The opinion
MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2017 ME 195
Docket: Cum-16-552
Submitted
On Briefs: June 29, 2017
Decided: September 19, 2017
Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.
LESLIE FISSMER et al.
v.
TOWN OF CAPE ELIZABETH et al.
HJELM, J.
[¶1] Leslie Fissmer, individually and as trustee of the Leslie S. Fissmer
Revocable Trust (collectively, Fissmer), appeals from a judgment of the
Superior Court (Cumberland County, L. Walker, J.) affirming a decision of the
Cape Elizabeth Zoning Board of Appeals, which in turn determined that the
Cape Elizabeth Code Enforcement Officer had properly issued a building
permit to Cunner Lane LLC.1 Fissmer, an abutting property owner,2 argues
that the ZBA erred by determining that a Declaration of Covenants applicable
to Cunner Lane LLC’s property satisfied a requirement of the Cape Elizabeth
1 Fissmer and Cunner Lane LLC have participated in this appeal. The Town of Cape Elizabeth
has not.
2 Although Fissmer is a party in her individual capacity, the complaint and the record indicate
that the property is owned by the Trust. Any ambiguity on that point is not material here.
2
Zoning Ordinance that “legally binding arrangements exist to provide for the
long-term maintenance of [a private] road” before a permit can be issued
allowing construction on a parcel located on that road. Cape Elizabeth, Me.,
Zoning Ordinance § 19-7-9(A)(2) (Sept. 11, 2014).3 Although we treat the
CEO’s decision as the operative one, we agree that there is no evidence in the
record showing that the permit application met the requirements of section
19-7-9(A)(2). We therefore vacate the judgment and remand for the CEO to
deny the application.
I. BACKGROUND
[¶2] The following facts, which are not disputed, are established in the
administrative record.
[¶3] In 1998, David D. Smith acquired a 7.6-acre parcel of land located
in Cape Elizabeth at 21 Cunner Lane, a private road. In February 2010, Smith
conveyed a 2.4-acre portion of his parcel to Cunner Lane LLC. The address of
the newly created parcel is 19 Cunner Lane. Smith retained the remaining
portion of his parcel at 21 Cunner Lane. As shown on a boundary survey,
Cunner Lane begins where it intersects with a public way and continues for
3 As we discuss below, see infra n.4, certain provisions of the Cape Elizabeth Zoning Ordinance
were amended after the events pertinent to this case. See Cape Elizabeth, Me., Zoning Ordinance
(Nov. 5, 2016). We cite to the version of the Ordinance in effect when the CEO and the ZBA issued
their decisions.
3
some distance, passing other parcels, before it reaches and abuts the parcels
at 19 and 21 Cunner Lane.
[¶4] Also in February 2010, the Cape Elizabeth Code Enforcement
Officer confirmed to Smith in writing that “the 2.4 acre parcel . . . may be
created and conveyed out so long as” the grantee, Cunner Lane LLC, satisfied
section 19-7-9(A) of the Zoning Ordinance. That provision would require that
the private road—Cunner Lane—leading to the new parcel “provides
adequate all-season emergency access for the existing and proposed use,”
Cape Elizabeth, Me., Zoning Ordinance § 19-7-9(A)(1), and that “legally
binding arrangements exist to provide for the long-term maintenance of the
road.” Id. § 19-7-9(A)(2).
[¶5] In March 2010, the CEO sent Smith a second letter stating that he
and the Town’s Fire Chief had inspected Cunner Lane “in conjunction with
section 19-7-9” and had determined that, “in its current condition,” Cunner
Lane provided “adequate . . . emergency access” to the “proposed” new parcel,
but that to accommodate “large fire equipment” a driveway and turn-around
would have to be installed “prior to occupancy of any future dwelling” and
would have “to be included in the long-term [road] maintenance agreement.”
4
[¶6] The next month, Smith executed and recorded a “Declaration of
Covenants with Respect to Road Maintenance” that subjected the “parcel of
land located at 21 Cunner Lane”—described as encompassing the entire lot
conveyed to Smith in 1998, including the new lot at 19 Cunner Lane—to
several “covenants running with the land,” including the following: “The
Undersigned hereby agrees to provide for the maintenance and repairs
necessary to keep that portion of Cunner Lane abutting the Property passable
on foot and by motor vehicles, including without limitation, the emergency
vehicles of the Town of Cape Elizabeth, including grading, snowplowing,
sanding and trimming of vegetation.” (Emphasis added.) The Declaration
further stated that Smith agreed to install the improvements identified in the
CEO’s March 2010 letter “prior to the occupancy of any future dwelling”
located on the parcel.
