The opinion
STATE OF MAINE SUPERIOR COURT
PENOBSCOT, SS. FILED &E-- CIVIL ACTION
SUPERIORNJERED OCKET NO AP-P6-17
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CHERYL A. BROWN, I FE3 20 2D09 ,', it
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TOWN OF HUDSON, SION and ORDER i\i'\' :\\\\~
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Defendant.
In this administrative appeal, the plaintiff appeals from the decision of the
Hudson Code Enforcement Officer's decision to issue a stop work order on January 26,
2006. Originally, this 80B appeal sought review of the Board of Appeals' denial of her
administrative appeal of their CEO's issuance of a stop work order, but plaintiff later
filed an amended complaint for review asking the court to vacate the CEO's stop work
order. This judge was assigned this case on October I, 2008.
Plaintiff owns shorefront property located within the shoreland zoning district
on Little Pushaw Pond in Hudson, Maine. In the summer of 2005 she sought approval
to construct a garage on this property behind her home for her disabled son. She
submitted the requisite application to the CEO, Dalton Mullis. Mr. Mullis visited the
property to determine if the proposed construction fell within the 100' setback
provision as provided in the Town's Shoreland Zoning Ordinance. After making certain
measurements, he concluded that the project met the setback requirements, as it was
100' or more from the pond's high water mark. At an August 9,2005 Planning Board
meeting, the members considered plaintiff's Shoreland Zoning Application. In
considering the application, the members considered the following written comment
from CEO Mullis: "Today I made a site visit to the Cheryl Brown property at 248 Hay
Road. The purpose of my visit was to confirm the accuracy of information provided by
the applicant. I found the information to be correct. The proposed addition is 100' or
more from the high water line and the total lot coverage is well within the limits of the
Ordinance. In summary, I recommend approval of this application as submitted."
Administrative Record (A.R.), ex. #17. The Board approved Plaintiff's application at
that meeting. A.R. ex. #18.
Plaintiff made several attempts to pick up and pay for the permit that had been
approved, but due to the unavailability of the CEO she was unsuccessful, and
eventually began construction in accordance with the proposed plans without having
the permit. On January 26,2006, the Town's new Code Enforcement Officer, Richard
Fish, issued a stop work order for any further construction. By this time the building
was substantially completed. The basis for the stop work order was not that she was
building without a permit but that a new measurement taken by Mr. Fish in January
indicated that the structure was within 100' of the pond's high water mark. The town
now would not issue the permit that had been authorized earlier. Plaintiff, who was
serving in the military, returned to the area in February of that year and CEO Fish re
issued the stop work order. He met with the plaintiff, and agreed to re-measure in the
springtime, when there would be no ice to potentially interfere with the measurement.
He then sent a letter to plaintiff, dated July 13, 2008, A.R. ex. #7A, informing her that the
structure is within the 100' setback area, that she had to strictly adhere to the stop work
order, and that she had to move the structure out of the 100' zone pursuant to an
attached consent agreement that she was requested to sign. In this correspondence, he
also indicated that if she did not agree to sign the agreement, she had "the right to
appeal our decision to the Hudson Board of appeals."
On August 10, 2006 plaintiff submitted a completed application requesting a
variance and appeal to the Town of Hudson's Board of Appeals in which she asserted
that the original Mullis measurement "should stand", and accompanied the application
with a memorandum from Mr. Mullis indicating his original approval based on his
measurement, and corroboraHng that plaintiff experienced difficulty in picking up and
paying for the permit because he was either too busy or not in the office when she
attempted to do so. A.R. ex. #7. On September II, 2006, the Board of Appeals issued its
decision denying the plaintiff's appeal and variance request and later, on October 15,
2006, denied her request for reconsideration. On October 26, 2006, the plaintiff filed this
appeal.
At no time has there been an allegation that the plaintiff did not build the
structure pursuant to the plan upon which the Mullis measurements were made. The
controversy arose from differing opinions concerning the location of the high water
mark of Little Pushaw Pond.
