Opinion

Cullen v. Inh. Town of Eliot

Court
Superior Court of Maine
Filed
Jul 10, 2009
Status
Unpublished
On the bench
Paul A. Fritzsche
Cited by
0 cases
Authority
More cited than 34.2%

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

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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