Salisbury v. Town of Bar Harbor

• Decision Date: 29 January 2002
• Citation: 788 A.2d 598,2002 ME 13
• Parties: Jeffrey C. SALISBURY v. TOWN OF BAR HARBOR et al.
• Court: Maine Supreme Court

788 A.2d 598

2002 ME 13

Jeffrey C. SALISBURY v. TOWN OF BAR HARBOR et al.

Supreme Judicial Court of Maine.

Argued: September 10, 2001.

Decided: January 29, 2002.

William B. Devoe (orally), Roger L. Huber, Eaton, Peabody, Bradford & Veague, P.A., Bangor, for plaintiff.

Jennifer A. Davis (orally), Clifford H. Goodall, Dyer Goodall and Federle, LLC, Augusta, for defendants, Hans & Susan Utsch.

Richard D. Violette Jr., Brewer, for defendant, Town of Bar Harbor.

Panel: SAUFLEY, C.J., and CLIFFORD, RUDMAN, DANA, ALEXANDER, and CALKINS, JJ.¹

SAUFLEY, C.J.

[¶ 1] Jeffrey Salisbury, trustee of the Jeffrey C. Salisbury Revocable Trust of 1994, appeals from the judgment entered in the Superior Court (Hancock County, Hjelm, J.) affirming the decision of the Bar Harbor Board of Appeals vacating orders issued by the Bar Harbor Code Enforcement Officer. The Board's action had the effect of rescinding the issuance of a certificate of occupancy for new construction on the Salisbury property. Salisbury argues that the Board of Appeals lacked jurisdiction to review the CEO's actions and that the Superior Court erred in declining to entertain his equitable estoppel claim. We affirm the judgment of the Superior Court.

I. BACKGROUND

[¶ 2] Jeffrey C. Salisbury, as Trustee of the Revocable Trust of 1994, owns a parcel of land on Indian Point Road in Bar Harbor. Hans P. Utsch and Susan L. Utsch own property adjacent to the Salisbury parcel. On April 3, 1998, Salisbury submitted an application for a building permit to the Town of Bar Harbor. Detailed architectural plans were subsequently submitted on April 23, and a building permit was issued by the CEO on April 24. The size of the new structure was limited because the structure to be demolished was nonconforming, lacking the requisite set-back from the water. The building permit indicated that Salisbury had permission to "demolish and reconstruct a one family wood frame residence on existing footprint in accordance with FEMA."²

[¶ 3] On June 9, 1998, the CEO visited the Salisbury property and gave his approval for the pouring of the foundation footings. In a letter dated July 28, 1998, the Utsches' attorney notified Salisbury that he believed the structure being constructed violated section 15.04.04.01 of the Bar Harbor Land Use Ordinance because it exceeded the allowable limits on expansion. Within several weeks the CEO informed Salisbury in writing that the new dwelling violated the 30% restriction on increases in floor area or volume and that a stop work order would be issued on August 14. In fact, the CEO did not issue a stop work order at that time, instead permitting Salisbury to close the building and protect it from the weather. A stop work order was ultimately issued by the CEO on October 9, 1998, but was subsequently revoked by the CEO a month later.

[¶ 4] The Utsches appealed the revocation of the stop work order to the Bar Harbor Board of Appeals. When the Board concluded that it lacked jurisdiction to hear the appeal, the Utsches appealed to the Superior Court (Mead, C.J.), which held that the Board did in fact have jurisdiction to hear the appeal and remanded the matter to the Board for a hearing.

[¶ 5] While that appeal was pending before the Board, the CEO issued a certificate of occupancy for the new building. The Utsches appealed that decision to the Board of Appeals as well. The Board held a consolidated hearing on the revocation of the stop work order and issuance of the certificate of occupancy. Concluding that Salisbury's expansion did not comply with the applicable ordinances or the permit, the Board determined that the stop work order had been wrongfully revoked and that the certificate of occupancy should not have been issued. Specifically, the Board concluded that the square footage of the new building exceeded that of the old building, which the CEO had no authority to approve,³ and that the volume of the new building exceeded that of the old building by approximately 60%, in violation of section 15.04.04.01.02 of the Bar Harbor Land Use Ordinance.

[¶ 6] Salisbury filed a complaint for review of governmental action with the Superior Court, pursuant to M.R. Civ. P. 80B and 30-A M.R.S.A. §§ 2691(3), 4353(1) (1996), asserting that the Board lacked jurisdiction to hear the Utsches' appeals and that under the doctrine of equitable estoppel the Town could not issue a stop work order or deny issuance of the certificate of occupancy. The Utsches were permitted to intervene, and the Town did not participate in the proceeding, notwithstanding the existence of the separate estoppel claim. The Superior Court (Hjelm, J.) affirmed the Board's decision, concluding that the Utsches' appeals were timely and that the Board correctly determined that the new construction violated the Bar Harbor Land Use Ordinance. The court ruled against Salisbury on the equitable estoppel claim because Salisbury had not taken the necessary steps to present facts regarding that claim to the Superior Court. This appeal followed.

