The opinion
STATE OF MAINE SUPERIOR COURT
CIVIL ACTION
YORK, ss. .DOCKET NO. AP-07-049
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, J
MICHAEL E. MCKINNEY and
CAROLYN A. MCKINNEY,
Plaintiffs
v. ORDER
TOWN OF ELIOT,
Defendant
This matter comes before the Court on Defendant Town of Eliot's (Town) Motion
to dismiss Plaintiffs Michael E. McKinney and Carolyn A. McKinney's (the
UMcKinneys") complaint pursuant to M.R. Civ. P. 80B. The Court is also scheduled to
hear the merits of the McKinneys' Rule 80B appeal.
PROCEDURAL HISTORY
The facts of this case are largely undisputed. The McKinneys filed two 80B
appeals in this Court with respect to a variance and waiver granted by the Town to the
American Legion Post (American Legion) located on Main Street in Eliot, Maine. 1 On
February 26, 2007, both appeals were remanded to the Eliot Zoning Board of Appeals
(ZBA) for failure to make the sufficient and clear finding of facts necessary for judicial
review.
1 The variance and waiver were granted for the benefit of Ethel's Tree of Life (TOL),
which runs a transitional training program for special needs children and young adults. TOL
utilizes space in the American Legion.
In compliance with the remand, the ZBA held a meeting on May 17, 2007 in
order to reissue findings of fact sufficient for judicial review (Appeal Meeting). The
McKinneys attended the Appeal Meeting. On July 6, 2007, approximately 50 days after
the Appeal Meeting, the McKinneys again filed an appeal with this Court asserting that
the "finding of facts at the May 17, 2007 meeting failed to meet the Court's ruling to
make specific findings."
The Town moves to dismiss the claim as untimely filed and further asserts that
the McKinneys have failed to state a claim upon which relief can be granted?
DISCUSSION
1. Plaintiffs' 80B Appeal
A. Factual Background
Before the Court is an appeal of the finding of facts of the Town's Zoning Board
of Appeals ("ZBA") made on May 17, 2007 pursuant to this Court's remand of the
McKinneys' previous appeal. At issue in this second appeal is whether the ZBA's
decision is supported by the sufficient and clear findings of fact necessary for judicial
review based on the evidence in the record.
B. Standard of Review
Review of the Board of Appeals' findings is "for an abuse of discretion, error of
law, or findings unsupported by substantial evidence in the record." O'Toole v. City of
Portland, 2004 ME 130, <][8, 865 A.2d 555, 558. This Court is "limited to determining
whether the record contains evidence to justify the Board's determination." Lewis v.
2 While the Town's Motion to Dismiss on timeliness grounds may be dispositive, I proceed to the
merits of the SOB appeal because I failed to expressly retain jurisdiction on remand. This, no doubt,
created confusing procedural problems for the Plaintiffs, who represented themselves throughout these
proceedings.
2
Maine Coast Artists, 2001 ME 75, <[14, 770 A.2d 644, 650. The party appealing the zoning
board's decision bears the burden of persuasion. Twigg v. Town of Kennebunk, 662 A.2d
914, 916 (Me. 1996).
By statute, a zoning board is required to provide not only a statement of its
findings of fact and conclusions of law, but also "the reasons or basis for the findings
and conclusions." 30-A M.R.S. § 2691(3)(E) (2005). Adequate findings of fact are crucial
to the Court's review a zoning board's action under Rule 80B because "[m]eaningful
judicial review of an agency decisions is not possible without findings of fact sufficient
to apprise the Court of the decision's basis." Chapel road Associates, LLC v. Town of Wells,
2001 ME 178, <[ 9, 787 A.2d 137, 140.
C. Conditional Use Permit
The ZBA granted a conditional use permit to TOL based on the conclusion that
the existence of TOL at the American Legion would not create increased intensity of use
or traffic safety issues at the American Legion. On remand, the ZBA was directed to
support that conclusion with specific findings of fact.
At the Appeal Meeting, the ZBA took additional testimony and considered
testimony previously taken regarding the McKinneys' appeals. The ZBA found inter
alia that:
1. TOL uses the American Legion primarily for administrative purposes with
two or three people present;
2. Occasionally the number is higher, but they arrive by van and the impact is
similar to American Legion events;
3. TOL uses carpooling rather than individual cars;
4. American Legion meetings usually mean more cars utilizing the parking
spaces;
5. The American Legion has rented the space in the past for various activities
that have "brought in additional traffic."
