Parker v. Town of Winthrop

STATE OF MAINE SUPERIOR COURT

KENNEBEC, ss. CIVIL ACTION

Docket No. AP-09-49

tJ J'il-- k L;\) r) /ll, j i :)

/'

KATHLEEN PARKER,

et. al.,

Plaintiffs

v. DECISION AND ORDER

TOWN OF WINTHROP,

Defendant

Before the court is a petition for review of government action pursuant to

M.R. Civ. P. 80B. 1 The plaintiffs challenge two decisions of the Town of

Winthrop Zoning Board of Appeals (ZBA) dated 9/9/09: the ZBA denied the

plaintiffs' application to rebuild a bunkhouse or construct a tent platform on

Frog Island (case #307) and denied the plaintiffs' application for a variance from

applicable dimensional requirements (case #306). (R. at 68,70.).

The plaintiffs2 argue that the ZBA erred by (1) reviewing the initial denials

by the Codes Enforcement Officer (CEO) under a de novo review rather than an

appellate standard of review; (2) concluding that the remnants of a bunkhouse

located on the property do not constitute a nonconforming structure, which can

be replaced under § 2.3.3 of the Town of Winthrop Zoning Ordinance (the

Ordinance); (3) concluding that a proposed tent platform is subject to shoreline

1 The plaintiffs filed a 24-page, single-spaced brief and an ll-page, single-spaced reply

brief, contrary to the provisions of M.R. Civ. P. 7(f).

2 The plaintiffs appear pro se. Petitioner Dennis Tompkins acted as the representative at

the municipal hearing and appears to have served as the contact for the plaintiffs in this

matter.

setback requirements; (4) not considering the plaintiffs' request to build a

temporary screen house on the property; and (5) denying a variance request

either to rebuild the bunkhouse or build a tent platform. For the following

reasons, the decision of the ZBA in the administrative appeal is affirmed and the

variance appeal is remanded for further proceedings consistent with this

decision.

Factual and Procedural Background

Plaintiffs Kathleen Parker and her brother Spelts H. Parker, Jr. purchased

Frog Island on Cobbosseecontee Lake in Winthrop, Maine in March 2009. (R. at

11.). Frog Island measures approximately 205 feet north to south and 83 feet east

to west at its widest point. (R. at 3.). The entire island falls within the

Ordinance's definition of a shoreland zoning district and is subject to a 100-foot

shoreline setback requirement. (Ord. § 3.3.).

At the time of the purchase, the property included a concrete hearth with

brick fireplace and chimney. (R. at 3, 9.). The fireplace was functional in May

2008, but was damaged between June 2008 and April 2009. (Id. at 9, 22, 63.). The

site of the fireplace includes concrete footers that are partially buried in the

ground and that show the former location of a bunkhouse. (IQ. at 3.). The

building has not been listed on tax records or taxed since sometime in the 1960s.

(Id. at 13, 57.).

The plaintiffs, appearing through plaintiff Dennis Tompkins, Kathleen

Parker's husband and co-mortgagor on the property, applied to the Winthrop

CEO for a permit to build a bunkhouse on the original footprint on 5/5/09. (IQ.

at 1.). The CEO denied this application on 5/11/09. (R. at 13-14.). The plaintiffs

next applied for a permit to rebuild the fireplace and construct a wooden tent

2

platform. (Id. at 15.). The CEO issued a permit to rebuild the fireplace but

denied the application to construct a wooden tent platform on 6/3/09. ag. at IS,

24-25.).

The plaintiffs appealed the CEO's decision to the ZBA and filed a variance

appeal, in which they requested a variance from the 100-foot setback

requirement. (Id. at 26, 29.). A public hearing was held on 9/9/09. The ZBA

affirmed the CEO's denials and denied the plaintiffs' variance request. (Id. at 68­

72.). The plaintiffs' Rule 80B complaint, joined with an independent claim for

declaratory relief, was filed with this court on 10/9/09.3

Standard of Review

On an appeal pursuant to M.R. Civ. P. 80B, the record is examined to

determine if the Board abused its discretion, committed errors of law, or made

findings that are not supported by substantial evidence in the record. Tinsman v.

