Molinelli v. Town of Boothbay

STATE OF MAINE SUPERIOR COURT
LINCOLN, ss. CIVIL ACTION
DOCKET NO. WISSC-AP-2020-5

EUGENE MOLINELLI and )
JUDITH MOLINELLI, )
)
Plaintiffs, )
) DECISION AND ORDER ON
V. ) PLAINTIFFS' SOB APPEAL
)
TOWN OF BOOTHBAY, )
)
Defendant )

INTRODUCTION

This appeal arises out of an ongoing dispute between the Molinellis and the Town

with respect to the Molinellis' right to remove vegetation in a shoreland zone on their

neighbor's property. The Molinellis own a view easement on this neighboring property

which they believe enables them to clear some vegetation to maintain. The Town believes

otherwise, and has sought to stop the Molinellis from clearing this vegetation. This is the

second time this dispute has resulted in an SOB Appeal reaching this court.

BACKGROUND

The Molinellis own property at 66 Sawyers Island Road in the Town of Boothbay,

Maine. (Pl.'s Br. at 1.) They purchased the property pursuant to a deed which granted

them a fee interest in property on the eastern side of Sawyers Island Road and a view

easement of the Sheepscot River across a portion of the property retained by the grantor

on the western side of the road. (Pl.'s Br. at 1-2.) The deed conveying the easement

explicitly states that no structure will be built, nor vegetation allowed to grow, so as to

interfere with the view of the river from the Molinellis' property. (Pl.'s Br. at 2.)

The current owners of the burdened estate, the Wagners, came to own the property

in 2012. (Def.'s Br. at 1.) There has been some dispute between the Molinellis and their

current neighbors as to the nature and scope of the easement. (Def.'s Br. at 1-2.) This

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dispute stems from an incongruity in their respective deeds. Where the Molinellis' deed

expressly states that vegetation may not be allowed to grow so as to obstruct their view

over the burdened estates, the language in the Wagners' deed only allows the Molinellis

to cut down any tree over five feet that obstructs their view. Id.

In the Fall of 2017, the Wagners filed a complaint of unauthorized clearing of

vegetation on their property with the Town. Id. The Code Enforcement Office ("CEO")

issued a Notice of Violation to the Molinellis and the Wagners, alleging 11 Zoning

Ordinance violations for the Molinellis' activities clearing vegetation on the Wagners'

property. Id. The Molinellis challenged the notice before the Town of Boothbay Board of

Appeals ("Board"). The Board vacated some of the violations, but upheld most of them.

(Pl.'s Br. at 2.) The Molinellis then filed an SOB appeal with this court on July 3, 2018.

The court overturned most of the violations on appeal. See Order on Plaintiffs'

Rule SOB Appeal (Docket No. LINSC-AP-lS-5). Most important to this case, the court

held that the Molinellis had not abandoned their view easement and therefore had a

legally exempt nonconforming use under the zoning statutes. Id. The only violation the

court upheld was based on the Mollinellis' failure to obtain a permit before conducting

maintenance activities on their easement. Id. Neither party appealed and the order is

now final. 1

The Molinellis filed an application for a permit, pursuant to the court's order, on

June 26, 2019. (Pl.'s Br. at 3.) Their initial application described the activity as simply

restoring the view easement and included the relevant deed language, diagrams and

1 While the action was pending, the Town entered into a voluntary agreement with the Wagners
to replant vegetation on the property that the Molinellis cleared. (Def.'s Br. at 2.) This plan was
implemented in June of 2018. Id.

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pictures of the area to be trimmed. (R. at 318-352.) The CEO responded to this letter with

a request for more specific information about, among other things, what vegetation

would be removed and the exact scope of the easement referred to in the deed. (R. at 353­

354.) The Molinellis supplemented their application several times with more details,

though apparently never to the satisfaction of the Town. (Def.'s Br. at 3-4.) After 2

months of back-and-forth, the CEO issued a permit on September 4, 2019, which allowed

the Molinellis to conduct certain vegetation removal actions subject to three conditions.

