Lamarre v. Town of China

.,

(

STATE OF MAINE SUPERIOR COURT

KENNEBEC, ss. CIVIL ACTION

DOCKET NO. AP-19-50

KIMBERLY (HOULE)

LAMARRE and ANTHONY

LAMARRE,

Plaintiffs

DECISION AND ORDER

V.

TOWN OF CHINA

and

NICHOLAS NAMER and

MARIE BOURQUE-NAMER,

Defendants

INTRODUCTION

This matter is before the court on an appeal by Kimberly (Houle) and Anthony

LaMarre from the decision of the Land Use Board of Appeals of the Town of China.

The Board upheld the after-the-fact issuance of a permit by the Town's Code

Enforcement Officer (CEO) to Nicholas Namer to place a "Park Model" trailer on

his property, which abuts the LaMarres' property. The appeal has been brought in

accordance with M.R.Civ.P. 80B.

FACTUALANDPROCEDURALBACKGROUND

The essential facts of this controversy do not appear to be in dispute.

The LaMarres have owned their property in China, Maine since 1969. They

abut the property owned by Mr. Namer, who acquired his lot in 2018. The Namer

property is a non-conforming lot and has 5 seasonal camps on it. The prior owner

of the Namer lot occasionally located a "camper" in the south-easterly section of the

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property. A photograph of that camper is part of the record on appeal. (Record, "R"

at 192).

In July 2018, Mr. Namer placed a "Park Model" trailer on the south-westerly

section of his property. The dimensions of this trailer are: 40' 9" in length (including

a hitch); 12' (or 144 inches) in width, with a shipping weight of 20,016 pounds. It

is equipped with 6 wheels. The trailer is of wood frame construction with a pitched

roof. It has a bedroom, a bath, a kitchen and a living area, with a total area of 399

square feet. (R. at 183-185). To install the trailer, Mr. Namer removed trees and

vegetation from the area. No permit was sought or obtained by Mr. Namer before

the trailer was placed on the property. A photograph of the trailer has been made

part of the record on appeal. (R. at 126).

After the trailer was placed on the Namer property, the LaMarres complained

about it to the Town's CEO, Paul Mitnick. On July 21, 2018, the CEO issued a

"Notice of Violation" (NOV) to the Namers for failing to obtain a permit. A copy

of the NOV was not provided to the LaMarres, notwithstanding their request for

information from the CEO. (R. at 128, 149). Ms. LaMarre contacted the CEO again

on August 8, 2018 when the trailer had been not been moved by that time. She

received no response. On August 15, 2018, Ms. Namer applied for a CEO permit to

"relocate the campsite previously located on the east side of the property," using the

same septic system. The stated purpose of the relocation was "property oversight."

(R. at 129). The application stated that the "camper" was a "park model" and would

be "occupied less than 120 days a year." Id.

The LaMarres were not informed of the Namer permit application. On August

20, 2018, Ms. LaMarre again contacted the Town about her complaint, but again

received no response. On August 21, 2018, CEO Mitnick issued a permit to Mr.

Namer "to locate a camper pursuant to the application." (R. at 151). His written

decision in support of the issuance of the permit appears to be dated August 9, 2018.

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(R. at 149-50). In that decision, the CEO rescinded the NOV previously issued to

the Namers, after "more carefully investigating facts and Ordinance requirements."

The CEO recognized that the Namer lot is non-conforming but grandfathered. He

noted that the non-conformity could continue "as long as conditions do not become

more non-conforming." He then concluded:

Although the current structure moved unto [sic] the lot has the

appearance of a mobile home, the state regulations would not consider

this a manufactured home due to the fact that it was not constructed in

compliance with HUD standards .

