# Allen v. Inh. of the Town of Westport Island

> Superior Court of Maine · July 29, 2008

URL: https://www.frixlaw.com/law-library/cases/10809094

## Case

- **Court:** Superior Court of Maine
- **Decided:** July 29, 2008
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Judges:** Jeffrey L. Hjelm
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

STATE OF MAINE SUPERIOR COURT
LINCOLN, SS. CIVIL ACTION
Docl<:et No. AP-07-8 _
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E. Davies Allen et aI.,
Plaintiffs

v. Order on Appeal

Inhabitants of the Town
of Westport Island,
Defendant

Pursuant to the Town of Westport Island Shoreland Zoning Ordinance
("Ordinance") § 16(0)((4), 30-A M.R.S. § 2691(3)(0) and M.R.Civ.P. 80B, E. Davies
Allen, Paul L. Nergaard and Michael E. Stern appeal from the decision of the Town of
Westport Island's Zoning Board of Appeals (the Board) that they did not have standing to
appeal the approval of a permit application issued by the Town's Planning Board,
authorizing the construction of a new boat ramp on Town property. The court has
considered the parties' submissions on this appeal.
The plaintiffs appear in this action as pro se parties. Stern, however, signed the
complaint and all other submissions for himself and also as "attorney-in-fact" for Allen.
In one of its filings, the Town suggests that Stern is an attorney licensed to practice in
Maine. However, the plaintiffs' filings confirm that Stern does not appear here as an
attorney-at-law representing Allen's interests in that capacity. A party to a legal
proceeding may not represent another as the latter's ostensible attorney-in-fact. See
Haynes v. Jackson, 2000 ME 11, , 15, 744 A.2d 1050, 1054. Therefore, because Allen
himself has not properly appeared in this action and because no other person with lawful
representational authority has appeared for him, Allen's appeal is dismissed. This case
may proceed on the strength of the appeal filed by Nergaard and Stern.
Those plaintiffs have moved to disqualify James N. Katsiaficas, Esq. as counsel
for the defendant in this action, because, they argue that representation is affected by a
conflict arising from his prior representation of the ZBA at the administrative proceeding

1
in this case. Their central argument is that Katsiaficas is barred from representing the
defendant (the Town's inhabitants) because he participated in the Board's proceedings in
an adjudicatory role. See M.Bar.R. 3.4(g)(2)(l). That prohibition, however, arises when
the lawyer "participated personally and substantially as ajudge [or]. ..as a nonjudicial
adjudicative officer. ... " Here, the Town secured Katsiaficas to advise the Board as it
considered the plaintiffs' appeal to that body from the Planning Board's approval of the
application permit. Unlike the situation addressed in Maine Board of Bar Overseers
Ethics Opinion #111 (November 1,1990), Katsiaficas did not function as a judge or as a
"nonjudicial adjudicative officer." His involvement in this action as counsel of record for
the defendant therefore does not run afoul of the prohibition against representation. The
plaintiffs' remaining challenges to Katsiaficas' role in this action are similarly
unpersuasive.\
The sole substantive claim presented on this appeal is whether the Board erred
when it concluded that the plaintiffs were without standing to challenge the Planning
Board's decision to issue a permit that would allow the Town to build a new boat ramp.
The Board's bylaws require, as one of the first issues to be addressed at a public hearing
held by the Board, that the Board must "decide whether the Appellant has the right to
appeal before the Board (that is, whether the Appellant is an 'aggrieved party. ')" See
defendant's supplemental record (DSR), tab 15, § VIII(D)(5).2 The term "aggrieved
party" is not defined in the Board's bylaws, but rather a definition of it appears in the
Ordinance. There, an "aggrieved party" is deemed to mean:

\ These other arguments advanced by the plaintiffs are that Katsiaficas will be exposed to
a conflict of interest if the matter were remanded and, as argued in their reply
memorandum, that his appearance in this case violates their rights to due process.