(Pl.'s Br. at 3.) These conditions are as follows:

Condition #1:
Prior to the commencement of any vegetation trimming or removal, the
Molinellis' arborist (or whoever else is performing the work) shall conduct an on­
site pre-vegetation trimming meeting with the Code Enforcement Officer (CEO).
At the time of this meeting, the CEO shall review the Molinellis' vegetation
trimming plans with the arborist (or whoever else is performing the work),
which review shall include a discussion regarding the following:
a) proposed techniques and methods of vegetation trimming
b) what is meant by cutting "at heights indicated by the 2007 photo" (see p. 3,
Item 4 of revised application submitted on 8/22/19); and
c) what is meant by trimming "in accordance with Court directives" (see 5­
6, Grid Tally Results of revised application submitted on 8/22/19).

Condition # 2:
The area of sustained slopes (20% or greater) on the property adjacent to the
Sheepscot River is part of the Resource Protection Area (RP). There shall be no
cutting or removal of vegetation within the strip of land extending 75 feet inland
from the high-water line of the Sheepscot River that is part of the RP. See Section
3.11.3.2.1.6 of the Zoning Ordinance.

Condition #3:
There shall be no cutting or removal of vegetation planted as part of the plan
entitled "Shoreland Zone Buffer Vegetation Plan, prepared for 65 Sawyer Island
Road, Boothbay, Maine" prepared by Sara Witte, Landscape Architect dated
March 13, 2018 and on file at the Code Enforcement Office of the Town unless
such cutting or removal of vegetation is first authorized by the CEO either at the
on-site pre-vegetation trimming meeting or a subsequent on-site visit with the
CEO.

(R. at 104.)

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On October 1, 2019, the Molinellis filed an administrative appeal with the BOA

challenging the conditions. (Pl.'s Br. at 4.) They argued that this court's previous opinion

specifically barred conditions 2 and 3, and alternatively condition 2 could not be upheld

because the property was not actually within the Resource Protection Area. They

challenged condition 1 on the grounds that it was a unique, arbitrary and vague use of

power that singled them out. A public hearing was held on the appeal on February 20,

2020. Id. The BOA voted 3-0 to uphold the first condition and 2-1 against upholding the

other two conditions. Id. However, because the Zoning Ordinance (§ 1.9.3.3.2.2) requires

a concurring vote of three members of the BOA to grant an appeal, all three conditions

were upheld. (Def.'s Br. at 6.)

The Molinellis then brought this Rule SOB appeal challenging the decision of the

BOA.

STANDARD OF REVIEW

In an appellate capacity, the Superior Court reviews a municipality's decision

directly for errors of law, findings not supported by the evidence in the record, or an

abuse of discretion. Tenants Harbor Gen. Store, LLC v. Dep't of Envtl. Prat., 2011 ME 6, 'I[ 8,

10 A.3d 722. The party asserting an error in a Rule SOB appeal bears the burden of

showing that error before the court. Quiland, Inc. v. Wells Sanitary Dist., 2006 ME 113, 'I[

16, 905 A.2d 806. A decision is supported by substantial evidence "when a reasonable

mind would rely on that evidence as sufficient support for a conclusion." Phaiah v. Town

of Fayette, 2005 ME 20, 'I[ 8, 866 A.2d 863 (quotations omitted) (citing Forbes v. Town of

Southwest Harbor, 2001 ME 9, 'I[ 6, 763 A.2d 1183). The court may not substitute its

judgment for that of the board, and may not determine that a board's decision is wrong

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"because the record is inconsistent or a different conclusion could be drawn from it."

Phaiah, 2005 ME 20, 'l[ 8, 866 A.2d 863.
A planning board's interpretation of an ordinance is a question of law that the

court reviews de nova. Aydelott v. City of Portland, 2010 ME 25, 'l[ 10,990 A.2d 1024 (citing

Logan v. City of Biddeford, 2006 ME 102, 'l[ 8, 905 A.2d 293). The court must "examine the

plain meaning of the language of the ordinance" and reasonably construe its terms "in

light of the purposes and objectives of the ordinance and its general structure." Stewart v.

