The opinion
STATE OF MAINE SUPERIOR COURT
CUMBERLAND, ss. CIVIL ACTION
DOCKET NO. AP-04-46
HOS WAR 23 ZWD pe, 0 Oper.
DOUGLAS A. MCATEE mr j/ if
Appellant
v. DECISION ON 80B APPEAL
TOWN OF GRAY
Respondent.
"APR 20 2005
This matter is before the court on appellant, Douglas A. McAtee’s, 80B appeal of
the decision of the Town’s Zoning Board of: Appeals (ZBA) to uphold a determination
by the Town’s Code Enforcement Officer that a 60-foot wide access to a back lot must
be unencumbered by physical obstructions before an unconditional building permit
may be issued.
FACTUAL BACKGROUND
On November 20, 2003 Petitioner, Douglas McAtee (“petitioner”), purchased a
parcel of landin Gray. The property contained one house and approximately 14 acres.
Petitioner’s plan was to split the parcel into two lots for resale: a twelve-acre
undeveloped parcel and a two-acre parcel with the existing house. On April 23, 2004,
Petitioner sold the two-acre lot, which included the house (Lot A), to Tara McGoldrick.
Petitioner reserved a 60-foot wide right of way over Lot A for the benefit of the
remaining 12 acres in accordance with the Town of Gray’s Zoning Ordinance which
requires that access to back lots be 60 feet in width.
On May 7, 2004 petitioner sold the remaining 12-acre lot to Tyler Graves and
Lindsay Culberson. Petitioner took back a mortgage on the 12-acre lot in the amount
of $25,000 to secure a portion of the sales price. Prior to the sale, on April 27, 2004,
Tyler Graves applied for a building permit for the 12-acre lot. Thereafter, petitioner
learned that the house on Lot A encroached upon the right of way by approximately 10
feet.
On May 10, 2004, Graves was issued a conditional building permit by the Town
of Gray Code Enforcement Officer (“CEO”) “subject to the retaining of an acceptable
right of way ‘unencumbered’ for the entire 60-foot width).” (R. 1). Petitioner appealed
the CEO’s decision to the Town of Gray’s Zoning Board of Appeals, objecting to the
officer’s interpretation of the ordinance to require that the right of way be
unencumbered. The Zoning Board of Appeals (“ZBA”) subsequently upheld the CEO’s
decision, finding that the town ordinance required that the right of way be
unencumbered. Petitioner then sought a variance, which request was denied.
Subsequently, by way of a letter from the Respondent's attorney, petitioner learned
that when the ZBA considered his appeal of the conditional building permit, it was
referring to a prior version of the ordinance, not the current version. The version to
which the ZBA referred had in fact been repealed and replaced at the time of
petitioner’s hearing.
DISCUSSION
The court reviews a decision of the Board’ directly for abuse of discretion, errors
of law, or findings not supported by substantial evidence in the record. See McGhie v.
Town of Cutler, 2002 ME 62, 15, 793 A.2d 504, 505. “Substantial evidence is evidence that
a reasonable mind would accept as sufficient to support a conclusion.” York v. Town of
i Although there was some disagreement among the parties at the hearing on the
instant appeal relating to whether the decision of the code enforcement officer or that
of the ZBA is subject to judicial review, the court concludes that it is the decision of the
ZBA that is at issue here. See Tarason v. Town of S. Berwick, 2005 ME 30, § 6, A.2d
(explaining that where a “ZBA conducted a hearing, heard testimony, considered
evidence, and made factual findings, its determination is the operative decision of the
municipality”) (internal quotations omitted). .
Ogunquit, 2001 ME 53, { 6, 769 A.2d 172, 175. The court may not substitute its own
judgment for that of the Board. See id.; Brooks v. Cumberland Farms, Inc. 1997 ME 203, 1
12, 703 A.2d 844, 848. The burden of persuasion in an action challenging a decision of
the Board rests on the party seeking to overturn the Board's decision. See Sawyer Envtl.
Recovery Facilities, Inc. v. Town of Hampden, 2000 ME 179, 7 13, 760 A.2d 257, 260.
