The opinion
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STATE OF MAINE
CUMBERLAND, ss.
CLERk's (;I~ r:iCI/ SUPERIOR COURT
CIVIL ACTION
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JEAN M. COFFIN & DONALD J.
ARNOLD d Ib I a ROYAL RIVER
CAMPGROUND,
Plaintiffs
v. ORDER ON 80B APPEAL
TOWN OF POWNAL,
POWNAL PLANNING BOARD and
POWNAL BOARD OF SELECTMEN
Defendants
Before the Court is Plaintiffs Jean M. Coffin and Donald J. Arnold d/bl a
Royal River Campground's ("Plaintiffs") appeal pursuant to M.R. Civ. P. 80B of a
decision of the Town of Pownal ("Town") Board of Appeals overturning the
Town Code Enforcement Officer's ("CEO") interpretation of the Town's Zoning
Ordinance ("Ordinance").
BACKGROUND
The Ordinance divides the Town into one "Village District" and two
"Rural Districts." Ordinance § 2B. One of the Rural Districts is labeled "RA" and
the other "RB." Id. On March 22, 2006, Plaintiffs met with the Town Planning
Board to discuss their proposal for a campground on property located in the RA
zoning district. At this meeting Plaintiffs "presented a hand drawing of the
proposed campground. No survey, delineation or studies [had] been
performed." (R. at Tab 9, p. 1.)
On April 26, 2006, Plaintiffs again met with the Planning Board,
discussing what would be necessary to satisfy the requirements of the
Ordinance. At the conclusion of their meeting, Plaintiffs notified the Planning
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Board that they would submit "copies of everything by next meeting" and the
minutes reflect that "[t]he campground proposal will be on the May agenda." (R.
at Tab 10, p. 2.)
At the Planning Board's next meeting, on May 24, 2006, Plaintiffs
provided the Planning Board with "a packet ... of letters from the town attorney
... and the CEO ... in favor of the argument that [their proposed campground]
is a permitted use without restrictions [in District RA]." (R. at Tab 12, p. 1.) The
CEO's letter was dated May 20, 2006, titled "Interpretation on Campgrounds in a
RA District" and was not specifically addressed to the Planning Board or any
other party. (R. at Tab 11.) In particular, the letter noted that there are "no
restrictions on Campgrounds in the Village or RB District ... [and that b ]ecause
of this I see no reason that there [should be] any restrictions in the RA District.
This should be a permitted use within State and Local guidelines." (Id.) At the
conclusion of the May 24 meeting, the Planning Board noted that it would
conduct a site walk on the proposed campground. (R. at Tab 12, p. 1.)
At the Planning Board's June 28, 2006 meeting, Plaintiffs stated that, at
that time, they "would like to formally submit the site plan application under
review ... [and subsequently] handed the Board a notebook of paperwork for
the campground ... [and] a check for the $100 site plan fee. I " (R. at Tab 13, p. 1.)
The Planning Board's next meeting occurred on July 26, 2006. At this
meeting the Planning Board voted to appeal the CEO's decision that Plaintiffs'
proposed campground was a permitted use within the RA Zone as an "open
space recreational use" rather than a special exception use. (R. at Tab 14, p. 1.) At
1Although Plaintiffs claim that this was a resubmission of their formal
application, there is nothing in the record to support this proposition and there is
no dispute that this was the first time that the required $100 fee was tendered.
2
their August 14, 2006 meeting, the Town Board of Selectmen similarly voted
unanimously to appeal the CEO's determination. (R. at Tab IS, p. 1.)
The Board of Appeals held a hearing on September 20, 2006 and
unanimously determined both that the Planning Board and Board of Selectmen's
appeal was timely, (R. Tab 3 ,p. 6), and that a "a commercial campground is not
considered open space recreational use" under the Ordinance, (R. Tab 3, p. 14.)
Plaintiffs timely filed the present appeal of this decision.
