The opinion
STATE OF MAINE SUPERIOR COURT
CIVIL ACTION
YORK, ss. DOCKET NO. AP-09-05
Pj1 r: --'/ ! 7 , /" '-',' (,
JAMES CULLEN, et al.,
Plaintiffs
v. ORDER
AND
DECISION
INH. TOWN OF ELIOT, et al.,
Defendants
The plaintiffs are owners of real estate on Old Farm Road in Eliot, which is
depicted in a plan called Division of Land for William J. Cullen & Anthony M. Bullis
prepared by Anderson Livingston Engineers, Inc. which is dated March 26,2001. They
have appealed from a decision of the Eliot Board of Appeals of December 19, 2008
which affirmed a decision of the Eliot Code Enforcement Officer of November 3, 2008
following remand from the Law Court. See Mills v. Town of Eliot, 2008 ME 134, 955 A.2d
258. The Code Enforcement Officer determined in his November 3, 2008 letter that "the
intent of the transferor was to avoid the road design standards applicable to
subdivisions in the Town of Eliot and therefore to avoid the regulatory consequence of
creating a subdivision." That essential finding has been appealed to this Court, briefed
and argued.
The role of the Superior Court is to review the "operative decision", which is the
decision of the Code Enforcement Officer on remand, to determine whether there is
substantial evidence to support it. The Court does not choose between potential
competing factual determinations where both have evidence to support them.
The state statutes regarding subdivisions are found at 30-A M.R.S.A. §§ 4401 - et
seq. and contain a definition of subdivision at 30-A M.R.S.A. §4401(4). At 30-A M.R.S.A.
§4401(4)(D-4) there is an exception for "family" subdivisions "unless the intent of the
transferor is to avoid the objectives of this subchapter." The developer-applicant has
the burden of establishing "the factual elements necessary for the grant of his
application." Mills at <][20.
While there is competing evidence there is substantial evidence supporting the
Code Enforcement Officer's determination. The original plan was not for a "family"
subdivision. Problems arose regarding the Town's road requirements for dead end
streets and the developers essentially resubmitted the original plan for a 13-lot
subdivision as a "family subdivision". Only two other houses have been built since
2001 and this suit involves the third house.
The Code Enforcement Officer had ample evidence to conclude, if he wished to,
that the attempted creation of such a large exempt subdivision was merely an attempt
to avoid inconvenient or expensive subdivision requirements such that, with patience,
the lots could be sold to anyone free of road requirements that were believed to be too
burdensome. The decision is amply supported by competent evidence.
Lastly, the Code Enforcement Officer was free to make his own decision and was
"not precluded from making his own findings and conclusions by any findings or
conclusions purportedly made by the CEO in 'approving' the family subdivision plan in
May 2001." Mills at n.6.
The entry is:
Decision of the Eliot Code Enforcement Officer of November 3, 2008 is
affirmed.
Dated: July /(/ ,2009 /!};/;~-
Sanford Roberts, Esq. - PL
Durward Parkinson, Esq. - PL Justice, Superior Court
Christopher Vaniotis, Esq. - DEF. INH. TOWN OF ELIOT
William Dale, Esq. - DEF. VICKIE MILLS 2