The CEO determined that "[t]he structure meets the definition of an RV included

within Chapter 11 of the China Land Development Code since

- It can be towed by a motor vehicle (A one ton pickup is a motor vehicle)

- Is built on a single chassis

- Is less than 400sf (actual size is 399sf)

- Its wheels are placed on the ground

- It is registered with the State Dept of Motor Vehicles

- It will be used as temporary living quarters (No more than 120 days per

year)"

The CEO also recognized that the China Land Use Code allowed one recreational

vehicle "to be placed on a private campsite" for up to 120 days. He interpreted

"placed . . . as meaning occupied since most RV are parked on a lot for more than

120 days when not being used." (R. at 150).

The LaMarres were unaware that the CEO had issued a permit to Mr. Namer,

as they were not notified of Mr. Namer's application, the CEO's written decision or

the permit itself. From the record evidence, it appears that the LaMarres assumed

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that the Namers had placed the trailer without a permit and the Town was not doing

anything about it.

The following July of 2019, Mr. LaMarre met with the Town Manager about

the Town's failure to respond to their requests for information. The LaMarres .later

learned from the Town Manager and the new CEO (William Butler) that a permit

had, in fact, been issued. On July 8, 2019, CEO Butler informed the LaMarres that

he had visited the Namer property and agreed with the decision to issue a permit

because the trailer qualified as a recreational vehicle. He also informed the

LaMarres, however, that due to the failure to provide them with notice of the original

decision to grant the permit, they could appeal to the Board of Appeals. CEO Butler

did not issue a new written decision.

The LaMarres did file an administrative appeal on August 6, 2019. Although

the Namers, through counsel, moved to dismiss the appeal as untimely, the Board

held that the appeal was timely, but ultimately denied it on September 26, 2019. The

Board, sitting in an appellate capacity only, found that the "Park Model" trailer

placed on the Namer lot appeared to meet "the structural requirements for

recreational vehicles." Moreover, the Board concluded that the Namers had

"attempted to meet the requirements of the town and have had the use of the camper

for over a year." (R. at 237). As a result, the Board upheld the validity of the permit.

This timely Rule 80B appeal followed. The matter has been fully briefed,

which was completed on February 20, 2020. In accordance with the "Revised

Emergency Order" issued by the Supreme Judicial Court on March 18, 2020

regarding court safety and the coronavirus, and pursuant to M.R.Civ.P. 80B(l) this

matter will be decided on the briefs without oral argument.

STANDARD OF REVIEW

In an appellate capacity, the Superior Court reviews a municipality's decision

directly for errors of law, findings not supported by the evidence in the record, or an

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abuse of discretion. Tenants Harbor Gen. Store, LLC v. Dep't of Envtl. Prot., 2011

ME 6, '18, 10 A.3d 722. The party asserting an error in a Rule 80B appeal bears the

burden of showing that error before the court. Quiland, Inc. v. Wells Sanitary Dist.,

2006 ME 113, '116, 905 A.2d 806. A decision is supported by substantial evidence

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

conclusion." Phaiah v. Town of Fayette, 2005 ME 20, ~ 8,866 A.2d 863 (quotations

omitted) (citing Forbes v. Town of Southwest Harbor, 2001 ME 9, ~ 6, 763 A.2d

1183). The court may not substitute its judgment for that of the municipal decision­

maker on questions of fact, and may not determine that an agency's decision is

wrong "because the record is inconsistent or a different conclusion could be drawn

from it." Phaiah, 2005 ME 20, ~ 8,866 A.2d 863.

A municipal board's interpretation of an ordinance, however, is a question of

law that the court reviews de novo. Aydelott v. City of Portland, 2010 ME 25, ~ 10,

990 A.2d 1024 (citing Logan v. City ofBiddeford, 2006 ME 102, ~ 8,905 A.2d 293).

The court must "examine the plain meaning of the language of the ordinance" and

reasonably construe its terms "in light of the purposes and objectives of the

ordinance and its general structure." Stewart v. Town ofSedgwick, 2002 ME 81 , ~ 6,

797 A.2d 27. The Law Court has recently reminded us that "[b]ecause zoning

ordinances, like statutes, derogate from common law, they are 'strictly construed."'

