The opinion
STATE OF MAINE SUPERIOR COURT
Cumberland, ss . - Civil Action
- - :. - .
"
-* . I Docket No. AP-05-079
NORMAND LAUZE,
Appellant / Plaintiff
DECISION AND JUDGMENTON APPEAL
(M.R.Civ.P.80B)
TOWN OF HARPSWELL,
Defendants
I. NATURE OF ACTION
This is an appeal by Normand Lauze, pursuant to M.R. Civ. P. 80B, from the
Town of Harpswell's (hereinafter referred to as "town" or "Harpswell") refusal to allow
h m to maintain a ramp and float for his boat at Totrnan's Point.
11. BACKGROUND
The petitioner Normand Lauze owns waterfront property located on Totrnan's
Point in Harpswell. In 1999, Lauze applied for a permit pursuant to the Harpswell
Shoreland Zoning Ordinance and the Maine Wharves and Weirs Act, 38 M.R.S.A. 5
1022, to construct a ramp and float on his property. The town never issued a written
permit, but the petitioner claims that he received verbal approval to construct the ramp
and float from the town's code enforcement officer (CEO).
On July 26, 2005, the Harpswell CEO issued a notice of violation1 to the
petitioner, indicating that Lauze did not have a permit for his existing ramp and float
' The letter issued from the CEO, dated Jul 26,2005, provides that "any decision of this office including
b
this letter of violation may be appealed to t e Zoning Board of Appeals. Any appeal must be filed within
and was in violation of Section 15.3 and Table 1 of the Town of Harpswell Shoreland
Zoning Ordinancee2 The notice instructed that Lauze complete the enclosed "Wharf
Permit Application Package" or remove the ramp and float. On July 29, 2005, Lauze
spoke with the CEO who confirmed that the town did not have any record of issuing or
exempting a land use permit for the ramp and float.
On August 8, 2005, Lauze filed an "after-the-fact" wharf permit application to
maintain his 4' by 30' ramp and his 12' by 24' float that he constructed in 2000.3 In
addition to the permit required by the town, the ramp and float system required a
permit from the Army Corps of Engineers. Lauze had obtained that permit on
December 22, 1999. The ramp and float did not require a Department of Environmental
Protection permit because they are seasonal structures.
Pursuant to the procedure detailed in 38 M.R.S.A. § 1022, on August 29,2005, the
Board of Selectmen ("the Board"), acting under the Wharves and Weirs Act, conducted
an on-site public hearing regarding Lauze's application. (R. at 66) The minutes of the
hearing indicate that the ramp and float are seasonal and do not appear to adversely
affect the rights of others, but are a hazard to navigation. The minutes also state that
the float remains afloat at normal low tide (R. at 66) and that one selectman suggested
forty (40) days from the date of this letter." The petitioner never appealed the CEO's notice of violation,
and as a result, the notice is final and Lauze's argument in section I1 of his brief fails.
The record does not contain the Shoreland Zoning Ordinance, but the respondent provided brief
overviews of the sections.
According to the town, when Lauze completed the "Wharf Application Permit Package" he
simultaneously filed a Wharves and Weirs Act license application. This makes sense when considering
that the statute requires:
Any person intending to build or extend any wharf, fish weir or trap in tidewaters,
within the limits of any city or town, shall apply in writing to the municipal officers of
the city or town, stating the location of the weir, the boundaries of the cove in which the
weir will be constructed as identified on a map prepared by the Commissioner of Marine
Resources, limits and boundaries, as nearly as may be, of the intended erection or
extension, and asking license for the intended erection or extension.
38 M.R.S.A. $j1022 (2005).
that the length of the structure be shortened by 4' and moved 15' south. Subsequently,
on September 7, 2005, the town's harbormaster stated in writing that he approved
Lauze's application on condition that Lauze adjust the ramp and float to set it 15 feet
South of its current position.
On September 15, 2005, the Board held a public meeting to consider Lauze's
application. Lauze informed the Board that he obtained approval for the ramp and float
system in 1999, but did not have a written permit. A Selectman stated that, in 1999, the
Board did not issue written permits, but if it did approve Lauze's permit, the minutes of
the meeting would demonstrate the approval. Consequently, the Board voted to table
the application so they could investigate and research Lauze's claim.
At the Board's next meeting, on September 29, 2005, the CEO testified that he
researched the Board's minutes but found no evidence that the Board heard or
approved a wharf application for the petitioner. After additional testimony from the
CEO and petitioner, the Board voted 2-0 to deny the application and ordered Lauze to
remove lus ramp and float system within 30 days. The Board reasoned that the ramp
and float system would obstruct navigation and interfere with the rights of others.
Pursuant to 5 1022, the Board issued a written decision within 10 days of its vote
and mailed a copy of the same to interested parties. Lauze timely filed h s 80B appeal.
