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Appletree Cottage, LLC v. Town of Cape Elizabeth

Supreme Court of Maine

August 8, 2017

APPLETREE COTTAGE, LLC
v.
TOWN OF CAPE ELIZABETH

          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.

          John J. Wall, III, Esq., Monaghan Leahy, LLP, Portland, for appellant Town of Cape Elizabeth.

          Panel: SAUFLEY, C.J., and ALEXANDER, GORMAN, JABAR, and HJELM, JJ.

          JABAR, J.

         [¶1] 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.

         I. INTRODUCTION

         [¶2] The following facts are supported by evidence in the record.[1] 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).[2] Currently situated on the property is a 672-square-foot one-bedroom cottage.

         [¶3] 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.

         [¶4] 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.[3] 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.

         [¶5] 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, 19-6-l(D).

         [¶6] 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.

         [¶7] The Superior Court rejected these arguments and affirmed the ZBA's decision. Appletree ...


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