RAY LEDGES, LLC, a Maine Limited Liability Company of Canton, Oxford County, Maine, and JJCF, LLC, a Maine Limited Liability Company of Canton, Oxford County Plaintiffs,
THE INHABITANTS OF THE TOWN OF HARPSWELL Defendant.
ORDER ON PLAINTIFFS' 80B APPEAL
E. Walker Justice Superior Court
Plaintiffs appeal from a decision by the Town of Harpswell
Board of Appeals ("BOA") pursuant to Maine Rule of
Civil Procedure 80B.
April 14, 2016, Plaintiffs Ray Ledges, LLC and JJCF, LLC
recorded a notice, pursuant to 23 M.R.S. § 3032, of
their alleged ownership of half of a proposed, unaccepted way
("paper street") abutting their property which they
claimed had been vacated by The Town. (Pl.'s Compl.
¶ 7.) On May 5, 2016, Plaintiffs applied for a permit to
build a septic system, a portion of which would be on the
abutting paper street. (Pl.'s Compl. ¶¶ 8, 10.)
Trees located in that paper street were within a Resource
Protection District (within 75 feet of the shoreland
buffer; D.'s Br. 2-3), and as such, their removal was
subject to the Shoreland Zoning Ordinance. Harpswell, Me.,
Shoreland Zoning Ordinance (June 14, 2007). The permit was
granted on May 10, 2016, and on June 1, 2016, Plaintiffs cut
trees on the site. (Pl.'s Compl. ¶¶ 10-11.) On
June 7, 2016, after receiving calls from neighbors
questioning Plaintiffs' right to cut trees in the paper
street, the Code Enforcement Officer (CEO) issued a verbal
stop work order. (Pl.'s Br. 5.) On August 31, 2016,
Plaintiffs applied for a permit to build a redesigned septic
system that was not on the paper street, which was granted on
September 15, 2016. (Pl.'s Compl. ¶¶ 13-14;
Pl.'s Br. 6.) In an October 12, 2016 letter (amended on
October 24, 2016), the CEO notified Plaintiffs that their
June 2016 tree cutting was in violation of the Shoreland
Zoning Ordinance, and ordered that the trees be replanted.
(Pl.'s Compl. ¶ 15.) On December 14, 2016, the BOA
denied Plaintiffs' appeal to vacate the violation, and
upheld the tree replanting plan. (Pl.'s Compl. ¶
17.) Plaintiffs filed this complaint on January 25, 2017, and
submitted a brief on March 6, 2017. The Town submitted a
brief on April 3, 2017. On April 19, 2017, Plaintiffs
submitted a reply brief.
Standard of Review
Superior Court independently examines the record and reviews
the decision of municipal boards for abuse of discretion,
error of law, or findings unsupported by substantial evidence
in the record. Somerset Cnty. v. Dep't of Corr.,
2016 ME 33, ¶ 14, 133 A.3d 1006; Alden v. Town of
Harpswell & Walter Scott Moody, No. AP-03-076, 2005
Me. Super. LEXIS 159, at *3 (Nov. 22, 2005). The substantial
evidence standard requires the court to examine the entire
record to determine whether the board could have rationally
decided as it did, based on the facts presented to it.
Alden, 2005 Me. Super. LEXIS 159, at *3; Ryan v.
Town of Camden, 582 A.2d 861, 863 (Me. 1991).
Substantial evidence is evidence that a reasonable mind could
accept as sufficient to support the conclusion reached.
Cheney v. Unemployment Ins. Comm'n, 2016 ME 105,
¶ 6, 144 A.3d 45; Alden, 2005 Me. Super. LEXIS
159, at *3. A court is not permitted to substitute its own
judgment for that of the board. Cheney, 2016 ME 105,
¶ 6, 144 A.3d 45; Alden, 2005 Me. Super. LEXIS
159, at *3. The board's decision is not wrong simply
because facts in the record are inconsistent or a different
conclusion could be drawn from them. Id. To succeed
on appeal, the burden is on the plaintiff to prove that the
evidence compels an opposite conclusion. Rossignol v. Me.
Pub. Emples. Ret. Sys., 2016 ME 115, ¶ 6, 144 A.3d
1175; Shure v. Town of Rockport & Eleanor Boyd,
No. AP-98-005, 1999 LEXIS 141, at *23 (Me. Super. Ct. May 11,
ask this court to vacate the replanting order and the
violation notice, issued pursuant to the Shoreland Zoning
Ordinance, where "the cutting or removal of vegetation
[in a Resource Protection District] shall be limited to that
which is necessary for uses expressly authorized in [the]
district ." (Pl.'s Compl. ¶ 21;
Pl.'s Br. 7; Shoreland Zoning Ordinance § 15.15.1.)
Plaintiffs argue that they had a valid permit when the trees
were removed, and that there were no conditions on the
permit. (Pl.'s Br. 6, 9; Pl.'s Reply Br. 2-3.)
Plaintiffs argue that the BOA did not have sufficient
evidence to find that the permit was invalid. (Pl.'s Br.
6, 9; Pl.'s Reply Br. 1-3.)
upholding the violation notice and replanting order, the BOA
explicitly set out in the record ("Rec") its
reasons for denying the appeal. Cf. Shure, 1999
LEXIS 141, at *20. The BOA found that the first permit was
conditional in June 2016 when Plaintiffs removed the trees,
where on its face, it expressly indicated under the section
entitled "This Application Requires" that a
"Legal Deed Easement [was] Required to Site [their
septic] System in [the] Paper Street." (Pl.'s Compl.
¶ 21; D.'s Br. 3; Rec. 8, 42.) On September 25,
1997, The Town had registered a notice extending The
Town's right to accept the paper street, putting into
question any right, title, and interest in and to the portion
of the paper street Plaintiffs may have had pursuant to their
April 14, 2016 recording under 23 M.R.S. § 3032.
(Pl.'s Br. 10; Rec. 1-4, 5-7.) Contrary to
Plaintiffs' argument, the reason, their recording did not
satisfy the permit's condition was not that their alleged
property transfer was an operation of law which could not
meet the CEOs request for a deed, (Pl/s Br. 3), but that
their recording did not demonstrate their right, title, and
interest in the land, (D.'s Br. 6; Rec. 42). As a result,
the BOA found that Plaintiffs did not have a valid permit
that satisfied the required expressly authorized use under
the Shoreland Zoning Ordinance. (Rec. 42.) Plaintiffs did not
appeal the stop work order, nor did they submit additional
information to prove their ownership of the paper street as
requested by the CEO, (Rec. 26), but instead, redesigned
their plans and sought another permit, (D.'s Br. 8; Rec.
are adequate facts of record to support the findings by the
Town that there was a violation, and this Court will not
substitute its judgment for that of the BOA. See Tousst
v. Town of Harpswell, 1997 ME 189, ¶ 9, 698 A.2d
1063. Further, it unnecessary for this Court to decide
whether the first permit was abandoned, (Pl/s Br. 8-9), as
the violation occurred when Plaintiffs removed vegetation
without a permit. (Rec. 42.)
on the foregoing, Plaintiffs' appeal from a decision by
the Town of Harpswell Board of Appeals pursuant to Maine Rule
of Civil Procedure 80B is denied. The decision of the Town of
Harpswell Board of Appeals is affirmed.
Clerk is directed to enter this Order on the civil docket by
reference pursuant to ...