ME Supreme Judicial Court Finds Independent Claim for Declaratory Judgement was Duplicative of Plaintiff’s Request for Judicial Review of ZBA’s Approval to Replace Nonconforming Structure with Larger Structure

This post was authored by Matthew Loeser, Esq.

Cape Shore House Owners Association and Constance Jordan owned a parcel of land that abutted a parcel owned by Alan and Mara DeGeorge. In 2017, the DeGeorges applied to the Cape Elizabeth Zoning Board of Appeals for permission to raze an existing nonconforming house located on their property and to build a new one. Cape Shore testifed at the ZBA hearing as an abutting property owner, and claimed that since the DeGeorges sought to replace a nonconforming building located within the SPOD with a new structure that was larger in some respects, the ZBA was required to consider the effect that the proposed construction would have on views. Following the ZBA’s approval of the DeGeorges’ application, Cape Shore filed a three-count complaint against the Town of Cape Elizabeth and the DeGeorges. The court dismissed Cape Shore’s independent claim for a declaratory judgment, finding that section 19-6-11(E)(2) of the Cape Elizabeth Zoning Ordinance was duplicative of its request for judicial review, and affirmed the ZBA’s decision to approve the DeGeorges’ application and entered judgment against Cape Shore.

On appeal, Cape Shore challenged the court’s dismissal of its independent claim for declaratory judgment, where the court acted in its capacity as a trial court and not in an intermediate appellate capacity. The court noted that pursuant to Maine Rule of Civil Procedure 80B(i), if a complaint contains both a Rule 80B appeal and an ostensibly independent challenge to the law applied by the municipal body, the latter may properly be dismissed as duplicative if it “relies on the same factual allegations, and seeks the same relief” as the Rule 80B appeal. Here, in Count 2 of its complaint, Cape Shore sought a declaratory judgment that the thirty-five-foot height restriction provided in the Cape Elizabeth Ordinance, which the ZBA applied during its adjudication of the DeGeorges’ application, was preempted by the Mandatory Shoreland Zoning Act. The record indicated that this claim was presented in the same factual context as the Rule 80B aspect of the complaint, and sought same relief that Cape Shore requested in its Rule 80B appeal. As Cape Shore’s claim for declaratory relief was not independent from its Rule 80B appeal, the court found the trial court’s dismissal of Cape Shore’s claim for declaratory judgment as duplicative was not an abuse of its discretion.

Cape Shore House Owners Association v. Town of Cape Elizabeth, 2019 WL 2345431 (ME 6/4/2019)