Desfosses v. City of Saco, Docket No. Yor–14–527.

• Decision Date: 24 November 2015
• Docket Number: Docket No. Yor–14–527.
• Parties: Theresa DESFOSSES v. CITY OF SACO et al.
• Court: Maine Supreme Court

128 A.3d 648

Theresa DESFOSSES

v.CITY OF SACO et al.

Docket No. Yor–14–527.

Supreme Judicial Court of Maine.

Argued: Sept. 18, 2015.

Decided: Nov. 24, 2015.

C. Alan Beagle, Esq. (orally), Beagle, Steeves & Ridge, LLC, Portland, for appellant Theresa Desfosses.

Timothy S. Murphy, Esq., Prescott Jamieson Murphy Law Group, LLC, Saco, for appellee City of Saco.

David M. Hirshon, Esq., and Marshall J. Tinkle, Esq. (orally), Hirshon Law Group, PC, Portland, for appellee WWS Properties, LLC.

Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.

GORMAN, J.

[¶ 1] Theresa Desfosses appeals from a decision of the Superior Court (York County, Fritzsche, J. ) affirming, pursuant to M.R. Civ. P. 80B, the decisions of the City of Saco Planning Board and Zoning Board of Appeals (ZBA) on Desfosses's challenges to three City decisions issued in connection with the construction of a car dealership by WWS Properties, LLC. Desfosses challenges the Planning Board's and the ZBA's conclusions that each lacked jurisdiction to review the City Planner's grant of an amendment to WWS's approved site plan. She also challenges the ZBA's determination that it did not have jurisdiction to consider her appeal of the certificate of occupancy issued to WWS. We vacate the judgment.

I. BACKGROUND

[¶ 2] The parties do not dispute the relevant procedural facts. On June 25, 2013, WWS obtained site plan approval from the Planning Board to construct a large building and accompanying parking lots on a parcel of property on Route One in Saco, where WWS planned to operate a car dealership. Among the conditions of the approval was the following: "No deviations from the approved plans are permitted without prior approval from the Planning Board for major changes, and from the City Planner for minor changes. The determination of major or minor shall be made by the City Planner." See Saco, Me., Zoning Ordinance § 1107 (Feb. 17, 2004) (authorizing the imposition of conditions of approval in a site plan). Another condition, Condition # 11, stated as follows:

The June 20, 2013 Deluca Hoffman comments shall be addressed to the satisfaction of City staff and of Joe Laverriere, P.E. Further, the applicant shall be responsible for addressing to the satisfaction of City staff the potential liability/safety issue that exists along the southwesterly side of the site due to the removal of ledge by a previous owner of the property, prior to the issuance of an occupancy permit for the new building.

(Emphasis added.) "Deluca Hoffman comments" referred to the opinion of the City's consulting engineers, and specifically senior engineer Joseph Laverriere, as stated in his letter to the City dated June 20, 2013:

Our office remains concerned with the steep cut slopes along the southwesterly side of the site and potential liability/safety issue to the applicant and abutting landowner. It appears the previous excavation work encroached onto adjacent properties without the approval of the abutting landowner. Our office is uncertain as to how to remedy this situation; however, one solution is to create a safe condition on the applicant property and restore the adjacent property to [its] previous condition. Our office would suggest this issue be reviewed by the City's Code Enforcement Office.

[¶ 3] Desfosses owns the property abutting WWS's that is discussed in this comment. She received notice of the initial site plan hearings, but did not object to, appeal from, or otherwise participate in the initial site plan proceedings before the City.

[¶ 4] Less than three months after receiving its site plan approval, WWS requested and obtained approval from the City Planner for a "minor change" to its site plan, providing for the installation of a four-foot-tall freestanding retaining wall with an embedded eight-foot-tall fence atop it along its and Desfosses's common boundary. Desfosses was given no notice of WWS's proposed amendment to its site plan approval or the City Planner's apparent grant of that amendment.¹

[¶ 5] Desfosses appealed the City Planner's approval of the site plan amendment to both the Planning Board and the ZBA. After a hearing, the Planning Board determined that it did not have jurisdiction to consider the appeal.² Desfosses appealed this decision of the Planning Board to the ZBA as well. In February of 2014, after a hearing, the ZBA determined that it also had no jurisdiction to hear either Desfosses's direct appeal of the site plan amendment approval or her appeal from the Planning Board's determination that it had no jurisdiction over the site plan amendment.³

[¶ 6] Just over a month after the ZBA's decision, the City's Code Enforcement Officer (CEO) issued WWS a certificate of occupancy. Desfosses appealed the grant of the certificate of occupancy to the ZBA, which, after a hearing held on May 5, 2014, determined that it lacked jurisdiction to hear that appeal as well.

