The opinion
STATE OF MAINE SUPERIOR COURT
CUMBERLAND, ss. CIVIL ACTION
Docket No. AP-11-40
T])vJ-- CL{M- I~3oj~o II
C. MATTHEW RICH,
Plaintiff
v. ORDER
TOWN OF HARPSWELL, et al
Defendants.
Before the court is an appeal pursuant to Rule 80B from a July 27, 2011 decision
of the Harpswell Board of Appeals finding that C. Matthew Rich's appeal from the
September 16, 2010 issuance of a building permit to neighboring property owners was
untimely.
The specific motion before the court is a motion by Rich pursuant to Rule SOB( d)
for a trial of the facts as to whether good cause existed to allow a late appeal. The Town
and the party to whom the building permit was issued contend that Rich's motion for a
trial of the facts should be denied on various procedural grounds and because they
contend that all necessary facts to decide whether "good cause" existed are already
contained in the record and the pleadings before the court. 1
It is undisputed that a building permit was issued to Michael Hamblyn on
September 16, 2010 to allow him to relocate an existing structure farther from the shore
and install a new foundation. R. Tab 8, R. Tab 10. Rich's complaint and his offer of proof
accompanying his motion for a trial of the facts acknowledge that Rich was aware
1
Shortly after filing his motion for a trial of the facts, Rich also filed his brief on the merits. At
their request, the court has stayed the deadline for the Town and the parties in interest to file
responsive briefs.
during the fall of 2010 that construction was underway at the Hamblyn property.
Complaint <[ 15; Offer of Proof <[<[ 8-10. In May 2011 Rich made certain complaints to
the Code Enforcement Officer that Hamblyn and the co-owner of his property were
improperly expanding a non-conforming structure. Complaint <[ 16; Offer of Proof<[
20? Rich alleges that in following up these complaints in late June of 2011 he reviewed
the permit file and learned that the permit that had been issued should have been
issued by the Planning Board rather than by the code enforcement officer. Complaint<[
17; Offer of Proof<[<[ 25-28.
On July 6, 2011 Rich filed an appeal from the September 16, 2010 issuance of the
building permit to the Board of Appeals. Complaint<[ 19.
Good Cause Exception
Rich's motion for a trial of the facts requires consideration of the good cause
exception. Under § 14.2.1 of the Harpswell Zoning Ordinance, appeals taken from a
decision by the code enforcement officer shall be taken within 40 days of the decision
appealed from "and not otherwise, except that the Board, upon a showing of good
cause, may waive the 40 day requirement." In this case Rich's appeal was filed almost
nine months after the issuance of the permit, and the Board of Appeals did not find
good cause. See R. Tab 1 at p. 2.
While most factual decisions by an administrative body are reviewed under a
deferential standard, the Law Court has held that whether good cause existed is a
decision to be made judicially. Brackett v. Town of Rangeley, 2003 ME 109 <[ 17, 831
2
It appears that these complaints were made orally. This was during the same time period
when Rich was also objecting to a March 2011 application by Hamblyn for a permit under the
Wharf and Weir Act to construct a pier on the shore of his property. No permit for a pier has
been issued.
2
A.2d 422, 428. In order to find good cause, the court must find that there are special
circumstances which would result in a flagrant miscarriage of justice "unless, within a
narrowly extended range, a time longer than the general norm is held reasonable."
Brackett 2003 ME 109 <J[ 23, 831 A.2d at 429 (emphasis added), quoting Keating v.
Zoning Board of Appeals of Saco, 325 A.2d 521,524 (Me. 1974).
The factors to be considered in determining whether good cause exists include
the following: whether the party seeking to appeal received notice of the issuance of the
permit, whether the municipality violated its own ordinance in issuing the permit,
whether the permit holder violated the terms of the permit, and the amount of time the
appellant waited to file the appeal after obtaining actual knowledge of the permit. Viles
v. Town of Embden, 2006 ME 107 <J[ 13, 905 A.2d 298, 302.
Rich did not receive notice of the issuance of the permit. He also contends that
the issuance of a permit by the code enforcement officer violated Harpswell's zoning
ordinance because the code enforcement officer was required under § 10.3.2.3 of the
ordinance to give notice of any relocation of a non-conforming structure to the Planning
Board and all property owners within 250 feet of the applicant's property so that the
Planning Board could elect to exercise jurisdiction over the permit application. 3
Although both the Town and the parties in interest contend that Rich cannot show good
cause for his delay in appealing, it does not appear that they necessarily contest Rich's
assertion that § 10.3.2.3 was applicable and should have been followed in this case.