STANDARD OF REVIEW
In deciding an administrative appeal, ordinarily it is imperative for the Superior
Court to determine whether the decision of a board of appeals or the decision that was
appealed to the board of appeals is the operative decision to be reviewed. If the board of
appeals acted as an appellate body, then the Superior Court reviews the previous
decision, not the decision of the board of appeals. If the board of appeals acted as a
tribunal of original jurisdiction, then its decision is reviewed directly. The court has
reviewed several cases, including Yates v. Southwest Harbor, 2001 ME 2, 110, 763 A.2d
161, 164; Stewart v. Town of Sedgwick, 2000 ME 157, 14, 757 A.2d 773,776; and Gensheimer
v. Town of Phippsburg, 2005 ME 22, 17,868 A.2d 161,164; and concludes that a decision
on whether a board of appeals is authorized to act in an appellate or original capacity
depends on which portions of the relevant enabling ordinances are stressed. Although
the Hudson Board of Appeals Ordinance resembles in relevant areas the Southwest
Harbor ordinance that has been determined to authorize that Board of Appeals to act in
an appellate capacity, Yates, supra, at 113, it is not necessary for the court to decide in
which capacity the Hudson Board must act because the rationale for the court's decision
in this case applies to both the action of the Board of Appeals as well as the action of
CEO Fish, which that board reviewed. In other words, this Court's decision is the same
whether it is reviewing the Board's decision or the CEO's decision. For the same reason,
it doesn't matter whether the court is proceeding on the original complaint, appealing
the Board's decision, or the amended complaint, appealing the CEO's decision.
MOTION TO DISMISS
In this motion, the town asserts that the court does not have subject mater
jurisdiction to hear this appeal, arguing that the plaintiff filed the administrative appeal
of the stop work order with the Hudson Board of Appeals 152 days after the CEO
reissued the stop work order on January 26, 2006. The court denies this motion.
Al though the stop work order issued on that date, the plaintiff and CEO were working
together to resolve the measurement issue and had to wait until the ice left the pond
and the waters receded to an acceptable level so that the CEO could review his
measurement. After reviewing the measurement, he concluded his initial conclusions
were correct and notified the plaintiff of the result in the July 13, 2006 letter to Ms.
Brown that notified her then that if she did not agree and refused to sign the consent
agreement, "you have the right to appeal our decision to the Hudson Board of
Appeals". Based on these events, the court finds that the town implicitly informally
agreed to reconsider the stop work order and did not finalize that order until July 13,
2006. From that date, the plaintiff had thirty days to file her appeal and complied with
that requirement.
Additionally, consideririg the above circumstances, the Board of Appeals
implicitly waived or extended time limits for filing an appeal by hearing and deciding
the appeal as filed. Their Shoreland Zoning Ordinance authorizes the Board to waive
the thirty day requirement upon a showing of good cause.
DISCUSSION
An issue that immediately becomes apparent in evaluating this appeal is the
potential application of the doctrine of equitable estoppel. If applicable, the doctrine
would preclude the town from issuing a stop work order against plaintiff after she had
already been granted planning board approval for the project. The plaintiff has not
framed the issue in this way and she has not raised it explicitly in her pleadings. There
are two ways that equitable estoppel could be raised, the first being an appeal of the
Board of Appeal's failure to consider the doctrine. A board of appeals could not err as a
matter of law in failing to apply the doctrine because it does not have equitable
jurisdiction unless it is granted such jurisdiction by statute or ordinance. Tarason v.
Town of S. Berwick, 2005 ME 30 ~13, 868 A. 2d 230, 233. The Town of Hudson Land Use
Ordinance does not give the Board such jurisdiction. Alternatively, equitable estoppel
may be raised in the context of an administrative appeal by bringing an independent
action pursuant to M.R.Civ. P. 80B(i). See Donald G. Alexander, et aI, The Maine Rules of
Civil Procedure with Advisory Committee Notes and Practice Commentary 528 (MSBA 2008).
