Town of Minot v. Starbird

• Decision Date: 20 June 2011
• Docket Number: AP-10-17
• Parties: TOWN OF MINOT, Petitioner v. CHUCK STARBIRD, Respondent.
• Court: Maine Superior Court

TOWN OF MINOT, Petitioner v. CHUCK STARBIRD, Respondent.

No. AP-10-17

Superior Court of Maine, Androscoggin

June 20, 2011

Plaintiff's Attorney Norman Rattey, Esq., SKELTON TAINTOR & ABBOTT

Defendant's Attorney Scott Lynch, Esq., HORNBLOWER LYNCH, RABASCO & VANDYKE

ORDER

MaryGay Kennedy, Superior Court Justice

Petitioner, the Town of Minot ("Town"), appeals pursuant to M.R. Civ. P. 80B the Town of Minot Board of Appeals' November 9, 2010 reconsideration decision granting Respondent's, Chuck Starbird, appeal of the Town Code Enforcement Officer's denial of his building permit application to construct a single family dwelling on his property.

Background

Starbird owns a parcel of land in Minot, Maine, located on a discontinued portion of the York Road. This portion of the York Road was declared a public easement by the District Court on September 26, 2007.^[1]

On May 14, 2010, Starbird submitted a building permit application to the Town Code Enforcement Officer to construct a singe family home. The CEO denied the permit on June 11, 2010, citing a lack of frontage on an accepted town street or private right of way. On July 6, 2010, Starbird appealed the decision to the Town of Minot Board of Appeals ("Board").^[2] On September 15, 2010, the Board denied the appeal, and the decision of the CEO was affirmed. Starbird filed a timely request for reconsideration with the Board. On November 9, 2010, the Board held a hearing and reversed its September 15, 2010 decision and granted Starbird's appeal. On November 15, 2010, the Town Selectmen filed this Rule 80B Appeal of the Board's reconsideration decision.

Standard of Review

In appeals brought pursuant to M.R. Civ. P. 80B, the court reviews administrative decisions directly. Rudolf v. Golick, 2010 ME 106, ¶ 7, 8 A.3d 684, 686 (citing Logan v. City of Biddeford, 2006 ME 102, ¶ 8, 905 A.2d 293, 295). Here, the court reviews the Board decision because "the Board heard evidence and conducted a de novo review, .. . and therefore the Board acted as fact-finder and decision-maker." Id. (citing Aydelott v. City of Portland, 2010 ME 25, ¶ 9, 990 A.2d 1024, 1026). The burden of persuasion in an action challenging an administrative decision rests on the party seeking to overturn the decision. See Sawyer Envtl. Recovery Facilities, Inc. v. Town of Hampden, 2000 ME 179, ¶13, 760A.2d257, 260.

The court reviews the Board decision for errors of law, abuse of discretion, or findings of fact unsupported by substantial evidence on the record. Fitanides v. City of Saco, 2004 ME 32, ¶23, 843 A.2d 8, 16 (citing Veilleux v. City of Augusta, 684 A.2d 413, 415 (Me. 1996)). "Substantial evidence exists if there is any competent evidence in the record to support a decision." Id. (citing York v. Town of Ogunquit, 2001 ME 53, ¶14, 769 A.2d 172, 178); see also Ryan v. Town of Camden, 582 A.2d 973, 975 (Me. 1990) (noting that the substantial evidence standard requires the court "to examine the entire record to determine whether on the basis of all the testimony and exhibits before the board it could fairly and reasonably find the facts as it did") (quoting Seven Islands Land Co. v. Maine Land Use Reg. Comm 'n, 450 A.2d 475, 479 (Me. 1982)). However, "[t]he interpretation of a local ordinance is a question of law that the court reviews de novo." Rudolf, 2010 ME 106, ¶ 7, 8 A.3d at 686 (internal citation and quotation omitted).

When "reviewing an administrative . . . decision, the issue before the court is not whether it would have reached the same conclusion as the [administrative tribunal], 'but whether the record contains competent and substantial evidence that supports the result reached.'" Seider v. Bd. of Exam 'rs of Psychologists, 2000 ME 206, ¶ 8, 762 A.2d 551, 555 (quoting CWCO, Inc. v. Superintendent of Ins., 1997 ME 226, ¶ 6, 703 A.2d 1258, 1261). The court may not substitute its own judgment for that of the administrative tribunal. See id; accord, Brooks v. Cumberland Farms, Inc., 1997 ME 203, ¶ 12, 703 A.2d 844, 848. In other words, an administrative decision is not wrong because it is inconsistent with parts of the record or because the court might have come to a different conclusion. See Twigg v. Town of Kennebunk, 662 A.2d 914, 916 (Me. 1996). Similarly, "local characterizations or fact-findings as to what meets ordinance standards will be accorded substantial deference." Rudolf, 2010 ME 106, ¶ 7, 8 A.3d at 686 (internal citation and quotation omitted). However, if a board "fails to make sufficient and clear findings of fact [as] are necessary for judicial review, " the court must remand the matter back to the board for those findings. Comeau v. Town of Kittery, 2007 ME 76, ¶ 9, 926 A.2d 189, 192 (quoting Carroll v. Town of Rockport, 2003 ME 135, ¶ 30, 837 A.2d 148, 157).

