Attorney: Judy Metcalf, Sally Daggett.
ORDER ON PLAINTIFFS' RULE 80B APPEAL
I. Billings, Justice.
matter is before the Court on Plaintiffs' Rule 80B
Appeal. Plaintiffs contend that the Town of Boothbay Board of
Appeals erred by upholding Notice of Violations issued
and Judith Molinelli ("the Molinellis") purchased
66 Sawyers Island Road from the Lewis family in 2007.
PL's Br. 1. Their deed includes, and they assert, a view
easement of the Sheepscot River that is across the road from
their property and over a portion of property across the
street, 65 Sawyers Island Road, that used to be owned by the
Lewis's. PL's Br. 1-2. Peter and Kathryn Wagner
(the "Wagners") purchased 65 Sawyers Island Road
from the Lewis's in 2012. Def.'s Br. 1. Before the
Wagners bought the property, the Lewis's had maintained
the vegetation more or less in accordance with the easement.
R. 130. After the Wagners purchased the property a dispute
arose about the scope of the view easement. R. 130. 65
Sawyers Island Road is located within the Special Residential
zoning district, and a portion of it is also located within
the Shoreland Overlay zoning district. R. 27. This means that
the Shoreland Zoning Ordinance (ZO), section 3.11.3
pertaining to the clearing or removal of vegetation, applies
to the Wagners' property. The ZO provides an exemption
from the vegetation clearing and removal technicalities for
property within the Shoreland Overlay zoning district that
has been consistently maintained. If the property has not
been maintained, it is considered to have reverted back to
its natural state and is subject to the Shoreland ZO
area that the Molinellis assert a view easement over are
described as the mowed meadow,  the steep slope shoreline, and
the understory. R. 133-43. In 2013, the Wagners hired a
landscape architect, Sarah Witte, to develop a maintenance
plan that would be consistent with both the Shoreland ZO and
the Molinellis' view easement. R. 262. Peter Wagner
testified before the BOA that Sarah Witte told him that the
meadow had not reverted, but that the understory and the
steep slope shoreline may have reverted. R. 263.
Town of Boothbay's ("the Town") Code
Enforcement Officer ("CEO") became involved in
January 2014 when the Wagners and the Molinellis could not
agree on the maintenance to be performed on the Wagners'
property. R. 123. After a site visit at the property with
former-CEO Dan Breyer, the Molinellis hired their own
forester to create a Vegetation Maintenance Plan
("VMP"). R. 213. In July 2015, the Wagners
completed maintenance of the view easement per Sarah
Witte's report and notified then-CEO Art Dunlap that it
was complete. R. 262. In September 2015, the Molinellis
conducted additional cutting on the property, prompting a
letter from CEO Dunlap to the Molinellis directing them to
stop any cutting of steep slope and understory until certain
zoning requirements were met. R. 262, 110-11. CEO Dunlap
further indicated that future cutting would have to be
according to a plan filed with, and approved by, his office
before cutting occurred. R. 111.
correspondence caused two additional VMPs to be created by
the Molinellis' forester, which were reviewed by an
employee of the Department of Environmental Protection, and
sent to CEO Dunlap. R. 214. This process lasted from
September 2015 through September 2017. R. 110, 148. The
Molinellis' lawyer, Attorney Pottle, represents that CEO
Dunlap told him that the third VMP was acceptable. R. 214-15.
The Town contends that the plan may have been submitted to
the CEO in September 2017, but no CEO had ever approved any
version of the Molinellis' VMPs. R. 238. In November
2017, the Molinellis hired a licensed arborist to perform
maintenance of the steep slope and understory. R. 217. The
Molinellis did not seek a permit from the Town for this
activity. R. 234.
Town's new CEO, Jason Lorrain, was informed of this
maintenance after it occurred and visited the site on
November 13, 2017. R. 27. CEO Lorrain issued 11 Notice of
Violations (NOVs) to both the Molinellis and the Wagners on
December 21, 2017. R. 27-31. The Molinellis appealed the NOVs
to the Boothbay Board of Appeals (BOA) on January 18, 2018.
R. 20-22. The appeal hearing was postponed to allow for
settlement discussions but no settlement happened. R. 234-35.
The Molinellis hired another licensed forester, Steve
Pelletier, who went to the site in February 2018 with CEO
Lorrain and Sarah Witte to review the cutting. R. 220.
21, 2018, the BOA held a hearing on the Molinellis'
appeal of the NOVs. R. 204-306. Attorney Pottle, forester
Steve Pelletier, CEO Lorrain, Peter Wagner, and the
Town's attorney, Sally Daggett, all testified. The BOA
heard evidence about what Pelletier and Lorrain observed on
the property, whether the property had reverted, when cutting
occurred, and whether any "trees" as defined by the
ZO were cut. Ultimately, the BOA upheld eight of the eleven
NOVs (1, 4, 5, 6, 7, 8, 10, and 11). R. 305. The BOA issued a
three-and-a-half-page written decision with Findings of Fact
on May 29, 2018. R. 314- 17. It specifically made findings
that at least one tree had been cut, vegetation was cut below
three feet, and that the steep slope and the understory had
reverted. R. 314-17. This Rule 80B appeal timely followed.
The Molinellis do not appeal the BOA upholding NOV #7. The
NOVs being appealed are the following:
#1. Violation of Section 18.104.22.168.1 of the ZO: A licensed
forester was not used to determine what vegetation could be
#4. Violation of Section 22.214.171.124.1.2.1 of the ZO: Cutting
did not follow the required point system for trees to remain
within seventy-five feet (75') of the high water line of
the Sheepscot River.
