Gensheimer v. Town of Phippsburg

• Citation: 868 A.2d 161,2005 ME 22
• Parties: Gregory G. GENSHEIMER et al. v. TOWN OF PHIPPSBURG.
• Decision Date: 02 February 2005
• Court: Supreme Judicial Court of Maine (US)

868 A.2d 161

2005 ME 22

Gregory G. GENSHEIMER et al. v. TOWN OF PHIPPSBURG.

Supreme Judicial Court of Maine.

Submitted On Briefs: November 18, 2004.

Decided: February 2, 2005.

Geoffrey H. Hole, Esq., Joan M. Fortin, Esq., Bernstein, Shur, Sawyer & Nelson, P.A., Portland, for plaintiffs.

Richard L. Hornbeck, Esq., Moncure & Barnicle, Brunswick, for defendant.

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

CLIFFORD, J.

[¶ 1] Gregory G. Gensheimer and Kathleen F. Gensheimer appeal from the judgment of the Superior Court (Sagadahoc County, Crowley, J.) affirming the decision of the Town of Phippsburg Zoning Board of Appeals which in turn upheld the decision of the Town Planning Board denying their request to maintain an existing roadbed as an alternate means of accessing their home. The Gensheimers contend that the Board of Appeals and the Planning Board committed various errors in the way they interpreted and applied the Shoreland Zoning Ordinance, and that their factual findings are not supported by the evidence. We agree in part with the Gensheimers and vacate the decision of the Superior Court and remand to the Board of Appeals with instructions to remand to the Planning Board for further proceedings before that Board.

[¶ 2] In August of 2002, the Gensheimers applied to the Phippsburg Planning Board seeking permission to use and maintain an existing roadbed on their property as an alternate means of accessing their property. The Gensheimers argued that the subdivision road already in use to access their property was poorly designed, had steep grades, sharp curves, and poor visibility, and was therefore very dangerous. Following a hearing conducted in September of 2002, the Planning Board denied the Gensheimers' application, stating as its rationale: "Sec. 14.26 in Table of Land Uses — an alternative access presently exists. Subdivision was approved with only one subdivision road."

[¶ 3] The Gensheimers appealed the matter to the Phippsburg Board of Appeals. Following a hearing, the Board of Appeals affirmed the decision of the Planning Board, giving as its reason: "(1) Agreed with Planning Board's [interpretation] of ordinance, (2) Current subdivision access road is adequate with some maintenance and improvement."

[¶ 4] Pursuant to M.R. Civ. P. 80B, the Gensheimers filed a complaint in the Superior Court. The court affirmed the decision of the Zoning Board of Appeals affirming the Planning Board. The Gensheimers filed this appeal.

I. STANDARD OF REVIEW

[¶ 5] Before we address the substantive merits of the appeal, we have to determine which municipal decision we review, and we must examine whether the Board of Appeals undertook an appropriate review of the decision of the Planning Board. See Stewart v. Town of Sedgwick, 2000 ME 157, 757 A.2d 773. "The jurisdiction of a board of appeals `is a question of law that must be ascertained from an interpretation of municipal statutes and local ordinances.'" Hathaway v. City of Portland, 2004 ME 47, ¶ 14 n. 1, 845 A.2d 1168, 1172 (citation omitted).

[¶ 6] In Stewart, the Schneiders applied to the local Planning Board for a permit to build a dock. Stewart, 2000 ME 157, ¶ 2, 757 A.2d at 775. After the Planning Board granted the application, a neighbor, Stewart, appealed to the Zoning Board of Appeals. Id. ¶¶ 2-3. The Board of Appeals affirmed the Planning Board's decision, and Stewart appealed to the Superior Court, which affirmed the decision of the Zoning Board of Appeals. Id. ¶ 3.

[¶ 7] The general rule regarding the standard of review for administrative decisions is: "When the Superior Court acts as an appellate court, we review directly the operative decision of the municipality." Id. ¶ 4. When a case has proceeded through two stages of agency decision-making, however, whether the "operative decision of the municipality" is the Planning Board decision or the decision of the Board of Appeals depends on the type of review that the Board of Appeals is authorized to undertake and what kind of review that Board actually performs:

If the Board of Appeals acted as a tribunal of original jurisdiction, that is, as factfinder and decision maker, we review its decision directly. If, however, the Board acted only in an appellate capacity, we review directly the decision of the Planning Board, or other previous tribunal, not the Board of Appeals.

Id. (citations omitted).

