are contrary to those established in the enforcement action

and in concluding that Seymour was not required to secure Planning Board approval in

order to conduct excavation operations on that portion of her land north of the Tay Road.

This case must be remanded to the Board for entry of orders to that effect. However, for

the reasons stated abcx:e, the inte:p!ay bet:veen this fina! dlspcsitio:! of the administratixre

process and the existence of the permit issued recently to Seymour cannot be fully

gauged. Thus, the best the court can do is to enter a remand order, while allowing that

the Board's post-remand order shall not affect the validity or effect of the permit.

The entry shall be:

For the foregoing reasons, Seymour's motion to dismiss is denied.

The decision of the Planning Board is vacated. This matter is remanded to the

Board for entry of an order that is consistent with the terms of the judgment entered

against Seymour in the related enforcement action. This includes, among other things,

entry of an order establishing that Seymour's excavation activities on her land north of

the Tay Road shall require the issuance of a valid municipal permit and shall be si-lhject to

the terms and conditions of any such permit.

This order shall not be deemed to affect or otherwise alter or modify the permit

issued to Seymour on or about May 20,2005.

Dated: December 23,2005

S' erior Court

Date Filed 7121/04 PENOB SCOT Docket No. AP-2004-18

County AP-2004-17

Action RULE 80B APPEAL

ASSIGNED TO JUSTICE JEFFREY L. HJELM

INHABITANTS OF THE TOWN OF LEVANT vs. LAURIE MULLEN SEYMOUR

Plaintiff's Attorney Defendant's Attorney

THOMAS A. RUSSELL, ESQ. ROBERT E. MILLER ESQ

P 0 BOX 738 P 0 BOX 414

BANGOR, ME. 04402-0738 OLD TOWN ME 04468-0414

Date of

Entry

7/21/04 Complaint Pursuant to Rule 80B of the Maine Rules of Civil Procedure filed

Appellant.

Notice and Briefing Schedule 80B Appeal of Governmental Actions filed.

Copy forwarded to Appellant's attorney.

Entry of Appearance filed by Robert E. Miller, Esq. on behalf of

Defendant Laurie Mullen Seymour.

Copy of Notice and Briefing Schedule 80B Appeal of Governmental Actions

forwarded to attorney for Defendant.

Acceptance of Service as to Defendant by Robert E. Miller, Esq. filed.

(s.d. 8/9/04)

Joint Motion for Consolidation of Rule 80B Appeals filed by Defendant

(with AP-2004-17) with proposed order.

Joint Motion for Enlargement of TIme to file Briefs and submit record filed

by Defendant with proposed order.

Order on Joint Motion for Enlargement of Time filed. Ordered that

the parties' joint motion for enlargement of Time is granted. Be it

further Ordered that the record be filed on or before October 29, 2004.

Be it further Ordered that both parties shalr file their initial briefs

on or before December 3, 2004; and that both parties may file reply

briefs within 14 days after receipt of the other party's brief. Copy

forwarded to attorneys of record.

Joint Motion for Enlargement of Time filed by Parties with proposed order,

Over

d / 20/04

Date ~ i l e -7 PENOBSCOT Docket No. AP-2004-17

County AP-2004-18

Action 80B APPEAL

ASSIGNED TO JUSTICE JEFFREY L. ELJELM

I LAURIE M. SEYMOUR vs.

INHABITANTS OF THE TOWN OF LEVANT,

BOARD OF APPEALS

I Plaintiff's Attorney I Defendant's Attorney

ROBERT E. MILLER, ESQ. THOMAS A. RUSSELL, ESQ.

P 0 BOX 414 P 0 BOX 738

OLD TOWN, ME. 04468-0414 BANGOR, ME. 04402-0738

L-l Date of

R u l e 80B C o m p l a i n t f i l e d b y A p p e l l a n t .

E n t r y of Appearance f i l e d b y Thomas A. R u s s e l l , Esq. on b e h a l f o f A p p e l l e e

Town o f L e v a n t .

N o t i c e and B r i e f i n g S c h e d u l e 80B Appeal o f Governmental A c t i o n s f i l e d .

Copy f o r w a r d e d t o a l l a t t o r n e y s o f r e c o r d .

A c c e p t a n c e o f S e r v i c e o f P l a i n t i f f ' s C o m p l a i n t by Thomas R u s s e l l , Esq.

filed. (s.d. 7/21/04)

J o i n t Motion f o r C o n s o l i d a t i o n o f Rule 80B A p p e a l s w i t h p r o p o s e d o r d e r f i l e d

by D e f e n d a n t ( w i t h AP-2004-18) w i t h proposed o r d e r .

J o i n t Motion f o r E n l a r g e m e n t of Time t o f i l e B r i e f s and s u b m i t r e c o r d

f i l e d by D e f e n d a n t w i t h p r o p o s e d o r d e r .