Grant v. Town of Belgrade, 2019 ME 160, ~ 14, __A.3d __ .

There appears to be no dispute between the parties that the operative decision

for the court to review is the written decision by CEO Mitnick upon which the

issuance of the permit was based.

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DID THE BOARD OF APPEALS HAVE JURISDICTION TO ENTERTAIN

THE APPEAL?

In their brief to the court, the Namers appear to challenge the timeliness of the

appeal filed by the LaMarres to the Board of Appeals and, accordingly, the

jurisdiction of the Board to hear that appeal.

There can be no question that the LaMarres did not file an appeal within 30

days of the issuance of the permit to the Namers by CEO Mitnick in August 2018.

On the other hand, their appeal was timely if viewed as being taken from the decision

of CEO Butler that the permit was properly issued.

The Law Court has recognized that there may be unique circumstances where

an untimely appeal should be allowed to proceed because there is good cause to do

so to prevent a flagrant miscarriage of justice. See Viles v. Town of Embden, 2006

ME 107, 905 A.2d 298; Brackett v. Town ofRangeley, 2003 ME 109, 831 A.2d 422.

In this case, the court agrees that such good cause exists. The LaMarres made

persistent efforts to obtain information from the Town about the status of the Namer

trailer and what the Town's CEO was doing about it. On numerous occasions, they

received no response at all from the Town. They received no notice that a permit

had been issued to Mr. Namer, even though they were abutters to the Namer lot.

They reasonably assumed that no permit had been issued, but that the Town was not

going to do anything about it. It was not until a year later, when the trailer was still

there, that the LaMarres finally learned from a new CEO that a permit had already

been issued.

Considering all of the circumstances of this case and the equities of the

situation; the court agrees that the Board of Appeals had jurisdiction to entertain the

LaMarres' appeal.

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IS THE PARK MODEL TRAILER A RECREATIONAL VEHICLE AS

DEFINED IN THE LAND USE ORDINANCE?

The central question in this dispute is whether Mr. Namer's Park Model trailer

is a "recreational vehicle" within the meaning of the China Land Use Ordinance.

The Ordinance allows for "individual private campsites," (R. at 39), which are

defined as "[a]ny premises providing temporary accommodation in a recreational

vehicle or tent and used exclusively by the owner of the property and his or her

family and friends." (R. at 102). Prior to establishing such a campsite, "[a] permit

is required from the CEO ...." (R. at 39).

The Ordinance defines "Recreational Vehicle" as:

A vehicle or an attachment to a vehicle designed to be towed, and

designed for temporary sleeping or living quarters for one or more

persons, and which may include a pick-up camper, travel trailer, tent

trai ler, camp trailer. and motor home. In order to be considered as a

vehicle and not as a structure, the unit must remain with its tires on the

ground, and must be registered with the State Division of Motor

Vehicles. (R. at 108) (emphasis supplied).

Invoking the maxim of statutory interpretation known as ejusdem generis, the

LaMarres argue that to qualify as an RV under the Ordinance, it must be similar to

the types of items specifically identified in the definition. They further argue that

the Park Model trailer is totally unlike the examples in the definition, because it is

not designed to be towed as an attachment like the examples are, but is prohibited

(due to its width) from being towed on the public ways without a special permit. 29­

A M.R.S. §2380 et seq.

The Town, on the other hand, asserts that ejusdem generis is inapplicable here

because the definition of recreational vehicle in the Ordinance in clear and

unambiguous. According to the Town, Mr. Namer's Park Model trailer meets every

element of the definition of a recreational vehicle.

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Before addressing the question of whether the Park Model trailer is an RV, as

defined, the court would note that the parties have devoted considerable argument

on the issue of whether the Park Model trailer is or is not a manufactured home, a

modular home or a mobile home. The court's task here is only to determine whether

the CEO committed legal error in concluding that the Namer Park Model trailer met

the definition of an RV under the Town Ordinance. For purposes of this Rule 80B

appeal, it is the Town's definition of an RV that controls.

