Submitted on Briefs: May 25, 2017
Sigmund D. Schutz, Esq., and Jonathan G. Mermin, Esq., Preti
Flaherty Beliveau & Pachios, LLP, Portland, for appellant
Appletree Cottage, LLC.
J. Wall, III, Esq., Monaghan Leahy, LLP, Portland, for
appellant Town of Cape Elizabeth.
SAUFLEY, C.J., and ALEXANDER, GORMAN, JABAR, and HJELM, JJ.
Appletree Cottage, LLC, appeals from a judgment of the
Superior Court (Cumberland County, Mills, J.)
affirming the Cape Elizabeth Code Enforcement Officer's
issuance of a building permit. Because the Town Code
Enforcement Officer's decision granting the building
permit is the operative decision on appeal and because that
decision lacks sufficient factual findings to permit
meaningful review, we vacate and remand.
The following facts are supported by evidence in the
record. See Mills v. Town of Eliot, 2008
ME 134, ¶ 6, 955 A.2d 258. Christopher Bond is the owner
of a plot of land in Cape Elizabeth. The property is a
nonconforming lot located in the Residence A District (RA
District). See Cape Elizabeth, Me., Zoning Ordinance
§§ 19-1-3, 19-6-1 (Sept. 11, 2014). Currently
situated on the property is a 672-square-foot one-bedroom
On June 30, 2015, Bond submitted to the Town Code Enforcement
Officer (CEO) an application for a building permit. Through
his application, Bond sought permission to construct two
twelve-foot by twelve-foot "accessory structures"
on the property. The site plan appended to Bond's
application proposed that the two structures, or "cubes,
" would be constructed twenty feet from the adjacent
property line. In the application, Bond represented that the
proposed development would increase the number of bedrooms on
the property from one to three. The application contains no
other information regarding Bond's proposed use for the
structures. A stamp reading "APPROVED" accompanied
by a handwritten notation on the first page of the
application indicates that the Town CEO granted Bond's
application on August 21, 2015.
On September 18, 2015, Appletree Cottage, LLC, the owner of
property abutting Bond's, appealed the CEO's grant of
the building permit to the Town Zoning Board of Appeals
(ZBA), arguing that the cubes were not "accessory
structures, " and therefore their construction would
violate the Town Zoning Ordinance. Prior to the ZBA hearing,
Bond submitted to the Board a written response to Appletree
Cottage's appeal in which he asserted that the cubes
would not be used purely as bedrooms; rather, they would be
used as needed to supplement the small size of the cottage.
Specifically, Bond asserted that, in addition to sleeping,
the cubes could also be used for hobbies, home entertainment,
or an office.
At the hearing on Appletree Cottage's appeal, the ZBA
heard testimony from Bond, counsel for Appletree Cottage, the
Town CEO, and a community member. Through his testimony, Bond
reiterated that the cubes would be used for "incidental
sleeping, " as well as for various other hobbies. The
CEO testified to the reasons why he approved the application;
namely, that because the cubes did not constitute
"dwelling units" as defined by the Ordinance, the
proposed structures were "accessory" and therefore
permissible within the RA District. See Cape
Elizabeth, Me., Zoning Ordinance §§19-1-3,
At the conclusion of the hearing, the ZBA issued factual
findings and affirmed the CEO's decision after
determining that the cubes constituted "accessory
structures" and were therefore permitted in the RA
District. See id. §§ 19-1-3, 19-6-l(B)(4).
Pursuant to M.R. Civ. P. 8OB Appletree Cottage filed a
complaint in the Superior Court seeking appellate review of
the ZBA's decision. Appletree Cottage asserted that the
ZBA erred in concluding that the cubes were "accessory
structures" as defined by the Zoning Ordinance and
challenged the Board's determination that the location of
the cubes, as depicted on the site plan, complied with the
Ordinance's set-back requirements.
The Superior Court rejected these arguments and affirmed the
ZBA's decision. Appletree ...