EqUitable estoppel has not been raised in an independent action in this proceeding.
In her primary argument, the plaintiff urges the court to apply Juliano v. Town of
Poland, 725 A. 2d 545, 547 (Me. 1999) to the facts of this case and find that the Town was
precluded from issuing a stop work order on plaintiff's project after having permit
approval earlier. Initially, the CEO approved the project as did the Planning Board, by
vote at the August 9, 2005 regular meeting. In the ensuing weeks she was unable to
obtain the permit that had been authorized because the CEO was unavailable whenever
she attempted to obtain the permit. Based on the Town's authorization, she began
construction without actually obtaining and paying for the permit. There is no
allegation that construction was not in conformity with the site plan that was approved.
In Juliano, the plaintiff obtained a building permit from the Poland CEO for an
addition to his commercial structure. Later, another CEO issued a stop work order
alleging that Mr. Juliano did not have a permit and had not completed the application
process. The Board of Appeals upheld the stop work order on the basis that the permit
that had been issued was invalid because the plaintiff's facility did not fall within a
permitted use. On appeal, the Superior Court upheld the stop work order and the
plaintiff appealed to the Law Court. That court vacated the stop work order, ruling that
the stop work order was in essence a challenge to the prior CEO's decision to issue the
permit. Since the stop work order was issued well beyond the time period allotted for
an appeal of the decision to issue the permit, it was not timely under the thirty day
appeal period established in the ordinance. In support of its decision, the Court noted
that strict compliance with the appeal procedure of the ordinance is necessary to ensure
that a person who has obtained a permit can rely on that permit with confidence. Id at
<j[7.
As in Juliano, the Town of Hudson, through its Code Enforcement Officer and a
vote of its Planning Board, granted approval for plaintiff's construction project, finding
that it did not violate the Shoreland Zoning 100' set back requirement. Almost five
months later, the new CEO issued a stop work order alleging that the structure that had
been built according to plan in fact violated the set back requirement. According to
§16(G) of Hudson's Shoreland Zoning Ordinance, a party aggrieved from a decision of
the CEO or the Planning Board can appeal to the Board of Appeals within 30 days of the
decision. This court finds that since this stop work order was in essence an untimely
appeal of the Planning Board's earlier approval, it is of no effect. Although it could be
argued that this is a different situation because the Juliano plaintiff had a permit in hand
and Ms. Brown did not, the court finds that this is a distinction without a difference.
The initial decision that was subject to appeal pursuant to §16(G) was the decision of the
planning board, not the ministerial function of handing out the permit.
The Stop work order issued on January 26, 2005 is hereby vacated.
The clerk is directed to incorporate this Decision and Order into the docket by
reference.
Dated: February 19, 2009
ILLIAl1 ANDERSON
JUDGE, DISTRICT COURT
AfR UF l.{ W'i
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-CLERK
Date Filed 10/23/06 PENOBSCOT Docket No. AP-2006-17
County
Action 80 B APPEAL
ASSIGNED TO JUSTICE ANDREW K MEAD
REASSIGNED TO JUSTICE KEVINK. CUDDY
REASSIGNED TO JUSTICE WILLIAM. R. ANDERSON
VHERYL A BROWN vs. TOWN OF HUDSON
Plainti ff' s Attorney Defendant's Attorney
EDMOND J. BEAROR, ESQ FARRELL, ROSENBLATT & RUSSEIL
APRIL A. BENTLEY, ESQ 61 MAIN ST SUITE 1
RUDMAN & WINCHELL, LLC POBOX 738
84 HARLOW STREET BANGOR ME 04402-0738
POBOX 1401 BY: ROGER L. HUBER ESQ
BANGOR, ME 04402-1401
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