# Yerxa v. Town of Scarborough

> Superior Court of Maine · May 23, 2007

URL: https://www.frixlaw.com/law-library/cases/10808912

## Case

- **Court:** Superior Court of Maine
- **Decided:** May 23, 2007
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Judges:** Thomas D. Warren
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10808912

## Opinion text

STATE OF MAINE SUPERIOR COURT
CUMBERLAND, ss. CIVIL ACTION
. .1 '_"
~I.' ~9cket~o. RS-S~-53
.. j ';;:

PETER YERXA, et al.,

Plaintiffs,

v. ORDER DONALD L. GARBRECHT
LAW LIBRARY
TOWN OF SCARBOROUGH, et al.,
AUG 2 0 "lUUl
Defendants.

A bench trial in the above-captioned case was held on March 12, 2007, and the

parties have thereafter submitted extensive post-trial briefs.

The court finds as follows:

1. John Gamage developed the Springbrook Subdivision in Scarborough,

Maine beginning in 1987.

2. The Springbrook Subdivision contained 55 numbered lots, but only 54

were numbered as building lots. Lot 55, which ultimately became known as

Springbrook Commons, is variously described in the record as consisting of either 8.87

or 8.88 acres designated as dedicated open space." Springbrook Commons was never
/I

intended to be a building site.

3. As part of the development of the Subdivision, the Town of Scarborough

required Gamage to dedicate certain common space for public use. On October II,

1988, the Scarborough Planning Board approved the subdivision, conditioned, inter alia,

on the dedication of a recreational area (Lot 55) to be worked out by the administration

of the Town of Scarborough and Gamage. Exhibit 15.

4. In 1989 the Town voted to accept the 8.88 parcel shown as dedicated open

space from Gamage. Exhibit 17.
5. In April 1991, Gamage deeded Lot 55 in the subdivision to the Town.

6. The April 1991 deed to the Town contained certain restrictions, including

that Lot 55 "shall be used by [the Town] and the general public for recreational

purposes only." Exhibit 18. The deed did not state that it conveyed any rights to

anyone other than Gamage or the Town to enforce its restrictions. None of the owners

of the lots in the Springbrook subdivision are named in the warranty deed, and there is

nothing in the deed that extinguished. Gamage's rights to clarify or release any of the

restrictions contained in the deed.

7. Lot 55 was subsequently developed as a park with actively used baseball

and soccer fields and a permanent "snack shack." Anyone renting the snack shack

must pay to the Town 30% of the proceeds of any snack sales, which the Town uses for

maintenance of the snack shack. Any nonresident group must pay the Town a fee for

using the fields at Springbrook Commons.

8. In April 1991, Gamage created a Declaration of Covenants, Restrictions

and Conditions for the Springbrook Subdivision. Exhibit 24. The Declaration was

amended on two subsequent occasions.

9. Article II of the Declaration contains certain use and occupancy

restrictions which are by their terms applicable to "each lot conveyed in Springbrook."

Article I, Section 3, defines "Lot" to mean "numbered building sites" shown on the

recorded subdivision map. While Springbrook Commons was identified by a number

(Lot 55), it was always designated as "open space." As noted above, it was never

designated as or intended to be a "building site."

10. At some point in or around August 1996, plaintiffs Peter and Carol Yerxa

became interested in purchasing Lot 4 in the Springbrook Subdivision. The Yerxas

represented themselves without the assistance of a broker. The Yerxas dealt with John

2
Gamage. Lot 4 was in fact owned by John Gamage's son, William Gamage. In this

transaction, John Gamage was serving as his son's real estate broker - a fact confirmed

in the eventual purchase and sale agreement. Exhibit 2 <IT 9.

11. The Yerxas never met William Gamage. Before purchasing Lot 4,

plaintiffs had one conversation with John Gamage regarding the subdivision. During

that conversation, Peter Yerxa asked John Gamage what Lot 55 was to be used for. At

the time, Lot 55 was still undeveloped. Gamage told Yerxa that it would contain "ball

fields." Yerxa also asked Gamage whether the park would contain lights permitting

evening or nighttime activities. Gamage said it would not contain such lights. Gamage

made no other verbal statements to the plaintiffs regarding Springbrook Commons.

