ORDER ON PLAINTIFFS' 80B APPEAL
William K. Anderson Justice, Maine Superior Court.
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
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.
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
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
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.
STANDARD OF REVIEW
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 ...