Town of Sedgwick, 2002 ME 81, 'l[ 6, 797 A.2d 27.
DISCUSSION

Much of the dispute in this case concerns whether the Town is precluded from

conditioning the Molinellis' permit by the court's previous decision. The Molinellis argue

that conditions 2 and 3 are precluded by the doctrine of res judicata. They argue the

Town is prohibited from imposing conditions that prevent them from maintaining their

view easement as they have done historically. The Town replies that this issue concerns

the scope of the Molinellis' easement, which it contends was not an issue in the previous

case. In the alternative, the parties dispute whether those two conditions were rightfully

upheld by the BOA.

As for the first condition, the Molinellis contend that it is an arbitrary and

unconstitutional restriction of their property rights. The Town replies that the condition

was a reasonable one.

I. The Town is Precluded from Imposing Conditions 2 and 3 by Res Judicata

The Law Court has described the two prongs of the res judica ta doctrine as follows:

The doctrine of res judicata is a court-made collection of rules designed to ensure
that the same matter will not be litigated more than once. The doctrine has
developed two separate components, issue preclusion and claim preclusion.
Issue preclusion, also referred to as collateral estoppel, prevents the relitigation
of factual issues already decided if the identical issue was determined by a prior

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final judgment, and ... the party estopped had a fair opportunity and incentive
to litigate the issue in a prior proceeding. Claim preclusion bars relitigation if: (1)
the same parties or their privies are involved in both actions; (2) a valid final
judgment was entered in the prior action; and (3) the matters presented for
decision in the second action were, or might have been litigated in the first
action. The collateral estoppel prong of res judicata is focused on factual issues,
not claims, and asks whether a party had a fair opportunity and incentive in an
earlier proceeding to present the same issue or issues it wishes to litigate again in
a subsequent proceeding.

Macomber v. MacQuinn-Tweedie, 2003 ME 121, 'l[ 22, 834 A.2d 131(internal quotations and

citations omitted).

The parties disagree as to which prong of the res judicata doctrine is applicable to

their dispute. The Molinellis argue that claim preclusion applies, the Town argues that

collateral estoppel is the applicable doctrine.

It is clear that the first two requirements for applying claim preclusion are satisfied

here. The issue, then, is whether the matters presented for decision were, or could have

been, decided in the previous case. The Town argues that the court never considered the

scope of the Molinellis' view easement in the previous case and instead only held that

they had not abandoned their easement. The Molinellis point out that the court

specifically stated that the easement allowed them to clear vegetation so the court must

have reached this issue.

The Molinellis have the better argument here. The court's order took up the issue

of whether the Molinellis had abandoned their view easement. When considering this,

the court was quite explicit that it was considering the "steep slope" as part of that

easement. Order on Plaintiffs' Rule SOB Appeal at 9 (Docket No. LINSC-AP-18-5). The

Town never contested that construction of the easement. The court found that the view

easement area was grandfathered from the vegetation clearing requirements of the

Shoreland ZO.

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Despite that, the Town now wishes to argue that the court never took up the scope

of the easement. In other words, the Town argues that even though the court found that

the Molinellis were exempt from the Shoreland ZO's requirements, it somehow never

considered the scope of easement that created that exemption. Whether the Molinellis'

easement covered the steep slopes and created an exemption from the vegetation clearing

requirements of the Shoreland ZO was clearly a matter presented for decision in the

previous action, even if the Town advanced a legal theory focused on reversion at that

time. Not only could those matters have been decided in the courts prior order, they were.