2 It is regrettable that the parties failed to discharge their responsibility by collaborating in
assembling a record on appeal, as rule 80B(e) required them to do. See DSR tab 8-12.
Both parties ended up filing their own versions of a record on appeal. The pendency of
the plaintiffs' motion to disqualify Katsiaficas does not operate to stay the parties'
obligation to assemble a record cooperatively. Unfortunately, both records include
material that is extrinsic to the scope of review as established in this order. The court
disregards that material. Because the decision subject to review on this appeal is that of
the Zoning Board of Appeals, the court considers only the transcript of the Board's
hearing held on July 5,2007; documents and materials submitted as part of that hearing;
and the Board's writing findings and conclusions.

2
an owner of land whose property is directly or indirectly affected by the granting
of a permit or variance under this Ordinance; a person whose land abuts land for
which a permit or variance has been granted; or any other person or group of
persons who have suffered particularized injury as a result of the granting or
denial of such a permit or variance.

See Ordinance, § 17. After a public meeting held on July 5, 2007, the Board issued a
written notice of its decision to deny the plaintiffs' appeal, finding that none of them
owns property that abuts the proposed development site and that "the only injury they
assert is traffic safety at the intersection of Ferry Road and Route 144." The Board
further concluded that the plaintiffs
show no potential injury different from that suffered by the general public
traveling over Route 144. Appellants do not show that they are aggrieved parties
and therefore have no right to appeal under Section 16 of the Shoreland Zoning
Ordi nance. [3]

The plaintiffs urge here that the Board erred in reaching this conclusion. 4
As a foundational matter preliminary to a consideration of the merits of the
parties' contentions on appeal, the court concludes that the subject of appellate review
here is the Board's conclusion that the plaintiffs were not "aggrieved parties" and
. therefore did not have standing to pursue an appeal to that body, rather than any decision
made by the Planning Board earlier in the municipal process. "If the Board of Appeals
acted as a tribunal of original jurisdiction, that is, as factfinder and decision maker, [the

3The Board's written decision denying the appeal is included in the record on appeal
submitted by the plaintiffs and in the defendant's supplement record at tab 14. The
materials found in the plaintiffs' version of the record are not tabbed or numbered,
making any reference problematic.

4 The court notes that during the hearing itself, the Board's attorney advised the Board
members of the meaning of an "aggrieved party." At least twice, counsel correctly read
the definition of "aggrieved party," as that definition appears in the Town's ordinance.
See T. 13,33. However, counsel may also be seen to have suggested that an "aggrieved
party" must be an abutter. See id. 14,34. For two reasons, however, any error in that
statement was overcome. First, the Board was correctly informed of the actual legislative
language that it was bound to apply here. Second and more importantly, the Board
framed its decision based on a correct formulation of that law: it did not reach its
conclusion solely on the ground that none of the plaintiffs is an abutter, but rather the
Board went on beyond the question of abutting properties to specify the nature of the
interest underlying the plaintiffs' standing argument and then to reject that interest as
insufficient.

3
court] review[s] its decision directly. If, however, the Board acted only in an appellate
capacity, [the court] review[sl directly the decision of the Planning Board, or other
previous tribunal, not the Board of Appeals." Stewart v. Town of Sedgwick, 2000 ME
157, ~ 4, 757 A.2d 773,775 (citation omitted).
To determine the nature of the Board's role when it concluded that the plaintiffs
lacked standing, one looks first to the municipality's ordinance. Yates v. Town of
Southwest Harbor, 2001 ME 2 ~ 11,763 A.2d 1168 1171. As is noted above, the
Board's bylaws required the Board to "decide" if the plaintiffs were "aggrieved parties"
who thus could appeal the Planning Board's decision. Section VIII(D)(6) of the Board's
bylaws allows the Board to conduct either a de novo or appellate hearing. That provision
does not specify expressly whether the hearing includes the initial determination of
standing or is limited to its considerations of the merits of an appeal from a Planning
Board decision. Without such a limitation and within the context of the ordinance's
formulation, the court takes section VIII(D)(6) to authorize the Board to conduct a de
novo hearing on the status of the appellants. This in fact is what the Board did. The
Board entertained verbal presentations from two of the plaintiffs, took evidence and
issued a written decision that includes a statement of findings and conclusions. The
decision was not framed as one reviewing the Planning Board's view of the status of the
plaintiffs. Rather, the Board's decision appeared to reflect its independent determination
that the plaintiffs were not aggrieved parties. The approach taken by the Board bears the
hallmarks of a de novo fact-finding process. When deciding whether plaintiffs had
standing, the Board acted as a fact-finder, and consequently the court reviews its decision
directly.
The court treats the issue of standing as a mixed one of law and fact. Cf Norris
Family Associates, LLC v. Town of Phippsburg, 2005 ME 102, ~ 13,879 A.2d 1007,
1012 (examining standing of an appellant to bring a rule 80B appeal). Thus, the Board's
factual findings are subject to the familiar deferential standard of review. See, e.g.,
Brackett v. Town ofRangeley, 2003 ME 109, ~ 15, 831 A.2d 422, 427 (appellate court
reviews a municipal board's decision for findings not supported by substantial evidence
in the record). However, the legal significance and effects of those findings are reviewed
de novo. See Norris Family Associates, 2005 ME 102, ~ 11,879 A.2d at 1012.

