Pierce v. Town of Kennebunk

STATE OF MAINE SUPERIOR COURT

CIVIL ACTION

YORK, 55. DOCKET NO. AP-06 03~

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WILLIAM C. PIERCE and

CYNTHIA A. PIERCE,

Plaintiffs

v. ORDER ON BOB APPEAL

TOWN OF KENNEBUNK,

Defendant

Before the Court is Plaintiffs William C. Pierce and Cynthia A. Pierce's (the

"Pierces") appeal against the Defendant Town of Kennebunk ("Town") pursuant to

M.R. Civ. P. 80B of a decision issued by the Kennebunk Zoning Board of Appeals

("ZBA") barring their appeal of a Kennebunk Planning Board ("Planning Board")

decision because it was not timely filed. Following hearing, the appeal is Denied.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

The sole issue before the Court is whether the ZBA erred when it barred the

appeal because it was not filed within 30 days of the Planning Board's oral decision at

hearing.

The Pierces own a single-family residence in Kennebunk, Maine with frontage on

the Kennebunk River. Though the residence is in the Suburban Residential Zone, the

riverfront area lies in the Shoreland Protection (SP) and Resource Protection (RP) Zones.

The SP and RP require special exception approval from the Planning Board prior to the

building of "permanent or temporary piers, docks and wharfs" pursuant to Article VII

of the Kennebunk Zoning Ordinance ("Ordinance").

On January 17, 2006, the Pierces sought approval of a temporary dock structure

consisting of a walkway, ramp and floating dock (the "Project") by submitting a Special

Exception Application to the Planning Board. A public hearing was held on March 27,

2006 to consider the application (the "Hearing"). Mr. Pierce attended the Hearing

accompanied by an engineering firm that was handling the technical aspects of the

Project. The Pierces were not represented by legal counsel at that time. At the Hearing,

the Planning Board denied the Pierces' application.

Subsequent to the Hearing, the Pierces contacted the Kennebunk Town Planner

("more than once") to ascertain when a written decision would be rendered. The

minutes of the March 27, 2006 meeting were approved on April 24, 2006 at which point

a written decision was mailed to the Pierces. At that point, the Pierces retained legal

counsel and an administrative appeal of the Planning Board's decision was filed with

the ZBA on May 23, 2006. There is no dispute that the appeal was filed within 30 days

of the written decision.

The ZBA hearing was held on June 19, 2006. The Pierces attended with legal

counsel. At hearing the ZBA Chairman stated that the appeal was barred because it

was not filed within 30 days from when the decision was rendered pursuant to Article

VII Section 2(G) of the Ordinance. The Pierces countered that Article VII section 2(G) is

expressly governed by Article VI section 3, allowing appeal within 30 days of a written

decision (emphaSis added). The ZBA voted to deny the appeal.

Subsequently, the Pierces filed this appeal asserting that the ZBA erred in its

interpretation of the Ordinance and/ or that the ZBA interpretation of the Ordinance is a

violation of the Pierces rights under the due process and equal protection clauses of the

Maine and United States Constitutions.

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STANDARD OF REVIEW

As an intermediate appellate court, the Superior Court reviews the decisions of the

Board of Appeals "directly for abuse of discretion, legal error, or findings unsupported

by substantial evidence in the record." Rowe v. City of S. Portland, 1999 ME 81, CJI 5, 730

A.3d 673, 675 (citing Twigg v. Town of Kennebunk, 662 A.2d 914, 916 (Me. 1995)). The

interpretation of an ordinance is a question of law that the Court reviews de novo.

Kurlanski v. Portland Yacht Club, 2001 ME 147, «J[ 9, 782 A.3d 783, 786 (citing Rockland

Plaza Realty Corp. v. City of Rockland, 2001 NIE 81, CJI 7, 772 A.2d 256, 259). That

interpretation is guided by the "ordinances specific object and its general structure." ld.

(quoting Lewis v. Town of Rockport, 1998 ME 144, CJI 11, 712 A.3d 1047, 1049). An

ordinance is construed to "avoid absurd, illogical or inconsistent results." ld. (quoting

Wright v. Town ofKennebunkport, 1998 ME 185, CJI 5, 715 A.2d 162, 164).