The court concludes that all of the relevant facts with respect to the good cause
issue are already contained in the record, and there is no need for a trial of the facts on
3
There are also assertions in the record that the construction performed on Hamblyn' s lot did
not comply with the approved permit application.~ Transcript of July 27, 2011 hearing at 8.
However, it appears that Rich has a separate remedy for any violations of the permit that was
issued.
3
that issue. This conclusion is confirmed by the fact that Rich has already filed his brief
on the merits. If the Town and the parties in interest disagree with any of the factual
assertions (as opposed to the legal arguments or conclusions) contained in Rich's offer
of proof, they shall identify any such disagreements in their briefs and if the court
determines that such disagreements are material, it may reconsider its denial of Rich's
Rule 80B( d) motion.
One additional point needs to be made with respect to the future course of this
case. The question before the court is whether, once Rich learned in the fall of 2010 that
construction was underway, he was obliged to act more promptly to review the permit
application and file an appeal or whether the existence of the other factors referred to
above is sufficient to excuse his delay in filing an appeal until the following summer.
Rich contends that the Board of Appeals based its decision that good cause did
not exist solely on his delay in filing the appeal and did not consider the other factors
listed in Viles v. Town of Embden. See Brief of Appellant filed October 18, 2011 at 8-10.
He argues that the case should be remanded to the Board for further consideration of
whether good cause existed. Id.
There are instances in the procedural history of the Brackett and Viles cases
where cases were remanded to municipal boards for further hearings on good cause. As
noted above, however, Brackett emphasized that whether good cause existed is
ultimately a judicial decision. 2003 ME 109 en 17, 831 A.2d at 428. In Brackett the Law
Court itself determined that good cause existed and remanded for a hearing on the
merits. 2003 ME 109 en 24, 831 A.2d at 429. In Viles the Law Court affirmed a
determination by the Superior Court that good cause existed. 2006 ME 107 en 18, 905
A.2d at 303.
4
As a result, the court concludes that good cause is not an issue that may
potentially require further consideration by the Board of Appeals but is instead an issue
that this court is required to decide once the issue has been fully briefed.
The entry shall be:
Plaintiff's motion for a trial of the facts is denied. The Town and the parties in
interest shall have 30 days from the date of this order in which file their responsive
briefs to the brief filed by plaintiff and plaintiff shall then have 14 days in which to file a
reply brief. If the Town and the parties in interest disagree with any of the factual
assertions contained in plaintiff's offer of proof, they shall identify any such
disagreements in their briefs.
The Clerk is directed to incorporate this order in the docket by reference
pursuant to Rule 79(a).
Dated: December 2 <1 , 2011
~
Thomas D. Warren
Justice, Superior Court
5
Date Filed 09-08-11 Cumberland Docket No. _.........::AP=---=1:...::1:..._-..:..:.4.:::.0_ __
County
Action --~8~0o!..J(...:Bu)~A~p~p!::.ea~l=----------
C. MATTHEW RICH INHABITANTS OF THE TOWN OF HARPSWELL
MICHAEL HAMLYN - PII
DEBRA BODWELL - PII
vs.
Plaintiff's Attorney Defendant's Attorney
t'-"
~SCOTT D ANDERSON ESQ (M HAMLYN)rsPP_.,
DOUGLAS J. PAYNE, ESQ. VERRILL & DANA
PO BOX 550 PO BOX 586
BRUNSWICK, ME 04011 PORTLAND ME 04112-0586
~SALLY DAGGETT ESQ (TOWN)
JENSEN BAIRD GARDNER & HENRY
PO BOX 4510
PORTLAND ME 04112
STATE OF MAINE SUPERIOR COURT
CUMBERLAND, ss. CNILACTION
Docket No. AP-,-40
V"' I
;L_f)f} -- CUI\\--~ \?Jj2ot 2-
C. MATTHEW RICH,
Plaintiff
v. ORDER
STATE OF MAINE
TOWN OF HARPSWELL, et al Cumberland, s~. Clerk's Office
Defendants.
RECEIVED
Before the court is an appeal pursuant to Rule SOB from a July 27, 2011 decision
of the Harpswell Board of Appeals finding that C. Matthew Rich's appeal from the
September 16, 2010 issuance of a building permit to neighboring property owners was
untimely. The court has previously denied Rich's motion for a trial of the facts. See
order dated December 29, 2011.
