Tomasino v. Town of Casco

• Decision Date: 07 July 2020
• Docket Number: Docket: Cum-19-348
• Citation: 237 A.3d 175
• Parties: Mark TOMASINO et al. v. TOWN OF CASCO et al.
• Court: Maine Supreme Court

237 A.3d 175

Mark TOMASINO et al.

v.TOWN OF CASCO et al.

Docket: Cum-19-348

Supreme Judicial Court of Maine.

Submitted On Briefs: April 14, 2020

Decided: July 7, 2020

Chris Neagle, Esq., Troubh Heisler LLC, Portland, for appellants Mark and Valerie Tomasino

Natalie L. Burns, Esq., Jensen Baird Gardner & Henry, Portland, for appellee Town of Casco

David A. Goldman, Esq., Norman, Hanson & DeTroy, LLC, Portland, for appellee Colleen E. Demirs, trustee, Lake Shore Realty Trust

Panel: MEAD, GORMAN, JABAR, HUMPHREY, and CONNORS, JJ.

Majority: MEAD, GORMAN, JABAR, and HUMPHREY, JJ.

Dissent: CONNORS, J.

GORMAN, J.

[¶1] Mark and Valerie Tomasino appeal from a judgment of the Superior Court (Cumberland County, Horton, J. ) entered pursuant to M.R. Civ. P. 80B, affirming the decision of the Town of Casco Zoning Board of Appeals in which the Board denied the Tomasinos' request for a shoreland zoning permit. The Tomasinos challenge the Board's determination that they demonstrated insufficient right, title, or interest in the property at issue to obtain a permit to remove three trees from property owned by the abutting property owner, the Lake Shore Realty Trust, over which the Tomasinos claim a deeded easement. We affirm the judgment.

I. BACKGROUND

[¶2] Mark and Valerie Tomasino own property on Sebago Lake in Casco. The Trust owns abutting property. Both parcels are on a private road created by deeds granting each owner "a right of way over a strip of [the other's] land six (6) feet in width" along a portion of their common boundary.

[¶3] In 2017, the Tomasinos obtained a building permit from the Town of Casco to remove the existing home from their property and construct a new home in its place. See Casco, Me., Code § 215-6.1(A) (June 14, 2017). In 2018, the Tomasinos applied for and obtained from the Town's Code Enforcement Officer (CEO) a shoreland permit to remove three trees from Trust land that is subject to the Tomasinos' access easement in order to establish a gravel road to their new home as required to obtain a certificate of occupancy.¹ On the Trust's appeal to the Zoning Board of Appeals, the Board vacated the CEO's grant of the permit.² See Casco, Me., Code §§ 215-6.3(A)(1)(a), 215-9.36(G)(1)(a), (8)(a)(1) (June 14, 2017).

[¶4] On the Tomasinos' appeal of the Board's decision, the Superior Court remanded the matter to the Town for further findings and conclusions regarding the basis of the Board's decision. See M.R. Civ. P. 80B(m). On remand, the Board made findings about the sizes and locations of the three trees at issue, as well as that "[t]he easement is unclear as to the rights of the parties to cut trees without the other party's permission. No evidence was presented to the Board to definitively resolve this issue." On this basis, the Board concluded, "[T]he permit was not properly issued because two of the trees were located partially outside the easement area and on property owned exclusively by [the Trust] and it was unclear whether the Tomasinos had the right to remove the third tree without the agreement of [the Trust]." With a supplemented record, the court affirmed the Board's decision, and it denied the Tomasinos' post-judgment motion to amend the judgment and to reconsider.³ See M.R. Civ. P. 59(e). The Tomasinos appeal.

II. DISCUSSION

[¶5] Because the Superior Court acted in its intermediate appellate capacity, we review directly the operative decision of the municipality. See Lakeside at Pleasant Mountain Condo. Ass'n v. Town of Bridgton , 2009 ME 64, ¶ 11, 974 A.2d 893. Here, the operative decisions were those issued by the Board, which acted de novo in considering the Trust's appeal of the CEO's grant of the shoreland permit. See 30-A M.R.S. § 2691(3)(C) (2020) ; Casco, Me., Code §§ 215-6.3(A)(1)(a), 215-9.36(G)(1)(a); Gensheimer v. Town of Phippsburg , 2005 ME 22, ¶ 8, 868 A.2d 161. We therefore review the Board's decisions for errors of law, findings not supported by substantial evidence in the record, or an abuse of discretion, and we review the Board's interpretation of municipal ordinances de novo as a matter of law. See Fryeburg Tr. v. Town of Fryeburg , 2016 ME 174, ¶ 5, 151 A.3d 933. Further, "[a]s the party seeking to overturn the [Board's] decision, [the Tomasinos have] the burden of establishing that the evidence compels a contrary conclusion." Leake v. Town of Kittery , 2005 ME 65, ¶ 7, 874 A.2d 394 (quotation marks omitted).

