The opinion
STATE OF MAINE SUPERIOR COURT
HANCOCK, ss DOCKET NO. AP-07-13
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CHESTER A. RUBACKIN
Petitioner DONALDL.GARBRECHT
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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
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