Argued: June 14, 2018
E. Sandy, Jr., Esq. (orally), Sherman & Sandy,
Waterville, for appellants James Landherr and Valerie Center
M. Sanders, Esq. (orally), Sanders & Hanstein,
Farmington, for appellee Town of Mount Vernon
SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and
James Landherr and Valerie Center, whom we refer to as the
landowners, appeal from a judgment entered by the District
Court (Waterville, Stokes, j.) in favor of the Town
of Mount Vernon on its land use violation complaint filed
pursuant to 30-A M.R.S. § 4452 (2017) and M.R. Civ. P.
8OK. The dispute between the landowners and the Town centers
on a relatively large generator that the landowners had
installed on their small lot on Minnehonk Lake before seeking
a permit or a variance.
Prior to the proceedings before us, on appeal from a decision
of the Town's code enforcement officer, the Mount Vernon
Board of Appeals determined that the landowners'
generator was a "structure" pursuant to the
Town's Land Use Ordinance. When the landowners did not
appeal that decision and yet failed to comply with the
Town's request for the removal of the generator because
that structure was placed on the lot in violation of the
Ordinance, the Town filed a land use violation complaint. The
court determined that the previous decision of the Board of
Appeals was res judicata as to whether the generator met the
definition of "structure" in the Town's Land
Use Ordinance and found the landowners in violation of the
Ordinance, assessing a penalty and attorney fees. We affirm
the judgment of the court.
In early 2015, after experiencing a number of power outages,
the landowners installed a generator on their lakefront
property. The generator was set on a concrete pad and was
connected to the house by underground electric and gas lines.
The landowners did not consult with the Town or apply for a
permit before installing the generator.
The Town's Land Use Ordinance requires that all new and
accessory "structures" be set back at least 100
feet from the normal high-water line of any great pond within
the shoreland zone. Mount Vernon, Me., Land Use Ordinance
§ 5(C)(2)(a) (June 13, 2015). The Ordinance further
provides that "[n]o person shall engage in any activity,
land use, or placement of a structure ... requiring a permit
in the district in which such activity or use would occur ...
without first obtaining a permit." Id. §
11(B). There is no dispute that the landowners' generator
was placed less than 100 feet from the lake.
On July 15, 2015, the Town's CEO sent a letter to the
landowners advising them that "[a] 11 structures located
in a shoreland district require a permit" and stating
that a generator on their property appeared to be in
violation of the Ordinance's setback requirements. The
letter ordered them to either remove the generator or apply
for a permit on or before August 10, 2015.
The landowners filed an application for an after-the-fact
permit to maintain the generator in its location. By letter
dated August 12, 2015, the CEO denied the permit, stating
that "the structure is nonconforming from side, front
and rear setbacks on the lot." The CEO provided the
landowners with instructions for appealing his decision and
applications for hardship and administrative variances. They
timely appealed the CEO's denial of their permit to the
Mount Vernon Board of Appeals, arguing that their generator
was not a "structure" as defined by the Town's
Land Use Ordinance.
[¶7] In September 2015, the Board of Appeals held a
public hearing on the appeal. The landowners attended the
hearing, where they were provided an opportunity to argue
their position. At the conclusion of the hearing, the Board
of Appeals unanimously voted to uphold the CEO's decision
and issued a written decision concluding that the generator
was a "structure" after finding that "the
generator sits on a pad, has underground propane pipes and
[a] power line, and was intended to remain in place."
The landowners did not appeal the decision of the Board of
Appeals to the Superior Court. See 30-A M.R.S. §
269l(3)(G) (2017); M.R. Civ. P. 8OB.
Approximately one month later, the CEO sent a letter
requesting that the landowners agree in writing to either
remove the generator by November 30, 2015, or incur a penalty
for every day after November 30 that the generator remained
in violation of the Ordinance. On November 11, 2015, after
the landowners failed to respond to his letter and the time
for filing an appeal had expired, the CEO sent them a notice
of violation pursuant to 30-A M.R.S. § 4452, requiring
the landowners to sign and return a consent agreement, which
would require that they pay a $1, 000 fine and remove the
generator by November 30. The notice stated that they
"must notify the Code Enforcement Officer when
corrective action is taken so that a compliance check may be
made" and warned that a failure to comply would
"result in court action." (Emphasis in original.)
The landowners responded with an email to the CEO,
acknowledging the notice of violation and stating that they
planned to ...