DISCUSSION

1. Did the ZBA Err As a Matter of Law in Denying the Pierces' Appeal?

The Pierces' claim that the ZBA erred in denying their appeal because the wrong

timing Ordinance was applied. Two timing provisions in the Ordinance for the

initiation of appeals are at issue in this case: Article VII section 2(G)1 and Article VI

section 3. 2 The Pierces' assert that Article VII section 2(G) is governed in its entirety by

1 Article VII section 2(G) of the Ordinance states:

Any person aggrieved by a decision of the Planning Board on a special exception

application may appeal the same within thirty (30) days from the date the decision is

rendered to the Board of Appeals, and the procedure shall be governed by Section 3 of

Article 6 of this Ordinance.

Record Tab 1

2 Article VI section 3A of the Ordinance states in pertinent part:

In all cases a person aggrieved by a decision of the Code Enforcement Officer or other

administrative employee or agency where expressly so provided by statute or ordinance,

shall commence his appeal within thirty (30) days after issuance of a written decision

from the Code Enforcement Officer or such other official. The appeal shall be filed with

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Article VI section 3 making Article VII's 3D-day "rendered" appeal "surplusage" and

Article VI's 3D-day "written" appeal controlling. In support of their argument, the

Pierces' consider the plain meaning of each Article, finding them inherently

inconsistent.

The Town counters that Article VII is the more specific ordinance and thus

should take precedence over the more general ordinance. See S. Portland Civil Service

Comm'n v. City of S. Portland, 667 A.2d 599, 601 (Me. 1995) (following the principal of

statutory construction that a more specific statute will be given precedence over a more

general one, regardless of the temporal sequence). Moreover, they assert that there is

no conflict between the statutes because Article VII governs special exception

procedures that are subject to public hearings before a board and refers to Article VI

only for certain procedures not set forth in Article VII. In support of that argument the

Town cites to other articles within the Ordinance setting forth specific appeal periods

for decisions of certain boards and committees. The appeal period in Article VI, they

assert, is specifically for individual officials and not boards or committees. This

interpretation fits, they assert, with the Ordinance's general structure.

Maine precedent supports the Town's statutory construction. The Law Court has

distinguished between decisions rendered at hearing by a board as opposed to written

decisions from town officials. Compare Vachon v. Town of Kennebunk, 499 A.2d 140 (Me.

1985) (holding that the 30-day appeal should begin to run immediately when a board

takes its final public action), and Town of Freeport v. Greenlaw, 602 A.2d 1156 (Me. 1992)

(holding that the 30-day appeal period from a letter ruling from a code enforcement

the Town Clerk on forms to be approved by the Board, and the aggrieved person shall

specifically set forth on said form the grounds for said appeal.

Record Tab 1.

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officer must specifically state the violation, law and rights of appeal in order to trigger

an appeal).

The Vachon Court considered the statutory appeal period for an appeal to

Superior Court from a decision of a zoning board of appeals. Vachon, 499 A.2d at 141.

The applicable statute in Vachon required that the appeal be taken "within thirty (30)

days after the decision is rendered." 3 Id. (quoting 30 M.R.S.A. § 2411(3)(F)). "Rendered,"

the Court concluded, means from the time the board casts its public vote. Id.

The rationale of the Vachon Court lends support to the Town's argument. The

Court undertook a semantic analysis of the word "rendered" in light of the unique

nature of a "state or local governmental bod[y]" such as a zoning board. Id. at 142.

Those bodies are subject to the Freedom of Access Law and "are permitted to make a

decision only in public at a public meeting (emphasis added). Id. (citing 1 M.R.S.A. §§

401-410 (1979 & Supp. 1984-1985). The subsequent letter notice sent to petitioner is

merely a confirmation of that decision. Id.

Vachon was reaffirmed when the Law Court found that the Superior Court

lacked jurisdiction to hear an appeal that was statutorily barred for late filing. See

Woodward v. Town of Newfield, 634 A.2d 1315 (Me. 1993). The Woodward Court reiterated

the mandate that board appeals run from the date of the decision at pubic hearing and

specifically stated that notice "need not be in writing." Id. at 1317-18. The Woodward

Court stated:

The language is plain and our reasoning clear. The thirty-day appeal

period commences when the Board takes its public vote 'because that time

is easily determined and precisely fixed and because all parties to the

public proceeding will ordinarily know of the Board's public vote at the

time it is taken.'

Id. (quoting Vachon, 499 A.2d at 142).

This language is nearly identical to the Article VII section 2(G) language.

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In contrast, the Law Court held that a letter from a Code Enforcement Officer

must contain a specific order to refrain from or continue certain action, refer to a

specific law, and inform a petitioner of their rights to appeal before an appeal period

can begin to run. See Greenlaw, 602 A.2d at 116. Greenlaw, which was decided one year

prior to Woodward, considered the right to appeal of a restaurant owner who was

informed by letter that he must remove his outdoor picnic tables. Id. at 1159. Because

Greenlaw was not told what specific law he was violating or what his recourse to the

letter could be, the Court held that he had insufficient notice to trigger an appeal. Id. at

1160-61.

