# Murphy v. Goldman

> Superior Court of Maine · May 10, 2013

URL: https://www.frixlaw.com/law-library/cases/10810321

## Case

- **Court:** Superior Court of Maine
- **Decided:** May 10, 2013
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Judges:** Thomas D. Warren
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

STATE OF MAINE SUPERIOR COURT
CUMBERLAND, ss. CNILACTION
Docket No. AP-12-60/ /
-r;!' . c--. (}JV) __ ¥!c;/:'c ,'
MAYNARD MURPHY, et al,

Plaintiffs

v. ORDER

MARSHALL GOLDMAN, et al, STATE OF MAINE
Cumberland, s!S, Clerk's Office
Defendants MAY 1;J 2013

RECEIVED
Before the court is an appeal by Maynard and Deborah Murphy from a decision

of the Cape Elizabeth Zoning Board of Appeals (ZBA) upholding the issuance of a

building permit issued to Marshall Goldman and Pilot Point LLC for the construction of

an accessory structure consisting of ornamental outdoor granite steps on property

owned by Pilot Point LLC at 27 Pilot Point Road in Cape Elizabeth.1 The Goldman

property faces the ocean, and a paper street runs along the seaward boundary of the

Goldman property.

Four issues are presented on this appeal. The first is whether the ZBA should

have conducted a de novo review of the issuance of the permit. The second is whether

the Murphys have standing to contest the issuance of the permit. The third issue

involves the determination of the "normal high water line" of the ocean in front of the

The record indicates that Marshall Goldman owns Pilot Point LLC, which is the record
owner of the property at 27 Pilot Point Road where Goldman resides.
In addition to the Town of Cape Elizabeth, Goldman, and Pilot Point LLC, the Cape
Elizabeth Zoning Board of Appeals and the Cape Elizabeth Code Enforcement Officer have
been named as defendants in this action. The court agrees with the Town that the ZBA and the
Code Enforcement officer are not proper parties to this action.
Goldman property. 2 The fourth issue is whether, for purposes of applying the limit on

impervious surfaces within the Shoreland Zoning District, all or only a portion of

Goldman's property falls within the Shoreland Zoning District.

De Novo Review

In Stewart v. Town of Sedgwick, 2000 ME 157 <J[<J[ 6-7, 757 A.2d 773, the Law

Court interpreted 30-A M.R.S. § 2691(3)(D) as requiring municipal boards of appeals to

conduct de novo hearings unless there is a municipal ordinance which expressly directs

otherwise. None of the parties have directed the court to any Cape Elizabeth ordinance

in this case that would limit the ZBA to a purely appellate role. Accordingly, the ZBA

was required to conduct a de novo hearing in this case.

It is apparent from the proceedings below that the ZBA did not conduct a de

novo review. Nothing else explains how a 4-3 majority of the ZBA could have voted

both that "the issuance of the permit was clearly contrary to the Ordinance" (R. Tab 1A

at 2) and that the issuance of the permit was nevertheless supported by substantial

evidence. Id. These contradictory findings can only be resolved if the ZBA was

disagreeing with the issuance of the permit but nevertheless upholding it under a

substantial evidence standard of review. Indeed, the ZBA's recitation of the substantial

evidence standard is alone sufficient to demonstrate that the ZBA was not conducting a

de novo hearing.

2
"Normal high water line" is defined by the Zoning Ordinance as "that line on the shore
of tidal waters which is the apparent extreme limit of the effect of the tides, i.e., the top of the
bank, cliff or beach above high tide." Ordinance § 19-1-3. Under the shoreland ordinance, the
minimum setback for any new accessory structure is 75 feet from the "normal high-water line."
Ordinance § 19-6-ll(E). The Murphys contend that if the normal high water line had been
correctly determined, the ornamental steps proposed by Goldman would violate the setback
requirement.

2
The November 8, 2012 decision of the ZBA must therefore be vacated and the

case remanded for a de novo hearing on the Murphy's appeal. Consistent with Stewart

v. Town of Sedgwick, 2000 ME 157 <J[ 7, that means that the ZBA must look at the

substantive issues afresh, must undertake its own credibility determinations, must

evaluate the evidence presented, and must draw its own conclusions independent of

the decision made by the Code Enforcement Officer.