[¶7] Five years later, in April 2015, Cunner Lane LLC applied for a
building permit to construct a “new single family dwelling” on its 2.4-acre
parcel located at 19 Cunner Lane. The Town’s new CEO approved the
application except for one aspect of the building design that is not relevant to
this appeal.
5
[¶8] Fissmer, an abutting property owner, filed an appeal with the
Zoning Board of Appeals from the CEO’s decision to issue the permit. In the
written appeal, she asserted that Cunner Lane LLC had not satisfied section
19-7-9-(A)(2) of the Zoning Ordinance because there was no legally binding
arrangement for the long-term maintenance of the road. At a hearing held by
the ZBA in July 2015, Fissmer also argued that the 2010 Declaration of
Covenants did not satisfy section 19-7-9(A)(2) because it applied only to the
portion of Cunner Lane that abutted the original 7.6-acre parcel, not to the
entirety of the private way.
[¶9] Based on the evidence submitted by the parties both before and
during the hearing—which went beyond the evidence that had been the basis
for the CEO’s decision—the ZBA voted unanimously that the CEO “did not err
by approving” the permit application and issued three “findings,” which
merely summarized procedural events. Fissmer appealed the ZBA’s decision
to the Superior Court, see 30-A M.R.S. § 2691(4) (2016); M.R. Civ. P. 80B, and
in May 2016, the court (L. Walker, J.) issued a judgment concluding that the
ZBA’s decision was the operative one for purposes of judicial review but that
the decision was insufficient to allow for meaningful appellate review. For
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that reason, the court remanded the matter for the ZBA to issue further
findings of fact.
[¶10] On remand, in June 2016, the ZBA issued several additional
findings of fact based on the record that had been developed at the first
hearing, including a finding that Cunner Lane LLC had satisfied section
19-7-9(A)(2) “[b]y virtue of” the 2010 Declaration of Covenants. Fissmer
again appealed to the Superior Court pursuant to 30-A M.R.S. § 2691(4) and
M.R. Civ. P. 80B, and the court affirmed the ZBA’s decision. Fissmer appeals to
us pursuant to 14 M.R.S. § 1851 (2016), M.R. Civ. P. 80B(n), and M.R.
App. P. 2(b)(3).
II. DISCUSSION
[¶11] Fissmer argues that the 2010 Declaration of Covenants was
insufficient to support the ZBA’s determination that Cunner Lane LLC’s
application satisfied section 19-7-9(A)(2) of the Cape Elizabeth Zoning
Ordinance, which is a predicate to the issuance of a building permit. See Cape
Elizabeth, Me., Zoning Ordinance § 19-7-9(A).
[¶12] “In a Rule 80B appeal, the Superior Court acts in an appellate
capacity, and, therefore, we review the agency’s decision directly.”
21 Seabran, LLC v. Town of Naples, 2017 ME 3, ¶ 9, 153 A.3d 113 (quotation
7
marks omitted). We have recently stated that pursuant to the same version of
the Ordinance governing this action, the CEO’s decision—not the ZBA’s—is
the operative one for purposes of appellate review because the Ordinance did
not authorize the ZBA to decide the matter de novo. Appletree Cottage, LLC v.
Town of Cape Elizabeth, 2017 ME 177, ¶¶ 2 n.1, 11, --- A.3d ---; see also
Portland Cellular P’ship v. Town of Cape Elizabeth, 139 F. Supp. 3d 479, 486-87
(D. Me. 2015) (stating that pursuant to the Ordinance applicable here, the ZBA
is to act in an appellate capacity and that a court therefore reviews the CEO’s
decision); see generally Stewart v. Town of Sedgwick, 2000 ME 157, ¶¶ 6-8,
757 A.2d 773. Therefore, although the parties have cast the ZBA as the body
that issues the operative decision, we review the CEO’s decision.4
[¶13] “We review the CEO’s decision for an abuse of discretion, errors
of law, or findings not supported by the substantial evidence in the record.”
Appletree Cottage, 2017 ME 177, ¶ 9, --- A.3d --- (quotation marks omitted).
4 In the end, the question of whether the CEO or the ZBA issued the operative decision does not
affect our analysis because the record associated with both phases of the municipality’s action is, as
a matter of law, insufficient to support the permit. The only effect flowing from this issue is the
determination of which municipal office will, on remand, be required to deny the application.
