Houseal v. City of Portland

STATE OF MAINE SUPERIOR COURT

CUMBERLAND, ss. CIVIL ACTION

DOCKET NO. AP-23-09

IAN HOUSEAL,

Plaintiff,

Vv. ORDER DENYING MLR. CIV. P. 80B

PETITION FOR REVIEW

CITY OF PORTLAND,

Defendant,

and

FALLBROOK COMMONS

DEVELOPMENT, LLC,

Party-in-Interest,

Before the court is a Petition for Review of Governmental Action brought by Petitioner lan

Houseal pursuant to M.R. Civ. P. 80B. Houseal appeals the City of Portland’s decision that it did

not have jurisdiction to hear his appeal of two building permits, BLDC2022-02665 and

BLDC2022-02926 issued on November 14 and 16, 2022 respectively, for a development at 60

Merrymeeting Drive in Portland, Maine, The City of Portland and party-in-interest Fallbrook

Commons Development, LLC, have both challenged Houseal’s petition. For the following reasons,

the court denies the petition and affirms the underlying decision of the City of Portland (“City”)

Zoning Board of Appeals (“Board”).

Background

The underlying decision addressed Houseal’s appeal of two permits BLDC2022-02665 and

BLDC2022-02926. He filed his appeal December 12, 2022. The ZBA decided that it could not

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hear Houseal’s appeal because he filed his appeal after the ten-day deadline following issuance of

the permits and he had not shown undue hardship justifying an exception. The Board also found

that Houseal had not met his burden of demonstrating that either challenged permit was issued in

error, On both of these grounds, the Board denied the appeal.

Legal Standard

The court reviews a municipal decision “for error of law, abuse of discretion or findings

not supported by substantial evidence in the record.” Aydelott v. City of Portland, 2010 ME 25, {

10, 990 A.2d 1024 (quoting Yates v, Town of Southwest Harbor, 2001 ME 2, J 10,763 A.2d 1168).

The party challenging the decision bears the burden of persuasion. /d. (citing Sawyer Env’t

Recovery Facilities, Inc. v. Town of Hampden, 2000 ME 179, § 13, 760 A.2d 257). The

interpretation of a local ordinance is a question of law, which the court reviews de novo. Logan v.

City of Biddeford, 2006 ME 102, 8, 905 A.2d 293, The court reviews findings of fact for support

by substantial record evidence, “evidence that a reasonable mind would accept as sufficient to

support a conclusion.” York v. Town of Ogunquit, 2001 ME 53, | 6, 769 A.2d 172. Where a

municipal board finds an applicant failed to make a showing, a court will not overturn the finding

unless the appellant demonstrates the record compels a contrary finding. 2/ Seabran, LLC v, Town

of Naples, 2017 ME 3, € 33, 153 A.3d 113 (citing Kelley v. Me. Pub. Emps. Ret. Sys., 2009 ME

27, | 16, 967 A.2d 676; Quiland, Inc. v. Wells Sanitary Dist., 2006 ME 113, 4] 16, 905 A.2d 806).

Discussion

The court first considers whether Houseal’s appeal to the Board was untimely and whether

any exception should allow his appeal to proceed on the merits. The court concludes the Board did

not err when it decided the appeal was untimely and does not reach the Board’s decision that the

permits were properly issued.

The court concludes that Houseal has not shown that the Board erred in deciding his appeal

was untimely. City Code, Chapter 6, § 96 requires that appeals are filed within ten days of an

action of the building authority. (R. D.20.) It is undisputed that the permits were issued on

November 14 and 16, 2022 and that Houseal filed his appeal on December 12, 2022. (R. A.2.)

Houseal has not carried his burden to show that the Board erred in applying the ten-day period.

Houseal argues that the Board should have granted him an undue hardship exception under

the ordinance. The court concludes that the record does not compel a finding that strict application

of the deadline would create an undue hardship. See Harrington y. Kennebunk, 459 A.2d 557, 562

(Me. 1983) (undue hardship is an issue of fact). In his briefing, Houseal’s arguments in favor of

undue hardship focus on the ordinance’s providing an appeal period that is too short, the deadline’s

falling on Thanksgiving, and the impact of the construction on his family and the properties

surrounding the development. Before the Board, he argued that he and his family could not use

their property during daylight hours and even left their property because of the impact of

construction activity. (R. A.1.) Although these facts do suggest that Houseal and his family have

suffered and may continue to suffer hardship due to construction activity, evidence of these

hardships does not compel a finding of undue hardship caused by strict application of the

ordinance’s appeal period.

Houseal argues the court should apply an equitable good cause exception, citing to Brackett

v. Town of Rangeley, 2003 ME 109, 831 A.2d 422. A court may grant a good cause exception to a

reasonable municipal appeal deadline “in those special situations in which a Court of competent

jurisdiction finds special circumstances which would result in a flagrant miscarriage of justice

unless, within a narrowly extended range,” the time is extended. Keating v. Zoning Bd. of Appeals,

325 A.2d 521, 524 (Me, 1974).

In Brackett, the Law Court vacated a Superior Court decision declining to apply the

exception because

(1) the ‘Town violated its own ordinances when it issued the building permit in that,

among other violations, it failed to give required notice to the neighbor; (2) the

permit holder violated the terms of the permit when he built the cottage closer to

the shore than allowed in the permit, and the cottage contained more square feet

than the permit authorized; and (3) the neighbor acted promptly when learning of

the building violations.

Viles v. Town of Embden, 2006 ME 107, J 13, 905 A.2d 298 (citing Brackett, 2003 ME 109, F¥

18-21, 831 A.2d 422). In support of a good cause exemption, Houseal argues that the permits were

issued in violation of ordinance, that he discovered the pending permits in November 2022 and

emailed a city councilor stating that he would appeal the permits when issued, and that the appeal

period was reduced from 30 to 10 days in March 2022. Houseal has not made a showing of special

circumstances that would result in a flagrant miscarriage of justice without extension of the appeal

window. See Tominsky v. Town of Ogunquit, 2023 ME 30, 99 25-26, 28, = A.3d___ (lack of notice

of permit is key factor and “delay based on ignorance of the law cannot establish an extraordinary

circumstance that would resuit in a flagrant miscarriage of justice”). The Court concludes that no

exception to the appeal period applies and denies Houseal’s petition for review.

The entry is:

The court AFFIRMS the City of Portland’s decision denying Petitioner’s appeal. Petitioner

Houseal’s Rule 80B Petition is DENIED.

Date: G/ I7Iv3 JA eH

Thomas R. McKeon

Justice, Maine Superior Court