Inh. of the Town of Mount Vernon Through its Bd. of Selectmen v. Town of Mt. Vernon Planning Bd. of Appeals

STATE OF MAINE SUPERIOR COURT

KENNEBEC, ss CIVIL ACTION

DOCKET NO. AP:lf.3~ L

111M41-XEN- 0/ 1s~fbty

THE INHABITANTS OF THE

TOWN OF MOUNT VERNON THROUGH

ITS BOARD OF SELECTMEN,

Petitioners,

v. ORDER ON RULE SOB APPEAL

THE TOWN OF MT. VERNON

PLANNING BD. OF APPEALS,

Respondent,

and

JAMES LANDHERR and VALERIE CENTER,

Parties-in-Interest.

Before the Court is a Rule 80B Petition filed by the Inhabitants of the Town of Mount

Vernon (the "Board of Selectmen") seeking review of the June 6, 2013 decision of the Town of

Mount Vernon Planning Board of Appeals (the "Board of Appeals") approving an application for

variance filed by James Landherr and Valerie Center ("Landherr and Center"). 1 The main issue

on this appeal is whether the Board of Appeals had substantial evidence of "undue hardship"

required for approval of a variance in a shore land zone pursuant to Article IX of the Land Use

Ordinance of the Town of Mount Vernon and 30-A M.R.S. § 4353(4).

1

The original Petition also challenged the approval of an application for variance filed by J. Lorraine

Putnam, however, since the filing of the Board of Selectmen's brief on appeal, Ms. Putnam, through

counsel, acknowledged that the variance granted to her was not allowed under the Maine State law or the

Town ofMt. Vernon's Ordinance. She, therefore, signed a consent agreement with the Town requiring

her to bring her property into compliance with the Town's ordinance and with the State law by January 1,

2014. Consequently, on October 30,2013, a judgment has been issued in favor ofthe Board of Selectmen

on its appeal concerning Ms. Putnam.

1

FACTUALANDPROCEDURALBACKGROUND

Landherr and Center are co-owners of a lot located in the Village of Mount V emon, next

to the General Store. (Br. of Pet. 2.) The lot is fully developed with a two-story brick house,

which was built during the 19th century. (Br. of Pet. 2.) On or about April 17, 2013, James

Landherr filed a request for a building permit with the CEO for the Town of Mount Vernon. (R.

Ex. 8.) The purpose of the building permit was "to have a garden in the area from 25' to 75' from

the lake." (R. Ex. 8.) By letter dated April24, 2013, the CEO of the Town of Mount Vernon

denied the permit because it would have involved the removal of vegetation less than three feet

tall in violation of the Town ordinance2 as well as the State and Town 100-foot setback

requirement for lands abutting Great Ponds. 3 (R. Ex. 9.) Landherr and Center filed an application

for variance, which was received by the Town office on May 13,2013. (R. Ex. 10.) The

application indicated that "practical difficulty dimensional variance" was the reason for their

application. (R. Ex. 10.) The "undue hardship" portion of the form was left blank. (R. Ex. 10.)

The variance request was heard and granted by the Board of Appeals on June 6, 2013, with a

written decision signed by the chairman of the Board of Appeals on June 11, 2013. (R. Ex. 11.)

The Board of Appeals determined (5-1) that "the hardship is not the result of action taken by the

2

Section 5-C-18(b)(iii) of the Town of Mount Vernon Land Use Ordinance provides as follows: "In order

to protect water quality and wildlife habitat adjacent to great ponds, and streams and rivers which flow to

great ponds, existing vegetation under three (3) feet in height and other ground cover, including leaf litter

and forest duff layer, shall not be cut, covered, or removed, except to provide for a footpath."

3

Article IX of the Land Use Ordinance of the Town ofMt. Vernon, in relevant part, provides as follows:

All new principal and accessory structures shall be set back at least one hundred ( 100)

feet horizontal distance from the normal high-water line of great ponds and rivers, and

seventy-five (75) feet horizontal distance from the normal high-water line of streams,

tributary streams, or the upland edge of a wetland in the Shoreland Zone.

2

applicant or a prior owner" and (4-2) that "the property cannot yield a reasonable return unless a

variance is granted." (R. Ex. 11.) Because Article IX of the Land Use Ordinance of the Town of

Mount Vernon and 30-A M.R.S. § 4353(4) require that a variance be granted only upon a finding

of undue hardship, instead of evaluating Landherr and Center's application as a "practical

difficulty dimensional variance," the Board of Appeals evaluated it as an "undue hardship

variance."

On June 17, 2013, the Board of Selectmen met, voted and requested that the Board of

Appeals reconsider its vote on Landherr and Center's application for variance. (R. Ex. 15.)

