The opinion
STATE OF MAINE SUPERIOR COURT
PENOBSCOT, ss. CIVIL ACTION
Docket No.: AP-2017-03
JR REDEMPTION CENTER INC.,
Plaintiff,
ORDER ON PLAINTIFFS' 80B
V. APPEAL
CITY OF BREWER,
Defendant.
Presently before the Court is Plaintiff JR Redemption Center, lnc.'s M.R. Civ. P. 808
Appeal, filed on January 12, 2017. Plaintiff filed its Brief on May 1, 2017. Defendant, City of
Brewer, filed its Opposition to Plaintiffs Brief on May 22, 2017. Plaintiff filed its Reply
Brief on June 2, 2017. After careful consideration of the parties' respective filings, the
Court reverses the judgment of the City of Brewer Board of Appeals and remands the case
for further proceedings consistent with the opinions expressed below.
I. BACKGROUND
The relevant facts underlying the present dispute can be briefly summarized as
follows. In 1985, Plaintiff began conducting business as a redemption center at 151 South
Main Street in Brewer, Maine. The building Plaintiff used to operate the redemption center
burned down on or around 1992 or 1993. In 1993, Defendant sent a letter to Plaintiff
stating that Plaintiff had previously agreed to remove certain trailers located on the
property and that Plaintiff had not yet satisfied the agreement.
No further action took place, and in 2011, Defendant attempted to have Plaintiff
remove the trailers, but that action was delayed as Plaintiff and Defendant endeavored to I
come to an agreement. In 2016, the Code enforcement Officer for Defendant issued
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Plaintiff a notice of violation alleging three specific violations. Plaintiff appealed the
decision of the Code Enforcemenl Officer to the Board of Appeals, which held a hearing on
December 7, 2016. At the hearing, the Board voted, five to zero, in favor of upholding the
decision of the Code Enforcement Officer. This appeal concerns only one on the violations:
that JR altered or expanded an originally approved use without approval of the city. The
Board later issued its written decision, confirming the vote in favor of the Code
Enforcement Officer, which specifically found that:
2. The Appellant presented the testirhony of manager Ben Gould, but his testimony
was not helpful or convincing on the key facts in issue, some of which related to
events occurring a number of years ago. Although we understand that one of the
long-time owners, Mrs. Mona Gould, Ben's mother, has died, Mr. Salls is alive,
involved in the husiness and knowing that the historical uses and understandings
would be an issue, he elected not to be present. We draw no adverse inference from
his absence but it may be a part of the reason why Appellant failed to meet its
burden.
3. The City presented documentary evidence, including a letter from then Code
Enforcement Officer, Donald Grant, to Mr. Salls, dated September 8, 1993. That
Jetter expressly refers to an assurance given by the business and Mr. Salls that the
storage trailers would be promptly removed. Had the business disagreed with the
order to remove the trailers, it could have resorted to the Board of Appeals process.
There is no evidence it ever did so and we must therefore conclude that the letter of
September 8, 1993 is final and binding on the issue of lack of right to have storage
trailers.
4. Although the case is circumstantial, the most likely explanation for the presence
of storage trailers on the property is the fire around 1992 which destroyed the
wooden building and effectively put JR Redemption out of business. The City most
likely allowed the trailers on a temporary basis ( despite a 1992 ordinance
prohibiting outside storage at redemption centers), to keep the business going
during the rebuild on the express understanding, referred to in Mr. Grant's letter,
that they would be removed when the rebuild was complete and the certificate of
occupancy for the new building issued. Removal never happened and there was in
fact an increase in the amount of unregistered trailers over time.
5. No written site plan from that time frame was found or presented to the Board,
but consistent with the more informal manner things were done up to thirty years
ago, it is clear that the property owner had either presented a written document
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which has been misplaced, or had entered into a binding agreement with the City as
to the nature of the use. That use did not include unregistered storage trailers.
6. While th e City has let this matter ri ersist for twenty-fi ve years, the Appellant
gained no legal or grandfathered rights, si nce the use of storage trailers for outside
storage was barred hy the 1Y92 ordinance, or otherwise foreclosed by the failure to
appeal the September 1993 order from the CEO. While the business existed in some
form going back to 1985, the Board was not convinced based on the evidence
presented that box storage trai lers were a part of the business at that time. Jn that
respect he [ski Board considered the testimony of Mr. Dearborn and also
considered the photograph from 1991 which the l\ppellant introduced, the only one
dating back prior to the 1992 ordinance. The next photograph in the sequence, from
1997, shows both the new building and the presence of trailers which can't be seen
and appreciated in lhe 1991 photograph. The Board also noted that the old wooden
I building c1ppcared to have signifil.:antly more floor space than the building
constructed after the fire. As noted above, the Board also gave no weight to the
testimony of Mr. Ben Gould on this point, give n his age at the time, and lack of
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knowledge on those points.
(R. 34-36.) Plaintiff timely filed this appeal.