Town of Falmouth, 2004 ME 2, <.II 8, 840 A.2d 100, 103. The substantial evidence

standard requires the court to "examine the entire record 'to determine whether

on the basis of all the testimony and exhibits before the [Board] it could fairly

and reasonably find the facts as it did.'" Seven Islands Land Co. v. Maine Land

Use Regulation Comm'n, 450 A.2d 475, 479 (!Y1e. 1982) (quoting In re Maine

Clean Fuels, Inc., 310 A.2d 736, 741 (1973». "[T]he fact that two inconsistent

conclusions can be drawn from the evidence does not mean that a Board's

finding is unsupported by substantial evidence." Conservation Law Found., Inc.

v. Town of Lincolnville, 2001 ME 175, <.II 6, 786 A.2d 616, 619. To prevail on

appeal, the plaintiffs must demonstrate "not only that the Board's findings are

unsupported by record evidence, but also that the record compels contrary

3 The plaintiffs' motion for trial was denied on 12/28/09.

3

findings." Total Quality, Inc. v. Town of Scarborough, 588 A.2d 283, 284 (Me.

1991). The burden of persuasion rests with the plaintiffs, who seek to overturn

the Board's decision. Mack v. Mun. Officers of Town of Cape Elizabeth, 463 A.2d

717, 720 (Me. 1983).

Discussion

1. Role of the Winthrop Zoning Board of Appeals

The ZBA reviewed the CEO's denials of the plaintiffs' applications to

rebuild the bunkhouse and to build a tent platform in a de novo hearing rather

than limiting itself to the materials before the CEO. (Id. at 73-109.). The plaintiffs

argue that the Ordinance does not provide for de novo review and refers to these

matters as "administrative appeals." (Ord. § 5.8.2.3(1).); Stewart v. Town of

Sedgewick, 2000 ME 157, CJ[ 4, 757 A.2d 773, 775 ("If the Board of Appeals acted as

a tribunal of original jurisdiction, that is, as factfinder and decision maker, we

review its decision directly. If, however, the Board acted only in an appellate

capacity, we review directly the decision of the Planning Board, or other

previous tribunal, not the Board of Appeals.") (internal citations omitted).

The Law Court has held that a board must conduct a hearing de novo

unless the ordinance "explicitly directs otherwise[.]" Id. at en 7, 757 A.2d at 776;

30-A M.R.S. § 2691(3)(D). The operative language of the Ordinance in this case

provides that the ZBA "shall hear and decide [administrative appeals] where it is

alleged there is an error in any order, requirement, decision or determination by

the Code Enforcement Officer in the administration of the Ordinance." (Ord. §

5.8.2.3(1).). The Ordinance does not direct the ZBA to consider administrative

appeals solely on the record before the CEO. The use of the phrase "hear and

decide" in the Ordinance implies that the ZBA is to take evidence and make

4

factual decisions on that evidence. rd. The phrase "hear and decide" is also use

to describe the ZEA's power to hear variance appeals, which are matters i

which the ZBA has original jurisdiction. (rd. at § 5.8.2.3(2).); see also Stewart,

2000 ME 157, lJI 11, 757 A.2d at 777 (a board can act as an "appellate" body yet

undertake a de novo review of an application on appeal).

2. Application to Rebuild the Bunkhouse

The plaintiffs next argue that the ZBA erred by concluding that the

original bunkhouse did not qualify under section 2.3.34 of the Ordinance as a

non-conforming structure that can be rebuilt because the structure itself did not

exist within one year of the date the plaintiffs applied for a permit. (R. at 68.).

Section 2.3.3 allows a non-conforming structure to be rebuilt or replaced if,

among other requirements, the structure is "removed, damaged, or destroyed by

more than 50 percent of the market value" and the permit is obtained within one

year of the date of the incident.

The ZBA did not specify in its decision whether the bunkhouse was

removed, damaged, or destroyed, but stated that the incident clearly occurred

more than one year prior to the application for a permit. (R. at 68.) ("the original

Section 2.3.3 provides in full:

A non-conforming structure which is located less than the required

setback from a water body, stream, or freshwater wetland and is

removed, damaged, or destroyed by more than 50 percent of the market

value of the structure prior to the incident may be reconstructed or

replaced provided that a permit is obtained within one year of the date of

said incident and provided that such reconstruction or replacement is in

compliance with the water setback requirement to the greatest practical

extent as determined by the Planning Board using the criteria in

paragraph 2.3.2. above, and considering the physical condition and type

of foundation present. If the amount of damage is 50 percent or less, the

structure may be reconstructed in place with a building permit from the

Codes Enforcement Officer. In no case shall a structure be reconstructed

or replaced so as to increase its non-conformity.