Condition 2 bars cutting of vegetation on the steep slopes which clearly fall within

the Molinellis' view easement. This condition cannot stand in light of the court's previous

order. Condition 3 is perhaps an even more flagrant violation of this court's order, as it

attempts to protect a replanting plan that was devised by the Wagners and the Town to

remedy the very violations the court overturned last time. To say that this is somehow

distinct because it arises under an agreement between the Town and the Wagners does

nothing to abrogate the Molinellis' right to maintain their view easement. Condition 3,

therefore, must also fall.

Were this court to apply collateral estoppel instead, the result would be the same.

As stated previously, whether the easement covered the slope partially in dispute was an

essential predicate of its ultimate holding that the Molinellis had not abandoned their

right to clear vegetation under the easement. The parties therefore had a full opportunity

and incentive to litigate the issue before. That they chose not to focus on it is no bar to

the application of the doctrine.

The Molinellis' rights under their easement are well established and subject to a

final court order. When the court upheld the permit requirement in the previous matter,

it did not imagine that the Town would use it to try to achieve the result it was unable to

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obtain in that litigation. The court hoped that the Town would work with the Molinellis

to arrive at a resolution that respected their property rights while allowing the Town to

minimize any potential harms that could arise from excessive clearing of vegetation.

However, as the courts final order made clear, these permits may not interfere with the

Molinellis' right to clear some vegetation reasonably necessary to maintain their view

easement.

II. Condition 1 is Supported by Substantial Evidence and Not an Abuse of

Discretion

Mr. Molinelli offered to concede the first condition at the February 20, 2020 BOA

hearing as a potential compromise. Now, however, the Molinellis challenge this

condition as an abuse of discretion, an error of law and unsupported by substantial

evidence in the record.

The thrust of the Molinellis' argument against Condition 1 is that it imposes a

unique condition that is unduly restrictive and unfairly singles them out. The Town

argues that this condition did not actually single them out, as it only calls for a site visit,

which the CEO testified is his usual practice prior to issuing a shoreland zone permit.

The stated purpose of these visits is to ensure that the CEO knows precisely what the

applicant plans to do before granting the permit.

An exercise of the of the police power to regulate for the general welfare that does

not implicate a fundamental right is subjected to rational basis review. State v. Haskell,

2008 ME 82, 'l[ 5, 955 A.2d 737. The Molinellis suggest that their case is analogous to

McNicholas v. York Beach Vil/. Corp., 394 A.2d 264 (Me. 1978), where the law court struck

down a $25 permit charge to dive in a park because there was no rational distinction

between divers and other park users. Id. at 270. However, unlike McNic/10/as, the BOA

heard competent evidence that the Molinellis were not treated substantially differently

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with respect to this requirement. Furthermore, the CEO testified that his reason for

imposing this condition was to ensure that he fully understood what work the Molinellis

were going to undertake.

The CEO is directed by the Zoning Ordinance to consider many criteria when

deciding whether to grant a permit. These criteria, laid out in § 3.6.1, include whether

the proposed use will maintain safe and healthful condition; will not result in water

pollution, erosion or sedimentation to surface waters and; will avoid problems associated

with floodplain development and use. (R. at 498.) It is rational that the CEO may need a

great deal of specific information in certain cases to make this decision. Requiring an in

person meeting prior to vegetation maintenance to discuss the specifics is not arbitrary

or an abuse of discretion.

However, the court wishes to reemphasize that these permit requirements are not

carte blanche to rewrite the court's order. The Molinellis have a right to clear vegetation

to maintain their easement. While the Town may seek an arrangement in line with the

land use goals laid out in the permit criteria, it may not use these criteria to further

attempt to frustrate the Molinellis' rights.

CONCLUSION

For the foregoing reasons, Plaintiffs' SOB Appeal is GRANTED as to Conditions 2

and 3, and the court reverses and vacates the decision below as to those conditions. The

SOB Appeal is DENIED as to Condition 1.

The Clerk is directed to incorporate this Order by reference in the docket in

accordance with M.R. Civ. P. 79(a).

DATED: November 2, 2020

Daniel I. Billings
Justice, Maine Superior Court

Entered on the Docket: 11 /212020 9