STANDARD OF REVIEW
The Court reviews a local board's decision for abuse of discretion, error of
law or findings not supported by substantial evidence in the record. York v. Town
of Ogunquit, 2001 ME 53, 16, 769 A.2d 172, 175. Substantial evidence is evidence
that is sufficient for a board to have reasonably found the facts as it did. Ryan v.
Town of Camden, 582 A.2d 973,975 (Me. 1990). The burden of persuasion is on the
party challenging aboard's decision to show that the evidence compels a
different result. Twigg v. Town of Kennebunk, 662 A.2d 914, 916 (1996). The Court
must not substitute its judgment for that of a board on factual issues. Id. Further,
a board's factual findings are "not wrong because the record is inconsistent or a
different conclusion could be drawn from it." Id. In contrast to the deference
shown a board's findings on questions of fact, the proper interpretation of a
zoning ordinance is a question of law to be determined de novo by the Court.
Viles v. Town of Embden, 2006 ME 107119, 905 A.2d 298, 303.
DISCUSSION
I. Standing
A threshold issue raised by Plaintiffs is whether either the Planning Board
or Board of Selectmen had standing to appeal the CEO's determination to the
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Board of Appeals. Specifically, the Ordinance permits only persons "aggrieved
by a decision" of the CEO to file an appeal. Ordinance § 5D(l). Plaintiffs note that
there is nothing in the record demonstrating how the Planning Board and the
Board of Selectmen were "aggrieved" by the CEO's decision. Further, Plaintiffs
argue that although by statute a planning board must be made a party to any
appeal, 30-A M.R.S.A. § 4353(3), it does not follow that this grants the Planning
Board the power to itself commence an appeal.
Contrary to Plaintiffs' argument, 30-A M.R.S.A. § 4353(3) and Ordinance §
5D(l) authorized the Planning Board and Board of Selectmen to appeal the
CEO's decision based on their status as automatic parties to all appeals. In Crosby
v. Town of Belgrade, the Law Court held that identical language to the present
statute, as formerly codified at 30-A M.R.S.A. § 4504(4), authorized "municipal
officers and the 'planning board, agency or office' responsible for enforcing the
zoning ordinance" in their official capacities to initiate appeals to the Superior
Court whenever "aggrieved by a decision of the board of appeals." 562 A.2d
1228, 1231 (Me. 1989). This language makes clear that the Law Court considers
those parties in their official capacities to be "aggrieved by a decision" when they
disagree with that decision. As a result, the Ordinance authorized the Planning
Board and Board of Selectmen to appeal the CEO's decision.
II. Timeliness of Appeal
The Ordinance provides no time limit by which an appeal of the CEO's
decision must be taken to the Board of Appeals. In such a situation, the Law
Court has provided that an aggrieved party generally has sixty days from the
action complained of to file an appeal. Keating v. Zoning Board of Appeals of the
City of Saco, 325 A.2d 521,525 (Me. 1974). The sixty day time period may be tolled
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when there are "special circumstances which would result in a flagrant
miscarriage of justice unless, within a narrowly extended range, a time longer
than [sixty days] is held 'reasonable.'" Id. at 524.
Plaintiffs argue that the clock for filing an appeal of the CEO's
interpretation of the Ordinance began running on May 20, 2006, the date of the
CEO's letter. As a result, Plaintiffs argue that the subsequent appeals filed by the
Planning Board following its meeting on July 26, 2006 and by the Board of
Selectmen following its meeting on August 14, 2006 are both untimely as falling
outside the sixty day appeals period provided by Keating.
In Freeport v. Greenlaw, the Law Court decided a case in which a restaurant
owner received a letter from the CEO of the Town of Freeport notifying him that
he was in violation of a local ordinance because he put picnic tables outside his
establishment for customer use. 602 A.2d 1156, 1158. The letter instructed the
owner to remove the tables immediately but did not mention any means by
which this decision could be appealed. Id. Subsequently, the town brought an
enforcement action in the Superior Court and argued that the court could not
consider the substance of the owner's arguments against enforcement because
the owner had not timely appealed to the local zoning board as required by the
local ordinance. Id. at 1159.
