The opinion
STATE OF MAINE S.UPERIOR COURT
CUMBERLAND, SS CIVIL ACTION
DOCKET AP-03-076
L..
BETSEY ALDEN,
Appellant / Plaintiff
TOWN OF HARPSWELL
and WALTER SCOTT MOODY,
Defendants
I. NATURE OF ACTION
This is an appeal by Betsey Alden, pursuant to M.R. Civ. P. 80B, from the town's
approval for an extension of a wharf on the property of Walter Moody adjacent to that of Alden.
11. BACKGROUND
Betsey Alden is the owner of waterfront property on.the Wallace Shore Road in
Harpswell. Defendant Walter Moody is the owner of the lot immediately to the south of the
Alden property. Moody applied to the town for approval of a proposed pier expansion under the
Wharves and Weirs Act, 38 M.R.S.A 91022 et seq. The proposal was to expand the existing 8' x
40' wharf to 140' in length. Municipal officers held an on-site meeting on June 9,2003 and on
October 2,2003, voted to approve the application. No written decision was issued at that time.
The officers met again on November 13, 2003, and after public comment, voted again to approve
the permit. A written notice of decision, dated November 18, 2003, was issued.
Plaintiff alleges that the vote to revoke the October 2 decision, the revote and decision on
November 13,2003, and the following notice of decision was procedurally defective as no
written decision was issued within 10 days of the October 2nd vote. Alden alleges: (1) that
Moody has not demonstrated that the proposed wharf expansion will not obstruct navigation; (2)
that the expansion exceeds the parameters for such an expansion under the Town's Shoreland
Zoning Ordinance and Land Use Ordinance; (3) that Moody has not demonstrated h s title to the
tidal area that he wishes to occupy; and (4) that the size of the wharf is disproportionate to the
property that it serves.
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Alden moved for a stay on January 9,2004, pending the outcome of a title action in West
Bath District Court, which would determine who holds title to the intertidal area that the whaif
expansion would be located on. This court (Humphrey, J.) granted the stay with the provision
that it would expire either at the conclusion of the West Bath District Court matter and a final
determination of the status of title or April 30, 2004, whichever came first. When the stay
expired, Alden moved for an additional stay, until the conclusion of the action or September 1,
2004. Defendant Moody objected, claiming that plaintiff had done nothing to advance the
district court matter since February 11, 2004. Defendant wished to move the matter along since
he had received word from the Army Corps of Engineers that his permit for construction was
granted.and he wanted to build before the-season was over. The court denied the second stay
application on June 2,2004.
To rebut Alden's assertions that navigation will be impaired, Moody points to (I) the
Army Corps of Engineers Report, which states that even with the 100' extension there will be a
minimum 16' wide low water passage between pile supports at the deepest point between Moody
Ledge and the upland shore and (2) that he received title to the intertidal land through warranty
and quit claim deeds.
111. STANDARD OF REVIEW
The Superior Court independently examines the record and reviews the decision of
municipal boards for abuse of discretion, error of law or findings unsupported by substantial
evidence in the record. York v. Town of Ogunquit, 200 1 M E 53,Tj 6,769 A.2d 172, 175,
Cumberland Farms v. Town ofscarborough, 1997 ME 11, Tj 3,688 A.2d 914,915. The
substantial evidence standard requires the court to examine the entire record to determine
whether the board could have rationally decided as it did, based on the facts presented to it.
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Ryan v. Town of Camden, 582 A.2d 86 1, 863 (Me. 199 1). Substantial evidence is evidence that a
reasonable mind could accept as sufficient to support the conclusion reached. Sproul v. Town of
Boothbay Harbor, 2000 ME 30,B 8, 746 A.2d 368,372. A court is not permitted to substitute its
own judgment for that of the Board. York, 2001 ME 53,7 6,769 A.2d 172, 175, Brooks v.
