DECISION AND ORDER
the court are petitioner Appletree Cottage, LLC's Rule
80B appeal and petitioner's motion to supplement the
record. Petitioner challenges respondent Town of Cape
Elizabeth's approval of a permit authorizing construction
of two buildings on property owned by Christopher Bond. For
the following reasons, the decisions of the Code Enforcement
Officer (CEO) and Zoning Board of Appeals (Board) are
affirmed and the motion to supplement the record is denied.
filed its Rule 80B appeal on December 4, 2015 and its brief
on January 19, 2016. By order dated February 26, 2016, the
court granted petitioner's motion for oral argument.
Respondent filed its brief on March 3, 2016. Petitioner filed
a reply on March 15, 2016. Argument was held on June 1, 2016.
15, 2016, petitioner filed a motion to reopen and supplement
the record. Respondent filed an objection on July 5, 2016.
Petitioner filed its reply on July 12, 2016.
Bond owns property located at 15 Sunrise Drive in Cape
Elizabeth. (R. 1.) The property is located in the Residence A
District and contains a 672 square foot one bedroom cottage
and a garage. (R. 32, 44.) Petitioner owns abutting property.
(R. 20, 42.)
30, 2015, Mr. Bond submitted an application to the CEO for a
permit to construct two detached buildings on the property.
(R. 1-7.) In the application, Mr. Bond represented that the
buildings would be "new accessory structures" with
dimensions of 12 feet by 12 feet each. (R. 1-2.) Mr. Bond
listed the number of existing bedrooms on the property as
"one" and the number of additional bedrooms as
"two." (R. 2.) A permit for "two 12' by
12' accessory structures" was approved by the CEO on
August 21, 2015 and issued on August 24, 2015. (R. 1, 8.)
appealed the CEO's approval to the Board on September 18,
2015. (R. 16.) Prior to the hearing on the appeal, Mr. Bond
submitted written materials in which he explained that the
buildings "were designed to add space for any
unforeseen, unanticipated or incidental use that will augment
the very small primary structure." (R. 33.) These uses
may include entertainment, hobbies, office, additional
sleeping, and general living. (Id. Mr. Bond also
noted that the buildings will "only serve as sleeping
space when the primary structure's capacity is
inadequate, " and that, even with the buildings, the
total square footage on the property will be only 960 square
feet. (R. 32, 36.)
Board heard the appeal on October 27, 2015. (R. 40.) Mr.
Bond's testimony at the hearing indicated that sleeping
will not take place in the buildings "except as needed
on an incidental and variable basis." (R. 57.) As an
example, someone who is renting the property would sleep in
the cottage, but if that person had guests, the guests would
sleep in the buildings. (R. 60.) Mr. Bond also clarified that
neither of the buildings will contain a bathroom,
refrigerator, or washer/dryer. (R. 57.) Anyone who stays in
the buildings must use those facilities in the cottage. (R.
58-59, 65.) The CEO's testimony confirmed that the small
size of the buildings would prevent any future construction
of bathrooms in the buildings. (R. 67.) The Board denied the
appeal and found that the buildings are accessory structures
because the cottage is "entirely functional" on its
own, and the buildings merely provide "space for
incidental living and sleeping requirements." (R.
Standard of Review
party challenging the decision of a local authority or 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, ¶ 10, 990 A.2d 1024; Mills v. Town of
Eliot 2008 ME 134, ¶ 18, 955 A.2d 258.
Interpretation of a zoning ordinance by a board is reviewed
de novo. See Isis Dev., LLC v. Town of Wells, 2003
ME 149, ¶ 3, 836 A.2d 1285. "The 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."
Jordan v. City of Ellsworth, 2003 ME 82, ¶ 9,
828 A.2d 768 (citation omitted). "The judgment of the
court may affirm, reverse, or modify the decision under
review or may remand the case to the governmental agency for
further proceedings." M.R. Civ. P. 80B(c).
parties assert that the operative decision is the CEO's
approval of the permit. (Pet'r's Br. 5-6; Resp.'s
Br. 4; Pet'r's Reply 1.) Petitioner seeks review of
the Board's decision, however, and both parties in their
briefs refer to matters before the Board. (Compl.
¶¶ 24-29; Pet'r's Br. 7-16; Resp.'s Br.
operative decision is the decision of the "tribunal of
original jurisdiction" that acts "as both fact
finder and decision maker." Peregrine Developers,
LLC v. Town of Orono,2004 ME 95, ¶ 9, 854 A.2d
216. The Board acts as both fact finder and decision maker
unless the ordinance explicitly directs that it act only in
an appellate capacity. See 30-A M.R.S. §
2691(3)(D) (2015) (requiring de novo review); Mills,2008 ME 134, ¶ 14, 955 A.2d 258. If the ordinance
directs the Board to act only in an appellate capacity, ...