In Penobscot Nation v. Stilphen, 461 A.2d 478, 489 (Me. 1983), the Law

Court applied the rule of ejusdem generis, and described it in the following terms:

"By the familiar ejusdem generis rule, a general term followed by a list of

illustrations is ordinarily assumed to embrace only concepts similar to those

illustrations." The description of this rule of construction has been cited with

approval by several subsequent Law Court opinions. See, e.g., New Orleans Tanker

Corp., 1999 ME 67, ~ 7,728 A.2d 673; Henry Banks v. Maine RSA#l, 1998 ME

272, ~ 7, 721 A.2d 655; Clarke v. Olsten Certified Healthcare Corp., 1998 ME 180,

~ 6, 714 A.2d 823; Buker v. Town of Sweden, 644 A.2d 1042, 1044 (Me. 1994).

There are also cases that state the rule of construction in the reverse order. For

example, in State v. Ferris, 284 A.2d 288,290 (Me. 1971), the Court described the

rule as follows:

When words of enumeration are immediately followed by words

of general import the general words, when their use is unclear, should

be governed by the specific.

See also New Orleans Tanker, supra; Carey v. Commissioner of Corrections 95

N.E.3d 220, 223, n. 6 (Mass. 2018) ("Ejusdem generis does not apply here because

rather than beginning with specific terms, this list begins with a general term, ... ,

then provides nonexclusive examples.").

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It is also true, however, that the maxim of ejusdem generis has "no application

to an unambiguous statute, and should not be used to defeat the clear expression of

an intent to include." Young v. Greater Portland Transit Dist., 535 A.2d 417,418,

n. 2 (Me. 1987) (citations omitted). This is consistent with the fundamental principle

that "[i]f an ordinance is clear on its face we will look no further than its plain

meaning." Grant, 2019 ME 160, f 14.

The Town maintains that the Ordinance is clear and unambiguous as to the

definition of a recreational vehicle, and the Park Model trailer easily fits within that

definition. In particular, the Town and Mr. Namer contend that the Park trailer is:

an attachment designed to be towed since it is equipped with a hitch and 6 wheels;

is designed for temporary sleeping quarters; the illustrative examples are merely

permissive; the trailer has its tires on the ground and is registered with the Division

of Motor Vehicles.

The LaMarres, for their part, insist that the definition of recreational vehicle

as contained in the Ordinance is reasonably susceptible to different interpretations

and is, therefore, ambiguous. Acadia Ins. Co. v. Buck Constr. Co., 2000 ME 154, f

9, 756 A.2d 515. Specifically, they point to the fact that the Town recognizes that

"RV" manufacturers are building products that more closely resemble manufactured

homes, which was not the type of trailer intended to be treated as a recreational

vehicle under the Land Use Ordinance. In addition, they emphasize that CEO

Mitnick himself originally believed the Park Model trailer was a mobile home,

before changing his opinion.

In the court's view, the critical issue is what is intended by the phrase: "an

attachment to a vehicle designed to be towed." One way of looking at this phrase is

that it includes any trailer built/constructed/designed so that it can be towed by a

vehicle, regardless of its size or the ease of moving it. In other words, so long as it

was "designed" so that it could be towed, it is a recreational vehicle under the

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Ordinance. Another way of looking at that phrase , however, is that it was intended

to describe those trailers/attachments to a vehicle designed for the very purpose of

being towed from place to place with relative ease. The court concludes that the

definition of "recreational vehicle" in the China Land Use Ordinance is reasonably

susceptible to more than one interpretation and is, therefore, ambiguous.

Accordingly, it is appropriate to at least consider the application of the ejusdem

generis rule of construction.

From the court's perspective, the list of examples explicitly mentioned in the

Ordinance provides helpful insight into what the enactors of the definition intended.

