Opinion
AP-23-31
11-16-2023
CARTER V. C. BECKER, Petitioner, v. TOWN OF FREEPORT, Respondent, and MICHAEL DELAHUNT and KATHY A. DONNELLY DELAHUNT, Parties-in-Interest.
Petitioner-David Silk, Esq./Robert Papazian, Esq. Respondent-Melissa Hewey, Esq.
Petitioner-David Silk, Esq./Robert Papazian, Esq.
Respondent-Melissa Hewey, Esq.
Parties-In-Interest-No appearance as of order
ORDER ON PENDING MOTIONS
Deborah P. Cashman Justice
Before the Court are Petitioner's Motion for Enlargement of Time Period to File Administrative Appeal and Motion for Trial of the Facts and to Specify Future Course of Proceedings. Neither Respondent Town of Freeport ("Town") nor Parties-in-Interest Michael Delahunt and Kathy Donnelly Delahunt ("the Delahunts") filed opposition to these motions. For the reasons discussed below, Petitioner's Motion for Enlargement is GRANTED and the matter is REMANDED to the Town of Freeport's Board of Appeals. Decision on Petitioner's Motion for Trial of the Facts and to Specify Course of Proceedings is deferred pending the outcome of the Board's decision on remand.
I. Background
In the absence of a record or oppositional filings, for purposes of these motions the Court draws the relevant factual and procedural background from the complaint.
Petitioner owns a lot at O Shore Drive in Freeport, which abuts the Delahunts's property at 11 Shore Drive. Presently, O Shore Drive is undeveloped, and 11 Shore Drive is developed as the Delahunt's single-family home. In 2022, Petitioner sought a building permit to construct a single-family home at O Shore Drive, but the Delahunts opposed the permit on the basis that O Shore Drive lost its legal nonconforming status when the lot lines were altered in the 1980s. In the 1980s, the then-owners of 11 Shore Drive conveyed a portion of 11 Shore Drive to the then-owners of O Shore Drive. This conveyance resulted in O Shore Drive becoming less nonconforming with respect to lot dimensional standards and 11 Shore Drive becoming more nonconforming with respect to lot dimensional standards. Both the Town Code Enforcement Officer ("CEO") and the Town Board of Appeals ("the Board") agreed with the Delahunts and denied Petitioner's application for a building permit. On appeal to the Superior Court, the Court (Cumberland County, Kennedy, J.) held that O Shore Drive did not lose its legal nonconforming status by becoming less nonconforming and remanded the matter to the Board for further proceedings. See Becker v. Town of Freeport, No. AP-22-19, 2032 WL 5336922, at *5 (Me. Super. Ct., Jan. 5, 2023).
Without notice to Petitioner, on June 6, 2022, the Delahunts applied for a building permit to build an addition to the existing structure at 11 Shore Drive to construct a garage, office, gym, and expansion of a front entryway. The proposed addition would be on the side of the house that faces O Shore Drive and anticipated the removal of vegetation. Still without notice to Petitioner, on April 12, 2023, the CEO issued Building Permit #2022-286 to the Delahunts to construct their proposed addition. Town ordinances do not require that notice be given of either the filing of a building permit or the issuance of a building permit, nor is it required to post building permits to be visible from a public way.
During the week of June 5, 2023, Petitioner visited his property at O Shore Drive and noticed that at or near 11 Shore Drive there were "dig safe" markings on the pavement of Shore Drive, a note attached to a utility pole that identified the location of conduits, and the installation of what appeared to be a new patio on a structure on and over the water. Petitioner did not see any posted building permit. On June 13, 2023, Petitioner's attorney wrote a letter to the CEO asking the CEO to investigate the construction activity; the letter was not responded to. On Saturday, June 17, 2023, Petitioner visited his property and observed excavation activity at 11 Shore Drive.
Monday, June 19, 2023 was a federal holiday and the Town offices were closed in observance. On Tuesday, June 20, 2023, Petitioner went to the CEO's office to inquire about the construction activity. Petitioner was told the CEO was on vacation but learned that a building permit had been issued to the Delahunts. Petitioner returned on June 21, 2023 to talk to the CEO and at that time obtained copies of Building Permit #2022-286. On June 23, 2023 Petitioner filed his appeal of the issuance of the permit to the Town Board.
Under Town ordinance, the Board hears appeals from the CEO's issuance of a building permit on a de novo basis. On August 7, 2023, the Board voted unanimously to decline to hear Petitioner's appeal because the appeal was not filed within thirty days of the permit's issuance, as required by ordinance, and the Town's ordinance does not authorize the Board to extend the deadline for good cause.
Petitioner filed this M.R. Civ. P. Rule 80B action on August 31, 2023, asserting three claims for relief: one count under M.R. Civ. P. Rule 80B for review of governmental action, one count under the United States and Maine constitutions for violation of due process, and one count for declaratory relief seeking declaration that 11 Shore Drive lost its legal nonconforming status when part of 11 Shore Drive was conveyed to O Shore Drive in the 1980s. With his complaint, Petitioner filed the Motion for Enlargement of Time Period to File Administrative Appeal and the Motion for Trial of the Facts and to Specify Future Course of Proceedings. The Court will consider each in turn.