Cumberland Farms, Inc., 1997 M E 203, 7 12,703 A.2d 844,848. The Board's decision is not
wrong simply because facts in the record are inconsistent or a different conclusion could be
drawn from them. Twigg v. Town of Kennebunk, 662 A.2d 914, 915 (Me 1996). This Court
must affirm the decision below unless it finds errors of law, abuses of discretion, or
unreasonableness on the Board's part. To succeed on appeal, a plaintiff must prove that the
. evidence compels an opposite conclusian. Boivin v. Town of Sanford 588 A d d 1197, 1199 (Me.
1991).
IV. DISCUSSION
A. The wharf as an obstruction to navigation:
The Army Corps of Engineers report states that there will be 16 feet of passage, even at
low tide, which could allow for small watercraft to get by the extended wharf. The harbormaster
also gave his approval to the expansion.
While the Board heard testimony about an alternate route, it is unclear whether the Board
took that into its consideration of whether there was an obstruction. One of the neighbors who
would be affected by the expansion said he would have to go to the south side of the ledge and
enter the channel there instead of where he now enters; however, Richard Ward, "an affected
boater," agreed that "he would be able to gain access to his property with his lobster boat through
the passage." (See record at p. 59).
The Law Court has held that pursuant to the Wharves and Weirs statute, a landowner
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whose property adjoins tidal flats owns the flats to the low water mark subject to certain public
rights, among them navigation and fishing. Blaney v. Rittall, 3 12 A.2d 522, 528 (Me. 1973). A
landowner may build a wharf so long as it does not interrupt or impede navigation of the
tidewaters. Id Municipal officers of the town in which the wharf is to be located were to
decide, after a hearing, whether the wharf would be an obstruction to navigation or would injure
the rights of others, if the oficers did not find an obstruction, they are to issue the license. Id. In
a footnote in Blaney, the court mentions that the original interpretation of the Colonial Ordinance
of 1876 was that the tide flats owner could exclude the public from the land by enclosing and
building a wharf on the land, but that interpretation was abandoned in Commonwealth v. Alger,
61 Mass. (7 Cush.) 53, 79 (1851). Blaney, 312 A.2d at 528 n. 7 (attached).
At the November 13 meeting, the selectmen discussed the obstruction issue and came to
the conclusion that one could go around the ledge and come around the other side (based on a
drawing that the Selectmen had). (Record at pp. 26-27). Once they discovered that smaller
boats could pass, they inquired if that satisfied the people who raised the issue of obstruction.
(Id. at p. 27). The Chairman stated that he did not know, but the selectmen still voted to approve
the project. (Id.). The fisherman who originally objected in June did not speak at the hearing.
Alden argues that "obstruction" does not mean "no alternate route available," (which is how she
believes the Board interpreted it); it means any obstruction at all. However, the Army Corps of
Engineers report that states that there will be 16 feet for a boat to pass the wharf, which suggests
that navigation is feasible.
B. Title to the intertidal land:
It is not necessary for the court to decide the ownership of the intertidal land, but it must
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decide if the Board had reason to issue the permits; that is, whether Moody had sufficient
interest in the land at the time of the application for the Board to believe that he had standing for
the permits to be granted.
The Board relied on Moody's adverse possession claim to some of the land, which he
bases on his family fishing the land. One of the rights of individuals under the Colonial
Ordinance of 1641, as amended in 1647, is the right of the public to fish the intertidal lands - if
this is true, then Moody cannot sustain a claim for adverse possession based on something that
everyone is permitted to do. As recently as 1989, the Law Court held that the public has the
rights of fishing, fowling and navigating the intertidal zones. Bell v. Town of Wells, 557 A.2d
168, 173 (Me. 1989). - ..
