# Thaxter v. Zoning Bd. of Appeals

> Superior Court of Maine · August 31, 2007

URL: https://www.frixlaw.com/law-library/cases/10808844

## Case

- **Court:** Superior Court of Maine
- **Decided:** August 31, 2007
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Judges:** Thomas E. Delahanty II
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

STATE OF MAINE SUPERIOR COURT
CUMBERLAND, ss. CIVIL ACTION
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Docket No. AP-07-p' I /
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SIDNEY ST. F. THAXTER and
MARY E. MCCANN THAXTER,

Plaintiffs,

v. DECISION AND JUDGMENT
(M.R.Civ.P. 80B)
ZONING BOARD OF APPEALS,
CITY OF PORTLAND and
JOSHUA C. EMPSON, DONALD L. GARP'''.':I"''I-fT
;.4'11/ !Jl.1r:'I':"'\
Defendants.
,JAN 1 5 2006

The plaintiffs (Thaxter) appeal pursuant to M.R.Civ~ SOB from the City of

Portland Zoning Board of Appeals (ZBA) approval of the code enforcement officer's

(CEO) decision granting a building permit on Cushings Island to Joshua Empson.

I. BACKGROUND

Empson owns a parcel of land at 224 Shore Road on Cushings Island. His parcel

fails to meet the minimum lot size for development. The zoning ordinance allows the

combination of a smaller lot and a non-contiguous parcel to be joined to meet the

minimum square footage, if the non-contiguous parcel is burdened by a conservation

easement. Empson is attempting to develop his lot using a non-contiguous lot to meet

the minimum lot size. The CEO approved Empson's plan and issued him a building

permit. The Thaxters' own land that abuts Empson's parcel and appealed the decision

of the CEO to issue the building permit.

On January 4, 2007, the ZBA voted 3-1 to deny the Thaxters' appeal. The ZBA

issued findings after the meeting on January 4, 2007. The ZBA subsequently voted 3-1
to adopt supplemental findings of fact on January 18, 2007 pertaining to the Thaxters'

appeal. On February 15, 2007, the ZBA voted 4-0 to adopt findings and conclusions of

law for the Empson parcel.

II. DISCUSSION

This court reviews the Board's decision for" abuse of discretion, errors of law, or

findings unsupported by substantial evidence in the record." McCullough v. Town of

Sanford, 687 A.2d 629,630 (Me. 1996). In order to prevail, the petitioner must prove that

the evidence in the record "compels and contrary conclusion." Boivin v. Sanford, 588

A.2d 1197, 1199 (Me. 1991).

A. Quorum

The ZBA voted 3-1 on January 4, 2007 to deny the Thaxters' appeal. By the terms

of its ordinance, the ZBA is required to have four members of the ZBA concur on a vote

in order "to authorize any action, to grant any request or application or to sustain any

appeaL"]

No business shall be transacted by the board of appeals
without a quorum, consisting of four (4) members, being
present. Except as expressly provided herein, the concurring
vote of at least four (4) members of the board shall be
necessary to authorize any action, to grant any request or
application or to sustain any appeal.

§ 14-548, Code of Ordinances, City of Portland Rev. 5-4-07.

Although the Portland ZBA had a quorum of four members present, the number

of votes required was not addressed in Stephenson. That decision addressed the

authority of a municipal board to act when it had less than the number of members

required by the ordinance; however, Justice Alexander (joined by Justice Clifford) did

1 This assumes that the ZBA was empowered to conduct business in spite of the fact that it had
a vacancy at the time it heard the Thaxters' appeal given the recent Law Court decision in
Stevenson, et aI. v. Town of Kennebunk, 2007 ME 55, _ _ A.2d _ _ (decided April 26, 2007,
after the ZBA decision).

2
raise the issue in a separate concurrance. He cites 1 M.R.S. § 71(3) (2006) regarding the

interpretation of statutes:

The following rules shall be observed in the construction of statutes,
unless such construction is inconsistent with the plain meaning of the
enactment.

***

3. Authority to 3 or more. Words giving authority to 3 or more persons
authorize a majority to act, when the enactment does not otherwise
determine.

This directive applies to statutes, but it is logical to apply the same standard to

interpretation of local ordinances.

A necessary quorum of four ZBA members was present and voted on January 4,

and 18,2007. Ordinarily a 3-1 vote would be a sufficient majority for the ZBA to decide

a matter; however, the ordinance also requires "the concurring vote of at least four (4)

members of the board ... to authorize any action, to grant any request or application or to

sustain any appeal." (emphasis added)

It appears unfair to require an appellant to the ZBA to secure a unanimous vote

of all four members to sustain an appeal, but less than that to deny or dismiss an

appeal.

