DANIEL G. RAPOSA JR. et al. v. TOWN OF YORK et al.
Yor-19-331
MAINE SUPREME JUDICIAL COURT
May 19, 2020
2020 ME 72
HORTON, J.
Argued: March 3, 2020;
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
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
[¶3] The Raposas appealed the CEO‘s decision to the Board. At the
[¶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
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
[¶7] The Raposas and Gammon each appealed to the Superior Court pursuant to
[¶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
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
[¶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
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
[¶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 CEO erred in her decision on the lot-creation issue, was defeated, as was the second, which would have found that the CEO was correct in her decision on the change-of-use issue.
Following the failure of the first two motions, the Chair expressed the view that “we do need to decide the appeal, I think up or down . . . I would look to see a motion that disposes with the appeal in favor or [is] opposed [to] it, either grant[s] it or doesn‘t.” A motion to grant the appeal carried by a 3-2 vote.
In voting to grant the appeal as a whole, the Board did not separately consider an alternative that had been suggested by its earlier discussion of the first motion: granting the appeal on the lot-creation issue and not on the change-of-use issue:
MR. MOULTON: Does [voting for the motion concerning the lot-creation issue] grant the Raposas’ appeal?
MR. SWANT: [T]hat was part of the question that I posed earlier, does it grant their appeal?
MR. MANOUGIAN: I think it does. No matter what you do, they‘re gonna wind up in the planning board no matter what we decide, but I think it does.
. . . .
MR. SWANT: . . . That‘s where it‘s gonna go anyhow [to the Planning Board]. . . . [W]e can say that the planning board needs to come to a decision on the matter.
- August 24, 2016: The Board clarified the basis for its July 27 vote to grant the appeal when it met to finalize its written findings of fact. Before the meeting, the Raposas’ attorney expressed her concern to the Chair that proposed draft findings concerning the change-of-use issue did not reflect the July 27 votes taken by the Board. Alerted to the Raposas’ concerns, the Board nonetheless discussed the draft findings at length, and, relevant to this appeal,
- concerning a proposed finding that “[t]he 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,” the Board rejected a motion to delete that finding and passed a separate motion explicitly retaining it;
- the Board rejected a motion to delete a proposed finding that “[t]he legally non-conforming use had not been shown to be interrupted during [Gammon‘s predecessor‘s] ownership“; and
- separately addressing the lot-creation issue, the Board found that “[t]he lot in question is not a legally created lot of record since Planning Board approval . . . is required.”
The Board concluded the meeting by accepting the written findings on a 3-1 vote of the members present, including the findings resolving the change-of-use issue in Gammon‘s favor.
[¶16] On August 29, 2016, the Chair signed a document entitled “Official Record of the Town of York Board of Appeals,” reflecting both the July 27 vote taken on the motion to approve the Raposas’ appeal and the Board‘s written findings of fact, adopted after that vote had been taken, which narrowed the basis for the grant of the Raposas’ appeal.
A. Operative Decision of the Board
[¶17] “Because the Board conducted a de novo review of the CEO‘s determination,
[¶18] I conclude that the Board‘s August 24 written findings are the operative decision of the Board for purposes of appellate review. The Ordinance governing the Board provides:
The Board of Appeals shall render a decision on an application not later than 30 days from the date of the final [h]earing. The final decision on any matter before the Board shall be made by written order signed by the Chair . . . .”
[¶19] Here, the “Official Record of the Town of York Board of Appeals,” although referencing the initial July 27 vote, was signed by the Chair after the Board had approved its August 24 written findings, which are explicitly incorporated in the “Official Record.” In my view, the August 24 written findings narrowed the basis for granting the Raposas’ appeal to the lot-creation issue and found in favor of Gammon on the change-of-use issue. As the Court notes, the lot-creation issue is no longer contested. Court‘s Opinion ¶ 7.
B. Substantial Evidence
[¶20] We review the Board‘s written findings deferentially
for abuse of discretion, error of law, or findings unsupported by substantial evidence in the record. [The Raposas have] the burden of showing that the evidence compels a contrary conclusion. A board of appeals has discretion in determining whether an activity is within the scope of a permitted, nonconforming use. We may not substitute our judgment for that of the Board. If there is relevant evidence in the record to reasonably support the Board‘s conclusion, the fact that the record contains inconsistent evidence or [that] inconsistent conclusions could be drawn from the evidence does not invalidate the Board‘s holding.
