Makee v. Town of Chebeague Island

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STATE OF MAINE SUPERIOR COURT
CUMBERLAND, ss. CNILACTION
DOCKET NO. AP-23-02

MICHAEL MAKEE and MARY MAKEE,

Plaintiffs,

V.

TOWN OF CHEBEAGUE ISLAND,

Defendant, ORDER ON PENDING MOTIONS

and

JAMES GALLAGHER, ANNE GALLAGHER, STA1E Or Mt.~~ Office
NORMA DREW, and JEFFREY DREW, Cumberland, ss, C

JUL o5 2023
Parties-in-Interest,
RECE\VEO /l-JIA
i:\Or'"
Before the Court are three pending motions, all fully briefed: (1) Parties' -in-Interest Motion

to Stay; (2) Petitioners Makees' Motion for Trial of the Facts; and (3) Parties-in-Interest and

Town's Joint Motion to Dismiss Count II. For the following reasons, the Motion to Stay is moot,

the Motion for Trial is granted, and the Joint Motion to Dismiss is denied.

Background

This action challenges a Shoreland Zoning Ordinance permit that the municipal Code

Enforcement Officer ("CEO") issued for extension of a driveway and the site of the guest house

on a 2.33-acre residential property ("the property") located at 107 Cottage Road in the Town of

Chebeague Island, Maine ("Town"). Michael and Mary Makee (the "Makees") own the property

and have undertalcen improvements there, including by beginning construction of a guest house.

Parties-in-Interest James and Anne Gallagher (the "Gallaghers") and Norma and Jeffrey Drew (the

Plaintiffs-Scott Dolan, Esq.
1 Defendant Town, Natalie Burns, Esq.
Defendants Gallagher and Drew-Keith
Richard, Esq.
"Drews") (together, the "Abutters") own abutting property.

In its decision issued December 1, 2022, the Town Board of Adjustments and Appeals

("Board") decided there was good cause to enlarge the 30-day appeal deadline under the Shoreland

Zoning Ordinance. (R. 012.) Then it concluded that the CEO's approval of the Shoreland Zoning

Ordinance permit was invalid because there was no scaled plot plan, no written erosion and

sediment control plan, and no use of a DEF-certified contractor. (R. 012-013 .) The Board reversed

the CEO's granting of the Shoreland Zoning permit. (R. 013.)

The Makee count I for Rule 80B review challenges the Board's conclusions that the

Abutters had shown good cause for their late appeal and that the CEO erred in approving the

Shoreland Zoning Permit for the driveway extension and guest house site. The Makees argue the

Board denied them due process with its bias, its independent investigation, and its failure to allow

them to respond to arguments; the Board erred in its application of the ordinances and state law;

findings of fact were not substantially supported; the Board selectively enforced ordinances; the

Board lacked jurisdiction; and the Board erred in interpreting a December 19 vote on the motion

to reconsider. The Makees' count II asserts equitable estoppel and count III asserts vested rights,

both based on the Board's revocation of their permit for construction of the accessory guest house

and driveway extension.

Discussion

A. Motion for Trial of the Facts

On February 13, 2023, the Makees moved for a trial of the facts to provide the Court with

evidence that the appeal was untimely, that the Board's granting the good cause exception violated

the Makees' vested rights and should be equitably estopped, that the Board chair was biased, and

that the Makees were denied procedural due process. They included an offer of proof with their

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motion, whlch includes documentary evidence and expected testimony from Michael Makee,

James Gallagher, Norma Drew, and Sandra McLean.

Upon filing of a motion for trial of the facts, the time limits contained in thls rule
shall cease to run pending the issuance of an appropriate order of court specifying
the future course of proceedings with that motion. [The offer of proofJ shall be
sufficient to permit the court to make a proper determination as to whether any trial
of the facts as presented in the motion and offer of proof is appropriate under this
rule and if so to what extent.

M.R. Civ. P. 80(d).