Those illustrations are a pick-up camper, travel camper, tent trailer and camp trailer

and motor home - all motor vehicles or attachments to a motor vehicle that by their

very design are easily towed from location to location on the public ways. Utilizing

the rule of ejusdem generis as a guide to interpreting the Ordinance, it is reasonable

to conclude that the drafters and enactors of the definition of "recreational vehicle"

intended to include only those attachments to a motor vehicle that are similar to the

examples listed.

The Park Model trailer that was permitted by the CEO in this case, is not

similar at all to the examples listed in the definition of "recreational vehicle."

Although it has a hitch and 6 wheels and, therefore, can be attached to a motor

vehicle and be towed, it is not "designed to be towed" in the same way as the pick­

up camper, travel trailer, tent trailer or camp trailer are. Indeed, at 144 inches in

width, it exceeds by 3.5 feet the maximum width allowed by 29-A M.R.S. §2380(3)

to be "operated on a public way or bridge," and requires a special permit to do so.

29-A M.R.S. §§2381-2382. The examples of attachments identified in the definition

of "recreational vehicle" are all of a type that may be characterized as campers,

which are intended to be placed on a private campsite. The Park Model trailer bears

little, if any, resemblance to those types of attachments. Compare R. at 126 with

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192. Even its name - Park Model trailer - implies that it is intended to be placed in

a trailer park, not a campsite.

The Town argues that the list of examples is merely permissive - "and which

may include ..." - and , therefore, only "optional or discretionary." Town's Brief at

3-4 citing State v. Wilson, 264 S.E.2d 414, 416 (S.C. 1980) and Carey v.

Commissioner ofCorrections, 95 N.E. 3d 220, 223-24 (Mass. 2018). But those cases

are fundamentally different than this one. In Wilson the court rejected the argument

that a list of probation conditions should be limited by application of the principle

of ejusdem generis, where the statute authorized the imposition of probation

conditions and "may include among them any of the following or any other. 264

S.E.2d at 414 (emphasis added). Similarly, in Carey the court held that a prison

superintendent's authority to establish search procedures at the institution to prevent

smuggling by visitors, did not preclude the use of canine sniffing searches, because

the regulation specifically allowed other types of searches but did not mention dog

searches. In both of these cases the authority granted was clear and broad.

Therefore, there was no need to employ ejusdem generis as an interpretive aid.

In this case, the definition of "recreational vehicle" in the Town of China's

Land Use Ordinance is ambiguous, and application of ejusdem generis is both

appropriate and helpful to the interpretation of its meaning and the types of

"attachment[s] to a vehicle" there were intended to qualify as a "recreational

vehicle." 1 Moreover, the phrase "which maty include" suggests that the examples

that follow were intended to be the types of attachments allowed.

' In light of the court's ruling that the Park Model trailer does not qualify as a "recreational

vehicle" under China's Land Use Code, it is not necessary for the court to address the other

issues raised in this appeal, namely: (1) whether CEO Mitnick misinterpreted the Code by

concluding that "placed on-site" means "occupied," (R. at 39 & 150), and; (2) whether, assuming

the Park Model trailer is a "recreational vehicle under the Code, allowing it to be placed on the

Namer lot resulted in that non-conforming lot to become more non-conforming in violation of

the Code. With respect to the first issue, the Town appears to acknowledge that further findings

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CONCLUSION

The entry is:

The Plaintiffs' Rule 80B appeal is GRANTED. The Decision of the China

Land Use Board of Appeals is REVERSED and the CEO permit # 2018-21 1s

VACATED.

Dated: April 2, 2020

Entered on the docket L{ /3{Zo?.D

Justice, Superior Court

by the Board of Appeals would need to be made. (Town's Brief at 2). Regarding the second

issue, the Town did not address this in its brief. The court would note that CEO Mitnick

recognized that Mr. Namer's non-conforming lot cannot be allowed to become more non­

conforming, but he did not set forth any reasoning as to whether placement of the much larger

Park Model trailer at a different location on the lot would result in more conformity, and if not,

why not.

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