O r d e r on J o i n t Motion f o r Enlargement o f Time f i l e d . O r d e r e d t h a t

t h e p a r t i e s ' J o i n t Motion f o r E n l a r g e m e n t of Time i s G r a n t e d . Be i t

f u r t h e r O r d e r e d t h a t t h e r e c o r d b e f i l e d on o r b e f o r e O c t o b e r 29, 2004.

Be i t f u r t h e r O r d e r e d t h a t b o t h p a r t i e s s h a l l f i l e t h e i r i n i t i a l

b r i e f s on o r b e f o r e December 3 , 2004; a n d t h a t b o t h p a r t i e s may f i l e

r e p l y b r i e f s w i t h i n 14 d a y s a f t e r r e c e i p t of t h e o t h e r p a r t y ' s b r i e f .

Copy f o r w a r d e d t o a t t o r n e y s of r e c o r d .

J o i n t Motion f o r Enlargment of Time f i l e d by P a r t i e s w i t h p r o p o s e d o r d e r .

O r d e r on J o i n t Motion f o r Enlargement o f Time f i l e d . O r d e r e d t h a t t h e

p a r t i e s ' J o i n t Motion f o r E n l a r g e m e n t o f Time i s G r a n t e d . Be i t f u r t h e r

O r d e r e d t h a t t h e r e c o r d b e f i l e d on o r b e f o r e December 31, 2004. Be i t

f u r t h e r ordered -I-:. p a r t i e s s h a l l f i l e t h e i r i n i t i a l b r i e f s on o r b e f ~ r e

F e b r u a r y 4 , 2005; a n d t h a t b o t h p a r t i e s may f i l e r e p l y b r i e f s w i t h i n 14 d a y s

a f t e r t h e r e c e i p t of t h e o t h e r p a r t y ' s b r i e f . Copy f o r w a r d e d t o a t t o r n e y s

of r e c o r d .

STATE OF MAINE SUPERIOR COURT

PENOBSCOT, SS. CIVIL ACTION

Laurie Mullen Seymour,

Appellant

--.i-h : r ? ~ p . f i . {ne.

i? y - ~ ~ .-- .., '

I ~..si kc. L J \ ; \ ; ~ j L/Q$i i\i i Y

(Docket No. AP-04- 17)

Inhabitants of the Town ef Levant,

Appellee

ORDER ON APPEAL

Inhabitants of the Town of Levant,

Appellant

- - , . (Docket No. AP-04-18)

Laurie Mullen Seymour,

Appellee

In these consolidated appeals brought pursuant to 30-A M.R.S.A. $ 2691(3)(G),

TOWNOF LEVANT,MAINEBOARDOF APPEALSORDINANCE

$ 7 (Board of Appeals

Ordinance) and M.R.Civ.P. 80B, Laurie Mullen Seymour and the Inhabitants of the

Town of Levant each challenge aspects of a decision issued by the Towr! of Levan1

Pkm&g Board of Appeds ('Board!, in which it concluded that Seymour was entitled to

extract gravel from a pit located on !and she owns in that municipality without a permit

that the Planning Board would issue. After the parties submiiied their written arguments

on appeal, Seymour filed a motion to dismiss the appeal filed by the Town (AP-04-18),

contending that the Town's contentions were rendered moot when the Planning Board

granted her application for a permit to conduct the excavation activities that the Board

ruled previously did not require such a permit. The court has considered the parties'

written arguments on the merits of their respective appeals and on Seymour's motion to

dismiss.

A portion of the factual and procedural background of this case is set out in

several court opinions, including this court's order on appeal dated June 9,2003, issued

of Levaizi v. Seyi~zour(AP-02-26, Penobscoi County) and the

in Iiz,zhabitants of the I'GW~Z

Law Court's decision in a related land use enforcement proceeding based on M.R.Civ.P.

80K, Town of Levant v. Seymour, 2004 ME 115, 855 A.2d 1159. Developments post-

datinz these epinions have re!evance here as well.

Seymour is the record owner of land in Levant. The property is bisected by the

Tay Road, which runs in an east-west orientation. Although the portion of her parcel

north of the Tay Road has been subdivided, the entirety of the subject premises had been

included within a single deed description. In 1991-2001, Seymour applied to the Town's

code enforcement officer for a permit to remove loam from one of the parcels that is

lscztec! tc the mrth sf the Tay R o d . The CEO grantzc! hcr such a peril;;:, ai;d Seyzour

then proceeded with the process of removing loam from the parcel.

