Opinion

Rubackin v. Town of Winter Harbor

Court
Superior Court of Maine
Filed
Mar 4, 2009
Status
Unpublished
On the bench
Kevin M. Cuddy
Cited by
0 cases
Authority
More cited than 34.2%

The opinion

STATE OF MAINE SUPERIOR COURT

HANCOCK, ss DOCKET NO. AP-07-13

I'

il /'

CHESTER A. RUBACKIN

Petitioner DONALDL.GARBRECHT

LAW LIBRARY

rip .

v N

'"I, ! \ lUIJ4

TOWN OF WINTER HARBOR and

JONATHAN A. OKIN

Respondents

DECISION

This matter is before the Court on an appeal filed

pursuant to Rule 80B, M.R.Civ.p.

Jurisdiction

Pursuant to Rule 80B(b), when review of an act or

refusal to act by a governmental agency as provided by

statute or otherwise is sought in Superior Court, that

review must be filed within 30 days of the act or refusal

to act and, in the case of a refusal to act, within six

months after expiration of the time in which action

reasonably should have occurred.

Plaintiff's complaint, filed with the Court on August

21, 2007, identifies two actions by the Town of Winter

Harbor. First, through its Board of Appeals, it is alleged

to erroneously entertained an appeal from a decision of the

Code Enforcement Officer denying a building permit to Mr.

Okin because his plans violated the Winter Harbor zoning

Ordinance with regard to height restrictions applicable to

residential structures. The Board granted "administrative

relief" by applying the definition of "building height" as

found in the ordinance as opposed to a more restrictive

definition of "height of structure." The Board overruled

the Code Enforcement Officer and granted Mr. Okin his

building permit on July 26, 2007. The appeal from the

Board's decision of July 26, 2007, was clearly filed

timely.

1

Mr. Okin also filed an application for a variance with

the Board, which was denied.

Count 1 of the Complaint seeks a review of the

Governmental Action. The only action taken by the Board

was to reverse the decision of the Code Enforcement Officer

denying the Okin Building permit on the grounds of building

height restrictions.

Count II seeks injunctive relief because Okin has

violated deed covenants with regard to having more than one

single family dwelling on the property. There was no

governmental decision made by the Board dealing with this

issue.

Count III seeks enforcement of the deed restriction

referred to in Count II. Again, this was not the subject

of a governmental decision from which any appeal is now

pending.

Count IV seeks relief on a theory of Common Law

Nuisance with respect to the violation by Okin of deed

restrictions and covenants, which are not now before this

Court.

Count V seeks relief on a theory of sta~utory

nuisance, 17 M.R.S.A. 2701, which the Court infers to

relate to violation of the deed restrictions as opposed to

building height issues.

There was no motion for joinder of an independent

action setting forth the demands for relief alleged in

Counts II through V of the 80B complaint (See Rule 80B(i)

M.R.Civ.P.). Accordingly the Court is without jurisdiction

to hear or consider those theories of recovery in Counts II

through V, and they are dismissed. Likewise the burden is

on the Petitioner to demonstrate compliance with the time

limitations found in Rule 80B(b) with respect to theories

of recovery based on the failure of the governmental agency

to act within 6 months of the time the 80B appeal was filed

(August 21, 2007) and the Petitioner has failed to meet

that burden with respect to Counts II through V.

80B Decision

2

The authority of the Winter Harbor Board of Appeals is

initially found in the statute at 30-A M.R.S.A. § 4353 and

includes the authority to interpret the provisions of the

ordinance of Winter Harbor (30-A M.R.S.A. 4353(2)(A). The

authority granted by statute is, of course, in addition to

the authority granted by the winter Harbor Ordinance.

The record reflects, to the satisfaction of the Court,

the decision of the Code Enforcement Officer denying the

Okin Building Permit (Record on Appeal, hereinafter RA, pg.

1). It also reflects the Okin's timely appeal (RA 2) and

the application of a height variance by Mr. Okin (RA 4)

[later denied (RA 16)]

The decision of the Board (RA 17,128) of July 26,

2007, reflects in its conclusions that the Board was

involved in evaluating and applying two standards found in

the Ordinance. Clearly, in its decision the phrase

'administrative relief' is intended to refer to the

interpretation of the Ordinance by the Board to apply the

less stringent height measurement standard in this case

(and the direction to the Planning Board to review the

application of these two differing standards in the

Ordinance). In speaking of interpreting an Ordinance, the

Law Court has advised that the ordinance is interpreted by

examining the plain meaning of the language. The "terms or

expressions in an ordinance are to be construed reasonably

with regard to both the objectives sought to be obtained

and the general structure of the ordinance as a whole."

Camp v. Town of Shapleigh, 2008 ME 53, ~10, 943 A.2d 595,

598. The interpretation of a zoning ordinance presents a

question of law to be reviewed de novo by this Court and,

if appropriate, by the Law Court. Jade v. Eliot 208 ME 80,

~ 7, 946 A.2d 408, 410.

When reviewing governmental action under M.R.

Civ. P. 80B, the Superior Court reviews the operative

decision of the municipality for "abuse of discretion,

errors of law, or findings not supported by the substantial

evidence in the record." Camp v. Town of Shapleigh, 2008

ME 53, ~ 9, 943 A.2d 595, 598 (quoting McGhie v. Town of

Cutler, 2002 ME 62, ~ 5, 793 A.2d 504, 505). The court does

"not make any findings other than those found explicitly or

implicitly by the Board" and does "not substitute [its]

judgment for that of the Board." Camp, 2008 ME 53, ~ 9,

943 A.2d at 598.

3

This is not a case where there is an abuse of

discretion or an error of law. The Board of Appeals has

made findings of fact that there were inconsistencies in

the Ordinance that required interpretation and said so in

their findings of fact. A review of the record at RA 33

(Sec. 12-313(2)(0)) and the definition of building height

found at RA 71, make it clear that the Ordinance requires

interpretation to be applied. This Court agrees with and

adopts the Board's interpretation as being reflective of an

ambiguity in the Ordinance and a reasonable and appropriate

exercise of the Board's statutory authority to interpret

its Ordinance.

The Court denies this Rule 80B appeal as found in

Count 1 of the Plaintiff/Petitioner's Complaint.

Dated: March 4, 2009

,~fCEIVEJ] & FILED

MAR 04 2009

~~~J!'l:ljGOrG~"t~OUNTY

4 'COURTS

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.

A word about cookies

We need a few to keep you signed in and the library working. The rest help us see which pages people use and where they get stuck. They stay off unless you say yes.