(emphasis added).

5

bunkhouse was a non-conforming structure and did not meet the criteria for the

replacement of an existing non-conforming structure because the building itself

has not existed for many years and had lost the grandfathering status of the

original structure.") (internal quotations omitted).

The plaintiffs argue that the bunkhouse was not "destroyed" until the

vandalism that occurred between May 2008 and April 2009. Because the

chimney, hearth, and footers "clearly represent a substantial, integral part of the

old bunkhouse structure[,l" they argue, the bunkhouse was eligible for

replacement for one year following the vandalism under the section 2.3.3 of the

Ordinance. (PIs.' Br. at 8.).

Interpretation of the language of a local ordinance is a question of law that

is reviewed de novo. Isis Dev., LLC v. Town of Wells, 2003 ME 149, <j[ 3,836 A.2d

1285, 1287. That interpretation is guided by the "ordinance's specific object and

its general structure." Lewis v. Town of Rockport, 1998 ME 144, <j[ 11, 712 A.2d

1047, 1049. "The underlying policy of zoning is to gradually eliminate

nonconforming structures and uses." Lewis v. Maine Coast Artists, 2001 ME 75,

<j[ 26,770 A.2d 644, 653.

The plaintiffs theorize that although a substantial part of the non­

conforming structure had been destroyed, as long as the remaining portion of the

structure is still somehow usable, the one-year limit on reconstructing the entire

building is tolled until the remaining portions are removed or destroyed. This

interpretation is not compelled by the plain language of the Ordinance and is

contrary to the Ordinance's policy of phasing out non-conforming structures.

The "structure" on the plaintiffs' property was a chimney; the CEO granted a

permit for reconstruction. (R. at 15.). The event necessitating reconstruction of

6

the bunkhouse occurred years before the plaintiffs filed their application for a

permit. (Id. at 68.).

3. Application to build a wooden tent platform

The plaintiffs next argue that the ZBA erred when it denied their

application to build a tent platform at the site of the chimney. (M. at 68.). The

parties agree that this application was for a new structure on the existing land

rather than any type of reconstruction or expansion of structures already

existing, and they further agree that the Ordinance generally prohibits such

structures within the lOO-foot setback. (Pl.'s Br. at 11.); (Def.'s Br. at 7.); (Ord. §

3.3(E)(4) .).

The parties disagree regarding whether the platform should be exempt

from the setback requirements because "individual private campsites," which are

allowed within the buffer area when permitted by the CEO, are defined to

include tent platforms. (Ord. §§ 3.3(B)(7)(private campsites allowed by permit

from CEO), 6.2 (defining "individual private campsites").). The plaintiffs argue

that because tent camping has "regularly occurred - both before and since

adoption of the Ordinance's shoreland zoning rules," the area on Frog Island

where tent camping has occurred constitutes a grandfathered individual

campsite that may include a tent platform. (PIs.' Br. at 11.).

Assuming that the site actually does constitute a grandfathered individual

campsite, that particular use of the site did not include a tent platform and

construction of the platform would constitute an expansion of a non-conforming

use. Contrary to the plaintiffs' argument, the fact that an individual private

campsite "may include" a tent platform does not imply that the owner of a

7

legally non-conforming campsite may expand his use to the fullest extent of the

definition as a matter of right.

4. Application to build a temporary screen house shelter

The plaintiffs next argue that the ZBA erred by declining to address their

request to build a temporary screen house that would exist no more than 120

days per calendar year.

As an initial matter, and as the defendant notes, this matter was not raised

in the plaintiffs' original application. (R. at 15, 22-23.) (Def.'s Br. at 9.). In the

plaintiffs' appeal application, the plaintiffs requested that the ZBA permit the

plaintiffs "to allow construction and seasonal use (up to 120 days/year) of a

wood-framed shelter on the platform, until it's dismantled after a maximum of

120 days use each year." (R. at 26.) (emphasis added).

Even if the court considers the denial of the application to build a screen

house, that denial would still be proper because no permit is required to build a

temporary screen house. (Ord. § 4.2.2.9 (allowing a temporary shelter to remain

on an individual private campsite for up to 120 days).). The plaintiffs were

entitled to build such a temporary structure that complies with the requirements

of the Ordinance.

