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Eugene & Judith Molinelli v. Town of Boothbay

Superior Court of Maine, Lincoln

February 4, 2019

EUGENE & JUDITH MOLINELLI, Plaintiffs,
v.
TOWN OF BOOTHBAY, Defendant.

          Attorney: Judy Metcalf, Sally Daggett.

          ORDER ON PLAINTIFFS' RULE 80B APPEAL

          Daniel I. Billings, Justice.

          This 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 against them.

         BACKGROUND

         Eugene 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.[1] 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 provisions.

         The area that the Molinellis assert a view easement over are described as the mowed meadow, [2] 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.

         The 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.

         This 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.

         The 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.

         On May 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 3.11.3.2.1 of the ZO: A licensed forester was not used to determine what vegetation could be removed.
#4. Violation of Section 3.11.3.2.1.2.1 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 3.11.3.2.1.2.2 of the ZO: "Other natural vegetation" was not maintained.
#6. Violation of Section 3.11.3.2.1.3 of the ZO: Undergrowth and ground cover less than three feet (3') in height was not maintained.
#8. Violation of Section 3.11.3.2.1.5 of the ZO: None of the trees removed were determined to be storm damaged, diseased or dead.
#10. Violation of Section 3.11.3.2.5 and Section 3.11.8.1 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 Section 3.11.3.
#11. Violation of Section 3.9.7.1.3.2 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 3.11.3.

         STANDARD OF REVIEW

         In an 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 863.

         A 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.

         DISCUSSION

         I. The Record to be Considered on Appeal.

         Preliminarily, 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. Id.

         First, 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 3.11.[3] apply.

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.

         In 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.

         In 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. ...


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