Brackett v. Town of Rangeley

• Decision Date: 25 August 2003
• Citation: 2003 ME 109,831 A.2d 422
• Parties: George BRACKETT et al. v. TOWN OF RANGELEY et al.
• Court: Maine Supreme Court

831 A.2d 422

2003 ME 109

George BRACKETT et al. v. TOWN OF RANGELEY et al.

Supreme Judicial Court of Maine.

Argued: September 10, 2002.

Decided: August 25, 2003.

David C. Pierson, (orally), Hark Andrucki, Lewiston, for plaintiff.

Stephen E.F. Langsdorf, (orally), Preti Flaherty Beliveau Pachios & Haley, LLC, Portland, for Town of Rangeley.

Peter Clifford, (orally), Hodsdon & Clifford, LLC, Kennebunk, for William Sears.

Panel: SAUFLEY, C.J., and RUDMAN, DANA, ALEXANDER, CALKINS, and LEVY, JJ.

Concurring: ALEXANDER, J.

DANA, J.

[¶ 1] George and Roselyn Brackett (the Bracketts) are, as we say in Maine, "from away." When, on the Fourth of July weekend in 1999, they returned to their summer camp on Rangeley Lake for the first time that year, they discovered that their next-door neighbor, William Sears, had, in multiple violation of the Town's Zoning Ordinance and without the required hearing with notice to his neighbors but with the blessing of the Town's Code Enforcement Officer, replaced his non-conforming cottage with a substantially larger but even more non-conforming dwelling. Although the Bracketts filed an appeal to the Zoning Board of Appeals within thirty days of their actual notice of Sears's construction, the Board ultimately concluded that the Bracketts' appeal was untimely and that under the circumstances, they were not entitled to relief from the Ordinance's thirty day appeal period.¹ We disagree, vacate the judgment of the Superior Court (Franklin County, Gorman, J.) affirming the Board's finding, and direct that the court remand this matter to the Board to entertain the Bracketts' appeal.

I. BACKGROUND

[¶ 2] The Bracketts and Sears own cottages on abutting land on Rangeley Lake in the Town of Rangeley. New Hampshire residents, the Bracketts use their cottage on Rangeley Lake only during the summer.

[¶ 3] In 1997, when Sears purchased his property, it included an old cottage (original cottage), a "nonconforming structure" within the Rangeley Shoreland District. See Rangeley, Me., Zoning Ordinance §§ 9(B)(51), 9(B)(70) (May 28, 1987, amended Jan. 5, 1998, and June 9, 1998). Being about forty feet back from the lake's high water mark and six feet from the Bracketts' property line, Sears's original cottage violated two zoning requirements: it was situated less than 100 feet from the lake's high water mark, see id. §§ 9(B)(53), 9(B)(69), and it did not meet the twenty-foot side setback requirement from the property line with the Bracketts. See id. § 4(G).

[¶ 4] During 1998, Peter Farnsworth, the Town's Code Enforcement Officer (CEO), granted Sears three building permits for work on the original cottage:

• On May 28, 1998, a permit to construct a deck;

• On September 29, 1998, a permit to demolish and reconstruct the part of the original cottage nearest the lake; and

• On November 3, 1998, a permit to demolish the original cottage and replace it with an entirely new cottage (new cottage).²

The Bracketts received no notice of any of these permits. If Sears's application for the November 3 permit had been processed properly, however, it would have gone before the Town's Planning Board and the Bracketts would have been notified of Sears's application for the permit. See id. §§ 7(C),(D).

[¶ 5] In October 1998, Sears began work pursuant to the September 29 permit. The Bracketts closed their cottage for the winter on October 18, 1998. They testified that they were unaware of any construction at all on the Sears property that fall.

[¶ 6] After Sears began work pursuant to the second permit, he concluded that the extent of the floor timber rot in the original cottage precluded renovation and he decided to build a new cottage instead. Sears demolished the original cottage in April 1999 and began building the new cottage in mid-May. By July 2, the new cottage foundation was complete and by July 30, the walls were framed and sheathed. The Bracketts observed these changes for the first time when they returned to Rangeley on July 3, 1999. Until then, they had been unaware of the November 3 permit and Sears's plan to replace the original cottage.

[¶ 7] As soon as they saw Sears's construction, the Bracketts met with Robert Griscom, the Town's new CEO, and complained about the new cottage, asking him to halt construction and to revoke the November 3 permit. He refused and did not tell them they needed to file an appeal on any particular form.

