The opinion
STATE OF MAINE RECEIVED & FILED SUPERIOR COURT
ANDROSCOGGIN, ss. DOCKET NO. AP-15-11
SEP 19 2016
KIMBERLY J. ALLEN,
ANDR O~COGG/N
Plaintiff, SUPER l~R COURT ORDER TO GRANT PLAINTIFF'S
) RULE SOB MOTION
V. )
)
JEREL BABCOCK and SHIELA )
BABCOCK, TOWN OF DURHAM, )
and TOWN OF DURHAM BOARD )
OF APPEALS, )
)
Defendants. )
Plaintiff-Appellant Kimberly J. Allen appeals from a decision by the Town of
Durham Board of Appeals (the "Board") pursuant to Maine Rule of Civil Procedure
SOB . The court has reviewed the parties' filings and held a hearing on the motion on
August 30, 2016. Based on the following, Allen's appeal is granted.
I. Factual and Procedural Background
Plaintiff Allen and Defendants Babcock ("The Babcocks") own abutting
properties. Allen's property is subject to an easement benefitting the Babcock property.
(R. 40-41.) On April 25, 2011, the Code Enforcement Officer (the "CEO") issued building
permits to the Babcocks to build a mobile home. (R. 1.) On May 17, 2011, the CEO
1
issued a stop work order on the permits based on a complaint by AI1en s predecessor
in-interest that the Allen property easement was not in compliance with the Back Lot
Development Ordinance which requires that the right-of-way used to access a back lot
"be a minimum of 50 feet in width." (R. 2); See Durham, Me. Back Lot Development
Ordinance § 6(A)(l)(a) (Apr. 5, 2014). In July or August of 2011, Allen's predecessor-in
interest filed an appeal with the Board to challenge the granting of the building permits,
but the Board took no action on the appeal because Allen's predecessor-in-interest gave
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notice that the parties were attempting to resolve the dispute on their own. (R. 2.) On
August 31, 2015, the current CEO reinstated the 2011 building permits. (Id.) While the
Durham Land Use Ordinances do require notice be given to abutting land owners for
"conditional use" permits, Durham, Me., Land Use Ordinance § VII(II)(B) (Oct. 28,
2014), no notice is required when filing for a standard permit, Id. at§ IV(III); (R. 3), and
no notice of this action was provided to Allen, (R. 2). Allen appealed this reinstatement
on November 10, 2015. (Id.) On December 8, 2015, the Board held a meeting and
dismissed Allen's appeal for being untimely. (R. 3-4.)
The Durham Land Use Ordinance, requires that "an administrative appeal shall
be taken within thirty (30) days of the date of the ... action of the ... Code Enforcement
Officer." Durham, Me., Land Use Ordinance § IX(IV)(A) (Oct. 28, 2014). Seventy-one
days had elapsed between the August 31, 2015 reinstatement of the permits and Allen's
November 10, 2015 appeal. (R. 3.) The Board, therefore, declined to decide whether the
April 2011 building permits had lapsed, whether the stop work order had tolled the
expiration date of the. building permits, whether the Allen property easement was of
sufficient width to satisfy the requirements for the building permits sought on the
Babcock property, or whether the original 2011 building permits had been issued in
error. (Id.)
On December 24, 2015, Allen filed an 80B appeal of the Board's December 81 2015
holdings. Allen asks that: (1) the Board's decision that her November 10, 2015 appeal
was untimely be reversed, and (2) the 2011 building permits be declared void. Allen
argues that she is entitled to a "good cause exception" that will excuse her untimely
filing with the Board. (Pl.'s Rule 80B Br. 11.)
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II. Standard of Review
When reviewing the decision of a municipal agency pursuant to Maine Rule of
Civil Procedure 80B, the court reviews the decision "for abuse of discretion, errors of
law, or findings not supported by the substantial evidence in the record." Wyman v.
Town of Phippsburg, 2009 ME 77, <JI 8, 976 A.2d 985 (internal quotation marks and citation
omitted). The party seeking to vacate the municipal agency's decision bears the burden
of persuasion on appeal. Bizier v. Town of Turner, 2011 ME 116, <JI 8, 32 A.3d 1048. Except
where otherwise provided, review shall be based upon the record of the proceedings
before the governmental agency. M.R. Civ. P. 80B(f). Any party to an administrative
appeal who seeks to present additional evidence to expand the administrative record
must file a motion for "a trial of the facts." M.R. Civ. P. 80B(d). The purpose of taking
additional evidence in the trial court is not to retry the facts presented before the
administrative agency, but to permit the court to hear facts about the administrative
decision-making process that are not present in the agency record. Silsby v. Belch, 2008
ME 104, <JI 6, 952 A.2d 218.