12. Prior to the Yerxas' purchase of Lot 4, John Gamage gave them a pamphlet

that contained the Declaration of Covenants, a DEP site location order, the bylaws of a

homeowners' association for the subdivision, and a copy of Gamage's April 1991 deed

of Lot 55 to the Town.

13. Gamage made no oral representations to the Yerxas regarding the

restrictions in the April 1991 deed. Specifically, Gamage never told the Yerxas that they

had any right to enforce the restrictions contained in his April 1991 deed to the Town,

nor did he tell them that the restrictions would continue indefinitely. Gamage also

never told the Yerxas that he would never clarify or change any of the restrictions.

14. The warranty deed, and particularly the "for recreational use only"

language in the warranty deed, did not constitute a representation to the Yerxas. It was

provided to them for their information but without any promise or representation that

they had the right to enforce the deed restrictions or that those deed restrictions were

not subject to modification in the future.

3
15. At the time the Yerxas purchased Lot 4, no one had proposed placing a

cellular tower or flagpole antenna on Lot 55. Gamage had not been asked to modify

any of the deed restrictions and had not formed any intention of clarifying or modifying

any of the deed restrictions.

16. On September 9, 1996, plaintiffs entered into a purchase and sale

agreement with William Gamage to acquire Lot 4. Exhibit 2. That agreement contained

an integration clause, stating that U[a]ny representations, statements and agreements are

not valid unless contained herein. This agreement completely expresses the obligations

of the parties."

17. On September 30, 1996, John Gamage entered into an agreement with the

Yerxas concerning a possible extension of Springbrook Lane to some additional

property Gamage was considering purchasing. Exhibit 4. This contract does not relate

in any way to Springbrook Commons, and the Yerxas do not contend that Gamage

breached this contract.

18. In 2005, nine years after the Yerxas had purchased Lot 4, US Cellular

approached the Town about installing a cell tower in the western part of the Town. The

Town and US Cellular identified Springbrook Commons as an appropriate location for

a tower because public safety communications and cell phone reception were

problematic in that area. In particular, once public safety officials leave their vehicles in

that area, they are unable to communicate with dispatch or the hospital by using their

mobile radios. The presence of a communications tower would permit public safety

personnel who were on the ball fields in Springbrook Commons to communicate with

dispatch and the hospital using their mobile radios. The presence of a communications

tower would also permit US Cellular customers to make cellular phone calls from

Springbrook Common and the surrounding area.

4
19. US Cellular proposed building and installing a tower at its expense,

installing the Town's public safety communications equipment on the tower and then

giving the tower to the Town. US Cellular would then rent space on the tower from the

Town. The Town approved the arrangement with US Cellular with the stipulation that

a flagpole design would be used, with all of the communications equipment concealed

inside the flagpole.

20 The proposed structure would look like a very tall, metallic flagpole and

would fly an American flag. As currently proposed, the structure would be 90 feet tall

and thicker than an ordinary flag pole - approximately 30 inches in diameter at the base

tapering to 18 inches at the top. Springbrook Common is properly zoned for the

flagpole antenna because it is a "municipal use" and Springbrook Common is

municipal property. Under the Town's zoning ordinances, leasing space inside the flag

pole to US Cellular is a "special exception," which was ultimately approved by the

Zoning Board of Appeals after proper notice and public hearing.

21. Two similar flagpole antennas already exist in the Town. A picture of one

of those is contained in the record. Exhibit 6. The picture in Exhibit 6 demonstrates that

while the structure might be described as a rather tall, thick metallic flagpole, it does

not appear to be a communications or cell phone tower. Exhibit 6, which is a brochure

circulated by the Town's Public Safety Department urging the support of the structure,

also demonstrates that the Town of Scarborough was not merely accepting the flagpole

antenna as an accommodation to US Cellular, but affirmatively wanted such a structure

for its emergency communications.

