Opinion
AP-18 019
04-02-2020
Timothy and Anita Richards, Petitioners, v. Town of Leeds, Respondent,
Plaintiff's Attorney Verne Paradie, Esq. Paradise & Rabasco Defendant's Attorney James Belleau, Esq. Trafton Matzen
Plaintiff's Attorney Verne Paradie, Esq. Paradise & Rabasco
Defendant's Attorney James Belleau, Esq. Trafton Matzen
ORDER ON APPEAL
Valerie Stanfill Justice, Maine Superior Court
This matter is before the court on Petitioners' complaint for review of the action taken by the Leeds Board of Appeals on October 15, 2018 denying their appeal of a Notice of Violation issued by the Code Enforcement: Officer.
The Complaint states it is brought pursuant to M.R. Civ. P. 80C, but the claim actually arises under M.R. Civ. P. 80B. It makes no difference for purposes of this appeal.
Factual and Procedural History
In 2006, Mr. Richards acquired a lot with another person on 15 Anne Street in the Town of Leeds, in February 2016, the lot was deeded to Petitioners jointly. At the time the lot was acquired there was a 5th wheel trailer on it with waste water disposal electric and a well. There was no dwelling or other building except for a small shed, The lot is 100 by 100 feet in size and is located in a flood zone near Lake Androscoggin. In 2018, Petitioners began construction of a camp, separate from the trailer. They also installed a new septic system. They did not apply for any permits from the Town of Leeds. On August 8, 2018, the Leeds Code enforcement Officer issued a Notice of Violation/Order for Corrective Action [ Notice ]to Petitioners based on the fact that a building, onsite sewage disposal system and plumbing facilities were all undertaken without the required permits. Petitioners appealed the Notice to the Town of Leeds Board of Appeals. The Board held a hearing on October 15, 2018 following which they voted to deny the appeal.
It was unclear whether the well was functional.
Standard of Review
Review of administrative decision-making is deferential and limited; the decision is reviewed for abuse of discretion, errors of law, and findings not supported by substantial evidence in the record. Wolfram v. Town of North Haven, 2017 ME 114 ¶7. The court will affirm the findings if they are supported by any competent evidence. Beal v. Town of Stockton Springs, 2017 ME 6 ¶26. As the appellants, the Richards have the burden of showing that the record evidence compels a contrary conclusion. Tarason v. Town of S, Berwick, 2005 ME 30 ¶6. Analysis
The Board of Appeals found that Petitioners constructed a building without a building permit; installed an onsite sewage disposal system without a subsurface wastewater disposal permit; and built on a lot which does not meet minimum lot size or frontage requirements under the applicable zoning ordinances. There is no dispute that Petitioners did not apply for or obtain any permits and that permits are required. These findings of the Board of Appeals are amply supported by substantial evidence in the record and contain no errors of law or abuse of discretion. Indeed, Petitioners do not appear to contend otherwise. Instead, they argue that the Board of Appeals should have overturned the Notice of Violation because the Town was estopped from enforcing those provisions of the zoning ordinance against Petitioners.
There was also evidence that even if they had applied for a building permit it would have been denied and they would not be able to obtain a variance as there is no provision to build on a non-conforming lo of less than 40, 000 square feet, but that was not the issue before the Board nor is it before this court.
As a threshold matter, the Town asserts that Petitioners are not permitted to claim estoppel as an offensive weapon rather than an affirmative defense to an enforcement action. The Law Court has specifically held that equitable estoppel does not apply in this procedural posture. Tarason v. Town of S. Berwick, 2005 ME 30 ¶16. In Tarason, as in this case, the matter was before the court on appeal of a notice of violation of zoning ordinances and not an enforcement action. The Law Court reiterated that "equitable estoppel "can be asserted against a municipality only as a defense and cannot be used as a weapon of assault."" Id., citing Buker v. Town of Sweden, 644 A.2d 1042, 1044 (Me. 1994). For that reason alone, and given that the Board's findings are amply supported, this appeal must be denied.
The Court recognizes that this puts the parties in a strange place, because ordinarily a Notice of Violation which has not been overturned on appeal will constitute res judicata in a subsequent enforcement action. E.g., Freeport v. Greenlaw, 602 A, 2d 1156, 1161 (Me. 1992). In this case, although not necessary to this decision, the court also notes that the facts in this record do not support or compel application of equitable estoppel. An equitable estoppel claim against the Town requires ""clear and satisfactory" evidence that (1) the statements or conduct of a governmental official or agency induced the party to act, or here, to fail to act; (2) the reliance was detrimental to the party; and (3) the reliance was reasonable."" John F. Murphy Homes, Inc. v. State, 2017 ME 67 ¶23. Here, there was no representation made by the Town which induced action by Petitioners. Petitioners' Exhibit 1, a document which purports to say the lot was grandfathered for building, is not from the Town. Moreover, Mr. Richards testified that he did not rely on that document in purchasing the land, so it could not form the basis of any estoppel. As far as any conversations Mr. Richards had with the Code Enforcement Officer, the most Petitioners can say is that they received no answer whether the lot was buildable. Equitable estoppel requires that the declarations relied upon must have induced Petitioners to do what they otherwise would not have done, and that simply is Dot the case here. Shackford & Gooch, Inc., v. Town of Kermebunk, 486 A.2d 102, 105-06 (Me, 1984). Equitable estoppel cannot be based on a party's silence unless it is clear that the person was silent when he had an affirmative duty to speak, Dep't of Human Services v. Bell, 1998 ME 123 ¶8. Petitioners were never told that they could build a camp or add a new septic system. And, even if the lot could be built upon as somehow grandfathered, Petitioners would still need permits, Petitioners simply did not apply for the necessary permits, in violation of the town ordinances.
Moreover, the Code Enforcement Officer testified that he did tell Petitioners that the lot was not buildable, though he also said he would double check. The Board was entitled to believe this testimony,
Conclusion
The findings and order of the Board of Appeals were supported by substantial evidence in the record, and there was no abuse of discretion or error of law. Therefore, the order of the Board of Appeals denying the appeal of the Notice of Violation and Order to Stop Work is affirmed. This Order on Appeal may be incorporated on the docket, of the case by reference pursuant to Me. R. Civ. P. 79(a).