Issues on Remand

In light of the remand, the court need not address the other issues raised on this

appeal at this time. On the setback issue, the ZBA will need to consider and determine

the location of the normal high water line as that term is defined in section 19-1-3 of the

ordinance. Citing that definition, the Murphys argue that the normal high water line is

the top of the bank. On this issue the Law Court's decision in Mack v. Town of Cape

Elizabeth, 463 A.2d 717, 722 (Me. 1983), interprets the definition's reference to "the top

of the bank" as an example. It is therefore conceivable that "the apparent extreme limit

of the effect of the tides" could fall short of the top of the bank in a given case, even

after taking into account the effect of the tides beyond the high-tide level of the water

itself. See id.

Assuming that the ornamental steps do not violate the setback provision, the

ZBA on remand will also have to consider how much of the Goldman property falls

within the Shoreland Zone for purposes of the limit on impervious surfaces. On this

issue the ZBA will have to consider the Murphys' argument that the Shoreland Zoning

Map is dispositive on that issue where that map is made a part of the ordinance, see

Summerwind Cottage LLC v. Town of Scarborough, 2013 ME 26 <J[<J[ 6-9, 61 A.3d 698,

and the contrary argument that section 19-6-11 is a more specific provision that should

3
control. In the latter case, however, the ZBA will have to determine the "upland edge of

coastal wetland" in front of the Goldman property, including "all areas affected by tidal

action," Ordinance§ 19-6-11, in order to determine the 250 foot depth of the shoreland

zone and how much of the Goldman property is within that zone for purposes of the

impervious surface calculation.

The ZBA has already found that the Murphys have standing to contest the

issuance of a permit. (R. Tab 1A at 1).3 On this appeal Goldman and Pilot Point LLC

have contested that finding but they did not file a cross appeal. 4 To the extent that this

issue might be revisited at the hearing on remand, it is likely that standing would be

upheld because abutters need show only a relatively minor adverse consequence to

have standing. Brooks v. Cumberland Farms Inc., 1997 ME 203 <][ 10, 703 A.2d 844. The

Murphys appear to have easement rights over the paper street that passes immediately

in front of the portion of the Goldman property where the ornamental steps would be

located. However, the existing record before the court indicates that some of the facts

relevant to standing were developed during a different hearing on the previous agenda

item, seeR. Tab 4, Tr. at 3. On remand, if Goldman and Pilot Point continue to contest

standing, the easement rights and the nature of the Murphys' injury should be further

developed.

3
The court addressed the de novo hearing question prior to standing because on an SOB
appeal standing does not go to the court's subject matter jurisdiction. Norris Family Associates
LLC v. Town of Phippsburg, 2005 ME 102 <JI<JI 11-12, 879 A.2d 1007.
4
Compare Norris Family Associates LLC v. Town of Phippsburg, 2005 ME 102 <JI 6 (cross
appeal filed on issue of standing).

4
The entry shall be:

The November 8, 2012 decision of the Cape Elizabeth Zoning Board of Appeals
in the above-captioned case is vacated and the case is remanded for the Board to hold a
de novo hearing as set forth above. The Clerk is directed to incorporate this order in the
docket by reference pursuant to Rule 79(a).

Dated: May ..!..!2 2013

Thomas D. Warren
Justice, Superior Court

5
Date Filed _ _;1::.. :2:::_-__,7_--=1:.=:2:____ _ CUMBERLAND Docket No. AP-12-60
County

Action --~8~0~B:....=.!A=...PP=-E~A~L~----------

MAYNARD J MURPHY II MARSHALL GOLDMAN
DEBOARH N HOWE MURPHY PILOT POINT LLC
BRUCE SMITH
TOWN OF CAPE ELIZABETH
ZONING BOARD OF APPEALS, TOWN OF
CAPE ELIZABETH
vs.
Plaintiff's Attorney Defendant's Attorney
ANDRE DUCHETTE ESQ JOHN WALL III, ESQ.
TAYLOR MCCORMACK & FRAME MONAGHAN LEAHY, LLP
30 MILK ST, 5TH FLOOR PO BOX 7046
PORTLAND ME 04101 PORTLAND, ME 04112-7046
(Smith, Town,and Zoning Board)
RICHARD BRYANT, ESQ.
DAVID SOLEY, ESQ.
VAN MEER & BELANGER
BERNSTEIN SHUR
20 YORK STREET
Date of PO BOX 9729
PORTLAND, ME 04101-4556
Entry PORTLAND, ME 04104-5029 (Goldman/Pilot)
')(11')

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10810321. Public record. Not legal advice.