5. Application for a variance to build either a bunkhouse or wooden tent

platform

Finally, the plaintiffs contend that the ZBA erred when it denied the

request for a variance because the plaintiffs failed to demonstrate "undue

hardship." (R. at 71.). The ZBA may grant a variance "where a relaxation of the

terms of this Ordinance would not [be] contrary to the public interest and where

8

a literal enforcement of this Ordinance would result in undue hardship." (Ord. §

5.8.2.3(2).). The term "undue hardship" is defined to mean:

a) That the property in question cannot yield a reasonable

return unless a variance is granted;

b) That the need for a variance is due to the unique

circumstances of the property and not to the general conditions of

the neighborhood;

c) That the granting of the variance will not alter the essential

character of the locality, adversely affect adjoining or nearby

properties, nor endanger the public health, safety and welfare, and,

d) That the hardship is not the result of action taken by the

applicant or prior owner.

(Id.). The ZBA concluded that the plaintiffs failed to demonstrate that the

property cannot yield a reasonable return unless a variance is granted and that

the variance not would alter the essential character of the locality, adversely

affect adjoining or nearby properties, nor endanger the public health, safety and

welfare. (R. at 71.).

The defendant initially requests that the court consider that the above

standard requires, in addition to the demonstration of undue hardship, that the

grant of a variance not be contrary to the public interest. (Def.'s Br. at 10.); (Ord.

§ 5.8.2.3.(2).). Although the public interest concern might be a proper ground for

the denial in this case, the ZBA disposed of this application based on its

conclusion that undue hardship was not established. ago at 71.). Accordingly,

the court cannot "substitute its judgment for that of the municipal body" and

must review the conclusions that were actually drawn by the ZBA. Aydelott v.

City of Portland, 2010 ME 25, <rr 17, _ A.2d _.

The decision contains eleven "findings of fact." (R. at 70-71.). These

findings of fact, however, summarize the procedural history of the case. ilii.).

9

The "Conclusion" section of the decision simply restates the language of §

5.8.2.3(2) of the Ordinance. s (Id. at 71.).

Although a municipal body is not required to issue a comprehensive

decision restating the entire factual record, sufficient written factual findings

must be issued to allow meaningful judicial review. See Bodack v. Town of

Ogunquit, 2006 ME 127, '1I 14, 909 A.2d 620, 625 ("written factual findings must

be sufficient to show the applicant and the public a rational basis of [the board's]

decision."); Comeau v. Town of Kittery, 2007 ME 76, '1I 13, 926 A.2d 189, 192­

193("Because we are unable to discern what findings the board made, we cannot

proceed with a judicial review of its decision"). The Law Court has, however,

stated that there are circumstances in which aBoard's decision may be deemed

based on implicit findings in the record. Bodack, 2006 ME 127, '1I 14 n.7, 909 A.2d

at 625 (citing Forester v. City of Westbrook 604 A.2d 31, 33 (Me. 1992)).

Precedent is unclear regarding the specificity required for factual findings.

Riverwatch v. City of Auburn, 2008 Me. Super. LEXIS 200, *11 (November 17,

2008) (Wheeler, J.). The standard necessarily requires something more than

5 Specifically, the conclusion section of the decision reads:

1. The property in question can yield a reasonable return unless a

variance is granted.

2. The need for a variance is due to the unique circumstances of the

property and not to the general conditions of the neighborhood.

3. The granting of the variance will alter the essential character of

the locality, adversely affect adjoining or nearby properties, nor

[sic] endanger the public health, safety and welfare.

4. The hardship is not the result of action taken by the applicant or a

prior owner.

(R. at 71.) (emphasis in original).

10

summarizing the procedural history of the dispute and quoting the language in

the applicable regulation. 6

The entry is

The Decision of the Town of Winthrop Zoning Board

of Appeals is AFFIRNIED in Case #307, the

Administrative Appeal.

Case #306, the Variance Appeal, is REMANDED for

further findings consistent with this Decision and

Order.

,

Date: May 4, 2010

Nancy Mills

Justice, Superi

6 Although the record of the deliberations reflects some individual observations by

the members of the ZBA, the court cannot speculate about whether these observations

played a part in the final decision. (R. at 106-09.)