The purpose of Rule 80B( d) is to allow the parties to an appeal of a governmental
action to augment the record presented to the reviewing court with those facts
relevant to the court's appellate review of agency action. Rule 80B(d) is not
intended to allow the reviewing court to retry the facts that were presented to the
governmental decisiomnaker, nor does it apply to any independent civil claims
contained in the complaint. Rather, it is intended to allow the reviewing court to
obtain facts not in the record that are necessary to the appeal before the court. See
Palesky v. Secretary ofState, 1998 ME 103, 115-9, 711 A.2d 129. For example,
the complainant may augment the record if there are claims of ex parte
cotmnunication or bias alleged, with sufficient particularity, to have had an effect
on the fairness of the governmental proceedings ....

Baker's Table, Inc. v. City ofPortland, 2000 ME 7, 19, 743 A.2d 237.

The Court finds that the evidence of bias and due process violations in the current record

is significant enough to justify presentation of further evidence on those issues. The Makees allege

that the Board chair sent an email encouraging appeal of their construction permits to a number of

Chebeague inhabitants, the Abutters, and Town officials including the CEO. A copy of that email

is provided at Ex. A to the Amended Complaint. In the email chain, Chair McLean writes,

The Makees have not followed the zoning ordinance in multiple ways and have not
been called to task for any of these violations. Since their lot is affected by the
shoreland zoning rules, it is particularly important that they follow all such rules
precisely. When the town does not hold violators responsible, the only recourse
neighbors have is to file a complaint with the board of appeals of file suit in a court
oflaw. Unfortunately, I may soon have to exercise these options.

Ex. A to Pis.' Comp!. at 2. Michael Makee read thls portion of the email from the Board chair at

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hearing before the Board, but given the claims that the email shows improper ex parte

communication and bias, the Court will allow the Makees to introduce the written emails with any

necessary foundation.

Most of the remaining information in the offer of proof is duplicative of material that is

already in the record. Aside from the bias and ex parte communication evidence, the Court will

allow evidence that is not in the record and that the Makees did not have the opportunity to present

earlier. This includes evidence that the Makees did not have notice of the Board's outside research

on their property's chain of title and evidence that they attended the December 1, 2022 hearing but

weren't allowed to present evidence or argument.

The Makees also clarify that they are "not looking for the Court to merely state that due

process violation occurred, [but] they are seeking a trial of fact to remedy those due process

violations by allowing the Makees to be fully heard by a neutral unbiased arbiter." Makee Reply

at 4. The Court reserves its decision on whether a full rehearing is required before this Court until

after it makes determinations on the bias and due process claims after a trial of the facts.

B. Motion to Stay

The Abutters move to stay the Makee appeal during the pendency of their own appeal. The

Court has dismissed the Abutters' appeal in PORSC-AP-22-41. Therefore, it finds the Motion to

Stay is moot.

C. Joint Motion to Dismiss Count II

The Town and the Parties-in-Interest argue pursuant to M.R. Civ. P. 12(b)(6) that the

Makees' Count II fails to state a claim for which relief can be granted. The movants argue that

Maine law does not recognize equitable estoppel either as an independent claim or an affirmative

defense where a Town has not yet brought enforcement action or engaged in any conduct that

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could be estopped. The Makees oppose the motion, arguing that their count II asks the Court to

apply equitable estoppel to the Board's decision to hear the late appeal under the Zoning Ordinance

and subsequent revocation of the Shore land Zoning Permit, not to estop some future action. They

also argue that the movants have waived any l 2(b)( 6) defense by not raising it in an answer. The

movants reply, arguing that equitable estoppel cannot apply to revocation of permits. They also

argue that the good cause exception, based in equity, forecloses application of equitable estoppel

where it is applied.

On a Rule l 2(b)( 6) motion to dismiss, the court construes the complaint in the light most

favorable to the nonmoving party to determine whether the complaint alleges the elements of a

cause of action or facts that may justify relief on any legal theory. MacMath v. Me. Adoption

Placement Servs., 635 A.2d 359, 361 (Me. 1993) (citing Stevens v. Bouchard, 532 A.2d 1028,

1030 (Me. 1987)).

