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Plourde v. Town of Casco

Superior Court of Maine, Cumberland

December 20, 2017

BRANDON R. PLOURDE and CHARISSA A. PLOURDE, Plaintiffs
v.
TOWN OF CASCO, DANIEL VALLEE, and HUGH SOLARI, Defendants

          DECISION AND ORDER

          Nancy Mills Justice, Superior Court.

         Before the court is plaintiffs Brandon R. Plourde and Charissa A. Plourde's Rule 80B appeal challenging defendant Town of Casco's denial of a building permit to construct a dock. For the following reasons, the court affirms the decision of defendant Town of Casco Zoning Board of Appeals.

         FACTS AND BACKGROUND

         Plaintiffs own property at 32 Garland Road in the town of Casco, Maine. (R. 11, 120.) This property is located in what is known as the Sebago Lake Shores subdivision. (R. 11.) Within this subdivision is an area known as "Parkland, " which consists of a shoreline common area designated to benefit all subdivision owners within the Sebago Lake Shores subdivision. (R. 17, 55.)

         In 2016, plaintiffs acquired a dock from the Kennedy family. (R. 39.) This dock was located on parkland property and in 2005 the Kennedy family had been issued a building permit allowing construction of the dock. (R. 42.) The 2005 building permit lists the relevant lot as lot 109 on map 20. (R. 42.) At the time of the issuance of the 2005 permit, and throughout their ownership of the dock, the Kennedy family owned property within the subdivision located at 48 Acadia Road. (R. 36, 39, 44.) After selling their dock to the plaintiffs, the Kennedy family sold their property to a separate party. (R. 39, 44.)

         On December 9, 2016, Anna Gould, the new owner of the Kennedy property, filed a complaint with the Town of Casco regarding the dock. (R. 39, 43.) On that same day, the Town's Code Enforcement Officer (CEO) conducted an inspection and determined that the existing dock was in violation of certain sections of the Town's zoning ordinance. (R. 44.) On December 12, 2016, the CEO, unable to ascertain the new owner of the dock, issued a Notice of Violation and Stop Work Order to the Sebago Lake Shores Association ordering the removal of the dock and invalidating the dock's permit. (R. 39, 44-45.) In the Notice, the CEO specifically cited as violations the facts that the dock was too wide, that the permit had been issued to the prior owner of 48 Acadia Road, and that the dock appeared to be a permanent dock instead of a temporary dock as allowed by the permit.[1] (R. 44.) The CEO also stated that a failure to appeal the order would result in the loss of the right to challenge the decision. (R. 45.)

         On March 17, 2017, after receiving notice that the dock was in violation of the Zoning Ordinance, plaintiffs filed an application with the Town to construct a "new temporary dock on association parkland." (R. 1, 39.) Plaintiffs intended the dock to remain in the same location as the former dock. (R. 39.) The CEO issued a permit for the temporary dock on March 31, 2017. (R. 1.) The lot associated with the 2017 permit is lot 48 on map 22. (R. 1.) On April 27, 2017, Defendants Daniel Valle and Hugh Solari filed an appeal with the Town's Zoning Board of Appeals to contest the issuance of the permit. (R. 4-5.)

         On June 26, 2017, the Board held an evidentiary hearing during which the Board heard presentations from defendants, plaintiffs, and other members of the public. (R. 112-18.) At the conclusion of the hearing, the Board upheld the appeal and overturned the CEO's issuance of the permit. (R. 118.) In its written decision, the Board determined that: (1) because the prior dock permit was not issued to the predecessors in title of plaintiffs' property located at 32 Garland Road, but was instead issued to the owners of a different parcel located at 48 Acadia Road, plaintiffs' application was for a new dock and not a replacement dock[2]; and (2) plaintiffs had located their dock in a beach area and thus violated the Town's Zoning Ordinance. (R. 120-21.)

         STANDARD OF REVIEW

         Because the Town of Casco Zoning Board of Appeals conducted a de novo review by hearing evidence and deciding facts, the Board's decision is the operative decision subject to judicial review by the Superior Court. See Aydelott v. City of Portland, 2010 ME 25, ¶¶ 9-10, 990 A.2d 1024. The court reviews the decision of the Board for errors of law, abuse of discretion, or findings not supported by substantial evidence in the record. Veilleux v. City of Augusta, 684 A.2d 413, 415 (Me. 1996). The court will not "weigh the merits of evidence or substitute [its] judgment for that of the agency." Watts v. Board of Environmental Protection, 2014 ME 91, ¶ 11, 97 A.3d 115. "Substantial evidence exists if there is any competent evidence in the record to support a decision." 21 Seabran. LLC v. Town of Naples, 2017 ME 3, ¶ 10, 153 A.3d 113.

         The interpretation of an ordinance is a question of law that the court reviews de novo. Ayddott, 2010 ME 25, ¶ 10, 990 A.2d 1024. The court examines "the plain meaning of the language of the ordinance and [the court] construe[s] its terms reasonably in light of the purposes and objectives of the ordinance and its general structure." Stewart v. Town of Sedgwick, 2002 ME 81, ¶ 6, 797 A .2d 27. The court will not interpret an ordinance in a manner that creates "absurd, inconsistent, unreasonable or illogical results." Banks v. Maine RSA #1, 1998 ME 272, ¶ 4, 721 A.2d 655. While interpretation is a question of law, substantial deference is accorded to local characterizations or fact-finding regarding what meets ordinance standards. Rudolph v. Golick, 2010 ME 106, ¶ 8, 8 A.3d 684.

         DISCUSSION

         Plaintiffs' appeal concerns two central issues. First, plaintiffs contend that the Zoning Board of Appeals erred when it found that the plaintiffs' dock was not a grandfathered nonconforming dock. Second, plaintiffs argue that, even if the dock did not have grandfathered status, the Board erred when it found that the dock did not meet ordinance standards.

         1. Non-Conforming ...


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