Opinion

Day v. Town of Phippsburg

Court
Superior Court of Maine
Filed
Feb 16, 2017
Status
Unpublished
On the bench
Justice, Superior Court
Cited by
0 cases
Authority
More cited than 34.2%

The opinion

STATE OF MAINE SUPERIOR COURT

SAGADAHOC, SS. Civil Action

Docket No. AP-2015-04

JONATHAN R. DAY, )

Plaintiff, )

)

)

v. ) ORDER ON SOB APPEAL

)

)

TOWN OF PI-IlPPSBURG et al, )

Defendants. )

Pending before the court is the Plaintiff's 80B appeal of the Phippsburg Board of

Appeals' ("BOA") October 7, 2015 decision denying his appeals of permits issued to

Defendant Carol Reece in 2014 and of the decision of the Phippsburg Code Enforcement

Officer ("CEO") to allow Defendant Reece to maintain a portable toilet on her property.

For the reasons stated below, th BOA's October 7, 2015 decision is VACATED and this

matter is REMANDED to the Phippsburg Board of AppeaJs. The Phippsburg Board of

Appeals is ORDERED to hold a hearing on the Plaintiff's appeals in a manner not

inconsistent with this order.

STANDARD OF REVIEW

When the Superior Court acts as an appellate court under M.R.Civ .P. BOB, it must

review directly the operative decision of the municipality, Stewart v. Town of

Sedgwick, 2000 ME 157, <[ 4, 757 A.2d 773, 775, for "error of law, abuse of discretion Ol'

findings not supported by substantial evidence in the record," Sproul v. Town of

Boothbay Harbor, 2000 ME 30, <[ 8, 746 A.2d 368,372 (internal quotations omitt d). One

seeking to overturn a decision such as the one at issue here has the burden of

establishing that the evidence compels a contrary conclusion. Id. The court "may not ...

substitute [its own] judgment for that of the Board." Tom1.2kins v. City of Presque Isle,

571 A.2d 235, 236 (Me.1990). "If there is relevant evidence in the record to reasonably

support the Board's conclusion, the fact that the record contains inconsistent evidence

or inconsistent conclusions could be drawn from the evidence does not invalidate tl1e

Board's holding." Boivin, 588 A.2d at 1199. "Substantial evidence exists when a

reasonable mind would rely on that evidence as sufficient support for a conclusion."

Camp vs. Town of Shapleigh, 2008 ME 53, <[ 9, 943 A.2d 595, 598.

DISCUSSION

The first issue raised in this appeal is whether the BOA was correct in finding

"that the time had expired for an appeal." Record of Appeal ("ROA")- Volume I, R203 .

This decision was based on the conclusion that the BOA had stayed the Plaintiff's

appeal of the 2014 permits at his request and the BOA's vote that "the stay is legal."

1

ROA - Volume I, R 201. The discussion leading to the two votes of the BOA suggests

that a majority of the BOA believed that the alleged stay was to end 60 days after the

Law Court's final decision in a related appeal involving the same parties and that a

hearing had to be requested during the 60 days following the Law Court's decision.

ROA - Volume I, R 203.

The evidence in the record compels a conclusion that the BOA never issued a

stay of the Plaintiff's appeal. Any action of the BOA is a public proceeding. 1 M.R.S.

§402(2)(C). All public proceedings must be open to the public; 1 M.R.S. §402(2)(C), and

public notice must be given for all public proceedings, 1 M.R.S. §406. Any actions of the

BOA must be taken openly and deliberations conducted openly. 1 M.R.S. §401.

Clandestine meetings, conferences or meetings held on private property without proper

notice and ample opportunity for attendance by the public are not allowed by Maine

law. 1 M.R.S. §401. The Board of Appeals Ordinance, which creates the Phippsburg

BOA and governs its proceedings, requires that all matters be decided by a roll call

vote. Town of Phippsburg Board of Appeals Ordinance V(C), ROA- Volume II at 18.

The record establishes that the Chairman of the BOA acted unilaterally in

postponing the scheduled hearing on the Plainf::iff s appeal of the 2014 permits because

he believed all parties were in agreement with a stay. ROA- Volume I, R 201. Nothing

in the Board of Appeals Ordinance grants such authority to the Chairman. See Town of

Phippsburg Board of Appeals Ordinance, ROA - Volume TI at 18. In addition, nothing

in the ordinance allows the BOA to grant a stay of proceedings, even if a roll call vote of

the BOA is held as part of a public proceeding conducted. in accordance with the

requirements of the Ordinance and Maine law. Id.