Sometime prior to July 16, 2013, but less than 20 days prior to the public hearing held on the

Board of Selectmen's request for reconsideration, the Town of Mount Vernon transmitted a copy

of the application for variance to the Department of Environmental Protection (the "DEP"). (Am.

Pet.~ 17l On July 16, 2013, the DEP issued a letter with written comments to the Board of

Appeals concluding that the variance requested by Landherr and Center should not be granted

because their lot is located in the shore land area as described in 38 M.R.S. § 435 and because

there was no evidence of undue hardship. (R. Ex. 12.)

The Board of Appeals reconvened on July 17, 2013 and denied the request for

reconsideration. (R. Ex. 16.) On July 22, 2013, the Board of Selectmen filed their 80B Petition.

An amended petition, dated July 29, 2013, was subsequently filed with the Court pursuant to

M.R. Civ. P. 15(a). On August 2, 2013, the Chairman of the Board of Appeals issued a

memorandum containing an amended version of the written decision on the Landherr and

Center's application for variance, which, in actuality, varied very slightly from the June 11, 2013

decision. (R. Ex. 13.)

4

Although Petitioners' filings are entitled "Complaint for Review of Governmental Agency Action

pursuant to M.R. Civ. P. 80B" and "Amended Complaint for Review of Governmental Agency Action

pursuant to M.R. Civ. P. 80B," they are referred hereto as "Petition" and "Amended Petition."

3

STANDARD OF REVIEW

"The standard of review for the variance decision permits relief only if we find an abuse

of discretion, an error of law, or fmdings not supported by substantial evidence on the record."

Grand Beach Ass 'n, Inc. v. Town of Old Orchard Beach, 516 A.2d 551, 554 (Me. 19S6)

(citing Driscoll v. Gheewalla, 441 A.2d 1023 (Me.19S2)). The Superior Court is not entitled to

substitute its judgment for that of the Board of Appeals. Id The Court "must only review the

record to determine whether there is evidence to support the Board's conclusion." Jd The Court

as discussed below that the Board incorrectly applied relevant legal standards and improperly

granted the variance to Lanherr and Center.

DISCUSSION

Is the appeal timely?

Landherr and Center argue that the SOB Petition filed by the Board of Selectmen on July

22, 2013 is untimely because the deadline to appeal the decision by the Board of Appeals to

grant the variance lapsed on July 21, 2013.

Pursuant to Article IX, section G of the Land Use Ordinance of the Town of Mount

Vernon, "[a]ny aggrieved party who participated as a party during the proceedings before the

Board of Appeals may take an appeal to Superior Court in accordance with State laws within

forty-five days from the date of any decision of the Board of Appeals." (R. Ex. 17.) (emphasis

added). See also 30-A M.R.S. § 2691(3)(G) ("Any party may take an appeal, within 45 days of

the date of the vote on the original decision, to Superior Court from any order, relief or denial in

accordance with the Maine Rules of Civil Procedure, Rule SOB.")

4

The variance request at issue was heard and granted by the Board of Appeals on June 6,

2013, with a written decision signed by the chairman ofthe Board of Appeals on June 11, 2013.

(R. Ex. 11.) This timeline sets the deadline for filing an appeal for July 21,2013, or 45 days from

the date on which the members voted to approve the application. (R. Ex. 11.) See also Beckford

v. Town ofClifton, No. BCDAP2012010, 2012 WL 10420152 (Me. B.C.D. Sept. 5, 2012)

(interpreting "the vote on the original decision," as used in 30-A M.R.S. § 2691(3)(G), to mean

the date of final vote, rather than the date of written notification of the vote).

The filing of the 80B Petition is nevertheless timely because July 21,2013 was a Sunday,

thus, the deadline is extended to the following Monday, July 22, 2013. See, e.g., Dobson v. Dep 't

of Sec y of State, 2008 ME 137, 955 A.2d 266 (extending the deadline to following Monday

because the statutory deadline for filing the nomination petitions fell on a Sunday).

Was there sufficient evidence to support the Board's decision to grant a variance to Landherr

and Center?

Petitioners argue that the circumstances of this case do not justify a grant of an "undue

hardship" variance and for that reason approval ofLanherr and Center's application for a

variance was improper.

The statutory basis for granting a variance is set forth in Article IX of the Land Use

Ordinance of the Town of Mount Vernon and 30-A M.R.S. § 4353(4). Article IX of the Land

Use Ordinance of the Town of Mount Vernon, in relevant part, provides as follows:

B. Variances shall be granted only upon:

1. A showing of good and sufficient cause; and,

2. A determination that should a flood comparable to the base flood occur, the

granting of a variance will not result in increased flood heights, additional

threats to public safety, public expense, or create nuisances, cause fraud or

victimization of the public or conflict with existing local laws or

ordinances; and,

3. A showing that the issuance of the variance will not conflict with other

state, federal or local laws or ordinances; and,

5

4. A determination that failure to grant the variance would result in "undue

hardship," which in this sub-section means:

a. that the land in question cannot yield a reasonable return unless a

variance is granted; and,

b. that the need for a variance is due to the unique circumstances of the

property and not to the general conditions in the neighborhood; and,

c. that the granting of a variance will not alter the essential character of

the locality; and,

d. that the hardship is not the result of action taken by the applicant or a

pnor owner.