111. DISCUSSION
A. Standard of Review
This 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, 2001 ME 53, ql6, 769 A.2d
172, 175. Substantial evidence means "such relevant evidence as a reasonable mind
might accept as adequate to support the conclusion." Palesky v. Town of Topsham, 614
A.2d 1307,1309 (Me. 1992). A court is not permitted to substitute its own judgment for
that of the Board, York, 2001 ME 53, ¶ 6, 769 A.2d at 175, and 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, 915 (Me. 1996). Finally, the party
seeking to overturn the board's decision has the burden of demonstrating that the
evidence compels a contrary conclusion. Boivin v. Town of Stanford, 588 A.2d 1197, 1199
(Me. 1991).
B. Estoppel
Lauze argues that the Board cannot deny his wharf permit application because
he detrimentally relied on the CEO's 1999 misrepresentation that Lauze had a valid
permit for the float and ramp system. In response, the respondent contends that Lauze
improperly uses the equitable estoppel doctrine.
Estoppel is "available only for protection, and cannot be used as a weapon of
assault." Waterville Homes, Inc. v. Maine DOT, 589 A.2d 455, 457 (Me. 1991) (citation
omitted) (emphasis added). Furthermore, estoppel "is an equitable affirmative defense
that operates to absolutely preclude a party from asserting rights which might perhaps
have otherwise existed, either of property, of contract, or of remedy, as against another
person who has in good faith relied upon such conduct, and has been led thereby to
change his position for the worse, and who on his part acquires some corresponding
right, either of property, of contract, or of remedy." Id. (internal quotations and citation
omitted).
In Buker v. Town of Sweden, 644 A.2d 1042, 1042 (Me. 1994), a property owner
appealed the town planning board's denial of h s application for a conditional use
permit for removal of water. The property owner argued that that the planning board
should be estopped from denying the permit because the owner had relied to h s
detriment on the planning board's assertion that it would consider h s permit
application under a different category. Id. at 1044. The Law Court rejected the
argument, reasoning that because "we have held that equitable estoppel can be asserted
against a municipality only as a defense, the property owner "improperly brings the
claim of equitable estoppel as an affirmative cause of a ~ t i o n . "Id.
~
Similarly, Lauze's arguments demonstrate that he attempts to use estoppel
offensively. As in Buker, Lauze argues that the Board should be estopped from denying
his application due to detrimental reliance on the CEOs' statements in 1999. Indeed, the
town has not taken any enforcement action against Lauze that he must now defend
against; rather, he appealed the denial of the license for which he appliedS5 This
demonstrates that Lauze uses the doctrine solely as a basis for his prosecution of this
appeal.
C. Temporay Floats
Lauze next argues that the town lacks jurisdiction in this case because the
Wharves and Weirs Act does not apply to seasonal or temporary wharfs. According to
the petitioner, because the Act only defines weir, and defines it as a permanent
structure, the Act must be strictly construed to exclude temporary structures such as the
petitioner's ramp and float system. Predictably, the town contends that the Act does
apply to temporary structures.
Tarason v. Town of S . Benuick, 2005 ME 308, ¶ 16,868 A.2d 230,234, the Law Court approvingly cited this
proposition of law. In Tarason:
[Tlhe Town did not bring an enforcement action against Tarason. It merely stated that
the use of Tarason's property was in violation of the Town's ordinance. Tarason appealed
this decision to the ZBA, the Superior Court, and finally to this Court. Consequently, the
Superior Court correctly concluded that Tarason cannot affirmatively estop the Town
from bringing an enforcement action against him.
Id.
See supra note 1.
Although the Wharves and Weirs Act defined a weir as "a fixed structure erected
and maintained during part of each fishng season in the tidewater," the Act never
explicitly limits its application to permanent structures. Indeed, because the purpose of
the Act is to promote and protect "fishing, fowling, and navigation," excluding
temporary structures would obviate these objectives and render the statute
meaningless. See Bell v. Wells, 557 A.2d 168, 173 (Me. 1989).
D. Substantial Evidence on the Record
The Board can grant licenses to erect or expand a wharf or weir only when such
structures will not be an obstruction to navigation or injure to the rights of others. See
38 M.R.S.A. 9 1022. The written decision of the Board stated that the ramp and float
system obstructs navigation. The Board explained:
[Tlhs is a narrow passage, reasonably heavily used with a strong current
because of its narrowness. The float is used to tie up a boat of 14 foot
beam. The wharf itself makes the passage even narrower[,] and with a
boat the restriction is appreciably worsened . . . Two boats could not
reasonably pass, and many fishng boats would not be able to turn around
with this ramp and float in place . . . This is one of the areas of Harpswell
with the swiftest current and is narrow to the point that it should not be
further restricted.
At the on-site hearing, the harbormaster concurred with a selectman that Lauze's
structure be moved 15 feet to the South to address potential navigation hazards. (R. at
66-67, 72-73). The CEO also believed that the structure needed to be moved for safety
reasons. (R. at 61-62).
Several selectmen, based on personal k n ~ w l e d g elikewise
,~ believed that Lauze's
structure posed navigation danger. Selectman Weil stated that that he is "very familiar
this particular wharf and h s passage and it is a narrow passage." (R. at 73-74)
Selectman Weil also believed that the placement of "no wake" signs on the property by
6
A Board member may rely on competent personal knowledge. Adelman v. Town of Baldwin, 2000 M E 91,
q[ 11,750 A.2d 577,582.