On June 26, 2002, the CEO issued a stop work order to Seymour because, he

alieged, Seymour had exceeded three of the restrictions crzated by the ordinance: first,

she had removed more than 1,000 cubic yards of material without first obtaining Planning

Board approval (because the permit she obtained in 49%- 2001 had been issued by the

CEO rather than by the Planninq Board, by the terms of the ordinance, she could remove

no more than 1,000 cubic yards of material in a calendar year); second, she had removed

material below the seasonal high water table'; and finally, she had removed material

within 150 feet of a property line. Seymour filed an appeal from this order on July 9.

Three days later, the CEO issued a second stop work order, this one based on his finding

that Seymour violated the municipal ordinance iecat!se h e removed material beiow the

level of and within 150 feet of the Tay Road. At a meeting held in August 2002, the

Board considered Seymour's appeal, which was deemed to cover both stop work orders.

At the hearing held before the Board, the CEO advised the Board that there was

insufficient evidence to support that claim. He and the Town pressed the other grounds

the led to the issuance of the stop work orders.

By a vote of 3-1, with a fifth member abstaining, the Board concluded that the CEO has

issued both stop work orders "without the CEO finding his facts before issuing them."

On that basis, the Board vacated the orders. The Town filed an appeal from the ~ o a r d ' s

decision. This court concluded that the nature of the Board's proceeding was ambiguous

because it exhibited characteristics of both an appellate process and a de novo, fact-

finding process. tIclding that the proper functicn d the Soard was to condud a de novo

hearing on the issues presented to them, the court remanded the case to the Board.

On remand, the Board held a hearing that spanned several dates, the last of which

was on May 19, 200A. On September 23,2004, the Board issued a written decision. For

purposes of proceeding at bar, the Board's central finding was that Seymour was not

required to obtain a permit from the Board for the extraction operation on the north side

of the Tay Road, because such an operation was within the scope of the nonconforming

use that predated the enactment of the Town's land use ordinance that otherwise would

apply and control. The Board based this conclusion on the fact that Seymour's land, both

9n the r?srthand s s u t h sides z f the :sad, cscstitutec! 2 single parcel. The Bzarc! a!s=

concluded that as a general matter, the extraction operations on the north side of the road

would be subject to the setback limitations established in the Town's ordinances. In

response to the bases for the CEO's stop v;o;k orders, the Bor;rd fouad that Seymour had

extracted gravel within the 150 foot setback associated with the road and, in that sense,

increased the nonconformity generated by the existence of the gravel pit on her land to

the south of the Tay Road. The Board further found, however, that Seymour had

remediated that condition and thus took no action in response to it. Finally, the Board

concluded that the stop work order was insufficient to allege that she had breached the e

150-foot setback for abutting parcels.

Prior to the time the Board of Appeals issued its decision in 2002, ths

Town commenced an enforcement action against Seymour in the District Court. pursuant

to h8.R.Civ.P. 80K. After two days of trial, the court found that the excavation site on the

north side of the Tay Road was not part of an ongoing non-conforming use tied to the

gravel pit on the south side of the road but rather constituted a new excavation site that

required Planning Board approval. The court also found that the pit on the north side of

the road was within the 150-foot setbacks for the road and the adjoining properties. On

this basis, the court ordered Seymour to remediate the offending uses of the property and

imposed monetary penalties. Seymour appealed this judgment to the Law Court, which,

by in an opinion dated August 3 1, 2004 (roughly three weeks prior to the date the Board

issued its written decision on remand), affirmed it. Town of Levant v, Seymour, 2004 M E

115, 855 A.2d 1159.

Vlhile the instant appeals were pending and subsequent to the subrnissisn cf briefs

on appeal, Seymour moved to dismiss the Town's appeal (AP-04-18) because she notes

that she applied to the Planning Board for a land use permit to conduct excavation

activity on the portion of her property loc~tedto the north of thp, T2y Road, and the

Planning Board issued such a permit. The issuance of this permit, she argues, renders the

Town's challenges to her activity, previously not permitted by the Planning Board, to be

moot. The court first addresses this motion.

"Courts should decline to decide issues which by virtue of value and recognizable

supervening circumstances have lost their controversial vitality." State v. Dhuy, 2003

:ME 75,B 6, 825 A.2d 336, 3 4 (citatier? ar?d interca! p ~ z c t ~ ~ temitted).

ien Thp, record .t

bar does not establish that the Town's claims are moot because the Planning Board issued

a permit to Seymour. The court places significance on Seymour's choice to seek

dismissal oniy of the Town's appeai from the Board of Appeal's 2004 decision.