And 30-A M.R.S. § 4353(4), in tum, provides as follows:

4. Variance. Except as provided in subsections 4-A, 4-B and 4-C and section

4353-A, the board may grant a variance only when strict application of the

ordinance to the petitioner and the petitioner's property would cause undue

hardship. The term "undue hardship" as used in this subsection means:

A. The land in question can not yield a reasonable return unless a variance is

granted;

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

and not to the general conditions in the neighborhood;

C. The granting of a variance will not alter the essential character of the

locality; and

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

owner.

In sum, both the town ordinance and 30-A M.R.S. § 4353(4), require that the applicant

for variance on shore land properties establish "undue hardship" for a variance to be granted.

"Undue hardship exists where strict application of the zoning ordinance would result in the

practical loss of all beneficial use of the land." Anderson v. Swanson, 534 A.2d 1286, 1289 (Me.

1987) (emphasis added) (quoting Thornton v. Lothridge, 447 A.2d 473,475 (Me.1982)). It is

well established that 30 M.R.S.A. § 4963(3)(A) "does not serve to ensure a maximum return on

land." !d. (quoting Grand Beach Ass'n v. Old Orchard Beach, 516 A.2d 551, 554 (Me.1986)). In

Barnard v. Zoning Board ofAppeals ofTown of Yarmouth, the Law Court found that although

the denial of a variance would prohibit the property owner from increasing the value of their

property by being able to construct a second dwelling unit, the "appellant need not be accorded

every conceivable opportunity to maximize her return, or potential return, in derogation of a duly

6

enacted and legitimate zoning ordinance." 313 A.2d 741, 749 (Me. 1974). In other words,

"reasonable return" does not equal maximum return. See also Wyer v. Bd. of Envtl. Prot., 2000

ME 45, ~ 1, 747 A.2d 192 (holding that denial of the variance, which did not render the property

substantially useless and stripped it of all practical value, is not a taking); Leadbetter v. Ferris,

485 A.2d 225, 228 (Me. 1984) (holding that in some circumstances, even the absolute inability to

develop a lot because of zoning setbacks does not by itself deprive the property owner of "the

practical loss of substantial beneficial use of the land").

Here, in support of their claim of "undue hardship," Landherr and Center purport that "in

purchasing th[e] property it was [their] hope to moye to Mount Vernon and fully enjoy use of

[the] property as [their] neighbors do," that had they "known gardening was not allowed," they

would "absolutely not have purchased the property and would have sought a place in another

town nearby," that "without this variance or a similar change in the ordinance that would allow

[them] to landscape the property, the substantial value ofthis property is radically less to

[them]."

But the claim that the value of the property to them would be "radically less" if they are

not allowed to have a garden in the area 25-75 feet from the lake is not enough for Landherr and

Center to establish "undue hardship." The lot owned by them is fully developed: it has a house

on it, which means that it has substantial, beneficial use, even without the requested variance.

The only difference between granting and denying the variance is whether or not the property

owners would be allowed to dig up the sod and plant a vegetable garden in their back yard within

100 feet setback from Lake Minnehonk. Thus, the denial of the variance would not prevent the

use of the lot for residential purposes, which means that the property would continue yielding a

reasonable return even without the variance. Because Respondents have not demonstrated a loss

7

of all or even substantial beneficial use of their property as required by Article IX of the Land

Use Ordinance ofthe Town ofMount Vernon and 30-A M.R.S. § 4353(4), the Board of Appeals

erroneously granted the variance.

The entry will be:

The decision of the Board of Appeals dated June 6, 2013 is REVERSED.

DATE SUPERIOR COURT JUSTICE

8

Date Filed 7/22/13 Kennebec Docket No. AP-13-30 F

County

Action: Petition for Review J. Murphy J. NivisoA

80B

J. Lorraine Putnam (PII)

James Landherr (PII)

Valerie Center (PI I)

The Inhabitants of the Town Town of Mount Vernon

of Mount Vernon vs. Planning Board of Appeals

Plaintiff's Attorney Defendant's Attorney

David Sanders, Esq. Noreen A Patient, Esq. (PI I Putnam)

PO Box 271 PO Box 9

Livermore Falls, Maine 04254 Brunswick, ME 04011

James Landherr, ProSe (PII)

Valerie Center, Pro Se (PII)

PO Box 326

Mount Vernon, ME 04352

Town of Mount Vernon

Planning Board of Appeals

1997 North Road

Mount Vernon, ME 04352

Date of Entry

7/22/13 Complaint for Review of Governmental Agency Action, filed. s/Sanders, Esq.

