Raposa v. Town of York

234 A.3d 206

Daniel G. RAPOSA Jr. et al.

v.TOWN OF YORK et al.

Docket: Yor-19-331

Supreme Judicial Court of Maine.

Argued: March 3, 2020

Decided: May 19, 2020

Sandra L. Guay, Esq. (orally), Woodman, Edmands, Danylik & Austin, P.A., Biddeford, for appellants Daniel Raposa Jr. and Susan Raposa

Mary E. Costigan, Esq. (orally), and Letson B. Douglass, Esq., Bernstein Shur, Portland, for appellee Town of York

Matthew W. Howell, Esq. (orally), Clark & Howell, LLC, York, for appellee Joshua Gammon

Panel: MEAD, GORMAN, JABAR, HUMPHREY, HORTON, and CONNORS, JJ.^*

Majority: GORMAN, HUMPHREY, HORTON, and CONNORS, JJ.

Dissent: MEAD and JABAR, JJ.

HORTON, J.

[¶1] Daniel G. Raposa Jr. and Susan Raposa appeal from a judgment of the Superior Court (York County, O'Neil, J. ) pursuant to M.R. Civ. P. 80B, affirming a decision of the Town of York Board of Appeals. The Board's decision purported to grant the Raposas' appeal from a decision of the Town's Code Enforcement Officer (CEO). However, the Board's written findings of fact directly contradict and effectively nullify its decision to grant the appeal. We conclude that the matter must be remanded for further proceedings.

I. BACKGROUND

[¶2] The following facts are supported by evidence in the record. See Grant v. Town of Belgrade , 2019 ME 160, ¶ 2, 221 A.3d 112 ; see also Raposa v. Town of York , 2019 ME 29, ¶¶ 2-4, 204 A.3d 129 (describing the factual and procedural background of this case). The Raposas own residential property in the Town of York that abuts property owned by Joshua Gammon, on which Gammon operates a commercial landscaping business. Gammon's lot was created by his predecessor-in-title's division of a larger lot. Gammon's predecessor previously operated an excavation business on Gammon's property, a lawful nonconforming use pursuant to the Town's Zoning Ordinance. See York, Me., Zoning Ordinance, art 17.1 (Nov. 5, 2019). In 2016, the Raposas contacted the Town's CEO "to express their concern that Gammon's use of the property was not consistent with [his predecessor's] nonconforming use." Raposa , 2019 ME 29, ¶ 3, 204 A.3d 129. In response to this inquiry, the CEO determined that (1) she did not have jurisdiction to decide whether the creation of Gammon's lot violated the Town's Shoreland Overlay District Ordinance, York, Me., Zoning Ordinance, art. 8 (Nov. 5, 2019); (2) the prior nonconforming use of the property by Gammon's predecessor had not been discontinued following the creation of Gammon's property; and (3) Gammon's current nonconforming use of his property did not represent a change in use from the prior use.¹

[¶3] The Raposas appealed the CEO's decision to the Board. At the Board's first public meeting on the matter, the Raposas asserted that all three of the CEO's determinations were in error. As particularly relevant to this appeal, the Raposas contended that Gammon's operation of his business on his property was a change in use from his predecessor's use of the property, and not, as the CEO had determined, an intensification of the same use.²

[¶4] On July 27, 2016, the Board held another public hearing on the matter. At this hearing, the Board granted, by a 3-2 vote, the Raposas' appeal as to both the lot-creation and change-of-use issues. However, the transcript from the hearing reflects considerable uncertainty leading up to this vote.³

[¶5] On August 24, 2016, the Board met to vote on the language of its written decision concerning the Raposas' appeal. See 30-A M.R.S. § 2691(3)(E) (2020) ("All decisions ... must include a statement of findings and conclusions, as well as the reasons or basis for the findings and conclusions ...."). The written decision references the July 27 vote and indicates that the Raposas' appeal was granted. The decision includes the following findings of fact:

11) The use of the lot by Mr. Gammon's landscaping business does not constitute a change of use but is an intensification of the same use.

12) The legally non-conforming use ha[s] not been shown to be interrupted during [Gammon's predecessor's] ownership.

[¶6] Prior to the August 24 meeting, the Raposas' attorney expressed her concern to the Chairman of the Board that these findings were inconsistent with the Board's July 27 vote to grant the Raposas' appeal on the change-of-use issue. Ultimately, however, the Board accepted the written decision, including the two findings listed above.

[¶7] The Raposas and Gammon each appealed to the Superior Court pursuant to M.R. Civ. P. 80B. The Raposas contended, among other things, that the Board could not grant their appeal as to the change-of-use issue and simultaneously adopt findings that contradict that decision. Gammon appealed the Board's decision to grant the Raposa's appeal as to the lot-creation issue. Gammon's appeal was resolved in his favor, and the lot-creation issue is no longer in contention. Gammon joined the Town in opposing the Raposas' appeal.

