Posted by: Patricia Salkin | August 8, 2017

ME Supreme Court Finds ZBA decision Lacked Sufficient Factual Findings to Permit Meaningful Appellate Review Regarding Accessory Structures

Christopher Bond owned a nonconforming lot located in the Residence A District (RA District) in Cape Elizabeth. Bond submitted to the Town Code Enforcement Officer (CEO) an application for a building permit to construct two twelve-foot by twelve-foot cubes, “accessory structures,” on the property.  Appletree Cottage, LLC, the owner of an abutting property, appealed the CEO’s grant of the building permit to the Town Zoning Board of Appeals (ZBA). Appletree argued that the cubes were not “accessory structures,” and their construction would therefore violate the Town Zoning Ordinance. The ZBA rejected this argument and upheld the issuance of the building permit, and the Superior Court affirmed. Appletree appealed from the judgment of the Superior Court affirming the ZBA.
On appeal, the court found the CEO made no factual findings in granting Bond’s application for a building permit. The only evidence of the CEO’s decision in the record was a copy of Bond’s building permit application bearing a stamp that read “APPROVED” on the first page. Even though a more detailed record was developed through the ZBA hearing, the ZBA was not authorized to conduct a de novo hearing pursuant to the then-existing Ordinance, and therefore its decision was not operative. Because the CEO’s grant of Bond’s building permit was the operative decision, and because that decision lacked sufficient factual findings to permit meaningful appellate review, the court vacated and remanded the case to the CEO to make detailed findings and conclusions.
Appletree Cottage v Town of Cape Elizabeth, 2017 WL 3389382 (ME 8/8/2017)


Responses

  1. As a long-time Code Enforcement Officer, I would be interested to know exactly what “factual findings” the Law Court wanted to see established in the record. When I deny a building permit application, I know enough to write out a basis of denial, citing chapter and verse of why a permit could not be issued. In this case, it sounds like the law court expects a CEO to write out a similar explanation of why a permit is being issued. That is a ridiculous expectation, simply due to the shear number of building permit applications a City the size of mine can expect to receive and the number of employees that have been hired to handle these applications.
    Permits are issued because they have been found to be in compliance with the rules in effect at the time of issuance, plain and simple. If this is, in fact, the expectation of the court, it will cause municipalities to either ignore the case law and continue doing what has been done for years in hopes that the decision is not challenged or they can hire more staff, at greater expense to the taxpayer to handle the paper chase they expect.
    I suppose a third alternative would be to change the appeals section of the Ordinance to allow hearings to proceed “de-novo.”


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