Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Vernon v. Landherr

Supreme Court of Maine

July 24, 2018

TOWN OF MOUNT VERNON
v.
JAMES LANDHERR et al.

          Argued: June 14, 2018

          Robert E. Sandy, Jr., Esq. (orally), Sherman & Sandy, Waterville, for appellants James Landherr and Valerie Center

          David M. Sanders, Esq. (orally), Sanders & Hanstein, Farmington, for appellee Town of Mount Vernon

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

          SAUFLEY, C.J.

         [¶l] 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.

         [¶2] 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.

         I. BACKGROUND

         [¶3] 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.

         [¶4] 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).[1] 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.

         [¶5] 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.

         [¶6] 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.[2] See 30-A M.R.S. § 269l(3)(G) (2017); M.R. Civ. P. 8OB.

         [¶8] 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.