We note, as we did in in Appletree, that the Town’s Zoning Ordinance was amended effective
several months after the ZBA issued its final decision in this case and now expressly authorizes the
ZBA to “hear . . . administrative appeals on a de novo basis . . . by deciding . . . matters afresh,
undertaking its own independent analysis of evidence and the law and reaching its own decision.”
See Cape Elizabeth, Me., Zoning Ordinance § 19-5-2(A) (Nov. 5, 2016); Appletree Cottage, LLC v.
Town of Cape Elizabeth, 2017 ME 177, ¶ 8, n.4, --- A.3d --- (“The current Ordinance explicitly
provides the ZBA with the authority to consider issues de novo.”). The current Zoning Ordinance
therefore now establishes the ZBA’s authority to conduct a de novo hearing.
8
“Although interpretation of an ordinance is a question of law, we accord
substantial deference to [a municipality’s] characterizations and fact-findings
as to what meets ordinance standards.” Bizier v. Town of Turner, 2011 ME
116, ¶ 8, 32 A.3d 1048 (quotation marks omitted). Cunner Lane LLC, as the
permit applicant, had the burden to establish “the factual elements necessary
for the grant of [its] application.” Mills v. Town of Eliot, 2008 ME 134, ¶ 20,
955 A.2d 258. Fissmer, however, has the burden of persuasion on appeal to
show that “no competent evidence” supports the CEO’s findings. See Osprey
Family Trust v. Town of Owls Head, 2016 ME 89, ¶¶ 9-10, 141 A.3d 1114
(quotation marks omitted).
[¶14] The Ordinance central to this appeal is section 19-7-9(A), which
states:
A private road that existed as of June 4, 1997, and is shown on the
Town Street Map may be used to provide access to and street
frontage for a residential lot upon certification by the Code
Enforcement Officer that:
1. based upon the recommendation of the Fire Chief,
that the road provides adequate all-season emergency
access for the existing and proposed use, and
2. legally binding arrangements exist to provide for the
long-term maintenance of the road.
9
Cape Elizabeth, Me., Zoning Ordinance § 19-7-9(A). Section 19-7-9(A) further
states, “No building permit shall be issued until . . . legally binding
arrangements for long-term maintenance are in place.” Id. Whether Cunner
Lane LLC’s permit application satisfied the requirements of the Ordinance is a
mixed question of law and fact. See Osprey Family Trust, 2016 ME 89, ¶ 11,
141 A.3d 1114.
[¶15] “[T]he terms or expressions in an ordinance are to be construed
reasonably with regard to both the objectives sought to be obtained and the
general structure of the ordinance as a whole . . . .” Gensheimer v. Town of
Phippsburg, 2005 ME 22, ¶ 22, 868 A.2d 161 (quotation marks omitted). Here,
the obvious purpose of section 19-7-9(A) is to ensure that emergency vehicles
will be able to obtain access to a new lot located on a private road and,
because that requirement must be met for the CEO to properly issue a
building permit for a structure located on that lot, the road will be maintained
to allow emergency access throughout the year. This interpretation is
supported not only by the nature of the requirements the provision creates,
but also by the stated purpose of the Zoning Ordinance, which “is to promote
the health, safety and general welfare of the residents of Cape
Elizabeth; . . . [and] to provide safety from fire and other hazards; . . . [and]
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adequate public services.” Cape Elizabeth, Me., Zoning Ordinance § 19-1-2
(Sept. 11, 2014).
[¶16] Construing section 19-7-9(A) in light of that overall objective, see
Gensheimer, 2005 ME 22, ¶ 22, 868 A.2d 161, we conclude that the provision’s
reference to a “road” must be to the entire part of the road from its
intersection with a public way to at least the location of the proposed
structure, and not just the section of the road abutting a permit applicant’s
property. To hold otherwise would defeat the purpose of ensuring that
emergency vehicles can gain access to structures located on private roads,
which the Town may not be responsible to maintain.
[¶17] Here, the CEO did not issue findings of fact or conclusions of law
to explain the basis for his approval of Cunner Lane LLC’s building permit
application. Rather, the record of the CEO’s actions is limited to a stamp at the
top of the application stating “APPROVED.” We have held that we will not
imply findings or create an analytical construct that we would then attribute
to a municipal decision-maker, because that judicial intervention would both
prevent us from determining properly whether the municipal action is
supported by the evidence and invite “judicial usurpation of administrative
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functions.” Appletree Cottage, 2017 ME 177, ¶ 9, --- A.3d --- (quotation marks
omitted).