All of the requirements imposed on a person filing an appeal to the BOA are

described in Section VI f the Ordinance entitled "Appeal Procedure. " Town of

Phippsburg Board of Appeals Ordinance VI, ROA - Volume II at 18. The record

establishes that the Plaintiff met the 30-day deadbne to file an appeal and complied

with the other requirements of Section VI of the Ordinance. No party argues otherwise.

Section VII(A) of the Ordinance requires the BOA to "schedule a public hearing

on all appeal applications within sixty (60) days of the filing of a completed appeal

application." Town of Phippsburg Board of Appeals Ordinance VI, ROA - Volume II at

18. The record reflects that a public hearing was scheduled and then postponed by the

BOA Chairman, as discussed above. ROA- Volume I, R 201.

The Plaintiff argues that the 60-day hearing requirement contained in Section

VII(A) of the Ordinance unambiguously imposes a requirement solely on the BOA and

failure to meet that requirement is directory, and not jurisdictional, because the

ordinance does not manifest a clear intent t the contrary. In support of this conclusion

the Plaintiff cites four Law Court cases involving appeals of state agency decisions.

The Defendants argue that the 60-day hearing requirement is jurisdictional and

go to great length to try to distinguish the cases cited by the Plaintiff. The only cases

cited by a defendant in support of their position are cases where an appeal of a

municipal decision was filed late, which did not occur here.

2

This court finds that, as a matter of law, Section VII(A) of the Ordinance is not

jurisdictional and nothing in the ordinance prevents the BOA from conducting a

hearing on the Plaintiff's appeal In addition, as a matter of law, Section VII(A) of the

Ordinance requires the BOA to conduct such a hearing, despite the BOA' s failure to

meet the 60-day deadline for scheduling a public hearing. The BOA abused its

discretion by refusing to consider the merits of the Plaintiff's appeal oi the 2014 permits.

Though the BOA acted in good faith in attempting to comply with the parties'

wishes in delaying consideration of the Plaintiff's appeal, the manner in which it did so

was not compliance with the Ordinance or Maine law. Though the BOA was acting in

good faith, it is ultimately the responsibility of the BOA to ensure that proper

procedures are followed and the Plaintiff should not lose his opportunity for full

consideration of the merits 0£ his appeal as a result of the flawed procedures of the

BOA. 1

The Plaintiff asks this court to make certain rulings he describes as questions of

law before remanding his appeal of the 2014 permits. The court declines to do so. The

court is agreem nt with the Defendants that the d ctrin s of primary jurisdiction,

exhaustion of administrative remedies, and ripeness require that the BOA consider the

merits of the Plaintiff's appeal before this court consider any of the additional issues

raised in the Plaintiff's brief.

The BOA's decision on the Plaintiffs appeal of the CEO's decision to allow

Defendant Reece to maintain a portable toilet on her property is also VACATED and

REMANDED because the BOA's decision was premised on the Planning Board's earlier

decision that only a portion of Defendant Reece's lot is located in the Resource

Protection District. Because the Planning Board's decision about the application of the

Resource Protection District to Defendant Reece's property is one of the issues raised by

the appeal of the 2014 permits, the BOA must first decide the merits of the Plaintiff's

appeal of the 2014 permits and then reconsider the portable toilet issue in light of

whatever decision is made regarding the Planning Board's earlier decision that only a

portion of Defendant Reece's lot is located :ii1. the Resource Protection District.

The Clerk is directed to incorporate this Order by reference into the docket for

this case, pursuant to Rule 79(a), Maine Rules of Civil Procedure.

1

Though it is not necessary for the court to consider the equities of the situation in deciding this

matter, the court believes that all parties share in responsibility for creating the confusion

involving the alleged stay and its terms. Though the Plaintiff shares in the responsibility for the

lack of clarity regarding the parties' agreement and the terms of the alleged stay, he is not solely

or primarily responsible for the lack of clarity. Ultimately, when a stay is issued, the body

issuing the stay is responsible for the clarity of the terms of the stay. Here the only terms of the

stay were that the Plaintiff inform the BOA when he was "ready to schedule the hearing." ROA

- Volume I, R 165. The record establishes that the purported stay, as communicated to the

parties did not·include any deadline for requesting a rescheduled hearing and the BOA is finding

to the contrary is not supported by substantial evidence in the record.

3

Dated: February 16, 2017

JUSTICE, MAINE SUPE

4

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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