In that case, the court held that the owner's appeal was not time barred
because the CEO's letter "was insufficient to constitute an order from which
appeal had to be taken or rights forever lost." Id. The court explained that in
order for a failure to appeal a CEO's actions to act as a bar to future appeals, that
action "must entail the 'essential elements of adjudication.'" Id. at 1160 (quoting
Town of North Berwick v. Jones, 534 A.2d 667, 670 (Me. 1987)). One of those
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essential elements is "adequate notice" to an affected party that final action has
been taken that will become conclusive if not appealed. Id. The court went on to
note that "[w]hat constitutes acceptable notice may vary according to the
circumstances, but in order to have a preclusive effect, the notice should state the
nature of the action and inform the recipient of the opportunity to object and of
the consequences of a failure to heed the notice." Id.
In the present case, the CEO's letter failed to provide adequate notice that
it constituted final action from which an appeal must be taken or rights forever
lost. First, the CEO's letter lacks any indicia of formality. It is not written on
letterhead, is not addressed to any particular party and does not contain any
warning regarding the right to appeal. More importantly than this, however, the
CEO's letter does not address Plaintiffs' specific site plan application. Indeed, it
could not have addressed that application because Plaintiffs did not formally
submit their application until June 28, 2006. This is the earliest time when the
CEO could possibly have issued a decision ripe for appeal. Prior to this date any
opinion of the CEO on Plaintiffs' proposal was merely advisory.
The difficulty in determining a precise date upon which the CEO issued
the decision that resulted in this appeal, however, underscores a more
fundamental problem. Specifically, the CEO never made a decision from which
an appeal could be taken. For the reasons discussed above, the CEO's letter was
an advisory opinion at the time it was written. Neither side has presented
authority for the proposition that a CEO's advisory opinion can be transformed
into a decision with the force of law through a party later referencing that
decision in its filings before an administrative body.
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Because there was never a valid decision, the Planning Board and the
Board of Selectmen's appeal of the CEO's"decision" to the Board of Appeals was
a nullity. As a result, there was no valid decision of the Board of Appeals from
which appeal to this Court could lie?
Therefore, the entry is:
The decision of the Board of Appeals is VACATED. This case is
remanded to the Planning Board for proceedings consistent with
this order.
The clerk shall incorporate this Order into the docket by reference
pursuant to M.R. Civ. P. 79(a).
Dated at Portland, Maine this M It.... day of ~ ,2007.
I
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2 Even if the CEO made a decision from which an appeal was possible, this case
would need to be remanded to the Board of Appeals as its decision lacked any
findings of fact. See e.g. Comeau v. Town of Kittery, 2007 ME 76, _ A.2d _. All
decisions made by a local board of appeals "must include a statement of findings
and conclusions, as well as the reasons or basis for the findings and conclusions,
upon all the material issues of fact, law or discretion presented and the
appropriate order, relief or denial of relief." 30-A M.R.S.A. § 2691(3)(E). The Law
Court has thus recognized that "[m]eaningful judicial review of an agency
decision is not possible without findings of fact sufficient to apprise the court of
the decision's basis." Carroll v. Town of Rockport, 2003 ME 135, <JI 27, 837 A.2d 148,
156. Though these findings may be written or stated orally and then transcribed
into a written order, if stated orally, there "must be a statement of the decision
maker's findings, not the views of individual members of the decision-making
agency." Id. <JI 28, 837 A.2d at 156.
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Date Filed 11-2-06 CUMBERLAND_____ Docket No. _.A1'06-55
County
Action BOB Appeal
JEAN M. COFFIN & DONALD J. ARNOLD TOWN OF POWNAL
d/b/a ROYAL RIVER CAMPGROUND POWNAL PLANNING BOARD
POWNAL BOARD OF SELECTMEN
Ys.
Plaintiff's Attorney Defendant's Attorney
Clifford Goodall Esq/Mary Denison, Esq. Kenneth Cole, III, Esq. (all defs.)
61 Winthrop Street Natalie Burns, Esq.
Augusta, Maine 04330 PO Box 4510
Portland, ME 04112
Date of
Entry