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Appletree Cottage, LLC v. Town of Cape Elizabeth

Superior Court of Maine, Cumberland

July 27, 2016

APPLETREE COTTAGE, LLC Petitioner
v.
TOWN OF CAPE ELIZABETH, Respondent

          DECISION AND ORDER

          Nancy Mills Justice.

         Before 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.

         PROCEDURE

         Petitioner 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.

         On June 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.

         FACTS

         Mr. 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.)

         On June 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.[1] (R. 1, 8.)

         Petitioner 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.)

         The 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. 44-45.)

         DISCUSSION

         1. Standard of Review

         The 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).

         2. 80B Appeal

         A. Operative Decision

         The 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. 11-12.)

         The 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, ...


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