[¶ 8] Pursuant to 30-A M.R.S.A. § 2691(3)(D) (1996),¹ unless a local ordinance limits the authority of the Board of Appeals to appellate review, the Board of Appeals is required by statute to undertake a de novo review, take evidence, make factual findings, and apply the applicable statutory and municipality provisions entirely independent from the decision of the Planning Board. Stewart, 2000 ME 157, ¶¶ 6-7, 757 A.2d at 775-76. If, however, an ordinance provides that the Board of Appeals act in an appellate capacity, the Board of Appeals should limit itself to reviewing the evidence presented to the Planning Board and determining whether the Planning Board committed error in making its decision. Id. ¶ 8.

[¶ 9] In Stewart, no ordinance provision specifically provided that the Board of Appeals conduct an appellate review. Id. ¶ 11, 757 A.2d at 777. The ordinance itself suggested that the Board of Appeals should conduct a de novo hearing. Id. Thus, in the absence of an ordinance authorizing appellate review, the Board of Appeals was charged with conducting a de novo hearing pursuant to section 2691(3)(D). Id.

[¶ 10] To that end, the Board of Appeals notified the parties that it would conduct a de novo hearing and began to undertake such a hearing. Id. ¶ 12. The Board later contradicted itself, however, by expressly stating that its task was to determine whether the Planning Board's decision was supported by the record. Id. ¶ 13. We concluded that the actions of the Board of Appeals in undertaking a full evidentiary hearing, but nevertheless describing its role as limited to reviewing the Planning Board's decision, created confusion and complied with neither statutory nor municipal requirements. Id. ¶ 15, 757 A.2d at 778. The parties before the Board of Appeals were therefore deprived of their right to have the Board of Appeals consider the matter de novo. Id. We vacated the decision of the Superior Court and remanded the matter to the Board of Appeals for a true de novo hearing. Id.

[¶ 11] In this case, the Gensheimers also appealed the decision of the Planning Board to the Board of Appeals and then to the Superior Court. The appeal provisions of the Ordinance provide: "The Board of Appeals shall have the powers and duties granted in the current `Board of Appeals Ordinance."' Phippsburg, Me., Changes to Shoreland Zoning Ordinance § 16 G (May 15, 2002). The Board of Appeals Ordinance lists the following powers and duties of the Board of Appeals:

A. The Board shall have the following powers to be exercised only upon receipt of a written appeal by an aggrieved party:

1. The Board may interpret the provisions of any applicable town ordinance which are called into question[ ]. As of the date of enactment of this ordinance, the applicable town ordinances are: Harbor Ordinance, Shellfish Ordinance, Land Use and Subdivision Ordinance and the Shoreland Zoning Ordinance.

2. The Board may grant a variance....

3. The Board shall have the power to hear and determine all appeals by any person directly or indirectly affected by any decision, action or failure to act with respect to any license, permit variance or other required approval, or any application therefore, including, the grant, conditional grant, denial, suspension, or revocation of any such license, permit, variance or other approval (hereinafter a "Decision"):

a. rendered by the Code Enforcement Officer or the Planning Board pursuant to the Shoreland Zoning Ordinance;

....

Phippsburg, Me., Board of Appeals Ordinance § IV(A) (Mar. 19, 1994). The Board of Appeals Ordinance further provides: "The board may reverse the decision, or failure to act, of a town officer, board or commission only upon a finding that the decision, or failure to act, was clearly contrary to specific provisions of this ordinance or unsupported by substantial evidence in the record." Phippsburg, Me., Board of Appeals Ordinance § VIII(E) (Mar. 19, 1994). Thus, the Board of appeals is charged with reviewing a decision of the Planning Board in an appellate capacity only. This specific limitation negates the de novo review provision of section 2691(3)(D). See Yates v. Town of Southwest Harbor, 2001 ME 2, ¶¶ 12-13, 763 A.2d 1168, 1172 (concluding, based on identical language, that the Southwest Harbor's Board of Appeals was limited to conducting an appellate review of decisions of the Planning Board).

[¶ 12] At the outset of the Gensheimers' Board of Appeals hearing, one member of the Board of Appeals stated that the Gensheimers "formally applied to the Appeals Board on an Administrative Appeal, that was the form that they took, whereby they wanted us as a Board to reconsider, or whatever, the decision of the Planning Board." In its decision upholding the Planning Board's interpretation of the Ordinance, the Board of Appeals again acknowledged that the Gensheimers sought an appeal of the Planning Board's decision. Thus, there was some recognition by the Board of Appeals that its role in the Gensheimers' appeal was an appellate one.

[¶ 13] Nevertheless, the Board of Appeals conducted an evidentiary hearing regarding the subdivision road, and considered the following new evidence: (1) members of the Board of Appeals traveled to the site of the road, completed an independent examination of the road in person, and stated their opinions regarding various aspects of the road during the hearing; (2) at least one member of the Board of Appeals also offered opinions based on past personal experiences with the road; (3) the Board of Appeals asked numerous...