Opinion
Civil Action AP-11-40
12-30-2011
C. MATTHEW RICH, Plaintiff v. TOWN OF HARPSWELL, et al Defendants.
Plaintiff's Attorney Douglas J. Payne, esq. Defendant's Attorney Scott D Anderson esq. (M Hamlyn) Verrill & Dana, Sally Daggett esq. (Town) Jensen Baird Gardner & Henry
Plaintiff's Attorney Douglas J. Payne, esq.
Defendant's Attorney Scott D Anderson esq. (M Hamlyn) Verrill & Dana, Sally Daggett esq. (Town) Jensen Baird Gardner & Henry
ORDER
Thomas D. Warren, Justice.
Before the court is an appeal pursuant to Rule 80B from a July 27, 2011 decision of the Harpswell Board of Appeals finding that C. Matthew Rich's appeal from the September 16, 2010 issuance of a building permit to neighboring property owners was untimely.
The specific motion before the court is a motion by Rich pursuant to Rule 80B(d) for a trial of the facts as to whether good cause existed to allow a late appeal. The Town and the party to whom the building permit was issued contend that Rich's motion for a trial of the facts should be denied on various procedural grounds and because they contend that all necessary facts to decide whether "good cause" existed are already contained in the record and the pleadings before the court.
Shortly after filing his motion for a trial of the facts, Rich also filed his brief on the merits. At their request, the court has stayed the deadline for the Town and the parties in interest to file responsive briefs.
It is undisputed that a building permit was issued to Michael Hamblyn on September 16, 2010 to allow him to relocate an existing structure farther from the shore and install a new foundation. R. Tab 8, R. Tab 10. Rich's complaint and his offer of proof accompanying his motion for a trial of the facts acknowledge that Rich was aware during the fall of 2010 that construction was underway at the Hamblyn property. Complaint ¶ 15; Offer of Proof ¶¶ 8-10. In May 2011 Rich made certain complaints to the Code Enforcement Officer that Hamblyn and the co-owner of his property were improperly expanding a non-conforming structure. Complaint ¶ 16; Offer of Proof ¶ 20. Rich alleges that in following up these complaints in late June of 2011 he reviewed the permit file and learned that the permit that had been issued should have been issued by the Planning Board rather than by the code enforcement officer. Complaint ¶ 17; Offer of Proof ¶¶ 25-28.
It appears that these complaints were made orally. This was during the same time period when Rich was also objecting to a March 2011 application by Hamblyn for a permit under the Wharf and Weir Act to construct a pier on the shore of his property. No permit for a pier has been issued.
On July 6, 2011 Rich filed an appeal from the September 16, 2010 issuance of the building permit to the Board of Appeals. Complaint ¶19.
Good Cause Exception
Rich's motion for a trial of the facts requires consideration of the good cause exception. Under § 14.2.1 of the Harpswell Zoning Ordinance, appeals taken from a decision by the code enforcement officer shall be taken within 40 days of the decision appealed from "and not otherwise, except that the Board, upon a showing of good cause, may waive the 40 day requirement." In this case Rich's appeal was filed almost nine months after the issuance of the permit, and the Board of Appeals did not find good cause. See R. Tab 1 at p. 2.
While most factual decisions by an administrative body are reviewed under a deferential standard, the Law Court has held that whether good cause existed is a decision to be made judicially. Brackett v. Town of Rangeley, 2003 ME 109 ¶ 17, 831 A.2d 422, 428. In order to find good cause, the court must find that there are special circumstances which would result in a flagrant miscarriage of justice "unless, within a narrowly extended range, a time longer than the general norm is held reasonable." Brackett 2003 ME 109 ¶ 23, 831 A.2d at 429 (emphasis added), quoting Keating v. Zoning Board of Appeals of Saco, 325 A.2d 521, 524 (Me. 1974).
The factors to be considered in determining whether good cause exists include the following: whether the party seeking to appeal received notice of the issuance of the permit, whether the municipality violated its own ordinance in issuing the permit, whether the permit holder violated the terms of the permit, and the amount of time the appellant waited to file the appeal after obtaining actual knowledge of the permit. Viles v. Town of Embden, 2006 ME 107 ¶13, 905 A.2d 298, 302.
Rich did not receive notice of the issuance of the permit. He also contends that the issuance of a permit by the code enforcement officer violated Harpswell's zoning ordinance because the code enforcement officer was required under § 10.3.2.3 of the ordinance to give notice of any relocation of a non-conforming structure to the Planning Board and all property owners within 250 feet of the applicant's property so that the Planning Board could elect to exercise jurisdiction over the permit application.Although both the Town and the parties in interest contend that Rich cannot show good cause for his delay in appealing, it does not appear that they necessarily contest Rich's assertion that § 10.3.2.3 was applicable and should have been followed in this case.
There are also assertions in the record that the construction performed on Hamblyn's lot did not comply with the approved permit application. E.g., Transcript of July 27, 2011 hearing at 8. However, it appears that Rich has a separate remedy for any violations of the permit that was issued.
The court concludes that all of the relevant facts with respect to the good cause issue are already contained in the record, and there is no need for a trial of the facts on that issue. This conclusion is confirmed by the fact that Rich has already filed his brief on the merits. If the Town and the parties in interest disagree with any of the factual assertions (as opposed to the legal arguments or conclusions) contained in Rich's offer of proof, they shall identify any such disagreements in their briefs and if the court determines that such disagreements are material, it may reconsider its denial of Rich's Rule 80B(d) motion.
One additional point needs to be made with respect to the future course of this case. The question before the court is whether, once Rich learned in the fall of 2010 that construction was underway, he was obliged to act more promptly to review the permit application and file an appeal or whether the existence of the other factors referred to above is sufficient to excuse his delay in filing an appeal until the following summer.
Rich contends that the Board of Appeals based its decision that good cause did not exist solely on his delay in filing the appeal and did not consider the other factors listed in Viles v. Town of Embden. See Brief of Appellant filed October 18, 2011 at 8-10. He argues that the case should be remanded to the Board for further consideration of whether good cause existed. Id.
There are instances in the procedural history of the Brackett and Viles cases where cases were remanded to municipal boards for further hearings on good cause. As noted above, however, Brackett emphasized that whether good cause existed is ultimately a judicial decision. 2003 ME 109 ¶ 17, 831 A.2d at 428. In Brackett the Law Court itself determined that good cause existed and remanded for a hearing on the merits. 2003 ME 109 ¶ 24, 831 A.2d at 429. In Viles the Law Court affirmed a determination by the Superior Court that good cause existed. 2006 ME 107 ¶ 18, 905 A.2d at 303.
As a result, the court concludes that good cause is not an issue that may potentially require further consideration by the Board of Appeals but is instead an issue that this court is required to decide once the issue has been fully briefed.
The entry shall be:
Plaintiff's motion for a trial of the facts is denied. The Town and the parties in interest shall have 30 days from the date of this order in which file their responsive briefs to the brief filed by plaintiff and plaintiff shall then have 14 days in which to file a reply brief. If the Town and the parties in interest disagree with any of the factual assertions contained in plaintiff's offer of proof, they shall identify any such disagreements in their briefs.
The Clerk is directed to incorporate this order in the docket by reference pursuant to Rule 79(a).