[¶8] The Superior Court granted the Town's motion to dismiss the Raposas' appeal for lack of subject matter jurisdiction. The Raposas appealed that decision to us, and we vacated the judgment and remanded for the court to reach the merits of the Raposas' Rule 80B appeal. See Raposa , 2019 ME 29, ¶ 13, 204 A.3d 129. On remand, the court affirmed the Board's decision, concluding that (1) the Board's written decision issued on August 24 was the operative decision for judicial review and (2) the findings contained in that decision were supported by substantial evidence in the record. The Raposas timely appealed. See 14 M.R.S. § 1851 (2020) ; M.R. App. P. 2B(c)(1).

II. DISCUSSION

[¶9] "Because the Board conducted a de novo review of the CEO's determination, we review the Board's decision directly." Raposa , 2019 ME 29, ¶ 12, 204 A.3d 129. We review the Board's decision "for errors of law, abuses of discretion, or findings not supported by substantial evidence in the administrative record." Bryant v. Town of Wiscasset , 2017 ME 234, ¶ 11, 176 A.3d 176. As the parties seeking to vacate the Board's decision, the Raposas bear the burden of persuasion. See id.

[¶10] In both its July 27 vote and its August 24 written decision, the Board purported to grant the Raposas' appeal in its entirety, without differentiating between the lot-creation and the change-of-use issues. The Board was required to justify that result with written findings that support—not contradict—its decision. See 30-A M.R.S. § 2691(3)(E) ; Carroll v. Town of Rockport , 2003 ME 135, ¶ 27, 837 A.2d 148.

[¶11] However, the Board's findings that are pertinent to the change-of-use issue support a denial, rather than a grant, of the Raposas' appeal on that issue. Because the Board's August 24 decision purports to grant the Raposas' appeal on the change-of-use issue but contains factual findings that directly contradict that result, we vacate the decision and remand for further proceedings.⁴

[¶12] On remand, the Board must (1) decide, based on the evidence in the record, whether to grant or deny the Raposas' appeal on the change-of-use issue and (2) issue findings that support the Board's decision, see 30-A M.R.S. § 2691(3)(E).

The entry is:

Judgment vacated. Remanded to the Superior Court with instructions to remand to the Town of York Board of Appeals for further proceedings consistent with this opinion.

MEAD, J., with whom JABAR, J., joins, dissenting.

[¶13] In its meeting on August 24, 2016, the Town of York Board of Appeals debated and very purposely adopted written findings of fact determining that there had been no change in Joshua Gammon's use of his lot and that Gammon's grandfathered nonconforming use had not been interrupted while his predecessor owned the lot. Although the Board had earlier conflated those issues with a separate issue concerning the creation of Gammon's lot when it voted to grant the Raposas’ appeal, the Board's later written findings clarified and conclusively resolved its decision concerning the discrete change-of-use issue. I would hold that the written findings are the operative decision of the Board for our review and that they are supported by substantial evidence in the record. Accordingly, I respectfully dissent.

[¶14] Gammon operates a commercial landscaping business on his property, which, in response to an inquiry by the Raposas, the Code Enforcement Officer (CEO) found, pursuant to the Town's Zoning Ordinance, to be a grandfathered nonconforming use occurring on a "legally non-conforming grandfather[ed] lot exempt from Code Enforcement jurisdiction." See York, Me., Zoning Ordinance art. 17.1.1 (Nov. 5, 2019) ("A non-conforming use which is otherwise lawful according to all applicable regulations may continue ....").

[¶15] The Raposas appealed the CEO's decision to the Board, which held four public meetings:

• June 8, 2016: The Raposas presented two primary but very separate concerns to the Board: (1) that Gammon's lot, created by his predecessor-in-title's division of a larger lot, did not meet the requirements of the Town's Shoreland Overlay District Ordinance; and (2) that the operation of Gammon's business represented a change in use from his predecessor's nonconforming use.⁵ The Board continued the matter so that the CEO could appear.

• June 22, 2016: At a public hearing, the Board heard from a number of speakers, including the Raposas and the CEO, concerning the two issues. As to the lot-creation issue, which was the Board's primary concern, it decided to continue the matter in order to obtain an opinion from the Town's attorney. Concerning Gammon's use of the lot, most of the Board members viewed the issue as one of an intensification of the previous use rather than a change of use.

• July 27, 2016: The Board discussed the Town attorney's opinion that the creation of Gammon's lot by his predecessor-in-title required Planning Board approval; counsel did not opine on the change-of-use issue.

The Board then considered and voted on three motions. The first, which would have found that the

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