Although one could argue, as Seymour has here, that the future consequences of activity

that was not the subject of a Planning Board permit would lose some significance once

that activity becomes permitted, the same argument applies with equal force to the

challenges that Seymour raises to the Board's decision in her own appeal. Even though,

in opposing the motion to dismiss, the Town notes the lack of symmetry in Seymour's

motion, she has not responded by seeking to subject her appellate rights to the same

disposition she seeks for the Town's. If the issuancp, of a permit mzgina!izes the

Dlc--:--

- Board's earlier decision that she does not need a per-mii. then the same woiild be

true with respect to Seymour's own arguments on appeal if in fact each of the findings

that she challenges here relate to the circumstances of the extraction that now would be

aIlowed under the permit issued to her. That Seymour has not acted to dismiss her own

case - and that she has not suggested that she would do so if the Town's appeal were

dismissed - is a telling insight into the limits of what the Board may have allowed

through its permit.

The problem is compounded because the record of the Planning Board's permit

process submitted by Seymour here is not complete. The record supporting her motion

consists of Seymour's permit application, some Planning Board meeting minutes that are

skeletal in part, and the permit u!timzte!y issued by the Plznnicg Bozrd. That :cco:d

material, however, makes reference to documents and other submissions, such as maps,

deeds and a sketch plan, that have not been submitted here. Thus, it is impossible to

determice whether all issues raised by the parties en appea! have been subsumed by the

permit.

For these reasons, the court denies Seymour's motion to dismiss and consequently

addresses the merits of the parties' appeals. In doing so, this court reviews the Board's

decision directly for errors of law, abuse of discretion, or findings not supported by

substantial evidence in the record. Peregrine Developers, LLC v. Town of Orono, 2004

h4E 95, 8, 3 4 A.2d 2!6, 219. Fer the reasens set C U ~be!^^, the cct?rt cznc!udes that as

a matter of law the Law Court's decision issued in August 2004 embodies the conclusive

determination of the issues that were also presented to the Board for consideration and

decisi~n;that the Board's decision was contrary t~ the Law Court's disposirion GI rne

P 1

issues now at bar; and that Seymour is barred from relitigating those issues in the present

context.

The current Levant Land Use Ordinance was adopted on June 22, 1996. Section

1220(B)(2) states that all excavations "greater than 1000 cubic yards in a calendar year

shall require Planning Board approval before the activity is commenced." Section

1220(A) states that, "existing gravel pits may continue to operate as long as the extraction

does not make the pit Eore non conforming." An existing non-conforming use is defined

piior t o the enact~lientof this Ordinance . . . .

as one that ":ati;fiilly existed i~i~mediaieiy 97

(Land Use Ordinance) 5 910. The

TOWNOF LEVANT,MAINELANDUSEORDINANCE

ordinance also establishes that ''[tlhe following requirements shall apply to mineral

exploration activities . . . . (6) Extraction operations shall not be permitted within one

hundred fifty feet (150') of any property line. . . . (10) Excavation may not occur below

road level within one hundred fifty feet (150') of a road right-of-way." Land Use

Ordinance $3 1220(D)(6), (10). Because the gravel pit existed on the south side of the

Tay Road prior to the effective date of the ordinance but excavation on the northern side

of the road did not begin until 2002, both the Board and District Court were called to first

decide whether the northern pit "existed" before the ordinance was adopted in 1996. If it

did "exist7' then, it did not require Planning Board approval to continue to operate as long

as it did not become more "nonconforining." In either case, the Bcard then had to decide

whether and how to apply the setback requirements of section 1220(D).

Invohng the doctrine of res judicata, the Town argues that the Board's decision

should be vacated and that Seymour should be barred from litigating issues that wcrc

adjudicated adversely to her in the District Court judgment that had been affirmed by the

Law Court on ,4ugust 3 1,2004, and thereby became final prior the time the Board issued

its decision.

The doctrine of res judicata is a court-made collection of rules that ensures that

the same matter will not be litigated more than once. The doctrine has developed

two separate components, issue preclusion and claim preclusion. Issue

prec!usion, a!so refexec! to as c~!!atera! estoppe!, prevents the re!itigatisn cf

factual issues already decided if the identical issue was determined by a prior final

judgment, and . . . the party estopped had a fair opportunity and incentive to

litigate the issue in a prior proceeding. Claim preclusion bars relitigation if: (1)

the same parties or their privies are involved in both actions; (2) a valid final

judgment was entered in the prior action; and (3) the matters presented for

decision in the second action were, or might have been litigated in the first action.

Macomber v. MacQuinn-Tweedie, 2003 ME 122,g 22, 834 A.2d 131, 138-39 (citing

Machias Sav. Bank v. Ramsdell, 1997 M E 20, J

l 11, 689 A.2d 595, 595). "The effective

date of a final judgment is the date of its rendition without regard to the date of the

commencement of the action in which it is rendered or the action in which it is to be

-given effect." RESTATEMENT(SECOND)OF JUDGMENTS

6 14 (1982). ,4s applied here,

these principles combine to give cor?clusive and determinative weight to the Law Court's

adjudication of issues that were or couid have been submitted to the Board for its

subsequent deterEinaticn.