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JR Redemption Center Inc. v. City of Brewer

Superior Court of Maine, Penobscot

September 7, 2017



          William K. Anderson Justice, Maine Superior Court.

         Presently before the Court is Plaintiff JR Redemption Center, Inc.'s M.R. Civ. P. 80B Appeal, filed on January 12, 2017. Plaintiff filed its Brief on May 1, 2017. Defendant, City of Brewer, filed its Opposition to Plaintiffs Brief on May 22, 2017. Plaintiff filed its Reply Brief on June 2, 2017. After careful consideration of the parties' respective filings, the Court reverses the judgment of the City of Brewer Board of Appeals and remands the case for further proceedings consistent with the opinions expressed below.

         I. BACKGROUND

         The relevant facts underlying the present dispute can be briefly summarized as follows. In 1985, Plaintiff began conducting business as a redemption center at 151 South Main Street in Brewer, Maine. The building Plaintiff used to operate the redemption center burned down on or around 1992 or 1993. In 1993, Defendant sent a letter to Plaintiff stating that Plaintiff had previously agreed to remove certain trailers located on the property and that Plaintiff had not yet satisfied the agreement.

         No further action took place, and in 2011, Defendant attempted to have Plaintiff remove the trailers, but that action was delayed as Plaintiff and Defendant endeavored to come to an agreement. In 2016, the Code Enforcement Officer for Defendant issued

         Plaintiff a notice of violation alleging three specific violations. Plaintiff appealed the decision of the Code Enforcement Officer to the Board of Appeals, which held a hearing on December 7, 2016. At the hearing, the Board voted, five to zero, in favor of upholding the decision of the Code Enforcement Officer. This appeal concerns only one on the violations: that] R altered or expanded an originally approved use without approval of the city. The Board later issued its written decision, confirming the vote in favor of the Code Enforcement Officer, which specifically found that:

2. The Appellant presented the testimony of manager Ben Gould, but his testimony was not helpful or convincing on the key facts in issue, some of which related to events occurring a number of years ago. Although we understand that one of the long-time owners, Mrs. Mona Gould, Ben's mother, has died, Mr. Sails is alive, involved in the business and knowing that the historical uses and understandings would be an issue, he elected not to be present. We draw no adverse inference from his absence but it may be a part of the reason why Appellant failed to meet its burden.
3. The City presented documentary evidence, including a letter from then Code Enforcement Officer, Donald Grant, to Mr. Sails, dated September 8, 1993. That letter expressly refers to an assurance given by the business and Mr. Sails that the storage trailers would be promptly removed. Had the business disagreed with the order to remove the trailers, it could have resorted to the Board of Appeals process. There is no evidence it ever did so and we must therefore conclude that the letter of September 8, 1993 is final and binding on the issue of lack of right to have storage trailers.
4. Although the case is circumstantial, the most likely explanation for the presence of storage trailers on the property is the fire around 1992 which destroyed the wooden building and effectively put ]R Redemption out of business. The City most likely allowed the trailers on a temporary basis (despite a 1992 ordinance prohibiting outside storage at redemption centers), to keep the business going during the rebuild on the express understanding, referred to in Mr. Grant's letter, that they would be removed when the rebuild was complete and the certificate of occupancy for the new building issued. Removal never happened and there was in fact an increase in the amount of unregistered trailers over time.
5. No written site plan from that time frame was found or presented to the Board, but consistent with the more informal manner things were done up to thirty years ago, it is clear that the property owner had either presented a written document which has been misplaced, or had entered into a binding agreement with the City as to the nature of the use. That use did not include unregistered storage trailers.
6. While the City has let this matter persist for twenty-five years, the Appellant gained no legal or grandfathered rights, since the use of storage trailers for outside storage was barred by the 1992 ordinance, or otherwise foreclosed by the failure to appeal the September 1993 order from the CEO. While the business existed in some form going back to 1985, the Board was not convinced based on the evidence presented that box storage trailers were a part of the business at that time. In that respect he [sic] Board considered the testimony of Mr. Dearborn and also considered the photograph from 1991 which the Appellant introduced, the only one dating back prior to the 1992 ordinance. The next photograph in the sequence, from 1997, shows both the new building and the presence of trailers which can't be seen and appreciated in the 1991 photograph. The Board also noted that the old wooden building appeared to have significantly more floor space than the building constructed after the fire. As noted above, the Board also gave no weight to the testimony of Mr. Ben Gould on this point, given his age at the time, and lack of knowledge on those points.

(R. 34-36.) Plaintiff timely filed this appeal.


         In an M.R. Civ. P. 80 B appeal, the Court reviews a municipality's decision for abuse of discretion, errors of law, or factual findings unsupported by substantial evidence in the record. Wyman v. Town of Phippsburg,2009 ME 77, ¶ 8, 976 A.2d 985. A party seeking to vacate a state or local agency decision bears the burden of persuasion on appeal. Bizier v. Town of Turner, 2011 ME 116, ¶ 8, 32 A.3d 1048. Questions of law are reviewed de novo standard, Gensheimer v. Town of Phippsburg,2005 ME 22, ¶ 16, 868 A.2d 161, while questions of fact are reviewed under the clear error ...

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