In support of his contention that the ZBA’s decision should be reversed,
petitioner argues that neither the older version, mistakenly considered by the ZBA, nor
the current version of the Town’s ordinance contain language stating that rights of way
for access to back lots must be free from encumbrances. He asserts that the current
version states only that the travel way must meet or exceed the driveway requirements
of the Town street construction ordinance. Under that ordinance, petitioner argues that
only a 12-foot wide section of the right of way must be improved. Accordingly,
petitioner maintains that because there is ample room within the existing, though
encumbered, right of way to improve a 12-foot wide section for the purposes of
accessing the back lot, the denial by the ZBA of his appeal of the conditional building
permit constituted an error of law. In the alternative, petitioner argues that
respondent's admission that the wrong ordinance was referenced by the ZBA requires
remand for a hearing conducted under the proper version of the ordinance.
In opposition, respondent contends, first, that because petitioner sold both pieces
of property, he lacks standing to appeal the ZBA’s decision and the petition should
therefore be dismissed. Respondent further argues that in affirming the decision of the
Code Enforcement Officer, the ZBA did not commit an error of law and this court
should therefore affirm its decision.
Standing
In order to entertain the merits of petitioner’s appeal, the court must first
address respondent's claim that petitioner lacks standing. Lamson v. Cote, 2001 ME 109,
2
3
{ 11,775 A.2d 1134, 1137. (“Standing is a threshold issue bearing on the court's power
to adjudicate disputes.") (citations omitted). Respondent argues that petitioner does not
have standing to bring this 80B appeal because he previously sold both of the lots
impacted by the access-way-width issue. According to respondent, in order to bring an
appeal of the decision of the ZBA, petitioner must demonstrate that he has standing to
sue based upon some right, title or interest in the property. Respondent argues that
petitioner lacks any such interest.
“To appeal a decision of the zoning board of appeals, pursuant to 30-A M.RS.A.
§ 2691(3)(G) (1996), a party must (1) have appeared before the board of appeals; and (2)
be able to demonstrate a particularized injury as a result of the board's action.” Sproul v.
Town of Boothbay Harbor, 2000 ME 30, { 6, 746 A.2d 368, 371 (internal quotations
omitted). In this case, the record demonstrates that petitioner has met the first
criterion. Based on the minutes from the July 15, 2004 meeting of the ZBA, it is clear
that petitioner participated fully in the administrative appeal of the CEO’s decision
regarding the right of way. See R.5. Whether petitioner has standing, then, turns on
whether he has demonstrated a particularized injury as a result of the ZBA’s action.
Petitioner argues that because Maine is a “title theory” state, legal title to the
property is vested in him and he therefore has standing to bring the instant appeal. He
further argues that he has standing because the decision of the ZBA affects the value of
the property and therefore, his collateral. The court agrees. Because petitioner holds a
substantial mortgage on Lot B, the value of which will be affected by the ZBA’s
decision, the court concludes that he is an aggrieved party with standing to bring the
instant appeal. See Goodridge v. Zoning Bd. of Appeals, 755 A.2d 329, 333 (Conn. 2000).
The Decision of the ZBA
The applicable section of the Town of Gray Zoning Ordinance is section 11 of
"Chapter 402. Chapter 402 was originally enacted in 1994 and, over the course of the last
a
ten years, has undergone several amendments. See R. at Tab #18. Section 11, in
particular, was repealed and replaced on January 12, 2004. Plaintiff's hearing before the
ZBA was held on July 14, 2004. In a letter dated September 15, 2004 to Code
Enforcement Officer Mark Stanbach, respondent’s attorney acknowledges that the ZBA
“may have been referencing the now-repealed version” of the applicable zoning
ordinance when it considered petitioner’s appeal. R. at Tab17. At the hearing before
the court on the instant appeal, respondent's attorney conceded that the ZBA had in fact
referenced the now-repealed version.
Section 402.11 of the Town of Gray Zoning Ordinance outlines requirements for
back lots. The repealed version of section 402.11, under which the ZBA considered
petitioner’s appeal, read in pertinent part:
Back lots used for single family purposes shall be permitted, provided
they meet the following standards:
A.