The Pierces argue that Greenlaw stands for the proposition that a petitioner must

be notified in writing to trigger an appeal. This argument, however, is not supported

by Maine law. Woodward expressly stated that notice from a vote at public hearing is

sufficient and indeed does trigger an appeal, whereas the Greenlaw Court required

specific written notice for a written decision of a town official to trigger an appeal.

II. Is the ZBA Interpretation of the Ordinance a Violation of the Pierces'

Rights Under the Maine and United States Constitutions?

The Pierces' further assert that if the appeal procedure of Article VII section 2(G)

is found controlling such a finding would be violative of their rights under the due

process and equal protection clauses of the Maine and United States Constitutions.

a. Due Process Claim

The Pierces' claim that, by barring their appeal, the Town deprived them of a

significant property interest4 without due process of law. "We long have adhered to

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The property interest the Pierces' assert is their right "within the confines of the Kennebunk

Zoning Ordinance to construct a boardwalk and dock facility in order to access the Kennebunk River

from their property."

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the principle that the United States and Maine Constitutions declare identical concepts

of due process." H.E. Sargent, Inc. v. Town of Wells, 676 A.2d 920, 926 n.4 (Me. 1996)

(citing Penobscot Area Hous. Dev. Corp. v. City of Brewer, 434 A.2d 14, 24 n.9 (Me. 1981)).

The procedural requirements under the due process clause are notice and a hearing. Id.

Due process has been defined as:

that process that protects against the exercise of arbitrary governmental

power and guarantees equal and impartial dispensation of law according

to the settled course of judicial proceedings or in accordance with

fundamental principles of distributive justice.

Id. (quoting Mutt Hill Estates, Inc. v. Town of Oakland, 468 A2d. 989, 993 (Me. 1983). A

two-step analysis has been employed to "detennine whether an individual has been

deprived of his right to procedural due process. Mahaney v. State of Me., 610 A.2d 738,

742 (Me. 1992). The court must determine if: 1) there was a deprivation of life, liberty

or property; and 2) if such deprivation occurred, what process is due the individual. Id.

A number of factors are considered in this analysis including "the importance of the

individual's interest, the potential for governmental error, and the magnitude of the

state's interest.

The Law Court did not find an arbitrary exercise of governmental power where a

town denied a contractor the right to operate a gravel pit after a reconsideration

hearing. Id. The contractor claimed that he had insufficient notice of the issues to be

addressed at the hearing and thus was unable to adequately prepare. Id. The Court

held that, in spite of unclear statutory guidance for procedure, the governmental action

was sufficient. Id.

In this case the Law Court has steadfastly held that a decision voted upon at a

public hearing is sufficient process to trigger an appeal. See Woodward, 634 A.2d at 1317­

(PI. Br. 4.)

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18. Thus, there exists a settled course of "law" establishing when an individual must

act to challenge a municipal decision and the process afforded by the Town in this case

meets the demands of the due process clause. See Id.

b. Equal Protection Claim

Finally the Pierces' claim that the Town must show that its disparate treatment of

those appealing under Article VII section 2(G) and Article VI section 3 is rationally

related to a legitimate government interest. However, "It is well established law that

zoning ordinances are presumed to be constitutional. The burden is on the plaintiffs to

show by clear and irrefutable evidence" that the law is unconstitutional. Vella v. Yrician

Marine Corp., 677 A.2d 1051, 1056 (Me. 1996). In this case the Pierces' merely argue that

the di~parate treatment of appellees under the Ordinance is illogical. This is insufficient

to prevail on an equal protection claim.

Therefore, the entry is:

The Pierces' Rule 80B appeal is Denied. The ZBA's decision dismissing

the Pierces' appeal as untimely is Affirmed.

The clerk shall incorporate this Order into the docket by reference

pursuant to M.R. Civ. P. 79(a).

Dated at Alfred, Maine this Z3~ day V-:*~~:::!....-...J2007.

/ .~ . Arthur Brennan

Justice, Supenor Court

PLAINTIFF:

STEPHEN Y HODSDON, ESQ.

HODSDON & CLIFFORD

56 PORTLAND RD

KENNEBUNK ME 04043

DEFENDANT:

WILLIAM H DALE ESQ

JENSEN BAIRD GARDNER & HENRY

PO BOX 4510

PORTLAND ME 04112-4510

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