[¶18] Here, regardless of the absence of findings, the issuance of the
building permit was erroneous as a matter of law because there is no evidence
in this record that could support the CEO’s determination that Cunner Lane
LLC had met the requirements of section 19-7-9(A)(2). Cunner Lane LLC’s
entire argument here is that the 2010 Declaration of Covenants satisfied that
provision. Even assuming that the CEO considered the 2010 Declaration as
part of the permit application,5 that instrument provides only for the
maintenance of that portion of the private road abutting the parcel conveyed
to Smith in 1998, which today encompasses 19 and 21 Cunner Lane. It does
nothing to require or otherwise provide for any maintenance of the section of
Cunner Lane between its intersection with a public way and Cunner Lane
LLC’s parcel itself, over which emergency vehicles will need to travel in order
5 The record is not entirely clear on that point. Smith executed the 2010 Declaration shortly
after the Town’s prior CEO wrote to him about the adequacy of Cunner Lane to accommodate
emergency vehicles and made reference to “the long-term maintenance agreement” for the road.
Despite these communications, the copy of the 2015 permit application contained in the record on
appeal does not include the Declaration. Nonetheless, a copy of the Declaration was submitted to
the ZBA as part of its consideration of “whether the decision of the Code Enforcement Officer is in
conformity with the provisions of this Ordinance. . . .” See Cape Elizabeth, Me., Zoning Ordinance
§ 19-5-2(A); (AR. 54, 115.) Further, if the CEO had not been presented with the 2010 Declaration at
all as part of Cunner Lane LLC’s permit application, then the CEO would have had no information
about any agreement regarding the maintenance of the road, as opposed to covenants that—as we
discuss in the text—are insufficient to meet the requirements of section 19-7-9(A)(2).
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to get to 19 Cunner Lane. Accordingly, the 2010 Declaration fails to fulfill both
section 19-7-9(A)(2) and the overall purpose of the Zoning Ordinance to
ensure emergency access and public safety, and the instrument is insufficient
to support a proper determination that a permit application should be issued.
[¶19] Because there is no competent evidence in the record to support
the determination that Cunner Lane LLC’s application satisfied section
19-7-9(A)(2), see Osprey Family Trust, 2016 ME 89, ¶¶ 9-10, 141 A.3d 1114,
we vacate the judgment and remand this matter for the court to remand to the
ZBA with instructions to issue a decision determining that the CEO’s approval
of Cunner Lane LLC’s permit application was not “in conformity with the
provisions” of the Cape Elizabeth Zoning Ordinance, see Cape Elizabeth, Me.,
Zoning Ordinance § 19-5-2(A), and directing the CEO to deny the permit
application.6
6 The parties have indicated that after the ZBA issued its second decision affirming the CEO’s
approval of the permit application based on the 2010 Declaration of Covenants, Smith executed and
recorded an “Amended Declaration of Covenants with Respect to Road Maintenance” that applies to
the entirety of Cunner Lane, not just the portion of the private road abutting 19 and 21 Cunner Lane.
(Emphasis added.) As Fissmer correctly states, the Amended Declaration of Covenants is not part
of the record on appeal because it did not even exist until after the municipal proceedings had been
completed. See M.R. Civ. P. 80B(f) (stating that with limited exception, “review shall be based upon
the record of the proceedings before the governmental agency”). For this reason, we cannot
properly consider whether the Amended Declaration satisfies section 19-7-9(A)(2). In light of
Fissmer’s arguments that are based on the original Declaration of Covenants, however, the creation
of the Amended Declaration is a matter that likely could have been presented to the CEO for a
determination of whether that new instrument satisfied the Ordinance, thereby avoiding both the
consumption of judicial resources and expense to the parties from this appeal that is based entirely
on an instrument that appears to have been superseded.
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The entry is:
Judgment vacated. Remanded to the Superior
Court with instructions to remand to the Zoning
Board of Appeals to issue a decision stating that
the Code Enforcement Officer’s approval of the
building permit did not conform with the
provisions of the municipal ordinance and
directing the CEO to deny the permit
application.
John B. Shumadine, Esq., Murray, Plumb & Murray, Portland, for appellant
Leslie Fissmer
Alan Atkins, Esq., Alan R. Atkins & Associates, Portland, and Aaron Mosher,
Esq., Mosher Law Firm, LLC, Portland, for appellee Cunner Lane LLC
Cumberland County Superior Court docket number AP-2016-32
FOR CLERK REFERENCE ONLY