Boivin v. Town of Sanford, 588 A.2d 1197, 1199 (Me. 1991) (alteration and quotation marks omitted); see Grant v. Town of Belgrade, 2019 ME 160, ¶ 8, 221 A.3d 112; MSR Recycling, LLC v. Weeks & Hutchins, LLC, 2019 ME 125, ¶ 13, 214 A.3d 1 (“A demonstration that no competent evidence supports the Board‘s findings is required in order to vacate the Board‘s decision.” (alterations and quotation marks omitted)).
[¶21] Given this record, the Board, faced with the task of resolving conflicting testimony, made a decision supported by substantial evidence that did not compel a contrary finding. See Boivin, 588 A.2d at 1199. “Substantial evidence is evidence that a reasonable mind would accept as
1. Change of Use
[¶22] In the first finding challenged by the Raposas, the Board determined that “[t]he 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.” At the June 22 public hearing, the Board heard from several witnesses who said that Gammon‘s use of his property was different in both kind and intensity from that of his predecessor. The Board also heard from one witness who said that it was not, and received documentary evidence suggesting that Gammon‘s use was similar to the previous use. At the July 27 hearing, the CEO told the Board, “I didn‘t see that there has been a change of use.” Although it could have done otherwise, the Board was entitled to credit the evidence in favor of a conclusion that Gammon‘s business did not constitute a change of use. See id.
2. Discontinuation of Prior Nonconforming Use
[¶23] The Raposas also challenge the Board‘s finding that “[t]he legally non-conforming use had not been shown to be interrupted during [Gammon‘s predecessor‘s] ownership.” The York Zoning Ordinance provides that: “A lot . . . on which a non-conforming use is discontinued for a period exceeding 24 months . . . may not again be devoted to a non-conforming use . . . .”
[¶24] However, as the Superior Court noted, the Raposas failed to establish that the Town had ever taken actual possession of the property, or that Gammon‘s predecessor had discontinued his nonconforming use during the period when the property was in foreclosure. The CEO stated at the July 27 hearing that “whether [Gammon‘s predecessor] owned [the lot] or the [T]own owned it, the use continued. I don‘t see that it stopped, I don‘t see that it changed.” (Emphasis added.) Furthermore, the record before the Board contained receipts from which the Board could infer that Gammon‘s predecessor continued to conduct business between 2011 and 2014.
[¶25] One Board member, noting that the evidence was not definitive, speculated that “[Gammon‘s predecessor] could have been using the property to . . . make money to pay for the taxes. Who knows.” Our jurisprudence assigns to the Raposas the burden to show that the nonconforming use was discontinued for the requisite period. See Fitanides, 2015 ME 32, ¶ 8, 113 A.3d 1088; Boivin, 588 A.2d at 1199. The Board was entitled to accept the evidence that it found to be credible and persuasive, and it could reasonably conclude from the conflicting evidence that Gammon‘s predecessor did not discontinue his nonconforming use for a period exceeding two years. See Toomey, 2008 ME 44, ¶ 12, 943 A.2d 563; Boivin, 588 A.2d at 1199. Accordingly, the Ordinance did not prohibit Gammon‘s ongoing nonconforming use. See
[¶26] I would conclude that the Board‘s August 24 written findings are the operative decision for our review, and that those findings were intended to, and did, narrow the basis for granting the Raposas’ appeal to the lot-creation issue. I would further determine that the Board‘s written findings concerning the change-of-use issue, reviewed deferentially, are supported by substantial evidence.
[¶27] It is enough that the basis for the Board‘s decision can be ascertained from the record, whether or not the Board‘s mandate is framed in the polished niceties of a judicial opinion. Here, the basis for the Board‘s decision to grant the Raposas’ appeal was its determination that the lot-creation issue required Planning Board review. Concerning the use issue, the Board clearly and purposely found, following discussion and separate votes, that there had been no change or discontinuation of the prior nonconforming use. Those findings were grounded in the Board‘s determinations of witness credibility and the weight to be given to the evidence before the Board—determinations that we purport to review with considerable deference.
[¶28] There is no reason to further delay the resolution of this matter, which has now been pending for well over three years. Accordingly, I would affirm the judgment of the Superior Court denying the Raposas’
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
York County Superior Court docket numbers AP-2016-34 & AP-2016-35
FOR CLERK REFERENCE ONLY