#5. Violation of Section 126.96.36.199.1.2.2 of the ZO:
"Other natural vegetation" was not maintained.
#6. Violation of Section 188.8.131.52.1.3 of the ZO: Undergrowth
and ground cover less than three feet (3') in height was
#8. Violation of Section 184.108.40.206.1.5 of the ZO: None of the
trees removed were determined to be storm damaged, diseased
#10. Violation of Section 220.127.116.11.5 and Section 18.104.22.168 of
the ZO: Any former cleared opening had reverted to primarily
shrubs, trees, or other woody vegetation and must now be
allowed to continue its regrowth and meet the requirements of
#11. Violation of Section 22.214.171.124.3.2 of the ZO: The Land Use
Table requires a permit from the CEO to clear vegetation in
the Shoreland Overlay portion of the Special Residential
Zoning District and such clearing must comply with Section
appellate capacity, the Superior Court reviews a
municipality's decision directly for errors of law,
findings not supported by the evidence in the record, or an
abuse of discretion. Tenants Harbor Gen. Store, LLC v.
Dep't of Envtl. Prot., 2011 ME 6, ¶ 8, 10 A.3d
722. The party asserting an error in a Rule 80B appeal bears
the burden of showing that error before the court.
Quiland, Inc. v. Wells Sanitary Dist, 2006 ME 113,
¶ 16, 905 A.2d 806. A decision is supported by
substantial evidence "when a reasonable mind would rely
on that evidence as sufficient support for a
conclusion." Phaiah v. Town of Fayette, 2005 ME
20, ¶ 8, 866 A.2d 863 (quotations omitted) (citing
Forbes v. Town of Southwest Harbor, 2001 ME 9,
¶ 6, 763 A.2d 1183). The court may not substitute its
judgment for that of the board, and may not determine that a
board's decision is wrong "because the record is
inconsistent or a different conclusion could be drawn from
it." Phaiah, 2005 ME 20, ¶ 8, 866 A.2d
planning board's interpretation of an ordinance is a
question of law that the court reviews de novo. Aydelott
v. City of Portland, 2010 ME 25, ¶ 10, 990 A.2d
1024 (citing Logan v. City of Biddeford, 2006 ME
102, ¶ 8, 905 A.2d 293). The court must "examine
the plain meaning of the language of the ordinance" and
reasonably construe its terms "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 Record to be Considered on Appeal.
the Town objects to the Record filed by the Molinellis as not
containing all the information that was before the BOA, and
also including some information that was not before the BOA.
In a Rule 80B action, "review shall be based upon the
record of the proceedings before the governmental
agency." M.R. Civ. P. 80B(f). If the agency's
decision was based on a municipal ordinance, then a copy of
the relevant sections must be included in the record.
Id. (e)(2). If the parties cannot agree on the
Record, then the dispute is submitted to the Court.
the Town argues that the Record doesn't include some
sections of the 2017 ZO that should have been included. The
Molinellis do not object to the additional sections of the ZO
being included. Second, the Town argues that the Record
includes documents that were not presented to, or referenced
by, the BOA: the 2014 and 2016 ZOs. The 2016 and 2017 ZOs
provide an exemption to the clearing and vegetation removal
requirements. R. 324, 351. That exemption, section 3.11.8,
provides that the vegetation removal standards set forth in
section 3.11.3 do not apply to:
[t]he removal of vegetation that occurs at least once every
two (2) years for the maintenance of legally existing areas
that do not comply with the vegetation standards in this
chapter. ... If any of these areas, due to lack of removal of
vegetation every two years (2) reverts back to primarily
woody vegetation, the requirements of Section
R. 324, 351. The 2014 ZO is silent on this exemption. The
Town argues that because the BOA did not have the 2014 and
2016 ZOs before them, or even reference them during the
hearing or in their discussions, that they were not
"before the governmental agency" as required by
Rule 80B(f) and therefore should be excluded from the Record.
response, the Molinellis argue that the ZO is relevant to the
issue of grandfathering and vegetation reversion, which the
BOA decided, and therefore the sections are required to be in
the Record. The Molinellis make this assertion despite never
arguing before the BOA that an earlier version of the ZO
applied to these NOVs. The Town is correct that the earlier
ZOs were not presented to, or referenced by, the BOA during
the hearing or in its decision-making process. In fact,
before the BOA, Attorney Pottle stated "I do want to
point [sic] the reversion issue right now is a two-year time
frame, it's not one year, it's two," R. 248, and
then directed the BOA to the 2017 ZO. Although he did state
that the issue has been ongoing since 2012, he never pointed
to an earlier ZO as applicable to this dispute.
Boutet v. Town of Old Orchard Beach, the Superior
Court (York County, O'Neil, J.) was presented
with a defendant's motion to strike documents from the
record on a Rule 80B appeal. No. AP-15-8, 2015 Me. Super.
LEXIS 250 at *1 (Oct. 16, 2015). The defendant contended that
certain documents were not before the Planning Board as
contemplated by M.R. Civ. P. 80B(e)(2), and therefore could
not be part of the record on appeal per M.R. Civ. P. 80B(f).
Id. at *2. Although the documents were not squarely
before the Planning Board in its hearing, the court pointed
out that the Board "drafted, considered, or was aware of
each item in granting either the original approval in 1988 or
subsequent amendments and relief to  developers over the
years." Id. ...