II. Motion for Enlargement
When a municipal ordinance does not contain a good cause exception for missing a permit appeal deadline, the administrative body does not have discretion to grant a good cause exception. See Viles v. Town of Embden, 2006 ME 107, ¶ 9, 905 A.2d 298 ("[Application of the exception is a judicial, and not an administrative, decision."). [W]hen a court 'finds special circumstances which would result in a flagrant miscarriage of justice,' the time for filing an appeal may be extended 'within a narrowly extended range,"' Id. ¶ 8 (quoting Keating v. Zoning Bd. of Appeals of Saco, 325 A.3d 521, 524 (Me. 1974)). To determine whether the "good cause" judicial exception applies, courts look to several factors. Id. ¶ 13. First, courts look to the "key factor" of whether the appellant received notice of the issuance of the permit. Id. Other factors include the amount of time the appellant waited to file the appeal after receiving actual notice, whether the history between the abutters is such that the permit holder has reason to anticipate the neighbors' opposition, whether the municipality violated its own ordinance, and whether the permit holder violated the terms of the permit. Id. ¶¶ 13, 16.
Here, Petitioner did not receive notice of the building permit from either the Town or the Delahunts and the Town's ordinances do not require such notice to abutters. The earliest date Petitioner could have gained inquiry notice that a building permit had been issued to 11 Shore Drive was June 5, 2023, when the "dig safe" markers and patio construction put him on notice of building activity at 11 Shore Drive. Indeed, Petitioner's observations on June 5 led to his attorney's June 13 letter to the CEO. As soon as Petitioner observed excavation at 11 Shore Drive, he went to the Town Office the next business day to inquire about the construction, returned the following day to speak to the CEO, and filed his appeal of the permit's issuance two days later. Under these circumstances, Petitioner acted diligently to obtain information about the building permit and pursue his appeal as soon as he suspected a building permit had been issued.
Further, the history between the Delahunts and Petitioner should have been sufficient to give the Delahunts reason to anticipate Petitioner's opposition. In the same year the Delahunts applied for the building permit at issue in this appeal, the Delahunts successfully opposed Petitioner's application for a building permit on his abutting lot in front of the Board, and the matter remains ongoing following the Superior Court's remand.
Additionally, Petitioner has alleged that the Town violated its own zoning ordinances in granting the building permit to the Delahunts. Without a developed record, the Court is unable to determine whether the Town violated its own ordinances. However, even without this allegation, the facts that Petitioner did not receive notice of the permit, the history between the neighbors should have given the Delahunts reason to anticipate Petitioner's opposition, and that he diligently pursued his rights once he was put on inquiry notice is enough for this Court to grant the judicial good cause exception. See id. ¶ 16 (citing Gagne v. Cianbro Corp., 431 A.2d 1313, 1317-18 (Me. 1981} (upholding the judicial good cause exception when the petitioners were not given notice, immediately filed suit, and there was a history of litigation between the parties over zoning disputes)). Therefore, Petitioner's Motion for Enlargement of Time Period to File Administrative Appeal is GRANTED and the matter is REMANDED to the Town of Freeport's Board of Appeals to hear the merits of Petitioner's appeal of the issuance of the building permit.
III. Motion for Trial of the Facts and to Specify Course
Under M.R. Civ. P. 80B(d) and (i), Petitioner has also moved for a trial on the facts and to specify the course of future proceedings. A motion for trial on the facts must be made within thirty days of the filing of the complaint if the movant seeks to introduce evidence that does not appear in the record. M.R. Civ. P. 80B (d). When a claim for review of governmental action is joined with claims alleging an independent basis for relief from government action, the party asserting independent claims must move to request the court specify future proceedings within ten days of filing the complaint. M.R. Civ. P. 80B(i). [
Given that the Court has granted Petitioner's motion for enlargement and the matter is remanded for the Board to hear the merits of Petitioner's appeal of the building permit's issuance, moving litigation forward on Petitioner's independent claims would be improvident. Therefore, the remaining claims are not ripe and decision on Petitioners Motion for Trial of the Facts and to Specify Future Course of Proceedings is deferred pending the Board's decision on remand.
IV. Order
The entry is:
1. Petitioner's Motion for Enlargement of Time Period to File Administrative Appeal is GRANTED and the matter is REMANDED to the Town of Freeport's Board of Appeals for further proceedings consistent with this Order.
2. Decision on Petitioner's Motion for Trial of the Facts and to Specify Future Course of Proceedings is deferred.
3. The Superior Court retains jurisdiction over this matter. The clerk may enter this Order on the docket by reference pursuant to M.R. Civ. P. 79(a).
SO ORDERED.