CAPE SHORE HOUSE OWNERS ASSOCIATION et al.
TOWN OF CAPE ELIZABETH et al.
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.
J. Wall, III, Esq. (orally), Monaghan Leahy, LLP, Portland,
for appellee Town of Cape Elizabeth.
M. Kallin, Esq. (orally), Drummond Woodsum, Portland, for
appellees Alan DeGeorge and Mara DeGeorge
SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and
REPORTER OF DECISIONS
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.
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.
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).
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. 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.
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. 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
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).