8/1/13 Amended Complaint, filed (7/31/13). s/Sanders, Esq.

8/21/13 Summons, Return of Service to J.Lorraine Putnam (PII), 8/8/13, filed on 8/21/13.

8/21/13 Summons, Return of Service to James Landherr (PII) on 8/8/13, filed on 8/21/13.

8/21/13 Summons, Return of Service to Valerie Center (PII) on 8/8/13, filed on 8/21/13.

8/29/13 Entry of Appearance for J. Loraine Putnam, filed (8/28/13). s/Patient, Esq.

8/30/13 Letter clarifying errors in the lawsuit and DVD of 6/17/13 proceedings, filed 8/28/13.

Initialed by James Landherr, Pro Se

8/30/13 Motion to Increase the Time Limits for Plaintiffs Brief and the Record to be Filed with the

Court, filed. s/Sanders, Esq.

9/6/13 Motion For Stay, filed 9/5/13. s/Sanders, Esq.

9/6/13 Letter indicating errors in the document, filed 9/5/13. sNalerie Center, Pro Se

Page 1 AP-13-30

9/20/13 ORDER, Murphy, J. (9/19/13)

Upon Plaintiff's motion to increase the time limits for Plaintiff's brief and the Record to be

filed with the court, the court GRANTS the 21-day extension.

Copy to Atty Sanders, Atty Patient, James Landherr, Valerie Center

9/24/13 Certified Record, filed (9/23/13). s/Sanders, Esq.

9/24/13 Notice and Briefing Schedule issued. Copy to Atty Sanders, Atty Patient, James Landherr,

& Valerie Center.

9/24/13 Brief of Petitioner, filed (9/23/13). s/Sanders, Esq.

10/9/13 Letter from Russell Evans addressing factual errors in the Amended Complaint.

s/Russell Evans.

10/29/13 ORDER, Murphy, J. (10/28/13)

Upon the plaintiff's motion for stay, there being no objection, this court grants the stay of

the variance granted by the Town of Mount Vernon Planning Board of Appeals to

J. Lorraine Putnam on June 6, 2013, pending the final decision on appeal.

Copy to Attys Sanders and Patient, Parties-In-Interest.

10/30/13 Party-In-Interest J. Lorraine Putnam's Motion for Enlargement of Time to File Brief, filed

10/23/13. s/Patient, Esq.

10/30/13 Stipulated Judgment, filed 10/28/13. s/Sanders, Esq. s/Patient, Esq.

10/30/13 STIPULATED JUDGMENT, Murphy, J.

The Court enters a judgment in favor of The Inhabitants of the Town of Mount Vernon

and against J. Lorraine Putnam.

Judgment incorporated by reference.

Copy to Attys Sanders and Patient, Parties-In-Interest.

11/5/13 Brief of the Parties In Interest, filed 10/31/13. s/Landherr, ProSe s/Carter, ProSe

11/12/13 Plaintiff's Reply Brief, filed 11/8/13. s/Sanders, Esq.

11/19/13 ORDER, Murphy, J. (11/18/13) (PII Putnam's Motion for Enlargement to File Brief)

MOOT. Party-In-Interest and Plaintiffs have stipulated to judgment.

11/22/13 Oral argument scheduled 1/3/14 at 1:00.

Notice of Hearing sent to Atty Sanders, James Landherr, Valerie Center, and Town of

Mount Vernon Planning Board of Appeals.

12/10/13 Plaintiff's Motion to continue, filed 12/2/13. s/Sanders, Esq.

12/23/13 ORDER, Murphy, J. (12/20/13)

Plaintiff's motion to continue oral arguments scheduled for 1/3/14 is granted, over

objection.

Notice of Hearing sent to Atty Sanders, James Landherr, Valerie Center, and Town of

Mount Vernon Planning Board of Appeals.

Page 2 AP-13-30

12/23/13 Oral argument scheduled 2/6/14 at 9:00.

Notice of Hearing sent to Atty Sanders, James Landherr, Valerie Center, and Town of

Mount Vernon Planning Board of Appeals.

2/6/14 Oral argument held, J. Murphy presiding.

David Sanders, Esq.; James Landherr, ProSe; Valerie Center, ProSe.

Tape 1821, Index 170-1113

Under advisement.

3/14/14 ORDER ON RULE 80B APPEAL, Murphy, J. (3/13/14)

The decision of the Board of Appeals dated June 6, 2013 is REVERSED.

Copy to Atty Sanders, James Land herr, Valerie Center, and town of Mount Vernon

Planning Board of Appeals.

Copy to Repositories.

Page 3 AP-13-30