Yates v. Town of Southwest Harbor, corrected 2-15-01
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	2001 ME 2
Docket:	Han-97-209	
Argued:	November 7, 2000
Decided:	January 5, 2001	

Panel:WATHEN, C.J., and CLIFFORD, RUDMAN, DANA, SAUFLEY, ALEXANDER, and
CALKINS, JJ.

MICHAEL L. YATES

v.

TOWN OF SOUTHWEST HARBOR

WATHEN, C.J.

	[¶1]  Michael Yates appeals from the judgment entered in the
Superior Court (Hancock County, Marsano, J.) affirming the decision of the
Southwest Harbor Zoning Board of Appeals granting John Spofford's
administrative appeal from the Southwest Harbor Planning Board's denial of
his application for a Flood Hazard Development Permit.  Yates, an abutter,
argues that the Superior Court erred in affirming the decision of the ZBA
because the Planning Board did not err when it denied Spofford's
application.  We agree and vacate the judgment of the Superior Court.
	[¶2]  Spofford operates a boat engine repair business in a building
located on a pier in Southwest Harbor.  Yates owns property immediately
adjacent to Spofford's property on which he operates a marine electronics
sales and repair business.  In February of 1995, Spofford applied for a Land
Use Ordinance Permit to "[r]eplace a 35' X 36' piece of the dock and
building of which is now 72' X 60'."  As an abutter, Yates received notice
that the Planning Board was considering Spofford's application, but he did
not attend the first public hearing regarding the application.{1}  
	[¶3]  In support of this application, Spofford was required to obtain a
Flood Hazard Development Permit from the Planning Board.  Under the
town's Floodplain Management Ordinance, if an improvement made to an
existing structure is "substantial," the structure must be located at least one
foot above the base flood elevation or it must be flood-proofed to at least one
foot above the base flood elevation.  Southwest Harbor, Me., Floodplain
Management Ordinance for the Town of Southwest Harbor § IV(H) (May 7,
1991).  The elevation of Spofford's building is two and one-half feet below
the required elevation.  Spofford maintained before the Planning Board,
however, that he would not have to comply with the elevation requirements
because the improvements he planned to make were not "substantial."  A
"substantial improvement" is "any reconstruction, rehabilitation, addition or
other improvement of a structure, the cost of which equals or exceeds 50%
of the market value of the structure before the 'start of construction' of the
improvement."  Floodplain Management Ordinance § XII.  Because
Spofford's building is located on a pier, the Maine Flood Insurance
Coordinator contacted the Federal Emergency Management Agency (FEMA)
to determine whether the pier should be considered part of the building for
purposes of determining its market value.  In response, the Director of
FEMA's Mitigation Division explained that it "[i]t is a reasonable approach to
include the value of the dock/piers beneath the footprint of the building in
determining the market value of the building."
	[¶4]  In support of his application, Spofford provided an estimate
that the improvements would cost $19,887.60 and a real estate agent's
assessment that the market value of the structure and the entire pier is
$93,000.  Based on these figures, the Planning Board determined that
Spofford's proposed improvements were not "substantial" and approved his
application.  
	[¶5]  After Spofford had completed construction, Southwest
Harbor's Code Enforcement Officer (CEO), Larry Gardner, reviewed the
Spofford property and found that, as built, it did not comply with the
building specifications of the permit issued.  He explained that Spofford had
violated the town's Land Use Ordinance in thirteen ways.{2}  Most notably, the
improved structure had a second floor that was not shown on the plans that
accompanied the original application.  The CEO informed Spofford that he
would have to modify his permit to reflect the improvements as built. 
Spofford complied by filing an after-the-fact permit application. 
	[¶6]  During the review process, the Planning Board re-examined its
earlier decision regarding whether the project constituted a "substantial
improvement."  It noted that the original market value appraisal had been
based upon an overstatement of the size of the building.{3}  In addition, the
CEO received a letter from the Maine Flood Insurance Coordinator
expressing his concern that the Planning Board had acted contrary to
FEMA's advice when it included the value of the entire pier in its
assessment of the market value of Spofford's building.  The Coordinator
pointed out that FEMA's advice had been to include only the value of the
pier beneath the structure's footprint when determining the structure's
value.  He emphasized that compliance with the Floodplain Management
Ordinance is a condition of the town's participation in the National Flood
Insurance Program.  He also explained to the CEO that an opinion of the
market value of a structure must come from a real estate appraiser, not a
real estate agent. 
	[¶7]  After review, the Planning Board denied Spofford's after-the-
fact application for a Flood Hazard Development Permit.  The Planning Board
specifically found that the value of the building and the portion of the pier
immediately under it, prior to the replacement and expansion, was $45,762. 
It also found, based on paid invoices for completed work, that the cost of the
improvements was $27,259.45.  It concluded that the improvements had
been "substantial" and, because Spofford's structure did not conform with
the Floodplain Management Ordinance's elevation requirements, it denied
his application.
	[¶8]  Spofford appealed to the Zoning Board of Appeals (ZBA) for a
variance.  At the hearing, the ZBA accepted the appeal application with
exhibits, letters from FEMA, a letter from the Planning Board Chairman, 
letters from Spofford's attorney, and a letter from Yates.  Members of the
Planning Board made appearances and the CEO and Yates's daughter made
presentations.  After the presentations, the ZBA closed the public hearing
and began deliberations.  It decided to treat Spofford's appeal as an
administrative appeal rather than a request for a variance.  It determined
that the Planning Board had issued a valid building permit based on the
original assessment of the building's value at $93,000 and that the actual
cost of the improvements, $27,259.45, was less than 50% of that value.  It
concluded, therefore, that the improvements were not substantial and that
the Planning Board could not "impose undue financial hardship by changing
the rules" after Spofford had "expended his money consistent with the
original assessment."  Accordingly, the ZBA directed the Planning Board to
reissue the permits.  It later reconsidered the appeal but upheld its previous
decision.
	[¶9]  Yates subsequently filed a four-count complaint for review of
governmental action, pursuant to M.R. Civ. P. 80B, and independent relief. 
The Superior Court stayed the claims for independent relief pending the
resolution of the 80B claims.  It later denied the 80B claims and Yates
appealed.  We, however, remanded the matter to the Superior Court because
no final judgment had been entered on the independent claims.  The parties
subsequently agreed to dismiss the independent claims with prejudice and
Yates brought the present appeal.
	[¶10]  When the Superior Court acts as an appellate court, we review
directly the operative decision of the municipality, Stewart v. Town of
Sedgwick, 2000 ME 157, ¶ 4, 757 A.2d 773, 775, for "error of law, abuse of
discretion or findings not supported by substantial evidence in the record,"
Sproul v. Town of Boothbay Harbor, 2000 ME 30, ¶ 8, 746 A.2d 368, 372
(internal quotations omitted). In identifying the operative decision for
purposes of review, we have noted that:

If the Board of Appeals acted as a tribunal of original
jurisdiction, that is, as factfinder and decision maker, we
review its decision directly.  If, however, the Board acted
only in an appellate capacity, we review directly the decision
of the Planning Board, or other previous tribunal, not the
Board of Appeals.

Stewart, 2000 ME 157, ¶ 4, 757 A.2 773 (citations omitted).  Yates argues
that Southwest Harbor's ZBA was acting in its appellate capacity when it
granted Spofford's administrative appeal and, therefore, we ought to review
the Planning Board's decision directly.  Spofford, on the other hand,
maintains that the ZBA acted as a tribunal of original jurisdiction, not as a
purely appellate body, when it granted Spofford's appeal.  Although he does
not challenge the Planning Board's decision itself, he maintains that we
should review the ZBA's decision directly and that its decision is not in
error. 
	[¶11]  In order to determine the ZBA's role in these proceedings,
we look to state statutes and to the municipality's own ordinances.  See id. ¶
6.  In Stewart v. Town of Sedgwick, for example, we reviewed the statute
authorizing municipalities to establish boards of appeal, 30-A M.R.S.A.
§ 2691(3)(D) (1996), and Sedgwick's zoning ordinance.  Id. ¶¶ 6, 11.  We
first explained that section 2691(3)(D) requires boards of appeal to conduct
hearings de novo, unless the municipal ordinance explicitly directs
otherwise.  Id. ¶ 7.  Sedgwick's ordinance, however, did not do so.  Id. ¶ 11. 
It implied that its Board of Appeals was to act as an appellate body by
providing that it may "reverse the decision . . . of the Code Enforcement
Officer or Planning Board only upon a finding that the decision . . . was
clearly contrary to specific provisions of this Ordinance."  Id. n.5 (quoting
Sedgwick zoning ordinance) (omissions in original).  It also suggested,
however, that the Board of Appeals was to undertake a de novo review of the
matter by providing "[t]he person filing the appeal shall have the burden of
proof" and "[a]ll decisions shall . . . include a statement of findings and
conclusions . . . ."  Id. n.6 (quoting Sedgwick zoning ordinance) (omissions
in original).  
	[¶12]  Like the Sedgwick zoning ordinance, Southwest Harbor's
Board of Appeals Ordinance provides that the ZBA may "reverse the decision
of the Code Enforcement Officer or Planning Board . . . only upon finding
that the decision, or failure to act, was clearly contrary to specific provisions
of the ordinance in question or unsupported by substantial evidence in the
record."  Southwest Harbor, Me., Board of Appeals Ordinance for the Town
of Southwest Harbor §X(E) (May 8, 1990).  It also provides that "[a]ll
decisions . . . must include a statement of Findings of Fact and Conclusions,
upon all the material issues of fact, law or discretion presented."  Id. § X(B). 
Finally, the town's Land Use Ordinance provides that "[t]he person filing the
appeal shall have the burden of proof."  Southwest Harbor Land Use
Ordinance § VIII(C)(3) (June 29, 1992).
	[¶13]  Unlike the Sedgwick zoning ordinance, however, Southwest
Harbor's Land Use Ordinance gives the ZBA specific authority to act as an
appellate body.  Under the ordinance, the ZBA may hear administrative
appeals, variance appeals, and appeals to extend the life of a building permit. 
Land Use Ordinance § VIII(B).  The authority to hear administrative appeals
allows the ZBA "[t]o hear and decide appeals where it is alleged that there is
an error in any order, requirement, decision, or determination made by, or
failure to act by, the code Enforcement Officer or Planning Board in the
administration of this Ordinance."  § VIII(B)(1).  The ZBA's authority to act
on an administrative appeal, therefore, is limited to reviewing decisions
made by the CEO or Planning Board.  In order to exercise its authority to
grant variances or extend the life of building permits, by contrast, the ZBA is
required to make independent factual findings of "undue hardship" (in the
case of variances) or "progress" (in the case of building permit extensions). 
Land Use Ordinance § VIII(B)(2-3).  
	[¶14]  We conclude that Southwest Harbor's ZBA acted as an
appellate body when it conducted the present administrative appeal. 
Although it conducted a public hearing and took evidence on Spofford's
variance appeal, it closed the hearing before deciding to treat the appeal as
an administrative appeal.  Its conclusions, though labeled "findings of fact,"
dealt only with the propriety of the Planning Board's actions.  The ZBA made
no independent factual determination of the value of Spofford's property or
the costs of the improvements.  Rather, it determined that the Planning
Board had erred by "changing the rules" when it re-evaluated Spofford's
project.  
	[¶15]  Because Southwest Harbor's ZBA acted in its appellate
capacity in granting Spofford's administrative appeal, we review the decision
of the Planning Board directly.  Stewart, 2000 ME 157, ¶ 4, 757 A.2d at
775.  Spofford does not explicitly challenge the Planning Board's decision,
and our review of the record reveals no error.
	The entry is:

The judgment of the Superior Court is
vacated.  Remanded to the Superior
Court for the entry of an order vacating
the judgment of the Zoning Board of
Appeals and affirming the judgment of
the Planning Board.

Attorneys for plaintiff:

Thomas B. Federle, Esq., (orally)
Clifford H. Goodall, Esq.
Dyer Goodall and Federle LLC
61 Winthrop Street
Augusta, ME 04330

Attorneys for defendants:

Roger L. Huber, Esq., (orally)
Glen L. Porter, Esq.
Eaton, Peabody, Bradford & Veague, P.A.
P O Box 1210
Bangor, ME 04402-1210
(for John & Melvin Spofford)

Chadbourn H. Smith, Esq.
Fenton, Chapman, Smith & Kane, P.A.
P O Box B
Bar Harbor, ME 04609-0020
(for Town of Southwest Harbor)

FOOTNOTES******************************** {1} . Yates explains that he did not attend the Planning Board's first meeting because the notice he received described the improvements as a "replacement" of the existing building, not as an expansion of its elevation and footprint. Spofford's original application proposed an increase in the height of the existing building from twelve to eighteen and one-half feet. At its first meeting, however, the Planning Board approved Spofford's request to increase the height to twenty-five feet. Yates maintains that this increased height restricts his horizon and interferes with his ability to test, evaluate, and demonstrate radar and satellite receivers. {2} . The CEO enumerated the violations as follows: 1.Not having Submerged Lands Lease for pier extension and new floats. 2.Not having DEP Long Form Permit for an "EXPANSION." 3.Misleading information on application. 4.Misleading information on site plan. 5.Misleading information on elevation drawing of building. 6.Not having Harbor Committee review/approval of 2' pier extension. 7.Not having Harbor Committee review/approval of expansion of shop's dock coverage, floor area, height and volume. 8.Not having Army Corps approval for pier extension. 9.Being indeed a substantial improvement in regards to flood hazard review. 10.Applicant listed "marina" as a proposed use. This must be officially dispelled. The Planning Board did not review and approve this site as a marina. 11.Not having Planning Board approval for shop relocation, reconstruction, replacement and expansion of the 1st floor level from 1132 sq. ft. to 1400 sq. ft. 12.Not having Planning Board approval for expansion of volume and floor area of the 2nd level. 13.Not having Planning Board approval for the Morris Yachts use of the property. {3} . Town Planner, Jean Marshall, explained: The estimate of market value for this Flood Hazard Application was prepared by Knowles Real Estate. The letter says that the structure contains approximately 1800 sq. ft. - approximately 720 sq. ft. has been recently renovated with the remaining 1080 sq. ft. in poor to fair condition. From the above research, the recently renovated building contained only 616 sq. ft. and the rest of the old building contained 619 sq. ft., for a total of 1235 sq. ft. only.