The interpretation of local ordinances is a question of law that the court reviews
de novo. Rudolph v. Golick, 2010 ME 106, <JI 8, 8 A.3d 684. The court examines ordinances
for their plain meaning and construes the terms of ordinances reasonably "in light of
the purposes and objectives of the ordinance and its general structure." Id. 'TI 9. The
court must also give the words in the ordinance their "plain and ordinary meaning"
and must not be construe the ordinance "to create absurd, inconsistent, unreasonable,
or illogical results." Duffy v. Town of Berwick, 2013 ME 105, 9I 23, 82 A.3d 148 (internal
quotation marks and citation omitted). If the meaning of an ordinance is clear on its
face, the court looks no further. Rudolph, 2010 ME 106, <JI 9, 8 A.3d 684.
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III. Discussion
When a court "finds special circumstances which would result in a flagrant
miscarriage of justice/' the time for filing an appeal may be extended. Keating v. Zoning
Bd. of Appeals, 325 A.2d 521, 524 (Me. 1974). This "good cause exception" was designed
to protect abutting landowners who may not learn of a permit on neighboring property
until the time period for appeal has expired. Viles v. Town of Embden, 2006 ME 107, qr 12,
905 A.2d 298. The determination of whether the good cause exception applies to an
otherwise untimely appeal is made "in light of all the circumstances bearing on all the
equities of the situation." Gagne v. Lewiston Crushed Stone Co., 367 A.2d 613, 619 (Me.
1976). The Law Court in has stated that the application of the good cause exception is a
judicial, and not an administrative, decision. Brackett v. Town of Rangeley, 2003 ME 109, qr
17, 831 A.2d 422.
A key factor in determining whether the good cause exception applies is whether
the appellant received notice of the issuance of the permit. Viles, 2006 ME 107, qr 13, 905
A.2d 298. A second, important factor is the amount of time the appellant waited to file
the appeal after obtaining actual knowledge of the permit. In cases where the Law
Court has affirmed a Superior Court's determination that the good cause exception
applied, the facts demonstrated the abutting landowners' prompt response to protect
their property rights. Id. qr 7; Brackett, 2003 ME 109, 'II 21, 831 A.2d 422; Gagne v. Ciunbro
Corp., 431 A.2d 1313, 1317 (Me. 1981). Conversely, when an abutting landowner waited
76 days after learning of the commencement of construction on the abutting property
before filing an appeal, the denial of the good cause exception was confirmed. Wilgram
v. Sedgwick, 592 A.2d 487, 488 (Me. 1991). Other factors that may be appropriate involve
whether the municipality violated its own ordinance, and whether the permit holder
violated the terms of the permit. Viles, 2006 ME 107, 'l[ 13, 905 A.2d 298. The court uses
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its discretion in weighing the various factors and "all the equities of the situation." Id. <JI
11 .
Here, Allen's property does abut that of the Babcocks' property. And, Allen did
not receive notice of the reinstatement of the permit. (R. 2.)
The record does not provide sufficient facts to determine the promptness of
Allen's action after learning of the Babcocks' permits' reinstatement. The record from
the Board meeting does not contain information as to when or how Allen received
notice of the permits' reinstatement or how much time passed before she responded. In
her November 10, 2015 letter to the Board to appeal the reinstatement of the permits,
Allen makes no mention of the potential untimeliness of her appeal. (R. 11-12.) During
the Board meeting on December 8, 2015, a Board member confirmed Allen's position
that her appeal was a "timely file," (Video Record of 12 / 8 / 15 Town of Durham Appeals
Board Meeting at 00:27:43), but made no inquiries into when or how Allen became
aware of the permits' reinstatement. Allen did not attempt to enter evidence about
those issues, nor did she raise the good cause exception at that moment. 1 Towards the
end of the meeting, the Board began a discussion on the timeliness of Allen's appeal.
(Id. at 1:50:00). The basis for their conclusion that Allen's appeal was untimely was the
length of time between the reinstatement of the permits and the date of her appeal, and
they did not discuss when she received notice of the permits' reinstatement.