4
At the July 5 Board hearing, Nergaard and Stern made presentations to the Board
in support of their contention that they had standing to pursue an appeal from the
Planning Board's decision to issue the permit to the Town. As part of that presentation,
the Board was presented with a copy of the minutes generated by the Planning Board's
October 10, 2006, meeting, see T. 15, where the Planning Board granted requests by
Nergaard and Stern to be given "party status... because they frequently travel Rte 144
and must pass the intersection" of route 144 and the way to the dock. Nergaard stated to
the Board of Appeals that he lives south of the intersection and passes by "frequently."
Id. at 18. Nergaard also provided the Board with a copy of a 2006 Maine Department of
Transportation traffic volume report. 5 Id. at 22. This report appears to provide
information about the average number of vehicles passing over four particular points on
route 144 in Westport during a 24-hour period. That daily average count, in some
instances, is well in excess of 1,000. Stern's transcribed statement to the Board is more
of a legal argument than an account of factual information concerning the effect of the
permitted activity on any relevant interests he may have. The record also discloses that
neither of the plaintiffs owns property that abuts the proposed development site. Beyond
this, however, the record reveals little of the location of the plaintiffs' respective parcels
of property in relation to the site of the proposed dock. Their parcels are depicted on a
tax map that does not appear to have been submitted to the Board. Id. at 32-33.
Because the plaintiffs bore the burden of establishing that they had standing to
appeal from the Planning Board's decision, they must demonstrate here that the legal and
factual considerations presented to the Board compelled the Board to conclude that they
were "aggrieved" persons who could maintain that appeal. Gensheimer v. Town of
Phippsburg, 2005 ME 22, ~ 18,868 A.2d 161, 166. The court concludes here that the
Board was not compelled to make such a finding, even when the Board's application of
legal principles is considered de novo.

5 This proffer is found on page 22 of the transcript of the July 5 Board meeting. The
transcript then jumps to page 24, following a duplicate copy of page 22. Thus, page 23 is
missing from the transcript. In light of the way the parties have chosen to submit a record
on this appeal, see note 2 supra, the court accepts the transcript as the plaintiffs have
submitted it, even though it may reveal an absence of care in its preparation.

