Mack v. Municipal Officers of Town of Cape Elizabeth

• Decision Date: 29 July 1983
• Citation: 463 A.2d 717
• Parties: Alvin G. MACK and Pya C. Mack v. MUNICIPAL OFFICERS OF the TOWN OF CAPE ELIZABETH.
• Court: Maine Supreme Court

Page 717

463 A.2d 717

Alvin G. MACK and Pya C. Mack v. MUNICIPAL OFFICERS OF the TOWN OF CAPE ELIZABETH.

Supreme Judicial Court of Maine.

Argued Jan. 13, 1983.

Decided July 29, 1983.

Pierce, Atwood, Scribner, Allen, Smith & Lancaster, Ralph L. Lancaster (orally), Daniel M. Snow, Portland, for plaintiffs.

Kelly, Remmel & Zimmerman, John N. Kelly, Graydon G. Stevens (orally), Portland, for defendant.

Before GODFREY, ROBERTS, CARTER, ^* VIOLETTE and WATHEN, JJ.

GODFREY, Justice.

The municipal officers of the Town of Cape Elizabeth ("Town") appeal from a judgment of the Superior Court, Cumberland County, reversing a decision of the Cape Elizabeth Board of Zoning Appeals ("Board") that denied the plaintiffs Alvin G. and Pya C. Mack a building permit. The Macks cross-appeal from one finding of the Superior Court that was adverse to them.

The Macks seek to build a house on Trundy Point, a small peninsula of land they own in Cape Elizabeth. On November 5, 1981, the town building inspector denied them a building permit on the ground that the proposed structure failed to meet the setback requirements of the applicable zoning ordinance. The Macks appealed unsuccessfully to the Board. After a public hearing in December, 1981, the Board unanimously upheld the inspector's denial of the permit. The Board also decided that the Mack's proposal did not qualify for an exception to the setback requirements.

In January of 1982, the Macks filed a six-count complaint in Superior Court pursuant to M.R.Civ.P. 80B challenging the Board's decision. Their complaint included two counts reaching beyond the scope of direct judicial review: Count V alleged that the zoning ordinance, as applied, deprived the Macks of property without just compensation in violation of the United States and Maine Constitutions; Count VI alleged that the town should be estopped from denying the building permit because of certain representations of the building inspector to an agent of the Macks before they purchased the property. The town moved to dismiss Counts V and VI for failure to state a claim upon which relief could be granted. After a nontestimonial hearing on the issues raised by the Macks' appeal and the town's motion, the Superior Court, in a judgment entered on July 19, 1982, ordered the Board to issue the Macks a building permit. The court upheld the Board's finding that the Macks had not met the setback requirements but reversed the Board's denial of an exception to those requirements. Because of its disposition of the case, the court did not address Counts V and VI of the complaint.

I. Exception to the Setback Requirements

The Macks' proposed building site is subject to section 19-3-6 of the Cape Elizabeth zoning ordinance because it is within 250 horizontal feet "of the normal high water mark of ... [a] salt water body." Section 19-3-6(i) requires that residences and other improvements be set back certain specified distances from the water. However, the Board may reduce setback requirements pursuant to section 19-2-8(c) on a finding that the reduced setback will satisfy the following nine criteria:

(1) will not result in unsafe or unhealthful conditions;

(2) will not result in erosion or sedimentation;

(3) will not result in water pollution;

(4) will not result in damage to spawning grounds, fish, aquatic life, bird or other wildlife habitat;

(5) will conserve shoreland vegetation;

(6) will conserve visual points of access to waters as viewed from public facilities;

(7) will conserve actual points of public access to waters;

(8) will conserve natural beauty; and

(9) will avoid problems associated with flood plain development and use.

The Board denied the Macks' application for reduced setbacks, finding that their request failed to meet the first and eighth criteria for the following reasons:

'1. Will not result in unsafe or unhealthful conditions': the Board found that wave action could make the residence unsafe for its inhabitants, that storm action could so damage the entrance drive as to leave the inhabitants isolated in a dangerous position, that damage to the drive could have damaging and unhealthful effects on the marsh, and that the raised drive could increase the hazards of extreme storm and tidal effects on neighboring property;

'8. Will conserve natural beauty': the Board found that the proposed building location is exceptional so that almost anything constructed there would detract from its natural beauty, that the proposed drive could lead to the beach and marsh being damaged or washed out with the loss of their natural beauty, and that while the proposed residence might be handsome, and might not block views of the ocean from public facilities, it would detract from the natural beauty of the setting.

The Superior Court held that the Board's factual findings that the proposed house would be unsafe and would not "conserve natural beauty" were not supported by substantial evidence on the record. The court further found, as a matter of law, that denial of the building permit solely for aesthetic reasons was unconstitutional. Since the Board had determined that the Macks' proposal satisfied the other seven criteria for an exception, the court ordered the Board to issue the Macks a permit.

The standard of review is whether the Board abused its discretion, committed an error of law, or made findings not supported by substantial evidence in the record. Driscoll v. Gheewalla, 441 A.2d 1023, 1026 (Me.1982). No presumption of validity attaches to the Superior Court judgment where, as here, the Superior Court makes its decision entirely from the record developed at the zoning board of appeals level. Gulick v. Board of Environmental Protection, 452 A.2d 1202, 1209 n. 6 (Me.1982). An appellate court, in reviewing zoning board action, is not free to make findings of fact independently of those found by the municipal zoning authority. It may not substitute its judgment for that of the municipal body, but is limited to determining whether, from the evidence of record, facts could reasonably have been found by the zoning board to justify its decision. Harrington v. Town of Kennebunk, 459 A.2d 557, 561 (Me.1983); Driscoll, 441 A.2d at 1026. That the record contains evidence inconsistent with the result or that inconsistent conclusions could be drawn from the evidence does not render the Board's findings invalid if a reasonable mind might accept the relevant evidence as adequate to support the Board's conclusion. In re Maine Clean Fuels, Inc., 310 A.2d 736, 741 (Me.1973). The burden of persuasion in the Rule 80B action rests on the Macks, as the parties seeking to overturn the Board's decision. See Seven Islands Land Co. v. Maine Land Use Regulation Commission, 450 A.2d 475, 479 (Me.1982).

Trundy Point is a bald peninsula of ledge protruding into the ocean and covered in part by soil and grass. The ledge rises jaggedly to a height of about 22 feet from the ocean. The proposed house would sit at the point of highest elevation. The entrance drive would pass over the neck of the peninsula, which is lower than the adjoining mainland and the house site. The plans call for landfill under the driveway, so that the completed driveway would be three to four feet higher than the present neck of the peninsula. The house is designed to be impervious to airborne spray but would not be able to withstand the direct force of breaking waves. Thus, the two crucial safety concerns are whether waves during storms would reach the level of the house and whether storm waves would damage the entrance drive, leaving the inhabitants isolated in a dangerous position.

Various expert witnesses testified on behalf of the Macks at the Board hearing. Barry Timson, a coastal geologist, predicted that even in an extreme, 200-year storm, the house would not be subjected to mass water pressure or running up of waves. The Macks' architect and design engineer testified to the design strength of the roadway. They conceded that waves would wash over the roadway during severe storms but expressed confidence that the roadway would not be damaged. The architect conceded that in the long run the roadway might require maintenance from the effect of the waves.

The witnesses who testified that the project would be unsafe were local residents opposed to its construction. Two neighbors said that during the blizzard of 1978, a 100-year storm, they saw waves wash completely over the proposed house site. During the 1978 storm, one neighbor saw waves carry debris as large as a...