[¶6] The Town's ordinance requires that "[a]ll applications [for permits] ... be signed by an owner or individual who can show evidence of right, title or interest in the property or by an agent, representative, tenant, or contractor of the owner with authorization from the owner to apply for a permit." Casco, Me., Code § 215-9.36(C)(2) (June 14, 2017). The crux of this appeal is the Tomasinos' argument that the Board erred by concluding that they failed to demonstrate that minimum right, title, or interest in the property on which the three trees are located. They argue that, as a matter of law, the only facts necessary to establish sufficient right, title, or interest to remove the three trees are that the trees are located on property on which they claim some easement rights.

[¶7] We disagree. As the Board found, the scope of the Tomasinos' deeded easement over the Trust's property is not established in this record; as an evidentiary matter, the language of the deeds does not disclose whether and to what extent the easement includes the right to remove trees, and, as a procedural matter in this municipal zoning case, the Trust has challenged the Tomasinos' right to remove the trees. Determining the scope of an easement requires an interpretation of the parties' respective deeds in light of relevant statutory provisions and case law. See Flaherty v. Muther , 2011 ME 32, ¶ 55, 17 A.3d 640 (stating that the terms of an easement are determined as a matter of law based on deed construction or, if the deed language is ambiguous, as a matter of fact based on extrinsic evidence of the parties' intent in the creation of the easement); Stickney v. City of Saco , 2001 ME 69, ¶ 33, 770 A.2d 592 (providing that deeds are construed based on the "law existing at the time [the deed] was made"). These are matters that are well outside the Board's jurisdiction, authority, or expertise, which is instead limited to the interpretation and application of ordinance provisions. See 30-A M.R.S. § 2691(4) (2020) ("No board may assert jurisdiction over any matter unless the municipality has by charter or ordinance specified the precise subject matter that may be appealed to the board and the official or officials whose action or nonaction may be appealed to the board."); Casco, Me., Code § 215-9.36(G)(1) (stating that the Board has the power to decide only "[a]dministrative appeals" and "[v]ariance appeals"); Cope v. Town of Brunswick , 464 A.2d 223, 225 (Me. 1983) (stating that "local zoning boards, like municipalities, have no inherent authority to regulate the use of private property" and are instead limited to those powers conferred upon the town by the State); Inhabitants of the Town of Boothbay Harbor v. Russell , 410 A.2d 554, 560 (Me. 1980) (noting that Boards of Appeals perform an adjudicatory function "within [a] limited jurisdiction").

[¶8] Indeed, as the Town reminded the Tomasinos throughout this litigation, a municipal zoning case is not the proper forum for a private property dispute between neighbors, and a private property dispute between neighbors is precisely what was before the Board here. E.g., Rockland Plaza Realty Corp. v. La Verdiere's Enters., Inc. , 531 A.2d 1272, 1273-74 (Me. 1987) ("[T]he Planning Commission was not the proper forum to determine existing property rights in the narrow strip of land and consequently the Superior Court was not in a position to entertain the issue on a Rule 80B appeal."); Cunningham v. Kittery Planning Bd. , 400 A.2d 1070, 1078-79 (Me. 1979) (stating that the purpose of a municipal board hearing was "to give the public an opportunity to present facts ... for its consideration in reviewing the subdivision application and not for the purpose of adjudicating private rights" (quotation marks omitted)); Whiting v. Seavey , 159 Me. 61, 67, 188 A.2d 276 (1963) ("The rights and obligations of parties to private covenants are to be determined in appropriate actions to enforce or to be relieved of the burden of, such covenants; they are not to be determined by reference to the zoning restrictions applicable to the land ...." (quotation marks omitted)).

[¶9] Moreover, the Tomasinos' reliance on authorities⁴ to argue that, as a matter of law, they are entitled to remove trees from the Trust land over which they hold a deeded easement are precisely the arguments they could have made in a declaratory judgment action against the Trust. It is not clear, given the guidance from the Town, why the Tomasinos have filed no such action, either on its own or as an independent claim in conjunction with their appeal to the Superior Court. See M.R. Civ. P. 80B(i).

[¶10] Although the dissent relies on certain sources to support the proposition that the Tomasinos' deeded easement was sufficient as a matter of law to establish the requisite right, title, or interest, those authorities are easily distinguished. Dissenting Opinion ¶¶ 19-23. In Walsh v. City of Brewer , the plaintiff sought municipal approval as to a parcel of property that he claimed no title to nor any easement over. 315 A.2d 200, 205 (Me. 1974). The crux of our holding was that, in the absence of any evidence of any legally cognizable ownership interest in the property and without sufficient evidence that he had any fiduciary relationship with the property owners to allow him to seek a municipal permit on their behalf, the plaintiff lacked any right, title, or interest in the property to seek such municipal approval. Id. at 206-08. This holding is in no way inconsistent with our conclusion in...