Preview:

STATE OF MAINE
YORK,
55.

SUPERIOR COURT CIVIL ACTION DOCKET NO. AP-06 03~ GAt) _'/0['> - !O~,/;j,x>7

WILLIAM C. PIERCE and CYNTHIA A. PIERCE, Plaintiffs

v.

ORDER ON BOB APPEAL

TOWN OF KENNEBUNK, Defendant Before the Court is Plaintiffs William C. Pierce and Cynthia A. Pierce's (the "Pierces") appeal against the Defendant Town of Kennebunk ("Town") pursuant to M.R. Civ. P. 80B of a decision issued by the Kennebunk Zoning Board of Appeals ("ZBA") barring their appeal of a Kennebunk Planning Board ("Planning Board") decision because it was not timely filed. Following hearing, the appeal is Denied. STATEMENT OF FACTS AND PROCEDURAL HISTORY The sole issue before the Court is whether the ZBA erred when it barred the appeal because it was not filed within 30 days of the Planning Board's oral decision at hearing. The Pierces own a single-family residence in Kennebunk, Maine with frontage on the Kennebunk River. Though the residence is in the Suburban Residential Zone, the riverfront area lies in the Shoreland Protection (SP) and Resource Protection (RP) Zones. The SP and RP require special exception approval from the Planning Board prior to the building of "permanent or temporary piers, docks and wharfs" pursuant to Article VII of the Kennebunk Zoning Ordinance ("Ordinance").

On January 17, 2006, the Pierces sought approval of a temporary dock structure

consisting of a walkway, ramp and floating dock (the "Project") by submitting a Special Exception Application to the Planning Board. A public hearing was held on March 27, 2006 to consider the application (the "Hearing"). Mr. Pierce attended the Hearing accompanied by an engineering firm that was handling the technical aspects of the Project. The Pierces were not represented by legal counsel at that time. At the Hearing, the Planning Board denied the Pierces' application. Subsequent to the Hearing, the Pierces contacted the Kennebunk Town Planner ("more than once") to ascertain when a written decision would be rendered. The

minutes of the March 27, 2006 meeting were approved on April 24, 2006 at which point a written decision was mailed to the Pierces. At that point, the Pierces retained legal counsel and an administrative appeal of the Planning Board's decision was filed with the ZBA on May 23, 2006. There is no dispute that the appeal was filed within 30 days of the written decision. The ZBA hearing was held on June 19, 2006. The Pierces attended with legal counsel. At hearing the ZBA Chairman stated that the appeal was barred because it was not filed within 30 days from when the decision was rendered pursuant to Article VII Section 2(G) of the Ordinance. The Pierces countered that Article VII section 2(G) is expressly governed by Article VI section 3, allowing appeal within 30 days of a written decision (emphaSis added). The ZBA voted to deny the appeal. Subsequently, the Pierces filed this appeal asserting that the ZBA erred in its interpretation of the Ordinance and/ or that the ZBA interpretation of the Ordinance is a violation of the Pierces rights under the due process and equal protection clauses of the Maine and United States Constitutions.

2

STANDARD OF REVIEW
As an intermediate appellate court, the Superior Court reviews the decisions of the Board of Appeals "directly for abuse of discretion, legal error, or findings unsupported by substantial evidence in the record." Rowe v. City of S. Portland, 1999 ME 81,
CJI

5, 730

A.3d 673, 675 (citing Twigg v. Town of Kennebunk, 662 A.2d 914, 916 (Me. 1995)). The interpretation of an ordinance is a question of law that the Court reviews de novo.

Kurlanski v. Portland Yacht Club, 2001 ME 147,

Download YORap-06-039.pdf

Maine Law