22. In the summer of 2005, a representative from US Cellular contacted John

Gamage and provided him with information about the plan to install a flagpole antenna

in Springbrook Common. At some point Gamage was sent a release deed for his

5
signature. Exhibit 9. The release deed stated that it was intended to clarify the first

restriction in the April 1991 deed. It granted to the Town the "right to lease

[Springbrook Commons] for the specific use of a telecommunications facility in the

form of a flagpole, with no lighting, but with equipment cabinets and utility

connections to serve that facility, including the right of ingress and egress for serving

that facility."

23. On September 6, 2005, Gamage, who was unaware that there was any

opposition to the proposed flagpole antenna/ signed the release deed. Gamage

received no compensation for signing the release deed.

24. At the end of September 2005, Peter Yerxa contacted Gamage for the first

time regarding the project. He asked Gamage if he would rescind the release deed.

Gamage told him he had signed the release deed and would not rescind it at that point.

He recommended that Yerxa deal with the Town. Gamage thereafter sent Yerxa a letter

on October 19, 2005, stating that he shared certain of Yerxa's concerns with respect to

the visual impact of the structure. Exhibit 10. That letter did not suggest, however, that

Gamage intended to take any action to rescind or modify the release deed.

25. Under the current site plan, the flagpole antenna will be installed

approximately four to six hundred feet from the Yerxas' property. It will be screened

by trees and shrubbery. Photographs taken from the tower location towards the Yerxas'

home indicate that the Yerxas' home is not visible from the proposed location. The

record does not reflect whether the Yerxas will be able to see the top of the flagpole

antenna from their home. In any event, the flagpole antenna will not be an obtrusive

feature in the Yerxas' view.

1 There is no evidence in the record as to opposition from anyone other than the Yerxas.

6
26. The court does not find credible Peter Yerxa's estimate with respect to the

loss of property value that he anticipates if the flagpole antenna is built. There is no

credible evidence that the Yerxas will suffer any monetary damage from the

construction of the flagpole antenna.

Discussion

1. Conditional Gift

The Yerxas place primary reliance on the claim that Gamage's April 1991 deed of

Springbrook Commons to the Town was a conditional gift, and they cite 30-A M.R.S. §

5654(2), for the proposition that once the donor has completed the donor's part of the

agreement, the municipality "shall perpetually comply with the conditions upon which

the agreement was made."

There are two problems with this argument. The first is that the Yerxas have

offered no authority, and the court is aware of none, that the Yerxas, as strangers to the

April 1991 deed conveying Springbrook Commons to the Town, have standing to

enforce any conditions set forth in the deed. The rule, as the court understands it, is

that only the parties to a contract have standing to enforce the contract.

Second, even if under some circumstances the Yerxas might have standing to

enforce the provisions of a conditional gift even though they were not the donors, the

conditions they are seeking to enforce cannot survive Gamage's waiver of those

conditions in the release deed. To the extent that 30-A M.R.S.A. § 5654(2) is designed to

require future compliance, it is intended to protect the intent of the donor. Section

5654(2) does not prohibit a donor from changing the conditions of his gift and it does

not affect the donor's ability to modify the transaction in any way. Accordingly, where

Gamage, as the donor, has now specifically authorized the flagpole antenna, the Yerxas

7
are not entitled to roll back the clock and require perpetual compliance with previous

conditions that the donor has released.

2. Declaration of Covenants

The Yerxas' second major argument is that apart from any conditions in the April

1991 deed, Springbrook Commons is subject to paragraph 12 in Article II of the

Declaration of Covenants (Exhibit 24), which states that

The premises shall be used only for residential purposes
and, without limitation, no commercial, industrial or
business use or enterprise of any nature or description shall
be carried out on the premises.

As noted in the findings above, this contention fails to take into account that

paragraph 12 of Article II is applicable only to "lots" as defined. Thus, Article II begins

Each lot conveyed in Springbrook shall be subject to the
following covenants and restrictions which shall run with
the land:

Twenty-seven numbered paragraphs follow, including paragraph 12 upon which the

Yerxas place reliance.

"Lot," however, is a defined term in Article I Section 3 of the Declaration of

Covenants:

"Lot" shall mean and refer to those numbered building sites shown upon
the recorded subdivision map of the property.