The court concludes that the term "authorize any action" includes a vote to deny

or dismiss an appeal and uphold the action of the CEO. Since there was not a four

member concurrence, no action should have taken place and the Thaxter appeal should

have been continued until such a time as the ZBA could obtain four concurring votes in

order to act to uphold the CEO's interpretation. 2

2 As a preliminary matter, plaintiffs' object to the findings of fact and legal conclusions that
were approved by the ZBA on February 15, 2007 and instead submit that the only proper
findings of fact and legal conclusions on the record for review are the findings dated January 4,
2007. The findings dated February 15, 2007 are not properly before the court because they were

3
B. Record

Decisions of municipal boards are to be upheld in the absence of an "error of law,

abuse of discretion or findings not supported by substantial evidence in the record."

Adelman v. Town of Baldwin, 2000 ME 91, <IT 8, 750 A.2d 577, 581-82 (citations omitted). A

governmental entity" must state both the reasons for its decision and the underlying

facts in order to ensure effective judicial review." Sanborn v. town of Eliot, et al., 425 A.2d

629, 630 (Me. 1981). See also Time Enough Inc. v. Town of Standish, 670 A.2d 918 (Me.

1996) (requiring appellant to provide full documentation of evidence relied upon by the

board in making its decision). The purpose of such a requirement is to allow a court to

"determine whether the Board may have misinterpreted the underlying facts or

misconstrued the provisions of the ordinance." Sanborn, 425 A.2d at 630. A trial of the

facts under 80B(d) is appropriate to supplement the record for appellate review, not to

re-try the facts of the case. Baker's Table Inc. v. City of Portland, 2000 ME 7, <IT 9, 743 A.2d

237,240.

The two-page findings of fact in the record of this case are insufficient as a matter

of law to support the decision of the ZBA to uphold the decision of the issuance of the

building permit. The ZBA, after accepting service of Thaxters' 80B appeal,

supplemented the record by approving detailed findings of fact and conclusions of law

in support of their decision. M.R.Civ.P. 80B(e) has a procedure to supplement a record.

This court's review of the record is limited to the evidence relied upon by the board in

making its decision. M.R.Civ.P. 80B(f).

created after the Thaxters filed an appeal and after the ZBA's counsel accepted service of the
complaint. As such, those findings are not a part of the record from which the plaintiff
appealed or the court would consider and would serve for a basis for remand, on its own.

4
Whereas there is no transcript of the ZBA hearing, the findings of facts issued

after the hearing are insufficient. This court is unable to review the record to determine

if the decision of the ZBA was adequately supported by the record.

The document purporting to be a record of the ZBA decision cannot be

considered by the court because it was created after Thaxters' appeal was taken and, as

acknowledged by counsel for the ZBA at oral argument, was prospective of this appeal.

It is untenable that one party to an appeal can subsequently modify the record for

purposes of appellate review. Since there is no transcript, it is impossible to verify the

accuracy of the subsequent ZBA findings of fact and conclusions of law. Had Thaxter

agreed to the record, the court may have permitted the record to be supplemented.

However, in the absence of plaintiffs' agreement, the ZBA is unable to supplement the

record in this manner.

III. DECISION AND JUDGMENT

Because there is no valid final decision of the ZBA for this court to review, the

clerk will make the following entry as the Decision and Judgment of the court:

A. Plaintiffs' appeal is sustained.

B. The decision of the Zoning Board of Appeals to issue the building
permit is vacated.

C. The case is remanded to the Zoning Board of Appeals for a decision in
which four members concur and for the approval of sufficient findings of
fact and conclusions of law.

SO ORDERED.

DATED: August 30,2007

5
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DateFiled~

Action .----J8~O:)JBUA~PTP1EA~LL---------
CITY OF
ZONING BOARD OF APPEALS,
SlDNE~ S~ F ~RAX~ER PORTLAND
MARY E MCCANN THAXTER JOSHUA C EMPSON

VS.

Plaintiff's Attorney Defendant's Attorney
SIDNEY ST F THAXTER ESQ CHRIS NEAGLE ESQ (JOSHUA EMPSON)
ONE CANAL PLAZA, SUITE 1000 TROUBH HEISLER
PORTLAND ME 04112-7320 PO BOX 9711
(207) 774-9000 PORTLAND ME 04104-5011 tel:780-6789
HILLIAl1 HESERVE ESQ (VISITING ATTY) JAMES R. ADOLF, ESQ. (CITY OF PORTLAND)
389 CONGRESS STREET
PORTLAND ME 04101
874-8480

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10808844. Public record. Not legal advice.