6
Lauze indicate that the petitioner acknowledges the narrow width of the channel. (R. at
98). Additionally, selectmen Theberge visited the area after the on-site hearing and
noticed that the channel is busy with good-sized boats navigating it. (R. at 90).
Theberge also stated that he crossed the channel in approximately a 45' boat but felt that
there was "not much room." (R. at 90). Finally, Selectman Theberge mentioned that the
narrow area that encompasses petitioner's structure has strong rip tides.
Although the petitioner did provide evidence that there is 140 feet between his
float and the opposing shore during low tide17the rest of the record does not compel
that the Board's decision should be overturned. The width of the channel may seem
wide enough for navigation, but the water depth may be too shallow across the channel
for boats to safely pass or pass at all. (See R. at 97). Additionally, as previously
discussed, the testimony from the CEO and the harbormaster coupled with the personal
knowledge of the selectmen supports the Board's findings and decision.
IV. DECISION AND JUDGMENT
The clerk shall make the following entry on to the docket as the Decision and
Judgment of the court:
A. There are adequate facts of record to support the findings by the Town
of Harpswell Board of Selectmen.
B. The Decision of the Town of Harpswell Zoning Board of Appeals is
affirmed.
C. Judgment is entered for the respondent Town of Harpswell.
SO ORDERED.
Dated: August 28 2006
In fact, one Selectman said that a few days prior to the September 25,2005 hearing, he passed through
the channel and "didn't have a sense that I had 140 feet."
I
Date Filed 10-14-05 ND Docket No. -5-79
County
Action 8013 -EAT,
NORMAND LAUZE TOWN OF HARPSWELL MAINE
Plaintiff's Attorney Defendant's Attorney
W i l l i a m F e r d i n a n d Jr Esq WillTam D a l E , Esg.
PO Box 5249 S a l l y J . D a g g e t t , Esq.
Augusta Maine 04330 P.O. Box 4510
P o r t l a n d , Maine 04112
I 775-7271
Date of
Entry
2005
Oct. 17 Received 10-14-05.
Complaint p u r s u a n t t o 38 M.R.S.A. 1021 e t s e q and M.R.Civ.P. 80 B w i t h
e x h i b i t s A-E f i l e d .
II II
On 10-17-05.
B r i e f i n g schedule mailed. P l a i n t i f f ' s b r i e f and r e c o r d due 11-23-05.
Nov. 2 Received 11-02-05:
E n t r y of Appearance of William H. Dale, Esq. and S a l l y D a g g e t t , Esq.
on b e h a l f of t h e Defendant, Town of Harpswell, Maine f i l e d .
1:
b
Nov. 4 Received 11-04-05:
Acknowledgment of R e c e i p t of Summons and Complaint f i l e d .
Upon Defendant, Town of Harpswell Maine t o R o s a l i n d K n i g h t , C l e r k .
Nov. 1 8 Received 1 1 - 1 7 - 0 5 :
Plaintiff's Motion for Enlargement of time to file brief and
Record on Appeal filed.
Nov. 2 1 Received 11--21-05:
Order Enlarging Time filed. (Delahanty, 3.)
The Plzintiff's Motion far Enl-argement of Time to file the
Record on Appead and their brief is hereby GRANTED. P l a i n - -
tiff sha.11 file these documents by December 1 6 , 2 0 0 5 .
On 1 1 - - 2 1 - - 0 5 copies mailed to William Ferdinand Jr., E s ~ . ,
William Dale, Sally Daggett, Esqs.
Dec. 16 Received 12-16-05.
P l a i n t i f f ' s record f i l e d .
Plaintiff's brief filed.
2006
J a n . 17 Received 1-17-06.
Defendant, Town of H a r p s w e l l ' s , Rule 80B B r i e f f i l e d .
Feb. 1 Received 1-31-06.
P l a i n t i f f ' s reply brief f i l e d .
NORMAN LAUZE vs. TOWN OF HERPSWELL MAINE
Docket No. AP-05-79
On 06-28-06:
Hearing Held on 80B appeal.
Court takes matter under Advisement.
Justice Thomas Delahanty Presiding.
No record made.
Received 07-07-06:
Letter from William Dale, Esq. to Justice Delahanty stating as a follow
up to the oral argument in the matter, Defendant Town Cites the Court
to the Rule 80B record Citations filed.
Received 08-28-06:
Decision and Judgment on Appeal filed. (Delahanty, J.).
The clerk shall make the following entry on to the docket
as the Decision and Judgment of the Court: A. There are
adequate facts of record to support the findings by the Town
of Harpswell Board of Selectman. B. The Decision of the Town
of Harpswell Zoning Board of Appeals is affirmed. C. Judg-
ment is entered for the respondent Town of Harpswell. SO
ORDERED.
On 08-31-06 Copies mailed to William Dale, Sally J. Daggett
and William Ferdinand, Esqs. Ms Deborah Firestone, Goss
Mimeograph, The Donald Garbrecht Law Library and Loislaw.com
Inc.