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Fissmer v. Town of Cape Elizabeth

Supreme Court of Maine

September 19, 2017

LESLIE FISSMER et al.
v.
TOWN OF CAPE ELIZABETH et al.

          Submitted On Briefs: June 29, 2017

         Cumberland County Superior Court docket number AP-2016-32

          John B. Shumadine, Esq., Murray, Plumb & Murray, Portland, for appellant Leslie Fissmer

          Alan Atkins, Esq., Alan R. Atkins & Associates, Portland, and Aaron Mosher, Esq., Mosher Law Firm, LLC, Portland, for appellee Cunner Lane LLC

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

          HJELM, J.

         [¶1] Leslie Fissmer, individually and as trustee of the Leslie S. Fissmer Revocable Trust (collectively, Fissmer), appeals from a judgment of the Superior Court (Cumberland County, L. Walker, J.) affirming a decision of the Cape Elizabeth Zoning Board of Appeals, which in turn determined that the Cape Elizabeth Code Enforcement Officer had properly issued a building permit to Cunner Lane LLC.[1] Fissmer, an abutting property owner, [2] argues that the ZBA erred by determining that a Declaration of Covenants applicable to Cunner Lane LLC's property satisfied a requirement of the Cape Elizabeth Zoning Ordinance that "legally binding arrangements exist to provide for the long-term maintenance of [a private] road" before a permit can be issued allowing construction on a parcel located on that road. Cape Elizabeth, Me., Zoning Ordinance § 19-7-9(A)(2) (Sept. 11, 2014).[3] Although we treat the CEO's decision as the operative one, we agree that there is no evidence in the record showing that the permit application met the requirements of section 19-7-9(A)(2). We therefore vacate the judgment and remand for the CEO to deny the application.

         I. BACKGROUND

         [¶2] The following facts, which are not disputed, are established in the administrative record.

         [¶3] In 1998, David D. Smith acquired a 7.6-acre parcel of land located in Cape Elizabeth at 21 Cunner Lane, a private road. In February 2010, Smith conveyed a 2.4-acre portion of his parcel to Cunner Lane LLC. The address of the newly created parcel is 19 Cunner Lane. Smith retained the remaining portion of his parcel at 21 Cunner Lane. As shown on a boundary survey, Cunner Lane begins where it intersects with a public way and continues for some distance, passing other parcels, before it reaches and abuts the parcels at 19 and 21 Cunner Lane.

         [¶4] Also in February 2010, the Cape Elizabeth Code Enforcement Officer confirmed to Smith in writing that "the 2.4 acre parcel ... may be created and conveyed out so long as" the grantee, Cunner Lane LLC, satisfied section 19-7-9 (A) of the Zoning Ordinance. That provision would require that the private road-Cunner Lane-leading to the new parcel "provides adequate all-season emergency access for the existing and proposed use, " Cape Elizabeth, Me., Zoning Ordinance § 19-7-9(A)(1), and that "legally binding arrangements exist to provide for the long-term maintenance of the road." Id. § 19-7-9(A)(2).

         [¶5] In March 2010, the CEO sent Smith a second letter stating that he and the Town's Fire Chief had inspected Cunner Lane "in conjunction with section 19-7-9" and had determined that, "in its current condition, " Cunner Lane provided "adequate ... emergency access" to the "proposed" new parcel, but that to accommodate "large fire equipment" a driveway and turn-around would have to be installed "prior to occupancy of any future dwelling" and would have "to be included in the long-term [road] maintenance agreement."

          [¶6] The next month, Smith executed and recorded a "Declaration of Covenants with Respect to Road Maintenance" that subjected the "parcel of land located at 21 Cunner Lane"-described as encompassing the entire lot conveyed to Smith in 1998, including the new lot at 19 Cunner Lane-to several "covenants running with the land, " including the following: "The Undersigned hereby agrees to provide for the maintenance and repairs necessary to keep that portion of Cunner Lane abutting the Property passable on foot and by motor vehicles, including without limitation, the emergency vehicles of the Town of Cape Elizabeth, including grading, snowplowing, sanding and trimming of vegetation." (Emphasis added.) The Declaration further stated that Smith agreed to install the improvements identified in the CEO's March 2010 letter "prior to the occupancy of any future dwelling" located on the parcel.

         [¶7] Five years later, in April 2015, Cunner Lane LLC applied for a building permit to construct a "new single family dwelling" on its 2.4-acre parcel located at 19 Cunner Lane. The Town's new CEO approved the application except for one ...


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