[¶ 7] Between December of 2013 and June of 2014, Desfosses filed three appeals—later consolidated—in the Superior Court pursuant to M.R. Civ. P. 80B in which she challenged (1) the Planning Board's decision determining that it lacked jurisdiction to consider the City Planner's site plan amendment, (2) the ZBA's determination that it lacked original jurisdiction to consider the City Planner's site plan amendment and appellate jurisdiction to consider the appeal from the Planning Board's decision as to the site plan amendment, and (3) the ZBA's determination that it lacked appellate jurisdiction over the CEO's issuance of the certificate of occupancy. The Superior Court affirmed all three decisions after concluding, "Nowhere in the Saco Zoning Ordinance has the City of Saco specified that these precise subject matters can be appealed." Desfosses timely appeals from the court's denial of her motion to reconsider.

II. DISCUSSION

[¶ 8] Desfosses challenges the Planning Board's and the ZBA's determinations that they lacked jurisdiction over her appeals of the City Planner's approval of the site plan amendment, as well as the ZBA's determination that it lacked jurisdiction over her appeal of the CEO's issuance of a certificate of occupancy. We determine the jurisdiction of a municipal board by interpreting de novo any municipal, statutory, and constitutional provisions relevant to the inquiry. Wister v. Town of Mt. Desert, 2009 ME 66, ¶ 17, 974 A.2d 903 ; Sanborn v. Town of Sebago, 2007 ME 60, ¶ 6, 924 A.2d 1061. We first evaluate the plain language of the City's ordinance provisions in light of the "entire [ordinance] scheme to achieve a harmonious result." Wister, 2009 ME 66, ¶ 17, 974 A.2d 903. "[I]f the meaning of the statute or ordinance is clear, we need not look beyond the words themselves" to interpret the provision according to that plain meaning. Id. In doing so, we avoid any interpretation that creates absurd or illogical results. Dickau v. Vt. Mut. Ins. Co., 2014 ME 158, ¶ 21, 107 A.3d 621. We also interpret all provisions in a manner that avoids any "danger of unconstitutionality." Wister, 2009 ME 66, ¶ 21, 974 A.2d 903.

A. Site Plans

1. Site Plan Approval and Amendment

[¶ 9] We first consider Desfosses's argument regarding her right to appeal the City Planner's approval of WWS's site plan amendment. The Ordinance generally requires that parties seeking "commercial, industrial, institutional and multifamily residential developments" of a certain scale must first obtain site plan approval. Saco, Me., Zoning Ordinance § 1101 (Feb. 17, 2004); see Saco, Me., Zoning Ordinance §§ 1102, 1103(1), 1106 (Feb. 17, 2004). The Ordinance further distinguishes between major site plans and minor site plans; although major site plans must be approved by the Planning Board, minor site plans can be approved by the City Planner alone.⁴ Saco, Me., Zoning Ordinance §§ 1103(1), (7) (Feb. 17, 2004). There is no dispute that WWS initially obtained site plan approval for its major plan from the Planning Board.

[¶ 10] Once a site plan has been approved, the Ordinance allows amendments to the approved plan depending on whether the project involves a major or minor site plan and whether the proposed change is a major or minor amendment.⁵ One provision of the Ordinance requires that "[a]ny changes in the plan after approval must be approved by the Planning Board, or in the case of a minor site plan, the City Planner. Minor changes during construction can be approved by the City Planner." Saco, Me., Zoning Ordinance § 1109 (Feb. 17, 2004). In a similar, but not identical, provision entitled "SITE LOCATION OF DEVELOPMENT AMENDMENT," the Ordinance provides: "Once approved and signed by the Planning Board, no changes may be made to approved plans, without an amended approval from the Planning Board in the case of a major amendment, or from the City Planner in the case of a minor amendment." Saco, Me., Zoning Ordinance § 1103(8) (Feb. 17, 2004).

[¶ 11] Sections 1103(8) and 1109 do not otherwise explain the scope of their application, and site location of development amendments are not distinguished from site plan approvals anywhere else in the Ordinance. When read together, however, sections 1103 and 1109 provide that the Planning Board decides major amendments to major site plans and the City Planner decides minor amendments to both major and minor site plans, as well as major amendments to minor site plans.⁶ Here, the City Planner approved WWS's request to construct the retaining wall and fence as a minor amendment to its major site plan.

2. Site Plan Appeals

[¶ 12] Unfortunately, the provisions of the Ordinance that purport to explain the appellate jurisdiction of the City's Planning Board present an imbroglio of confusion and contradiction.⁷

[¶ 13] The Ordinance does not set out the jurisdiction and authority of the Planning Board in any one provision or set of provisions. Neither do any of the Ordinance sections regarding site plans provide a picture of clarity on the question of appeals. Of the two provisions...