[¶ 8] On July 8, George Brackett wrote a detailed letter to the Town's Board of Selectmen (with a copy to Griscom but not Sears) asking the Board to revoke the November 3 permit and stop construction because the new cottage violated the requirements of the Town's Zoning Ordinance for Shoreland District construction. Although it was not on the required form, Brackett's letter contained all the information necessary for filing an appeal. There is no indication, however, that the Town informed Sears of Brackett's request. The CEO still did not notify the Bracketts that they needed to file an appeal with the Zoning Board of Appeals or that the appeal needed to be on a particular form. Receiving no response to this letter, the Bracketts went to the Town Office on July 27 and learned that the selectmen had not considered George Brackett's letter because they had not met since receiving it. The person with whom the Bracketts spoke suggested that they raise their concerns with the selectmen directly at their scheduled meeting that night. Upon doing so, the Bracketts were told for the first time to file an appeal on the Zoning Board of Appeals's approved form. They did so on July 30, challenging Sears's November 3, 1998, permit.

[¶ 9] On August 27, 1999, the Board held a public hearing on the Bracketts' appeal and, according to the minutes, voted to "send this back to the Planning Board for their approval, and [to have] the square footage be brought into the 30% expansion rule." On September 9, however, the Board met again, reconsidered its August 27 decision,³ and voted instead to dismiss the Bracketts' appeal.

[¶ 10] In its letter to the Bracketts, the Board stated that the building authorized by the November 3 permit exceeded the allowable 30% expansion by 100 square feet and that "[t]he lateral expansion of the building, a non-conforming structure, was not approved by the Planning Board as required by sect. 3(C)1b of the Zoning Ordinance." Nevertheless, the letter stated that Board dismissed the Bracketts' appeal because:

1. The appeal was not filed in a timely manner.⁴ The permit was issued to Mr. Sears on Nov. 3, 1998. Construction commenced in April, 1999 and Mr. Brackett filed his appeal on July 30, 1999.

2. Mr. Sears has a vested interest in the permit.

3. Mr. Sears acted in good faith in accordance with the permit.

[¶ 11] Pursuant to M.R. Civ. P. 80B, the Bracketts appealed from the Board's decision, asking the Superior Court (Marden, J.) to decide whether the Board had acted legally at its September 9, 1999, meeting and whether Sears's November 3 permit was consistent with the Town's Ordinance. In March 2001, the court vacated the Board's September 9 decision and remanded the matter to the Board "to find facts necessary to determine whether a good cause exception to the thirty day appeal period is applicable...."

[¶ 12] In May 2001, the Board concluded that the Bracketts did not satisfy the good cause exception to the thirty day rule because "there were no facts which indicated that there were `special circumstances which would result in a miscarriage of justice' unless the time limit was extended." The Board explained,

1. Before they left for New Hampshire in October, the Bracketts were on actual or constructive notice of the work described in the November permit;

2. Sears had vested rights in the November permit; and

3. The Bracketts' twenty-seven day delay before filing their appeal was too long.

[¶ 13] In January 2002, the court, while rejecting the first two arguments,⁵ found merit in the third and affirmed the Board's decision. This appeal followed.

II. DISCUSSION

[¶ 14] The Bracketts contend first that, in light of the special circumstances of their case and consistent with the principles established in Keating v. Zoning Board of Appeals of Saco, 325 A.2d 521, 524 (Me.1974) and Gagne v. Cianbro Corp., 431 A.2d 1313 (Me.1981), a "flagrant miscarriage of justice" will result unless they are granted a "good cause exception." They assert, further, that the presence of a designated appeal period in the Rangeley Ordinance should not preclude an application of the good cause exception. We agree with both propositions.

A. The Standard of Review

[¶ 15] "Interpretation of the provisions of a zoning ordinance is a question of law for the court. Therefore, we review such questions de novo." DeSomma v. Town of Casco, 2000 ME 113, ¶ 8, 755 A.2d 485, 487 (citation and quotation omitted). When a zoning board of appeals acts as the tribunal of original jurisdiction as both fact finder and decision maker, we review its decision directly for errors of law, abuse of discretion, or findings not supported by substantial evidence in the record. Yates v. Town of Southwest Harbor, 2001 ME 2, ¶ 10, 763 A.2d 1168, 1171. Thus, we review directly the May 23, 2001 decision of the Rangeley Zoning Board of Appeals.

[¶ 16] We construe an ordinance in accordance with its objectives. Griffin v. Town of Dedham, 2002 ME 105, ¶ 10, 799 A.2d 1239, 1243. "The underlying policy of zoning is to gradually eliminate nonconforming structures and uses. . . . The accepted legal standard has been to strictly construe zoning provisions relating to the extension, expansion or enlargement of nonconforming buildings. . . ." Lewis v. Me. Coast Artists, 2001 ME 75, ¶ 26, 770 A.2d 644, 653 (citations and quotation omitted). Conversely, zoning regulation "provisions limiting nonconforming uses should be liberally construed." Oliver v. City of Rockland, 1998 ME 88, ¶ 9, 710 A.2d 905, 908 (...