The relevant facts as to the timing of Rich's appeal are contained in the record, in
Rich's complaint, and in the offer of proof which Rich submitted pursuant to Rule
SOB(d) with his motion for a trial of the facts. On issues relating to the timing of this
appeal, the court accepts the facts in Rich's offer of proof for purposes of determining
whether the "good cause" exception applies: 1
The Harpswell Code Enforcement Officer issued a building permit to Michael
Hamblyn on September 16, 2010 to allow Hamblyn to relocate an existing structure
farther from the shore and install a new foundation. R. Tab 8, R. Tab 10. Rich's
complaint and his offer of proof accompanying his motion for a trial of the facts
1
In its December 29, 2011 order the court directed defendants to set forth any disagreements
with the factual assertions set forth in Rich's offer of proof, and they have done so. The court
concludes that none of those disagreements are material to a determination of "good cause."
acknowledge that Rich was aware during the fall of 2010 that construction was
underway at the Hamblyn property. Complaint <_[ 15; Offer of Proof <_[<_[ 8-10. In May
2011 Rich made certain complaints to the Code Enforcement Officer that Hamblyn and
the co-owner of his property were improperly expanding a non-conforming structure.
Complaint<_[ 16; Offer of Proof<_[ 20? Rich states that in following up these complaints
in late June of 2011 he reviewed the permit file and learned that the permit that had
been issued should have been issued by the Planning Board rather than by the code
enforcement officer. Complaint<_[ 17; Offer of Proof<_[<_[ 25-28.
On July 6, 2011 Rich filed an appeal from the September 16, 2010 issuance of the
building permit to the Harpswell Board of Appeals. Complaint<_[ 19. The Board found
that Rich's appeal was untimely and that there was no "good cause" for that
untimeliness.
Good Cause Exception
Under § 14.2.1 of the Harpswell Zoning Ordinance, appeals taken from a
decision by the code enforcement officer shall be taken within 40 days of the decision
appealed from "and not otherwise, except that the Board, upon a showing of good
cause, may waive the 40 day requirement." In this case Rich's appeal was filed almost
nine months after the issuance of the permit, and the Board of Appeals did not find
good cause. SeeR. Tab 1 at p. 2.
While most factual decisions by an administrative body are reviewed under a
deferential standard, the Law Court has held that whether good cause existed is a
decision to be made judicially. Brackett v. Town of Rangeley, 2003 ME 109 <_[ 17, 831
2
This was during the same time period when Rich was also objecting to a March 2011
application by Hamblyn for a permit under the Wharf and Weir Act to construct a pier on the
shore of his property. No permit for a pier has been issued.
2
A.2d 422, 428. In order to find good cause, the court must find that there are special
circumstances which would result in a flagrant miscarriage of justice "unless, within a
narrowly extended range, a time longer than the general norm is held reasonable."
Brackett, 2003 ME 109 9I 23, 831 A.2d at 429 (emphasis added), quoting Keating v.
Zoning Board of Appeals of Saco, 325 A.2d 521, 524 (Me. 1974).
The factors to be considered in determining whether good cause exists include
the following: whether the party seeking to appeal received notice of the issuance of the
permit, whether the municipality violated its own ordinance in issuing the permit,
whether the permit holder violated the terms of the permit, and the amount of time the
appellant waited to file the appeal after obtaining actual knowledge of the permit. Viles
v. Town of Embden, 2006 ME 107 9I 13, 905 A.2d 298, 302.
Rich did not receive notice of the issuance of the permit. He also contends that
the issuance of a permit by the code enforcement officer violated Harpswell's zoning
ordinance because the code enforcement officer was required under § 10.3.2.3 of the
ordinance to give notice of any relocation of a non-conforming structure to the Planning
Board and all property owners within 250 feet of the applicant's property so that the
Planning Board could elect to exercise jurisdiction over the permit application.
Although both the Town and the parties in interest contend that Rich cannot show good
cause for his delay in appealing, they do not contest Rich's assertion that § 10.3.2.3 was
applicable and should have been followed in this case.
The Town and the parties in interest, however, do dispute that the parties in
interest have violated the terms of the permit that was issued, and Rich has made no
showing that any such violations have occurred. Most importantly, the Town and the
parties in interest point out that Rich waited a considerable period of time after
obtaining actual knowledge of the permit. He first had notice that construction was
3
underway in the fall of 2010. Giving Rich the benefit of the doubt that this did not occur
until late in the fall, he still waited fnore than seven months to file his appeal.
Moreover, according to Rich's offer of proof, he complained to the Town
Administrator that there was an improper deck being added to the Hamblyn cottage on
May 12, 2011. Offer of Proof ')[20(a). Even if that date were used as the starting point for
Rich's actual notice of the permit, Rich did not file his appeal until 53 days later - on
July 6, 2011. Rich's position in this action is that, because he originally did not get notice
of the permit application, the clock should not have started to run when he received
actual notice of the permit but should only have started to run until after he began
looking into the file and discovered an issue that he wanted to appeal. The .court is
aware of no authority to support this position.