Springbrook Commons, although shown as Lot 55, was never designated as or intended

to be a "building" site. It was always to be designated open space. Paragraph 12 of

Article II therefore does not apply to Springbrook Commons. This is true even if

Gamage's April 1991 deed to the Town (Exhibit 18), which is not expressly made subject

to the Declaration of Covenants, were found to be subject to the Declaration by

implication.

8
The inapplicability of Paragraph 12 to Springbrook Commons is apparent from

the express terms of that paragraph, which states that the premises shall be used "only

for residential purposes." Springbrook Commons is not now, has never been, and was

never intended to be used for residential purposes. It is being used for recreational

purposes and as common open space for the adjoining residential lots.

3. Alleged Misrepresentations by Gamage

The Yerxas also argue that Gamage's actions at the time of their purchase of Lot 4

constituted a representation that the conditions contained in his original April 1991

deed to the Town would remain in effect. The findings of fact set forth above do not

support this claim.

Directing the Yerxas' attention to the April 1991 deed provided them with

relevant information as to the development, but did not give them legal rights as

strangers to enforce the deed restrictions. The Declaration of Covenants and the April

1991 deed were both provided to the Yerxas. Pursuant to the express terms of the

Declaration, they had certain enforceable rights with respect thereto. 2 The April 1991

deed gave them no comparable enforceable rights, and Gamage said nothing to change

that. Specifically, Gamage made no representation to the Yerxas that Springbrook

Commons would always be used solely for recreational purposes and he made no

representation that he would not or could not modify the conditions set forth in the

April 1991 deed.

Even if he had made such representations, representations as to future actions

are only actionable if false when made. Restatement 2d Torts § 530(1). It is undisputed

2 As noted above, however, the Declaration did not subject Springbrook Commons to paragraph 12 of
Article II.

9
that in 1996, when the Yerxas purchased their lot, Gamage had no intention of

modifying any deed conditions. Nobody had any inkling at that time that there would

ever be a proposal to erect a flagpole antenna on Springbrook Commons.

4. Alleged Breach of Contract

The foregoing discussion also disposes of the Yerxas' claim for breach of contract

against Gamage. Several additional points should be made as to this claim. First, the

purchase and sale agreement was between the Yerxas and William Gamage, not

between the Yerxas and John Gamage. To the extent the Yerxas believed that John

Gamage owned Lot 4, that misunderstanding could not survive the express language in

the purchase and sale agreement that John Gamage was acting as a real estate broker.

Second, the purchase and sales agreement expressly provided (Exhibit 23 ~ 12)

that "any representations, statements, and agreements are not valid unless contained

herein. This agreement completely expresses the obligations of the parties." This

language is a further bar to the Yerxas' misrepresentation and breach of contract claim

against John Gamage.

5. Damages

Defendants have suggested with some force that Peter Yerxa's testimony as to

the anticipated loss of value of his property resulting from the flagpole antenna is

inadmissible under Morin Building Products Co. v. Atlantic Design and Construction

Co., 615 A.2d 239, 241 (Me. 1992). Even if Peter Yerxa's testimony is admissible,

however, the court is not obligated to credit that testimony and finds as set forth above

that his estimate was nothing more than unwarranted speculation. The court reaches

this conclusion based on Yerxa's deposition testimony on the same subject and also

10
based on the photographic and other evidence demonstrating that, no matter how

sincerely Yerxa objects to the flagpole antenna, it would not impinge upon his property

in any significant respect.

The entry shall be:

Judgment shall be entered for defendants dismissing plaintiffs' complaint with

costs.

DATED: May z..1 , 2007

Thomas D. Warren
Justice, Superior Court

11
: COURTS
ld County
}x 287
Ie 04112-0287

GLENN ISRAEL ESQ
PO BOX 9729
PORTLAND ME 04104

-)F COURTS
land County
Box 287
line 04112-0287

WILLIAM KANY ESQ
PO BOX 1179
SAeo ME 04072

IF COURTS
and County
30X 287
.ine 04112-0287

BRENDAN RIELLY ESQ
PO BOX 4510
PORTLAND ME 04112

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10808912. Public record. Not legal advice.