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Cape Shore House Owners Association v. Town of Cape Elizabeth

Supreme Court of Maine

June 4, 2019


          Argued: April 9, 2019

          William H. Dale, Esq. (orally), and Mark A. Bower, Esq., Jensen Baird Gardner & Henry, Portland, for appellants Cape Shore House Owners Association and Constance Jordan.

          John J. Wall, III, Esq. (orally), Monaghan Leahy, LLP, Portland, for appellee Town of Cape Elizabeth.

          David M. Kallin, Esq. (orally), Drummond Woodsum, Portland, for appellees Alan DeGeorge and Mara DeGeorge



          HJELM, J.

         [¶l] In this zoning dispute between owners of abutting parcels of property located in Cape Elizabeth, Cape Shore House Owners Association and Constance Jordan (collectively, Cape Shore) appeal from a judgment of the Superior Court (Cumberland County, L. Walker, J.) dismissing their claim for a declaratory judgment. Because the court did not err by dismissing that claim as duplicative of Cape Shore's appeal from municipal action filed pursuant to Maine Rule of Civil Procedure 8OB, which was included in the same complaint, we affirm the judgment.

         I. BACKGROUND

         [¶2] The following facts are drawn from the administrative and procedural records. See Appletree Cottage, LLC v. Town of Cape Elizabeth, 2017 MEI77, ¶2, l69A.3d396.

         [¶3] Cape Shore owns a parcel of land that abuts a parcel owned by Alan and Mara DeGeorge. In May of 2017, the DeGeorges applied to the Cape Elizabeth Zoning Board of Appeals for permission to raze an existing house located on their property and to build a new one. The house they wanted to remove was a nonconforming structure, see Cape Elizabeth, Me., Zoning Ordinance § 19-1-3 (Nov. 5, 2016) (defining nonconforming building), and was located within Cape Elizabeth's Shoreland Performance Overlay District (SPOD), see id. § 19-6-ll(A).

         [¶4] Later that month, the ZBA conducted a hearing on the DeGeorges' application. At the hearing, the DeGeorges presented evidence that the replacement house would be within the footprint of the existing building but would include a new, partial third story that would increase the existing building's elevation by seven feet, to approximately thirty feet.[1] Testifying at the hearing as an abutting property owner, Cape Shore asserted that because the DeGeorges sought to replace a nonconforming building located within the SPOD with a new structure that was larger in some respects, the ZBA was required to consider the effect that the proposed construction would have on views, see id. § 19-4-4(B)(1) to (3). On that basis, Cape Shore opposed the DeGeorges' application because, it contended, the increased height of the proposed structure would "greatly affect" its views, including its view of the water. At the conclusion of the hearing, the ZBA unanimously approved the DeGeorges' application.

         [¶5] Following the issuance of the ZBA's decision, Cape Shore filed what became a three-count complaint against the Town of Cape Elizabeth and the DeGeorges.[2] Count 1 was a request for judicial review of the ZBA's approval of the DeGeorges' application. See M.R Civ. P. 8OB. In Count 2, Cape Shore asserted an independent claim for a declaratory judgment that section 19-6-ll(E)(2) of the Cape Elizabeth Zoning Ordinance, which provides a thirty-five-foot height restriction for expansions of nonconforming buildings within the SPOD, is preempted by a provision of the state's Mandatory Shoreland Zoning Act (MSZA), 38 M.R.S. § 439-A(4)(C)(1) (2018), which, Cape Shore contends, restricts the expansion of nonconforming structures within seventy-five feet of the shore to twenty-feet high or the height of the existing building. Count 3 of Cape Shore's complaint asserted a tort claim against the DeGeorges for trespass.

         [¶6] The DeGeorges filed a motion to dismiss the claim for a declaratory judgment in Count 2 as duplicative of the Rule 8OB appeal in Count 1 because the relief sought in Count 2 "would be available as part of the direct review under 8OB, ... [and therefore] 8OB provides the exclusive method of review." The DeGeorges also moved for the court to dismiss Count 3, arguing that a claim for trespass is not an independent claim that may be joined with a Rule 8OB appeal, see M.R. Civ. P. 8OB(i). Over Cape Shore's objection, the court granted the DeGeorges' motion and dismissed Count 2 as duplicative of Count 1. The court also granted the DeGeorges' motion to dismiss Count 3, leaving only Cape Shore's Rule 8OB appeal of the ZBA's decision to be adjudicated. In a separate order issued later, the court affirmed the ZBA's decision to approve the DeGeorges' application and entered judgment against Cape Shore on Count 1. Cape Shore filed a timely notice of appeal. See 14 M.R.S. § 1851 (2018); M.R. Civ. P. 8OB(n); M.R. App. P. 2B(c).

         II. ...

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