The question is whether the selectmen could "reasonably conclude that the applicant has
right, title, or interest in the intertidal zone based on the deeds filed with the application." Notice
of Decision (record at p. 1); see also record at tab 19 (letter from town's attorney regarding right,
title or interest in the flats). Based on those deeds, the Board concluded that Moody had right,
title or interest to the intertidal land, although based on their citation to the Colonial Ordinance,
they also could have concluded that fishing the land does not get one over the adverse possession
hump (see record at pp. 34-35). While Alden argues that the Board's reliance on the quitclaim
deeds was in error, the Board reasonably concluded that Moody had right, title or interest when
he presented the deeds in response to their request for proof that he had interest in the land. The
Board also stated that it was not its role to determine the validity of the deeds or to referee a
boundary dispute between Alden and Moody.
C. Notice of decision:
The Board voted on October 30,2003 to revoke its October 2,2003 decision because it
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had not allowed interested members of the public the chance to comment. The Board believed
that the lack of public comment was error. The plaintiff argues that the lack of a mailed decision
invalidates the approval. If however, she had appealed to the Superior Court at that time, the
court would have no doubt remanded to the Board to have a hearing where the public could
speak, the court would not have denied the license out of hand. See Glasser v. Town of
Northport, 589 A.2d 1280, 1282 (Me. 1991).
In this instance, though the Board erred in not allowing the public to speak at the October
2, 2003 meeting, it corrected its own error and gave the plaintiff the opportunity to be heard on
November 13, 2003. The Board then sent a notice of the final decision to the plaintiff within 10
days. Even though it coald have acted more diligently, the Board did act appropriately to fix its
earlier error.
V. DECISION AND JUDGMENT
Alden has not provided any evidence or argument that compels the reversal of the
decision below.
The clerk will make the following entry as the Decision and Judgment of the court:
The decision of the Board of Selectmen permitting Walter Scott Moody
to extend his pier is affirmed.
SO ORDERED.
Dated: 2 7 :2605 -
Thomas E. Delahanty I1
Justice, Superior Court
12-01-2003 Cumberland
Date Filed Docket No. AP-03-76
County
Action 80B Appeal
1 BETSEY ALDEN THE TOWN OF HARPSWELL
WALTER SCOTT MOODY
. r .
VS.
I Plaintiff's Attorney I Defendant's Attorney
Roger R. Therriault, Esq. Orville T. Ranger, Esq. (Moody)
Michael E. Therriault, Esq. P.O. Box 694
48 Front Street Brunwick, Maine 04011-0694
Bath, Maine 04530 7255509
207-443-5182 Sally J. Daggett, Esq.
P.O. Box 4510
Portland, Maine 04112
207-775-7271
Date of
Entry
- .
2003
Dec. 2 Received 12-01-2003:
Summary Sheet Filed.
11 "
Plaintiff's 80B Appeal with attachment filed.
On 12-2-03.
Briefing Schedule mailed. ellant ant's Brief due 1-12-04.
Dec. 17 Received 12-16-03.
Entry of Appearance of Orville-T. Ranger Esq., on behalf of-Defendant
Walter Scott Moody filed.
Dec. 22 Received 12-22-03.
Entry. of: Appearance of Sally J. Daggett ,-Esqi , on behalf of Defendant,
Town of Harpswell filed.
Dec. 24 ' Acknowledgment
Received 12-24-03:
of Receipt of Summons and Complaint filed showing receipt
of sevice on 12/09/03 upon defendant, Town of Harpswell to Sally Daggett,
Esq.
Summons upon Defendant, Town of Ha~pwell(un5igned) filed.
Acknowledgment of Receipt of Summons and Complaint filed showing receipt
of service on December 18, 2003 to Defendant, Walter Scott Moody to Orville
T. Ranger, Esq.
Summons upon Defendant, Walter Scott Moody (unsigned) filed.
Jzn. 12 Received 01-09-04:
Plaintiff, Betsey Alden Application for Stay of Rule 80B Action filed.
Jan. 14 Received 01-13-04:
Order for Stay filed. (Humphrey, J.).
On Application of the Plaintiff, and with concurrence of all other parties,
and with the determination that the stay of this matter pending the outcome
continued on to next page...........