II. DISCUSSION

A. Standard of Review

[¶ 7] Salisbury contends that the Board of Appeals lacked jurisdiction to consider the Utsches' appeals and that the Superior Court erred in refusing to address his equitable estoppel claim.

[¶ 8] The jurisdiction of the Board of Appeals is a question of law that must be ascertained from an interpretation of municipal statutes and local ordinances. We review questions of law de novo. See Nugent v. Town of Camden, 1998 ME 92, ¶ 7, 710 A.2d 245, 247; Bissias v. Koulovatos, 2000 ME 189, ¶ 6, 761 A.2d 47, 49.

[¶ 9] Review of a judgment on a claim of equitable estoppel ordinarily presents a mixed question of fact and law. We review the court's factual findings to determine whether they were clearly erroneous, and the court's application of principles of equity to those facts for abuse of discretion. See Fitzgerald v. City of Bangor, 1999 ME 50, ¶ 10, 726 A.2d 1253, 1255. A claimant alleging that the government has been equitably estopped from applying a zoning ordinance faces a significant hurdle. "Forceful policy reasons militate against restricting the enforcement of municipal zoning ordinances. Zoning ordinances are written to promote the public health, safety, welfare, convenience, morals, or prosperity of the community." City of Auburn v. Desgrosseilliers, 578 A.2d 712, 715 (Me.1990). Here, however, the court was not called upon to exercise its discretion because it concluded that Salisbury failed to bring any facts before the court upon which a decision could be made. We will review that conclusion for clear error.

B. Jurisdiction

[¶ 10] We first address the appeal of the issuance of a certificate of occupancy. Salisbury argues that neither the Board nor the Superior Court had jurisdiction to undertake an appellate review of the CEO's decision to issue the certificate of occupancy. Salisbury relies on our decision in Herrle v. Town of Waterboro, 2001 ME 1, ¶¶ 10-11, 763 A.2d 1159, 1161-62, where we held that courts lack jurisdiction to engage in appellate review of the exercise of prosecutorial discretion by municipalities. Because we couched the language in terms of decisions to enforce an ordinance, Salisbury attempts to bring the issuance of the certificate of occupancy within Herrle's limitations by arguing that its issuance constituted a decision not to enforce the ordinance.

[¶ 11] Herrle does not, however, support Salisbury's argument. Herrle precludes the court's intrusion into municipal decision-making when a municipality decides whether or not to undertake an enforcement action. If the municipality undertakes a subsequent enforcement action, that action may be subject to judicial scrutiny if review is authorized by an appropriate law and ordinance.

[¶ 12] The Bar Harbor Land Use Ordinance broadly authorizes appeals of the CEO's decisions to the Board of Appeals. "The Board of Appeals may, upon written application of an aggrieved party received by the Planning Department within thirty (30) days of a decision of the Planning Board or Code Enforcement Officer, hear appeals from such decision." BAR HARBOR LAND USE ORDINANCE § 15.11.02.02.

[¶ 13] The question, then, is whether the issuance of the certificate of occupancy was a "decision" of the CEO. In Charlton v. Town of Oxford, 2001 ME 104, n. 8, 774 A.2d 366, 373, we suggested that the issuance of a certificate of occupancy was an appealable event. We now hold that the issuance or denial of a certificate of occupancy is a decision subject to judicial review. Once the Town issued the certificate of occupancy, the Utsches filed a timely appeal, which the Board of Appeals had authority to consider. See BAR HARBOR LAND USE ORDINANCE § 15.11.02.02.

[¶ 14] An appeal of a certificate of occupancy may not, however, substitute for an appeal of the underlying permit. See Juliano v. Town of Poland, 1999 ME 42, ¶¶ 7-8, 725 A.2d 545, 548 (holding that an appeal of a stop work order constituted a challenge to the decision to issue the underlying permit and, therefore, was untimely). If the permittee has complied with the terms of a valid permit, an abutter may not challenge the issuance of the certificate of occupancy based on a defect in the permit. If, however, the permittee has meaningfully exceeded the authority contained in the permit, or otherwise violated conditions of the permit, the issuance of the certificate of occupancy may be challenged. Here, the Board of Appeals found that the square footage of the new building fell outside the outline of the original footprint and exceeded the square footage of the old building by 473.5 square feet. It also found that the...