5
Under the municipal criteria embodied in the Board's bylaws and the Town's
ordinances, a party who asserts standing must demonstrate that he owns land that is
directly or indirectly affected by the permit at issue; that his property abuts the land that
is the subject of the permit; or that the permit would cause him to suffer "particularized
injury." Here, the plaintiffs claim to be "aggrieved" because they stated that they travel
"frequently" on the road that passes by the prospective site of the boat ramp. Because
they do not own abutting property, they would need to demonstrate either that their
property would be affected by the permitted development or that they would sustain
particularized injury as a result. Even though the plaintiffs are not abutters, they do not
need to present a "high degree of proof' of the factual basis for their claim of standing.
See Grand Beach Association, Inc. v. Town of Old Orchard Beach, 516 A.2d 551,553
(Me. 1986). Nonetheless, the record developed before the Board was not sufficient to
compel the conclusion that any change in traffic patterns created by a new boat ramp
would have an effect on the plaintiffs' properties. This leaves the question of whether the
Board was compelled to find that the change in traffic is a "particularized injury" to the
plaintiffs.
In the context of municipal land use cases, a person sustains a "particularized
injury" "when the judgment adversely and directly affects the party's property, pecuniary
or personal rights." Charlton v. Town of Oxford, 2001 ME 104, , 30, 774 A.2d 366, 376
(citation omitted). Further, to be "particularized," the injury must "in fact [be] distinct
from the harms experienced by the public at large." Ricci v. Superintendent, Bureau of
Banking, 485 A.2d 645,647 (Me. 1984). This latter concept applies to the standing
principle applicable to land use cases. Dept. of Environmental Protection v. Town of
Otis, 1998 ME 214,' 16,716 A.2d 1023, 1028 (Wathen, C.l., dissenting); see also Roop
v. City of Belfast, 2007 ME 32, , 10,915 A.2d 966, 969 (holding that the plaintiff had
standing to contest an amendment to a zoning ordinance, when the plaintiff owned
property abutting the affected district, because "[t]he injury is also particularized to
abutting landowners."). This means that, under Maine law applicable to land use
proceedings, a party must demonstrate an injury flowing from the matter that is different
from any injury to which others may be exposed.

6
The Board did not err in concluding that the plaintiffs failed to make such a
showing. There is no suggestion of prospective particularized injury to the plaintiff's
property interests, their pecuniary or economic interest or any "personal rights." See
Singal v. City of Bangor, 440 A.2d 1048, 1051 (Me. 1982) (non-abutter had standing to
challenge issuance of a permit authorizing a convenience store to install gas pumps,
because the sale of gasoline "pose[sJ, .. problems of traffic congestion, noise, fire hazards
and property depreciation of some consequence."). Rather, the record suggests that the
plaintiffs own property situated at an unspecified location in Westport south of the
planned dock site and that they drive by the intersection site frequently. Any effect
created by the construction of the dock would not be particularized to the plaintiff.
Rather, the issue is common to, according to the DOT report presented to the Board, the
many motorists who use route 144 daily.
The court recognizes the plaintiffs' arguments here that "particularized" means
specific, rather than unique. This observation is not without merit. At least in the field of
federal environmental law jurisprudence, there appears to be some movement toward
reducing the weight that was given conventionally to the requirement of an individualized
harm. See, e.g., Sierra Club v. Morton, 405 U.S. 727, 738 (1972) (recognizing a trend in
environmental cases "discarding the notion that an injury that is widely shared is ipso
facto not an injury sufficient to provide the basis for judicial review....Aesthetic and
environmental well-being, like economic well-being, are important ingredients of the
quality of life in our society, and the fact that particular environmental interests are
shared by the many rather than the few does not make them less deserving of legal
protection through the legal process. "). See also Conservation Law Foundation, Inc. v.
Town of Lincolnville, 2001 Me.Super.LEXIS 26 (Maine Superior Court, Waldo Cty, AP­
00-3, February 26, 2001). Here, however, the court must consider well-developed
principles of Maine law identifying the requirements needed to establish standing in
municipal land use appeals. The limited record presented to the Board was insufficient to
compel a determination that the plaintiffs would suffer a particularized injury sufficient to
confer them with standing to appeal the Planning Board's issuance of a permit
authorizing the Town to construct the dock.

7
The entry shall be:
For the foregoing reasons, appeal brought on behalf of plaintiff E. Davies Ellen is
dismissed.

The plaintiffs' motion to disqualify James N. Katsiaficas, Esq. as counsel for the
defendant in this action is denied. The defendant's request for imposition of sanctions is
denied.

The decision of the Town of Westport Zoning Board of Appeals is affirmed as to
plaintiffs Paul L. Nergaard and Michael E. Stern.

Dated: July 29, 2008
Justice,

8

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10809094. Public record. Not legal advice.