C.
Access
1. A sixty (60) foot wide access shall be provided for back lots.
2. Said access shall be owned either in fee or by permanent
easement and maintained by the back lot users.
3. Record of said access way shall be recorded as part of the deed
of each back lot user on file with the County Register of Deeds.
4. Access way entrance to a street shall conform to standards of the
subdivision ordinance and shall be approved by the Code
Enforcement Officer.
5. The issuance of a building permit for a single family dwelling on
a back lot shall in no way be construed to imply the acceptance of
any access way for the purpose of maintenance, improvements of
[sic] snow removal by the Town of Gray.
6. Creation of a subdivision requires compliance with the
provisions of the Gray Subdivision Ordinance.
Lot Size
1. Any back lot shall be equal to or greater than the minimum lot
size required for the zoning district. Computation of minimum lot
size area shall not include any portion of the area devoted to an
access Way.
Town of Gray, Me., Zoning Ordinance ch. 402, § 11 (2003) (repealed and replaced by Town
of Gray, Me. Zoning Ordinance ch. 402.11 (2004)).
The amendment to section 402.11 which became effective on January 12, 2004
and which was the version applicable to petitioner's appeal before the ZBA reads in
pertinent part:
Back lots shall be permitted, provided that they meet the following requirements
in addition to other applicable requirements of the Ordinances of the Town of
Gray:
A. Access Ways:
1. Access ways for back lots shall have right of ways that are sixty (60)
feet wide.
2. Access ways shall be owned either in fee or by permanent easement
and shall be maintained by the owners or the users of the back lots.
3. The issuance of building permits for back lots shall not, in any way,
imply the acceptance of any access ways to back lots for purposes of
maintenance, improvements, or snow removal by the Town of Gray.
4. Records of ownership or permanent easements of access ways to back
lots shall be recorded as part of the deeds of such back lots on file with the
County Registry of Deeds.
5. The travel way within the access way shall meet or exceed the
driveway requirements of the Gray Street Ordinance.
Cc. Lot Size:
In order to be buildable, any back lot shall have an area equal to or greater than
the minimum lot size required for the Zoning District in which it is located,
unless it is a legally nonconforming lot. The computation of minimum lot size
area shall not include any portion of the area devoted to the sixty (60) foot wide
access Way.
Town of Gray, Me. Zoning Ordinance ch. 402.11 (2004).
The ZBA referenced a version of section 402.11 that had previously been
repealed and was therefore no longer applicable. Because it is axiomatic that the ZBA
and, indeed, any other tribunal, must base its decisions on existing, applicable law the
court must remand this case back to the ZBA to conduct a hearing under the correct
ordinance.”
The entry is
Remanded to the Town of Gray Zoning Board of Appeals.
/
Dated at Portland, Maine this D3*4 day of f Wr. 4.2005.
/ >
KELL.
Robert E. Crowley ~~
Justice, Superior Court
* Although the 2003 version of the ordinance is largely irrelevant because no longer in
effect, a review of its language does help illustrate the changes made in the 2004
amendment. After reviewing both versions, the court notes that nothing in the
language of either version indicates that the 60-foot wide right of way required for back
lots must be unobstructed. There is no requirement, for example, that the right of way
must be clear-cut and free from any trees or boulders. Instead, the language provides
only that such rights of way must be 60-feet wide and owned in fee or by permanent
easement. On remand the Board should interpret the ordinance and determine
whether it requires a 60-foot access that is presently unobstructed or the unfettered
legal right to remove any obstruction within the 60-foot access way or if the ordinance °
has some other meaning.
Date Giled 8-30-04 Cumberland Docket No. _4P704-46
( County
acudl 80B Appeal
or
DOUGLAS A. MCATEE TOWN OF GRAY, MAINE
VS.
Plaintiff's Attorney Defendant’s Attorney
Robert Avaunt, Esq. William H. Dale, Esq.
P.O. Box 1029 Ten Free Street
Gray, ME 04039-1029 PO Box 4510
657-5077 Portland, ME 04112-4510
, 775-7271
Date of
Entry