Viles v. Town of Embden

• Decision Date: 31 August 2006
• Citation: 905 A.2d 298,2006 ME 107
• Parties: David VILES et al. v. TOWN OF EMBDEN et al.
• Court: Maine Supreme Court

905 A.2d 298

2006 ME 107

David VILES et al. v. TOWN OF EMBDEN et al.

Supreme Judicial Court of Maine.

Submitted on Briefs: March 22, 2006.

Decided: August 31, 2006.

Edmond A. Bearor, Esq., Timothy A. Pease, Esq., Rudman & Winchell, Bangor, for plaintiffs.

Brian M. Rayback, Esq., Helen L. Edmonds, Esq., Pierce Atwood, Portland, (for Richard Hinman), Neal C. Corson, Esq., Madison, (for Town of Embden), for defendants.

Panel: SAUFLEY, C.J., and CLIFFORD, ALEXANDER, CALKINS, LEVY, and SILVER, JJ.

Majority: SAUFLEY, C.J., and CLIFFORD, ALEXANDER, CALKINS, LEVY, and SILVER, JJ.

Concurring: SAUFLEY, C.J., and LEVY and SILVER, JJ.

CALKINS, J.

[¶ 1] David and Cheryl Viles appeal from a judgment entered in the Superior Court (Somerset County, Jabar, J.), affirming a decision of the Embden Appeals Board (Board), which rescinded a permit issued to the Vileses to build a house and garage on their lot bordering Embden Pond. The Board's decision was the result of an appeal by Richard Hinman, an abutting neighbor. In rescinding the building permit, the Board concluded that the Vileses' lot was not a nonconforming lot of record and therefore could not be a grandfathered lot pursuant to the Embden Shoreline Zoning Ordinance. The Vileses argue that Hinman's appeal to the Board was untimely and that their lot is a buildable, nonconforming lot of record. We affirm the judgment.

I. BACKGROUND

[¶ 2] This matter has a lengthy procedural history. The Vileses own lots 7 and 21, which are intersected by the Walker Road. They were originally part of a large tract of land on the shores of Embden Pond. Lot 7 has fifty feet of frontage on Embden Pond. Hinman owns Lot 8, which borders Lot 7. On February 13, 2003, the Vileses obtained a permit from the Embden Planning Board to build a house and attached garage on Lot 7. The permit stated the dimensions for the house as thirty-six by thirty-eight feet and twenty-four by thirty-eight feet for the garage.

[¶ 3] Eight months later Hinman wrote letters to the Embden officials complaining about the permit. At the October 9, 2003, meeting of the planning board, the Hinman complaint was discussed, and the planning board asked the code enforcement officer (CEO) to visit the lot with an official of the Department of Environmental Protection. The CEO issued a stop work order. One of the reasons given for the stop work order was that a building could not be constructed within fifteen feet of an existing wastewater treatment system. At the October 16 meeting of the planning board, Viles explained that the location of the proposed house was not within fifteen feet of an existing septic system and that the house dimensions in the building permit were incorrect. At the Vileses' request, the planning board voted to change the permit to reflect that the proposed house dimensions were thirty-six by twenty-eight feet and the garage dimensions were twenty-four by twenty-eight feet. Several days later, the CEO lifted the stop work order.

[¶ 4] Hinman filed two appeals to the Board: one seeking revocation of the permit originally issued by the planning board; and the other seeking revocation of the amended permit. The Board held a hearing, and after a recommendation from its attorney, the Board dismissed Hinman's appeals as untimely. Hinman appealed to the Superior Court, which remanded the matter to the Board for a de novo hearing. The Superior Court concluded that the appeal from the February 13 issuance of the permit was timely pursuant to the good cause exception in Keating v. Zoning Board of Appeals of Saco, 325 A.2d 521 (Me.1974), and that the appeal from the reissuance of the permit in October 2003 was appropriate. The Vileses filed an appeal from the Superior Court's remand order, but we dismissed the appeal as interlocutory.

[¶ 5] On remand and after a two-day hearing held in November and December 2004, the Board rescinded the building permit on the basis that Lot 7 was not a nonconforming lot of record. The Vileses appealed to the Superior Court, and it affirmed the Board's decision.

II. DISCUSSION

A. Timeliness

[¶ 6] We must first analyze whether Hinman's appeal to the Board was timely. The provision governing appeals to the Board in the Embden Shoreline Zoning Ordinance does not contain a time within which an appeal must be filed. Embden, Me., Shoreline Zoning Ordinance 6.3 (May 19, 1993). When zoning ordinances are silent on the time period by which an aggrieved person must filed an appeal from the issuance of a permit, we have set sixty days as that time period. Keating, 325 A.2d at 525. Hinman did not appeal to the Board within sixty days of the February 13 issuance of the building permit to the Vileses.