First, this Court considers the Makees' argument that the movants have waived their

12(b)( 6) argument because they did not file an answer. The movants argue that because the

equitable estoppel claim has been brought in the Rule 80B context and no order specifying the

course of future proceedings has been issued regarding count II, neither of the movants were

required to file an answer to preserve a 12(b)(6) defense. See M.R. Civ. P. 80B(a) ("No responsive

pleading need be filed unless required by statute ofby order ofthe court, but in any event any party

named as a defendant shall file a written appearance within the time for serving an answer under

Rule 12(a).") In an analogous situation, the Law Court has ruled that because no responsive

pleading is required in the 80B context, raising an affirmative defense at the briefing stage of an

80B appeal was sufficient to preserve the issue for review on appeal even where the affirmative

defense was normally waived unless raised in the pleadings. Larrivee v. Timmons, 549 A.2d 744,

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747 n.4 (Me. 1988) (citing Conary v. Perkins, 464 A.2d 972, 975-76 (Me. 1983)). Under the same

logic, the movants would not have waived their Rule 12(b)(6) defense by failing to file a responsive

pleading. Cf Slager v. Bell, 2021ME52,111, 261 A.3d 923 ("Although Rule 80B(a) requires a

written appearance to be filed "within the time for serving an answer," neither Rule 41 nor Rule

SOB indicates that the written appearance is an answer for purposes ofRule 4l(a)(l)(i)."). The

Court declines to find the movants waived their Rule 12(b)(6) defense.

The movants point out that the Law Court has stated that estoppel "can be asserted against

a municipality only as a defense and carmot be used as a weapon of assault." Tarason v. Town of

S. Berwick, 2005 ME 30, 116, 868 A.2d 230 (quoting Buker v. Town ofSweden, 644 A.2d 1042,

1043 (Me. 1994)) (affirming the Superior Court's rnling that the petitioner could not equitably

estop the Town from bringing enforcement action against him); Waterville Homes, Inc. v. Maine

Dep't ofTransp., 589 A.2d 455,457 (Me. 1991). In Buker, the Law Court did state that the

petitioner had "improperly br[ought] the claim of equitable estoppel as an affirmative cause of

action," 644 A.2d at 1044, and in Waterville Homes and Tarason, the Court did emphasize that

estoppel is only available as a defense, 589 A.2d at 457; 2005 ME 30, 116, 868 A.2d 230.

However, the Court has also indicated that equitable estoppel can be brought as an

independent claim. Salisbury v. Town of Bar Harbor, 2002 ME 13, 1 16, 788 A.2d 598 (citing

Stewart v. Town ofSedgwick, 2000 ME 157, 17, 757 A.2d 773, 776; Baker's Table, 2000 ME 7,

1111, 14, 743 A.2d 237) ("When a claim of equitable estoppel is presented to the Superior Court
as an independent action, as it was here, the Superior Court hears the matter as a plenary action,

and does not act as an appellate body"). The Superior Court (Walker, J) has noted the myriad of

other Law Court cases supporting this proposition. Dermer v. Pardi, No. CV-17-249, 2017 Me.

Super. LEXIS 265, at *2 (Nov. 11, 2017); see generally Spring v. Ed ofTrs. ofMe. Pub. Emps.

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Ret. Sys., No. CV-10-63, 2011 Me. Super. LEXIS 105, at *4 -13 (June 9, 2011) (review of Maine

cases).