6. TOL and the American Legion would not use the facility concurrently.
Town of Eliot Board of Appeals Meeting - May 17, 2007 p. 15-16.
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Based upon these findings, the Town asserts that TaL is not a "new use" or
expansion of use as defined in Article X of its ordinance, and consequently is not subject
to Article X's parking requirements. 3 The record evidence supports this finding.
D. Waiver and Variance
Before granting a varience, the ZBA must consider the following criteria: (1) the
land would not earn a reasonable return absent a variance, (2) a variance is needed due
to unique circumstances and not the general character of the neighborhood, (3) the
variance would not change the essential character of the area, and (4) the hardship was
not caused by the actions of the proponent or a prior owner. 30-A M.R.S.A. § 4353(4)(a)
(D) (2005).
a. Reasonable Return Absent a Variance
On remand, the ZBA was required to articulate finding of facts regarding
whether or not the land would earn a reasonable return absent a variance. The ZBA
found inter alia that:
1. The American Legion holds the property by a deed containing a reverter
clause. Consequently, if the American legion cannot stay in operation, the
property will revert to the Town.
2. The American Legion treasurer testified that the American legion cannot
support the building by itself. It is dependent on the revenue generated by
TaL. If TaL is not allowed to rent the space, the American Legion will have
to close.
3. Should the property be put to a new use, parking spaces in accordance with
the ordinance would be required.
Town of Eliot Board of Appeals Meeting - May 17, 2007 p. 17.
3
The scope of Article X is defined under the ordinance as:
The standards in this article shall apply to all new uses or establishments which
expand or increase their volume or intensity of usage. They shall also apply to
all new or expanded parking facilities.
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b. Unique Circumstances
With respect to the unique circumstances surrounding this property, the ZBA
found that:
1. The property was a small corner lot;
2. The building took up substantially all of the lot, save the residential setback
requirements and there is no physical room for additional parking in
compliance with the ordinance;
3. The lot is uniquely encumbered by a reverter clause to the Town.
Town of Eliot Board of Appeals Meeting - May 17, 2007 p. 17.
c. No Change to Essential Character of the Area
The ZBA found that the essential character of the area would remain unchanged
based upon:
1. The American Legion has unlimited use of the property and utilizes the three
grandfather parking spaces in front of the building on Main Street. Because
TaL's use is not concurrent with the American Legion, that use will not
change with TaL's lease;
2. The American Legion has used those parking spaces since the early 1960's
with no evidence of accidents occurring because of that use;
3. TaL has been operating at the American Legion since 2004 with no reported
accidents as a result of their use of the parking spaces. .
Town of Eliot Board of Appeals Meeting - May 17,2007 p. 19.
d. Hardship was Not Caused by the Actions of the Proponent or a Prior
Owner
The ZBA found that the hardship was the limitation on parking at the American
Legion Post. This hardship came into existence under Eliot's current zoning
restrictions. The American Legion's use of the property pre-dates those zoning
restrictions. Town of Eliot Board of Appeals Meeting - May 17, 2007 p. 19.
e. Conclusions of the ZBA
Based upon the above findings, the ZBA concluded that TaL met all requirements
to be granted a variance and consequently qualified "for the lesser relief of the waiver."
This grant includes side yard variance for parking. In addition, the board also
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concluded that the use by the TOL was not a new or expanded use, thus a grant of
variance and waiver was not necessary. The board approved the amended findings and
conclusion s by a unanimous vote. Id. at p. 23.
The ZBA complied with the order on remand and articulated the ZBA's findings
of fact. The McKinneys have the burden to show that the ZBA committed "an abuse of
discretion, error of law, or findings unsupported by substantial evidence in the record."
O'Toole v. City of Portland, 2004 ME 130, 'll 8, 865 A.2d 555, 558. This Court is "limited to
determining whether the record contains evidence to justify the Board's determination."
Lewis v. Maine Coast Artists, 2001 ME 75, 'll14, 770 A.2d 644, 650. The McKinneys have
not net their burden.
CONCLUSION
The Plaintiffs' appeal is Denied and the decision of the ZBA is Affirmed.
Dated: December 2.b, 2007
Michael E. McKinney - PL - Pro se
Carolyn A. McKinney - PL - Pro se
Katherine R. Knox, Esq. - DEF
Christopher L. Vaniotis, Esq. - DEF
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