As to any possible violations by the Town of its own ordinance, on August 31,
1
2015, the CEO reinstated the Babcocks permits that were originally issued on April 25,
2011. (R. 1-2.) But, the Durham Land Use Ordinance states that "the work authorized by
1
It sh ould be noted that the Law Court is amb iguous on whether a zoning board can
consider the good cause exception. Shore Acres Improvement Ass 'n v. Livingston, 2013
Me. Super. LEXIS 268, at *5 (Me. Super. Ct. Dec. 13, 2013).
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a permit must be ... completed within twenty-four (24) months after the date of
commencement" and that a "permit shall be renewed by the Code Enforcement Officer
for an additional twenty-four (24) month increment if . .. [t]he applicant intends to
finish the activity within such period; and ... explains in detail why the activity was not
completed within the original permit time limit." Durham, Me., Land Use Ordinance§
IV(V) (Oct. 28, 2014). There is nothing in the plain language of the ordinance stating that
a stop work order would toll the running of a permit. There is also nothing in the plain
language of the Ordinance that permits the CEO to "reinstate" a building permit once it
has expired. Therefore, based on the plain language of the Ordinance, the 2011 permits
had expired by 2015 and the CEO impermissibly reinstated them.
As to any possible violations by the permit holder (the Babcocks), on May 17,
2011, the CEO issued a stop work order because the Babcocks had not provided the
requested information to show the right-of-way to their property was 50 feet wide as
required. (R. 23); Durham, Me. Back Lot Development Ordinance § 6(A)(l)(a) (Apr. 5,
2014). But, the Board declared during its December 8, 2015 meeting that they could not
determine from the evidence presented the width of the right-of-way to the Babcocks'
property. (Video Record of 12/8/15 Town of Durham Appeals Board Meeting at
1:33:00.) Therefore, the Babcocks may be in violation of the Back Lot Development
Ordinance.
Taking into consideration the various factors that justify the application of the
good cause exception and all the equities of the situation, given that Allen received no
notice, that the CEO acted in violation of the plain language of the Land Use Ordinance
in reinstating permits that had already expired, and that the Babcocks may be in
violation of the Back Lot Ordinance where the right-of-way to their property may not be
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of sufficient width, this court finds that a good cause extension to consider Plaintiff
Appellant Allen's appeal to the Board is justified.
Because the Board declined to decide whether the Allen property easement was
of sufficient width to satisfy the requirements for the building permits, the court does
not reach Allen's second argument. The court must remand this case back to the Board
for further consideration.
IV. Conclusion
Plaintiff Kimberly J. Allen's appeal pursuant to Maine Rule of Civil Procedure
SOB is granted. The decision of the Town of Durham Board of Appeals that Allen's
appeal was untimely is vacated. Allen's appeal is remanded to the Town of Durham
Board for further consideration.
The Clerk is directed to enter this Order on the civil docket by reference pursuant
to Maine Rule of Civil Procedure 79(a).
Date:
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Date Filed 12-24-15 Androscoggin Docket No. AP-15-11
County
Action: 808 Appeal
Kimberly J. Allen vs. Town of Durham
Town of Durham, B of Appeals
Jerel Babcock and Sheila Babcock
-------- ----
Plaintiff's Attorney Defendant's Attorney
Shane Wright, Esq. Stephen Whiting, Esq. (Babcock)
Norman Hanson Detroy 75 Pearl Street Ste 207
P.O. Box 7230 Portland, ME 04101
Lewiston, ME 04243
John Conway, Esq. (Durham & BOA)
Date of Entry
------- --·- -
2015
Dec 30 Received 12-24-15:
Complaint for Review of Rule 808 filed .
If "
On 12-30-15:
Notice and Briefing Schedule filed.
Appellant's brief is due on or before February 8, 2016.
Copies to parties.
2016
Jan 11 Received 01-11-16:
Acceptance of Service filed.
Stephen Whiting, Esq. accepts service on behalf of Jere! and Sheila Babcock.
Received 01-11-15:
Answer of Jerel and Sheila Babcock filed .
Jan 25 Received 01-25-16:
Plaintiff's Motion for Temporary Restraining Order and Preliminary Injunction with
Incorporated Memorandum of Law, and affidavits of Kimberly Allen and Shane Wright filed .
Jan 27 Received 01-25-16:
Entry of Appearance of John Conway, Esq. for Town of Durham and Durham Board of
Appeals filed.
u ti
Received 01-25-16:
Acceptance of Service filed.
John Conway, Esq. accepts service on behalf of Town of Durham and Town of Durham
Board of Appeals.
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