In Pike Industries v. City of Westbrook, the Law Court discussed the validity of a consent

decree that resolved a claim of equitable estoppel and stated that "[a] court exercising equity

jurisdiction may, where the circumstances warrant, order that a municipality be equitably estopped

from enforcing a valid zoning ordinance .... " 2012 ME 78, 1 19, 45 A.3d 707 (quoting City of

Auburn v. Desgrosseilliers, 578 A.2d 712, 714 (Me. 1990)). It has also affirmed dismissal of an

equitable estoppel claim for failure to state sufficient facts, perhaps implying that an equitable

estoppel claim could lie under different facts. Kittery Retail Ventures, LLC v. Town of Kittery,

2004 ME 65, 17, 856 A.2d 1183. 1

Considering the lack of clarity on the issue, the Court also declines to dismiss Count II. A

claim of estoppel requires "that (1) the statements or conduct of the [municipality] induced

[petitioner] to act; (2) the reliance was detrimental; and (3) his reliance was reasonable." Tarason,

2005 ME 30, 1 15, 868 A.2d 230 (citing Kittery Retail Ventures, LLC, 2004 ME 65,134, 856 A.2d

1183; F.S. Plummer Co., 612 A.2d at 860). Where a party "seeks to prevent the enforcement of a

zoning ordinance, he bears a significant burden." Id. (citing F.S. Plummer Co., 612 A.2d at 856;

Desgrossei/liers, 578 A.2d at 715).

The Makees argue their claim is based on the following facts, which they claim are

sufficient to withstand a motion to dismiss. The Makees applied for and received permits to

construct the accessory guest house on the Property from the CEO and began construction shortly

1
The Superior Court ( O'Neil, Walker, Js.) has atleast twice quoted the First Circuit's statement that "Maine case law
is unclear" on the issue. BR2, LLCv. Inhabitants ofKennebunk, No. AP-15-37, 2018 Me. Super. LEXIS 160, at *5
(Oct. 15, 2018) (quoting Dermer, 2017 Me. Super. LEXIS 265, at *2 (quoting Grande v. St. Paul Fire & Marine Ins.
Co., 436 F.3d 277, 279 n. 1 (1st Cir. 2006)). In both Superior Court cases, the Court stated that the "Law Court has
not been the Oracle ofDelphi as to the appropriate use of estoppel." BR2, 2018 Me. Super. LEXIS 160, at *5 (quoting
Dermer, 2017 Me. Super. LEXIS 265, at *2). They also found "no intellectually principled reason to favor" equitable
estoppel as a claim or defense. Id. (quoting Dermer, 2017 Me. Super. LEXIS 265, at *2).

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thereafter. They clann they relied on the permits as properly issued by the CEO in beginning

construction of the guest house and that their reliance was reasonable because of the CEO's

experience and position. They argue their reliance was detrimental because the Town has revoked

the permit, causing them uncertainty about the propriety of their construction. Although

uncertainty is unlikely to be a sufficient detriment, the complaint states that the Town did revoke

one of the Makees' permits. In the light most favorable to the clannants, these allegations are

sufficient to survive a motion to dismiss because, even if equitable estoppel cannot stand as an

independent claim, the Makees have stated a clann for promissory estoppel. 2 On these grounds,

the Court denies the Motion to Dismiss.

The entry is:

Parties' -in-Interest Motion to Stay is MOOT.
Plaintiffs' Motion for Trial of the Facts is GRANTED IN PART and DENIED IN
PART. Trial will be allowed on the limited issues set forth above.
Defendants and Parties' -in-Interest Motion to Dismiss Count II is DENIED.
The Court will schedule a status conference per the parties' 3/10/23 request.

The clerk is directed to enter this order on the docket by reference. M.R. Civ. P. 79(a).

Date: July 5, 2023
Deborah P. Cashman
Justice, Maine Superior Court

Entered on the Docket: 01 /01fJ
(!All/
2 In 1978, the Law Court adopted promissory estoppel as a cause of action based upon the Restatement (Second) of

Contracts, § 90:
A promise which the promisor should reasonably expect to induce action or forbearance on the part
of the promisee or a third person and which does induce such action or forbearance is binding if
injustice can be avoided only by enforcement of the promise. The remedy granted for breach may
be limited as justice requires.
Chapman v. Bomann, 381 A.2d 1123, 1127 (Me. 1978); see also, e.g., Panasonic Commc'ns & Sys. Co. v. State of
Maine, 1997 ME 43, ~ 17, 691 A.2d 190, 195-96; Spring, 2011 Me. Super. LEXIS 105, at *33-4.

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