DISCUSSION

In its Conclusions of Law the Board recites part of section 4-501.8 and then concludes: "The right-of-way referred to in §4-501.8 of the Land Use Code includes a public easement." (R. at I, Findings of Fact and Conclusions of Law, at 2.) The Town argues that the Board erred as a matter of law in its interpretation. Specifically, the Town asserts that "[t]he result of that decision, if upheld, is that the Code Enforcement Officer of the Town of Minot will issue a building permit for the construction of a single family residence on a public easement despite the explicit language in the Code that limits construction on public easements to certain grandfathered parcels (of which the Property is not one) with the approval of the Planning Board." (Town's Brief at 3.) Starbird disagrees, arguing that the Board correctly interpreted the term "right-of-way" to include public easements.

The Minot Land Use Code states:

Back lots may be developed for uses permitted in the District if they are or can be provided with a right-of-way that connects with a public street, a privately-owned street which privately-owned street meets the standards contained in Chapter 8 . . . or in an approved subdivision and which complies with the following provisions:

If a back lot is accessible only by a legally enforceable right-of-way, it may be used if the following conditions are met:

A. The right-of-way must be conveyed by deed recorded in the Androscoggin County Registry of Deeds to the owner of the back lot and be a minimum of 33 feet in width.

B. A legal description of the right-of-way by metes and bounds shall be attached to any building permit application for construction on the back lot.

C. Except for lots recorded on the effective date of the Ordinance, the right-of-way deed must be recorded in the Androscoggin County Registry of Deeds at the time the back lot is first deeded out as a separate parcel.

D. Creation of the right-of-way to serve the back lot shall not create a nonconforming front lot by reducing such lot's required road frontage below the minimum, or, if the front lot is already non-conforming, with respect to road frontage, reduce its road frontage at all. Where the right-of-way is conveyed by easement or irrevocable license, or some grant less than a fee interest, the land over which such servitude is placed may not be counted toward meeting road frontage requires for the front lot.

E. The right-of-way may serve only one principal use or structure except the right-of (sic) may serve two dwelling units if a common driveway is constructed meeting the standards of Chapter 4-501.3. If the right-of-way is to serve more than two dwelling units a road meeting the requirements of Chapter 8 is required.

F. No more than one right-of-way for back lot development may be created out of a single lot fronting on a state or town maintained road or private road unless each subsequent right-of-way is created out of at least an additional frontage as required in the District, and the right-of-way entrances to such road are at least the required frontage plus half of the right of way width.

G. Each principal structure on back lots shall be located within the area defined by a circle with a minimum diameter equal to the required road frontage as required in the District.

(R. at J, Town of Minot Land Use Code, § 4-501.8.)

A "right-of-way" is "[a] persons' legal right, established by usage or contract, to pass through grounds or property owned by another." Black's Law Dictionary 1326 (7th ed. 1999). A "public easement" is statutorily defined as "an easement held by a municipality for purposes of public access to land or water not otherwise connected to a public way, and includes all rights enjoyed by the public with respect to private ways created by statute prior to the effective date of this Act" 23 M.R.S. § 3021(2) (2011); see also Black's Law Dictionary 528 (7th ed. 1999) ("public easement. An easement for the benefit of an entire community, such as the right to travel down a street or a sidewalk."). Therefore a public easement is a type of right-of-way, and the Board did not err in finding that "[t]he right-of-way referred to in §4-501.8 of the Land Use Code includes a public easement."

It is unclear why the Board, however, after concluding that a public easement is a legally enforceable right-of-way, did not continue with its analysis and determine whether or not the public easement at issue here, York Road, met the additional conditions of section 4-501.8.^[3] Section 4-501.8 requires more than just a determination that a right-of-way includes a public easement. Section 4-501.8 clearly states "If a back lot is accessibly only by a legally enforceable right-of-way, it may be used if the following conditions are met. . . ." (R. at J, Town of Minot Land Use Code, § 4-501.8) (emphasis added). The Board failed to make a determination as to whether these conditions were met. As a result, a meaningful judicial review of the...