[¶ 7] The Superior Court, however, found that Hinman had shown good cause for not filing his appeal within sixty days. Specifically, the court found that (1) Hinman did not receive notice of the building permit, although it acknowledged that the ordinance did not require notice to Hinman; (2) when Hinman found out about the permit, he immediately contacted town officials, who responded by placing the matter on the agenda of the planning board and issuing a stop work order; and (3) immediately after the planning board decided not to rescind the building permit, Hinman appealed to the Board. The court concluded that these facts established good cause.

[¶ 8] In Keating, we held that when a court "finds special circumstances which would result in a flagrant miscarriage of justice," the time for filing an appeal may be extended "within a narrowly extended range." Id. at 524. We have referred to this exception to the appeal time limit as the "flagrant miscarriage of justice" exception, Gagne v. Cianbro Corp., 431 A.2d 1313, 1317 (Me.1981), and the "good cause exception," Brackett v. Town of Rangeley, 2003 ME 109, ¶ 14, 831 A.2d 422, 427.

[¶ 9] When we review the application of the good cause exception, we review the decision of the Superior Court because the application of the exception is a judicial, and not an administrative, decision. Id. ¶ 17, 831 A.2d at 428. We have previously applied the abuse of discretion standard of review to a Superior Court's determination of the existence of good cause and the clearly erroneous standard to the court's factual findings. Gagne v. Cianbro, 431 A.2d at 1317-18.

[¶ 10] Nonetheless, both parties urge us to apply a de novo standard of review, although Hinman would have us apply the clear error standard to the court's factual findings. We decline to do so. The de novo standard is generally reserved for questions of law, but the determination of whether the good cause exception can and should be applied in a particular case is not a purely legal question, even when the facts are undisputed. The exception as it was announced in the Keating case, and as it has been applied in subsequent cases, is a determination of whether the appeal should be allowed "in light of all the circumstances bearing on all the equities of the situation." Gagne v. Lewiston Crushed Stone Co., 367 A.2d 613, 619 (Me.1976).

[¶ 11] Our cases mention several factors to be considered when determining whether the good cause exception is appropriate. See Gagne v. Cianbro, 431 A.2d at 1317 (finding that the Superior Court appropriately analyzed "the competing interests of builder and nearby landowners"). Because the court uses its discretion in weighing the various factors and "all the equities of the situation," the abuse of discretion standard is the appropriate one to apply.

[¶ 12] In discussing the factors to be utilized by the courts in determining whether there is good cause to allow a late appeal, it is useful to recall the rationale in Keating for the good cause exception. The need for a good cause exception primarily stems from the lack of notice of the issuance of the building permit to abutting landowners or other persons who may be aggrieved by its issuance. Keating, 325 A.2d at 524. Maine statutes do not require municipalities or permit holders to provide notice to abutting landowners of the issuance of a building permit. Some municipalities may have enacted notice requirements in their ordinances. See, e.g., Brackett, 2003 ME 109, ¶¶ 4, 19, 831 A.2d at 425, 428. In Keating we acknowledged the difficulty of a notice requirement. 325 A.2d at 524-25. The good cause exception was designed because the lack of a notice requirement may mean that an abutting landowner does not learn of a permit until the time period for appeal has expired.

[¶ 13] Therefore, when a court examines whether the good cause exception is applicable to a situation, it starts with determining whether the appellant received notice of the issuance of the permit. Given the rationale in Keating, lack of notice is a key factor, but it is not a determinative factor. Gagne v. Lewiston Crushed Stone, 367 A.2d at 619. Another factor is the amount of time the appellant waited to file the appeal after obtaining actual knowledge of the permit. Brackett, 2003 ME 109, ¶ 21, 831 A.2d at 428; Gagne v. Cianbro, 431 A.2d at 1317. Still other factors that may be appropriate involve whether the municipality violated its own ordinance and whether the permit holder violated the terms of the permit. Brackett, 2003 ME 109, ¶ 18, 831 A.2d at 428.

[¶ 14] The question before us is whether the Superior Court abused its discretion in applying these factors and concluding that good cause existed for Hinman's late appeal to the Board. As stated above, the court found that Hinman did not receive notice of the issuance of the permit and immediately contacted Town officials when he learned about it. In addition to reciting these facts, which it relied upon in finding good cause for the late filing of an appeal, the court also made several background findings. The building permit was issued on February 13, 2003, and construction on the Vileses' home had not commenced before or during the summer of 2003. Hinman was in Florida...