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Shore Acres Improvement Association v. Livingston

Superior Court of Maine

March 11, 2016



Nancy Mills Justice, Superior Court

Before the court is petitioner Shore Acres Improvement Association's Rule 80B appeal. Petitioner challenges respondent Town of Cape Elizabeth's issuance of a building permit to respondents Brian and Sandra Livingston. For the following reasons, the court affirms the decision of the Zoning Board of Appeals (Board).


Petitioner Shore Acres Improvement Association is a neighborhood association for residents of the Shore Acres subdivision in Cape Elizabeth. (R. 39.) Respondents Brian and Sandra Livingston own lots 3 and 18, as well as a portion of lot 2, at 29 Pilot Point Road. (R. 151-52.) These lots are located within the Shore Acres subdivision and the Shoreland Zone of respondent Town's zoning ordinance. (R. 22, 149-50, 171.)

On November 1, 2011, Peter Spencer, a contractor with Waterman Marine Corp., filed on behalf of the Livingstons an application with the Maine Department of Environmental Protection (DEP) to replace two deteriorated structures. (R. 10, 131.) One of the structures was a bridge attached to a 12 foot by 30 foot deck, which covered a deep ravine. (R. 11-16, 25, 131.) The Livingstons wished to replace this structure with a new 12 foot by 30 foot deck in the same location. (R. 17-20, 25, 131.) The other structure was a 1 foot by 20 foot block wall located under the bridge and deck structure, which the Livingstons wished to replace with riprap. (R. 10-21, 25, 131.) Both the bridge and deck structure and the block wall were nonconforming with respondent Town's zoning ordinance because they were located approximately 50 feet away from the shoreline, in violation of the 75 foot shoreline setback requirement in the Shoreland Zone. (R. 43, 51, 174; Cape Elizabeth, Me., Zoning Ordinance § 19-6-11(E)(2).)

On November 2, 2011, Mr. Spencer filed an application with respondent Town on behalf of the Livingstons for a building permit to complete these projects. (R. 127-28.) A site plan was attached. (R. 130.) Respondent Town's Code Enforcement Officer (CEO) issued the permit on November 10, 2011. (R. 127, 137.) The projects were completed by December 2011. (R. 10.)

In August 2012, Mike Morse from the DEP inspected the Livingstons' property to determine whether the deck complied with respondent Town's zoning ordinance. (R. 125.) In a memo dated August 30, 2012, Mr. Morse concluded that the CEO erred by failing to obtain Board approval before issuing the permit. (R. 125-26; see R. 168-69; Cape Elizabeth, Me., Zoning Ordinance § 19-4-4(B)(3).) Mr. Morse's memo also stated that the deck could have been reconstructed in a location that complied with the setback requirement, and that the CEO, who accompanied Mr. Morse on the inspection, acknowledged the errors. (R. 125-26.)

Petitioner appealed the issuance of the building permit to the Board on September 19, 2012. (R. 123-24.) Petitioner argued that the deck violated the setback requirement and was constructed on land over which the residents of petitioner hold an easement. (R. 124, 139-48, 151-52.) The Board held a hearing on October 23, 2012 and dismissed the appeal as untimely on the ground that it was filed more than 30 days after the permit issued. (R. 154-60.) The Board issued its decision dismissing the appeal on November 8, 2012. (R. 121-22.)

Petitioner filed a Rule 80B appeal on December 7, 2012 (AP-12-62).[1] (R. 116.) On December 13, 2013, the court vacated the Board's dismissal and remanded to the Board for consideration of the merits. (R. 120.) The court held that the "good cause" exception to the appeal period applied because petitioners did not receive notice of the permit until Mr. Morse's memo dated August 30, 2012, and they promptly filed their appeal after receiving this notice. (R. 117-20.) The court also concluded that the CEO violated section 19-4-4(B)(3) by failing to obtain Board approval before granting the permit. (R. 118-19.) On September 30, 2014, the Law Court dismissed respondents' appeal on the ground that the Superior Court's order was not a final judgment. (R. 113-14.)

On June 23, 2015, the Board held a hearing on the merits of petitioner's appeal and voted to approve the permit. (R. 24, 36.) The Livingstons submitted a letter and photographs. (R. 10-19.) Petitioners stated: "The foundation of the new structure is pinned into the ledge on top of the new riprap wall to hold back the top 6-12" of soil. This was and is an integrated structure with primary functions to prevent erosion and cover the steep ravine for safety. Therefore, relocation would be entirely unpractical." (R. 10.) Mr. Livingston testified before the Board that, "[t]he reason we did this was because we wanted to make it a safer place for our family." (R. 70.)

The Board concluded that the deck and riprap complied with the setback requirement to the "greatest practical extent" because the structures serve safety and erosion control functions by covering the ravine and therefore cannot be placed elsewhere. (R. 96-112.) By letter dated June 25, 2015, the Board informed petitioner of its decision. (R. 1.) Petitioner filed its Rule 80B appeal on August 7, 2015 and its brief on October 13, 2015. Respondent Town and the Livingstons filed separate briefs on December 11, 2015. Petitioner filed a reply on January 6, 2016.


1. Standard of Review

The party challenging the decision of a municipal board has the burden of demonstrating an error of law, an abuse of discretion, or findings not supported by substantial evidence. Aydelott v. City of Portland, 2010 ME 25, ΒΆ 10, 990 A.2d 1024. The construction of terms in an ordinance is a question of law, which the court reviews de novo. Roberts v. Town of Phippsburg, 642 A.2d 155, 156 (Me. 1994) (citation omitted). The court gives deference to the Board's determination on questions of fact. Tordan v. City of Ellsworth, 2003 ME 82, 1 8, 828 A.2d 768. The court "may not substitute its judgment for that of the municipal body, but is limited to determining whether, from the ...

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