II. STANDARD OF REVIEW
In an M.R. Civ. P. 808 appeal, the Court reviews a municipality's decision for abuse
of discretion, errors of law, or factual findings unsupported by substantial evidence in the
record. Wyman v. Town ofPhippsburg, 2009 ME 77, ,r 8, 976 A.2d 985. A parly seeking to
vacate a state or local agency decision bears the burden of persuasion on appeal. Bizier v.
Town a/Turner, 2011 ME 116, ,r 8, 32 A.3d 1048. Questions of law arc reviewed de novo
standard, Gensheimer v. Town of Phippsburg, 2005 ME 22, ,r 16, 868 A.Zd 161, while
questions of fact are reviewed under the clear error standard. Green v. Comm'r of the Dept.
ofMental Heu/th, Mental Retardation & Substance Abuse Servs., 2001 ME 86, ,r 9, 776 A.Zd
612.
Local ordinances are reviewed de novo as a question oflaw. Aydelott v. City of
Portland, 2010 MF. 25, i1 rn, 990 A.2d 1024. The court will "examine the plain meaning of
the language of the ordinance, and lJ construe its terms reasonably in light of the purposes
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and objectives of the ordinance and its general structure." Stewartv. Town oJSedgwick,
2002 ME 81. "Local characterizations or fact-findings as to what meets ordinance
standards will be accorded '"substantial deference."' Rudolph v. Golick, 2010 ME 106, ,r 8, 8
A.3d 684.
Review of an agencies discretionary decision involves the resolution of three issues:
(1) are factual findings, if any, supported by the record according to the clear error
standard;
(2) did the court understand the law applicable to its exercise of discretion; and
(3) given all the facts and applying the appropriate law, was the court's weighing of
the applicable facts and choices within the bounds of reasonableness.
Pettinelli v. Yost, 2007 ME 121, ,r 11, 930 A.2d 1074.
III. DISCUSSION
Plaintiff claims that the Board's decision was arbitrary and capricious and based on
errors of law and that its factual findings are not supported by the record. Specifically,
Plaintiff takes issue with the Board's conclusions concerning the existence or content of an
originally approved use and whether J R expanded or altered that use. Plaintiff also aJ!eges
that its use of box trailers on the property is a legally nonconforming right. In order to
analyze these issues it is important to evaluate a 1993 letter and interpret a 1992 Town
Ordinance. The Court will discuss both documents in turn.
A. J'he 1993 Letter
Although J. R. received a certificate of occupancy from the City in 1985 and again in
1993, no document containing an approved site plan for this property was presented at
hearing and the CEO testified that he didn't think there ever was one. With no site plan
detailing and limiting the scope of the permitted use, it becomes difficult to prove that a
permitted use was altered or expanded . The Board relied heavily on a letter dated
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September 8, 1993 from former Code Enforcement Officer, Donald Grant, to the owner of
Plaintiff, Loring Salls, which stated "you assured this office that you would have the trailers
removed and the lot cleaned up by the end of the month." He also wrote "Please be advised
said property must be cleaned up and trailers removed from the property within ten (10)
days from the receipt of this letter to avoid further action by this office." (R. 24.) The
Board inferred from the content of this letter that the City allowed trailers on the property
temporarily after the fire despite a 1992 ordinance prohibiting outside storage at
redemption centers. The Board also found that "it is clear that the property owner had
either presented a written document which has been misplaced, or had entered into a
binding agreement with the City as to the nature of the use." (R. 34.) The Board also found
that this letter constituted a final, appealable-determination that Plaintiff did not have the
right to have storage trailers on the property.
1. Evidence of an Approved Plan
At the appeal hearing, the Board members considered the testimony of Mr. Gould, J
R's representative, that after the fire they had about 15 trailers on the property until a
replacement structure could be completed and that they retained the trailers after
completion. Aerial photos a<lmilted at the hearing corroborate the existence of several
trailers on the property prior to the fire in 1992, and additional trailers, placed in a
different location, from 1997 to present. They also considered the letter and concluded that
an approved plan existed and that it barred the use of trailers on the property for storage.
This conclusion is not supported by the evidence because it is doubtful that a certificate of
occupancy wouJd be issued to a nonconforming property owner, which JR would have
been at the time of issuance. Furthermore, the content of the letter tells us nothing about
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the specifics of an approved plan and is as consistent with a voluntary gesture to remove
trailers as it is to an involuntary removal that was forced by an approved plan. The Court is
aware of the deference it must afford the fact finder but finds here that the leap of fact
finding faith involved is too great to be ratified on appeal.
2. Final and Binding Effect
Plaintiff argues that the letter was insufficient to create a final, appealable
determination of whether Plaintiff could possess trailers on the property. Prior to 2013,
"appeals of notices of violation were not juslidable because a notice merely provided an
interpretation of an ordinance; unless and until a municipality acted to enforce the decision
in some meaningful way, appeals from notices of violation were 'dismissed as calling for an
advisory opinion."' Paradis v. Town of Peru, 2015 ME 54, 115 A.3d 610. This changed in
2013 wlth the enactment of 30-A M.RS. § 2691 which provided that the failure to appeal a
notice of violation had preclusive effect.