The purpose of an appeal deadline is ensure that once an individual obtains a
building permit, he can rely on that permit with confidence that it will not be revoked
after he has commenced construction. Wright v. Town of Kennebunkport 1998 ME 184
'][6, 715 A.2d 162. That principle yields when good cause for a delay in filing an appeal
can be shown. However, the case on which Rich most heavily relies, Brackett v. Town of
Rangeley, 2003 ME 109 '][ 23, 831 A.2d at 429, allowed extensions of the appeal deadline
"within a narrowly extended range" when good cause for delay existed. A requested
extension of seven months after receipt of actual knowledge that a permit has issued
does not constitute an extension within a "narrowly extended" range.
Considering the relevant factors in this case under the circumstances presented
here, the court concludes that once Rich had actual notice of the permit and certainly
once he was complaining about allegedly improper construction, the clock started on
Rich's time to file an appeal. Good cause for Rich's untimeliness does not exist in this
case.
4
Particularized Injury
The Town and the parties in interest also argue that Rich's property does not
abut Hamblyn's property and he cannot show any "particularized injury" that would
entitle him to appeal even if good cause existed. See Brooks v. Cumberland Farms, 1997
ME 203 Cj[ 8, 703 A.2d 844, 847. Rich's opponents may have a point; although the record
does not disclose the location of Rich's property on the tax map (R. Tab 7), Rich does not
dispute that he is not an abutter. The only injury he alleges is that "he is a resident
taxpayer who has complied with the Harpswell Shoreland Zoning Ordinance over the
last twenty years." R. Tab 2 at 2. This would not appear to qualify as "particularized
injury."
However, smce the record does not establish the exact relationship between
Rich's property and the Hambl yn property and the finding of untimeliness below
foreclosed any inquiry that might have taken place into any particularized injury Rich
may have suffered, the court does not reach the issue of particularized injury or rely on
that issue in this order.
Proposed Additions to the Record
Along with his Reply Brief, Rich has submitted several proposed additions to the
record, including two binders totaling 29 documents, and he has also sought
reconsideration of the court's denial of his motion for a trial of the facts. Except for
agreeing to the addition of a one-page revision to Hamblyn's permit application that
was approved on April 14, 2011 (Attachment # 1), the Town and the parties in interest
oppose Rich's attempt to add to the record at this juncture, and they oppose his request
for reconsideration.
5
The court concludes that Rich is not entitled to add Attachments # 2 and # 3 to
the record. First, having made an offer of proof at the time of his initial motion for a trial
of the facts, he is not entitled to make a second offer with additional facts after that
motion has been denied. Second, to the extent that Rich is attempting to broaden the
issues on which he is appealing, he cannot do at this stage. This appeal is limited to the
issues set forth in Rich's July 6, 2011 submission to the Harpswell Board of Appeals (R.
Tab 2). Finally, the court has not found anything in the additional materials submitted
that would alter the conclusion that Rich has not demonstrated good cause for the
untimeliness of his July 6, 2011 appeal. Rich's request for reconsideration of the denial
of his motion for a trial of the facts is denied.
The entry shall be:
· The court determines that plaintiff has not demonstrated good cause for the
untimeliness of his appeal. The decision of the Harpswell Board of Appeals is affirmed.
The Clerk is directed to incorporate this order in the docket by reference
pursuant to Rule 79(a).
Dated: April 1~ 2012
~
Thomas D. Warren
Justice, Superior Court
6
Date Filed 09-08-11 Cumberland DocketNo. __~~--1~1~--4~0~----
County
•
Action ----~8~0"-('-"B"-')'--"'Ao.t::Pc.t:P.=e.:::::a.=.l_______________
C. MATTHEW RICH INHABITANTS OF THE TOWN OF HARPSWELL
MICHAEL HAMLYN - PII
DEBRA BODWELL - PII
VS.
Plaintiff's Attorney Defendant's Attorney
~SCOTT D ANDERSON ESQ (M HAMLYN}"~..,"""
DOUGLAS J. PAYNE, ESQ. VERRILL & DANA
PO BOX 550 PO BOX 586
BRUNSWICK, ME 04011 PORTLAND ME 04112-0586
~ SALLY DAGGETT ESQ (TOWN)
JENSEN BAIRD GARDNER & HENRY
PO BOX 4510
PORTLAND ME 04112
Date of
Entry
·~---i-----------------------------~----------------------------------------