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Copp v. Town of Cumberland Board of Adjustment and Appeals

Superior Court of Maine, Cumberland

March 9, 2017

ELVIN COPP and RANDALL COPP, Plaintiffs
v.
TOWN OF CUMBERLAND BOARD OF ADJUSTMENT AND APPEALS, Defendant

          Plaintiffs Attorney, JEFFREY BENNETT, ESQ JOAN EGDALL, ESQ. LEGAL EASE, LLC.

          Defendant's Attorney, JOHN J WALL Ill. ESQ, ALYSSA TIBBETTS ESQ, NATALIE BURNS ESQ.

          DECISION AND ORDER

          NANCY MILLS, JUSTICE, SUPERIOR COURT

         Before the court is plaintiffs Elvin Copp and Randall Copp's Rule 80B appeal. M.R. Civ. P. SOB. Plaintiffs challenge the decision of defendant Town of Cumberland Board of Adjustment and Appeals to uphold part of a Notice of Violation issued to plaintiff by the Code Enforcement Officer for plaintiffs' failure to comply with their building permit. For the following reasons, the court concludes plaintiffs have not named the proper party defendant and the appeal is moot.

         FACTS

         Plaintiff Elvin Copp is the father of plaintiff Randall Copp, (R. 5 at 2:6, 21:8.) Elvin Copp owns a parcel of property located off of Pointer Way in Cumberland. (R. 1.) The property is designated on the Town's Tax Assessor Map #R-07 as Lot #57C. (Id.) Randall Copp is supervising the construction of a single-family residence on the property. (Id.; R. 8.) The construction plans are unique. They incorporate the use of a "wood-framed 'double wide' manufactured home structure" solely for its floor. (R. 2, Ex. 5; R. 5 at 16:8-20.) The rest of the structure was disassembled and removed. (Id.) The plans plaintiffs submitted to the Town of Cumberland Code Enforcement Officer (CEO) for their building permits were unclear as to which parts of the manufactured home would be kept and which parts would be removed. (R. 5 at 27:4-20, 45:3-46:24, 58:11-59:25.) The CEO thought plaintiffs were going to remove only the structure's roof when he issued the permits. (R. 5 at 27:11-28:6.) He visited the property on September 24, 2015 and realized the roof and walls were removed and only the floor remained. (R. 2; R. 5 at 27:24-28:6.) Plaintiffs also added three non-functioning dormers to the roof and used construction rubble for fill without informing the CEO of those plans. (R. 2; R. 5 at 9:4-13, 31:2-8.)

         PROCEDURAL HISTORY

         In July 2009, plaintiffs obtained their first building permit for the residence and began construction. (R. 1.) The plaintiffs were issued a series of building permits thereafter. (R. 5 at 3:17-22; R. 8.) On May 8, 2014, the CEO issued plaintiffs the subject permit. (R. 2 at 3, Ex. 1.) On January 20, 2016, the CEO issued plaintiffs a Corrected Notice of Violation Order for Corrective Action (NOV). (R. 1.) The NOV included a description of the violations the CEO observed while at the property on September 24, 2015, a stop work order, and the corrective action plaintiffs were required to take before the Town would reissue a building permit. (Id.) The CEO found the construction did not conform with the plans plaintiffs submitted for their permit; the building permit issued on May 8, 2014 expired on November 8, 2014 because plaintiffs made no progress over the six months; and the manufactured home was demolished without the proper permits. (Id.) The stop work order prohibited all construction at the property until the Town was satisfied that the violations were corrected. (Id.) The NOV listed the required corrective action as follows:

#1. Notify the Town of plans for this property and seek the necessary Town of Cumberland approvals as described in the Cumberland Code.
#2. Submit an application for "After the Fact" approval of proposed construction with plans and specifications that comply with the International Residential Building Code 2009 edition, the laws of the State of Maine and the Cumberland Code.
#3. Obtain "After the Fact" demolition permit for the removal of the manufactured office unit and provide written documentation as to how the waste was disposed. Also provide Maine DEP Notice for removal of non-residential structure.

(Id.) On January 27, 2016, plaintiffs appealed the NOV to the Town of Cumberland Board of Adjustment and Appeals (the Board). (R. 2.) In their application for appeal, plaintiffs argued their building permit had not expired, the stop work order was not the proper remedy for the alleged violations, and the NOV should be dismissed because the CEO's entrance onto the property on September 24, 2015 was illegal. (R. 2, Exs. 3, 4, 7.)

         The Board heard the appeal on February 11, 2016. (R. 5.) Counsel for plaintiffs, Randall Copp, the CEO, counsel for the CEO and Town, a concerned neighbor, and the Town Manager all presented at the hearing. (Id.) After hearing from presenters, the Board voted to uphold the NOV "except for [the CEO's] finding that the permit expired [on November 8, 2014]." (Id. at 99:12-21.) On February 22, 2016, plaintiffs filed a request for reconsideration of the decision pursuant to 30-A M.R.S. ยง 2691(3)(F) (2016). (R. 13.) The Town's attorney sent a memorandum to the Board in opposition to the request for reconsideration. (R. 14.) On March 10, ...


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