In this case, the 1993 Letter stated that Plaintiff must remove the trailers within ten
days or face further action by Defendant. First, it is doubtful that it serves as a notice that
could be appealed because it indicates that further action may be taken if J R doesn't
comply. If this were the final word from the City on this issne, there would be no need to
speak of further action. There is no record that Defendant engaged in any further action, or
attempted to enforce its decision in a meaningful way. Fu1thermore, the Letter does not
state that Plaintiff had the right to appeal the decision or that the decision would become
final and binding if Plaintiff did nut appeal. The Board concluded that the Letter was final
and binding, but its reasoning as to why the Letter was a final decision was not adequately
articulated in the Record. fi'or these reasons, the 1993 Letter is properly viewed as nothing
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more than a notice of violation, and without evidence of further action hy the town, was not
an appealable decision. Therefore, and contrary to the Board's conc.:lusion, the Letter was
not final and binding on the issue of whether Plaintiff could store trailers at the Premises.
B. Interpretation of the 1992 _Qrd inance
Plaintiff also argues that because the use of the storage trailers on the property has
been continuous and not in violation of the 1992 ordinance, it is a nonconforming use and
not subject to lhe changed requirements of the 2001 ordimmce. The central issue here is
whether the pre 2001 use of the trailers violated the 1992 ordinauce.
The Board stated that Plaintiffs use of trailers at the redemption center property
was barred under the 1992 Ordinance, which provided in pertinent part:
"BUILDING" is a structure with exterior walls or fire walls built or occupied as a
shelter or roofed enclosure for persons, animals, or property of any kind used for
residential, business, mercantile, storage, commercial, industrial, institutional,
assembly, educational, or recreational purposes.
"Outside storage" shall mean storage outside of a building.
(R. 26.) The Board determined that Plaintiffs trailers constituted outside storage, but did
not adequately provide any rationale for its conclusion. It its Brief, the City simply states
that "outdoor storage meant everything not within a building and thu.s storage in a trailer,
particularly an unregistered trailer, was 'outdoor storage'." (Brewer Br. 6.) The
complication with the City's po.sition is that a trailer has exterior walls and is a roofed
enclosure. Furthermore, Plaintiffs particular trailers were also occupied for business and
storage purposes. For these reasons, Plaintiffs use of trailers, from the plain face of the
statute, come under the definition of a building under the 1992 Ordinance.
Even if the ordinance were considered to be ambiguous, the result would not be
different. Defendant's "characterizations or fact-findings as to what meets ordinance
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standards will be accorded '"suhstanlial deference."' Rudolph, 2010 ME 1.06, ,r 8, 8 i\.3d
684. Nevertheless, looking at the previous Ordinance, the definition of "BUILDING"
explicitly excluded "trailers." (R. 26.) The previous Ordinance was amended in 1992, and
removed "trailer" from the list of exclusions to the definition of "BUILDING." (R. 26.) The
Town's removal of "trailer" from the list of exclusions as to what constitutes a "BUILDING,"
evidences the City's intent that trailers, after 1992, be included within the definition of a
"BUILDING." This finding is also supported by an internal email from Defendant on July 1,
2009, where City employee, Tina Kroll, conducted research into the issue. (R. 13.) Ms.
Kroll's email states that after the 1992 Ordinance was enacted, the Planning Board held
discussions with respect to the necessity of box trailer legislation. (R. 13.) Furthermore,
the finding that "outside storage" truly meant storage that exposed what was stored to the
elements and not storage that was sheltered by something like a trailer is reinforced by the
additional requirement that "outside storage is permitted provided that paper shall be
stored in covered containers and cardboard shall be bailed. All outside storage shall be
maintained in a neat, clean, and orderly condition and in a manner which wi1l not create a
risk to public health." (R. 2 7). It would be unnecessary to express this condition if outside
storage included a covered box trailer.
The fact that the Planning Board, which was delegated the responsibility uf
evaluating the presence of box trailers, discussed possible trailer legislation after the
enactment of the 1992 Ordinance supports the fact that trailers were not excluded from the
definition of a building, because it would be unnecessary for the City to enact a trailer
ordinance when trailers were already prohibited.
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For these reasons, the extrinsic evidence surrounding the 1992 Ordinance
supported a finding that trailers were meant to be included within the definition of a
building, and is sufficient evidence to overcome the substantial deference shown to the
Board's finding of fact on this issue. J. R. has a legally non-conforming right to use box
trailers for storage at the redemption facility.
JV. CONCLUSION
As mentioned above, the Board's factual findings were not supported by substantial
evidence in the Record; the Board did not evidence an understanding of the law applicable
to its decision; and given all the facts and applying the appropriate law, the Board's
decision exceeded the scope of its discretion.
The Entry is:
1) Petitioner's M.R. Civ. P. 8011 Appeal is GRANTED.
2) The Decision of the Board of Appeals is REVERSED and the case is
REMANDED to the Board of Appeals for further proceedings
consistent with the opinions expressed herein.
3) This Order shall be incorporated into the docket by reference
pursuant to M.R. Civ. P. 79.
Dated: September?, 2017
Justice, Maine Superior Court
ORDER/JUDGMENT EN1lfED IN TIIE
COURT DOCKET ON: " - j~ - )]
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