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
MILLS, JUSTICE, SUPERIOR COURT
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.
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
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
#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
(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.)
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.
§ 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, ...