11

Date Filed __1_0_/_9_/0_9 _ Kennebec Docket No. A_P_-_0_9_-_4_9 _

County

Action __R_e_v_i_e~w_o~f--=G",o::_v-e-r-n-m-e-n-t-a-I-A-c-t-i-o-n~-_

80B

J. ~l[i!ls

Kathleen Parker, et al. Town of Winthrop

vs.

Plaintiff's Attorney Defendant's Attorney

Kathleen Parker - Pro Se Amanda A. Meader, Esq.

Spelts H. Parker, Jr. - Pro Se Lee K Bragg, Esq.

Dennis W. Tompkins - Pro Se PO Box 5057

147 Hardscrabble Road Augusta, ME 04332-5057

Litcr£ield, ME 04350

Date of

Entry

10/17/09 Complaint For Review Of Governmental Action and Request For Declaratory

Judgment, filed 10/9/09. s/Kathleen Parker, Pro Se s/Spelts H. Parker,

Jr., Pro Se s/Dennis W. Tompkins, Pro Se

10/17/09 Notice And Briefing Schedule mailed to parties.

10/22/09 Motion To Specify Future Course Of Proceedings, Proposed Order, filed

10/19/09. s/Parker, Pro Se s/Tompkins, Pro Se

10/28/09 Notice of Appearance, filed 10/26/09. s/Meader, Esq. s/Bragg, Esq.

11/6/09 Return of Service, Service on Terri Williams for Town of Winthrop,

filed 11/5/09.

11/13/09 Answer To Plaintiffs' Complaint, filed 11/9/09. s/Meader, Esq.

11/20/09 Letter from the court mailed to all parties indicating the Proposed Order

filed with Motion And Incorporated Memorandum Of Law on October 19, 2009

by Plaintiffs is insufficient.

11/24/09 Plaintiffs' Memorandum In Opposition To Defendant's Affirmative Defenses

Proffered In Defendant's Answer To Plaintiffs' Complaint, filed 11/18/09.

s/Kathleen Parker, Pro Se s/Spelter H. Parker, Jr., Pro Se

s/Dennis W. Tompkins, Pro Se

12/3/09 Plaintiff's Revised Motion For Court To Specify Future Course Of

Proceedings And Incorporated Memorandum Of Law, Request For Hearing, And

Notice Of Hearing, with Proposed Order, filed 11/30/09. s/Kathleen

Parker, Pro Se s/Spelts H. Parker, Jr., Pro Se s/Dennis W. Tompkins,

Pro Se.

12/18/09 Motion In Opposition To Plaintiff's Revised Motion For Court To Specify

Future Course Of Proceedings And Incorporated Memorancum Of Law, Request

For Hearing, And Notice Of Hearing. s/Meader, Esq.

Date of

Entry Docket No.

12/31/09 ORDER on Motion To Specify Future Course Of Proceedings, Mills, J.

(12/28/09)

Motion for trial denied for failure to comply with Rule 80B(i).

Copy to Plaintiffs and Attorney Meader.

12/31/09 ORDER on Plaintiffs' Revised Motion For Court To Specify Future Course

Of Proceedings, Mills, J. (12/28/09)

Revised motion for trial denied for failure to comply with Rule 80B(i)

and as untimely. M.R.Civ.P. 80B(i).

Copy to Plaintiffs and Attorney Meader.

12/31/09 Notice And Briefing Schedule sent to Plaintiffs and Attorney Meader.

2/9/10 Plaintiffs' Brief, filed. s/Kathleen Parker, Pro Se s/Spelts H.

Parker, Jr., Pro Se s/Tompkins, Pro Se (w/3-ring binder of exhibits)

3/11/10 Defendant's Brief, filed 3/10/10. s/Meader, Esq.

3/18/10 Plaintiffs' Reply Brief. s/Kathleen Parker, Pro Se s/Spelts H.

Parker, Jr., Pro Se s/Dennis Tompkins, Pro Se

5/4/10 DECISION AND ORDER, Mills, J.

The Decision of the Town of Winthrop Zoning Board of Appeals is

AFFIRMED in Case #307, the Administrative Appeal.

Case #306, the Variance Appeal, is REMANDED for further findings

consistent with this Decision and Order.

Copy to Plaintiffs and Attorney Meader.

Copy to Repositories.