Jeffrey L. Hjelm,
Plaintiffs Paul Gagnon, Rita Gagnon, Patrick Costigan and Lorie Costigan (collectively, Gagnon) have appealed from a decision issued in February 2012 by the Town of Appleton Zoning Board of Appeals to grant a variance to Appleton Ridge Construction, LLC (ARC). The variance would allow ARC to maintain a structure that is partially located within a setback associated with a public road that abuts ARC's property. By order dated June 19, 2013, the court remanded the matter to the ZBA for issuance of further findings of fact relating to its decision to grant the variance. On remand, the ZBA issued further findings. The parties have filed post-remand written argument addressing Gagnon's challenge to the ZBA's decision. For the reasons set out in this order, the court vacates the ZBA's decision and remands the proceeding to the ZBA with instructions to deny the variance application.
The background to this action is set out in the consolidated order on appeal issued in Costigan et al. v. Town of Appleton et al ., AP-09-6 (Superior Court, Knox County) and Gagnon et al, v. Town of Appleton et al ., AP-09-8 (Superior Court, Knox County), which the court incorporates into this order by reference, and in the June 2013 order issued in this action. In pertinent part, the record establishes that in August 2008, ARC's grantor, Jacob Boyington,  acquired the .18 acre property in issue. At the time, a mobile home was located on the land. The mobile home was non-conforming because it was situated within the setbacks associated with the abutting road. However, because the mobile home had been present on the property prior to 1986 when the municipal land use ordinance became effective, it was a lawful non-conforming use. The record on appeal in AP-09-6, which addressed the issuance of the building permit in 2009, includes a public notice from the Town when it offered the land for public auction. That notice provided that because of the small size of the lot, it could be difficult to construct a house on it and to meet the requirements of the municipal ordinances, and that there was " no guarantee" that a building permit could be issued.
In March 2009, Boyington applied for a permit to construct a new residence on the property, and the municipal code enforcement officer issued the permit. In the application, Boyington acknowledged that he understood the following admonition set out the permit application form:
If this permit is approved, it is done so using information provided by the applicant in the record regarding his ownership of the property and the boundary locations. The applicant has the burden of proving that he has a legal right to use the property and that he is measuring required setbacks from the legal boundary lines of the lot. The approval of this permit in no way relieves the applicant of this burden, not does it constitute a resolution in favor of the applicant of any issues regarding the property boundaries, ownership or similar title issues. The permit holder would be well advised to resolve any problems before expending money in reliance on this permit.
In March 2009, after the CEO issued the building permit, ARC removed the mobile home and began construction of the new building. As is shown in the amended variance application that is the subject of this action, the new structure is located 36, 5' from the center of the abutting road, which puts it within the 60' setback measured from the center of the road, and it is located 11.7' from the edge of the right-of-way, which means that it is within the 25' setback measured from the edge of the right-of-way.
In April 2009, Gagnon filed an appeal with the ZBA challenging the CEO's decision to issue the building permit. The ZBA concluded that it did not have jurisdiction to entertain Gagnon's appeal. Gagnon appealed that decision to this court. See Costigan v. Town of Appleton , AP-09-6 (Superior Court, Knox County); Gagnon v. Town of Appleton , AP-09-8 (Superior Court, Knox County). The court ultimately concluded that the ZBA correctly declined to consider Gagnon's appeal. The court also concluded, however, that the CEO issued the building permit wrongfully because, contrary to the CEO's determination, the new construction was not a permitted non-conforming use and did not inherit the grandfathered protection afforded to the mobile home that was within the setbacks created by the right-of-way for the abutting public way. The court therefore directed the CEO to rescind the permit and to deny the permit application.
Following issuance of that order, ARC filed an application for a post hoc variance that would allow the replacement structure to remain where it stood, within the setbacks created by the road. Following a public hearing on the variance application held in November 2011, the ZBA granted the variance. ARC then amended its application based on corrected measurements involving the setback al issue. In February 2012, the ZBA held another hearing and again allowed the variance. Gagnon commenced this appeal, challenging that decision. By order issued in June 2013, the court remanded the matter back to the ZBA for issuance of factual findings that would be necessary for meaningful appellate review. The ZBA took up the matter al a meeting held in September 2013. The ZBA declined to accept further evidence but issued further findings in support of its decision to grant ARC's variance application.
In its written decision, the ZBA memorialized its determination that ARC had proven each of the four criteria needed to support a variance, namely, that the land cannot yield a reasonable return unless the variance were granted; that the need for the variance was due to the unique circumstances of the property and not to the general conditions of the neighborhood; that the variance would not alter the essential character of the locality; and that the hardship was not the result of action taken by ARC or a prior owner. See Town of Appleton Ordinance § § 13, 18; see also 30-A M.R.S. § 4353(4). The permit applicant bears the burden of establishing each of these four contentions. See Sibley v. Inhabitants of Wells , 462 A, 2d 27, 30 (Me. 1983). Because the court retained jurisdiction over this matter pending the ZBA's issuance of findings on remand, the parties have filed post-remand argument on Gagnon's appeal. Gagnon argues that the ZBA erred in finding that the property owned by ARC could not yield a reasonable return absent the variance and that the hardship was not the result of action taken by ARC or a predecessor-in-title. The court concludes that the facts as found and articulated by the ZBA compelled a determination that that hardship leading to the variance application was the result of action taken by ARC or a prior owner. The court therefore need not and does not address Gagnon's challenge to the other criterion he addresses on this appeal.
On appeal, the court must affirm agency decisions absent an abuse of discretion, error of law, or findings unsupported by substantial evidence from the record. 5 M.R.S. § 11007(4)(C); see also, e.g., Thacker v. Konover Dev. Corp ., 2003 ME 30, ¶ 14, 818 A.2d 1013 (citation and quotation marks omitted). Gagnon bears the burden of proving that " no competent evidence supports the [agency's] decision and that the record compels a contrary conclusion." Bischoff v. Maine State Retirement Sys ., 661 A.2d 167, 170 (Me. 1995) (citation omitted). " Judges may not substitute their judgment for that of the agency merely because the evidence could give rise to more than one result." Gulick v. Board of Environmental Prot ., 452 A.2d 1202, 1209 (Me. 1982) (citation omitted). Rather, the court will defer to administrative conclusions when they are based on evidence that " a reasonable mind might accept as adequate to support a conclusion." Id. (citation and quotation omitted).
Addressing the question of whether ARC's hardship underlying the variance application was the result of action taken by the applicant or a prior owner, the ZBA found that " [t]he lot and buildings thereon became non-conforming when Appleton adopted building ordinances in 1986 and 2010. The hardship is not the result of action taken by the applicant or prior owner." This finding is not supported by substantial evidence in the record.
When Boyington came into ownership of the property now owned by ARC, it was the site of a mobile home, which was non-conforming but permissible. Under the municipal ordinance, the property owner was authorized to continue the non-conforming use and even enlarge the structure up to 30%. However, for the reasons set out in the court's decision on appeal in Costigan v. Town of Appleton et al ., AP-09-6 (Superior Court, Knox County), once Boyington removed the non-conforming mobile home, he lost his grandfathered right to continue the non-conforming use associated with the structure and then became subject to the then-existing requirements of the ordinance, including the setbacks from the center of the road and the right-of-way. In his variance application, ARC (through Boyington) asserted that if the setback requirements were enforced, it would not be able to construct a residential structure on the lot, which is the way it had been used historically, because there would not be a sufficient remaining portion of the land for a building footprint. However, Boyington, ARC's grantor, took actions that resulted in this limitation when he removed the mobile home that could have been used -- and expanded -- for residential purposes.
Recognizing this, the ZBA found that Boyington could not be held responsible for the effects of his decision to remove the mobile home, because the municipal CEO had issued him a building permit that allowed him to build a new residence on the land to replace the mobile home. The ZBA found that Boyington relied on the issuance of the building permit when he removed the permissibly non-conforming mobile home and began to construct the new home that was impermissibly non-conforming. The ZBA also took note of the disclaimer noted above but found that Boyington's knowledge of the setback restrictions and that disclaimer are " set aside" by the CEO's action of issuing the building permit. " The . . . [ZBA] finds that the Town of Appleton through CEO Temple holds some responsibility in this case" and that Boyington was " led astray" by the Town.
However, the ZBA also found that Boyington himself included incorrect information about " measurements" in his building application and, importantly to this appeal, " both the applicant [Boyington] and the CEO should have recognized these errors."  The ZBA noted that the mobile home was protected as a permissible non-conforming use that would have permitted ...