Appletree Cottage, LLC v. Town of Cape Elizabeth — 2017 ME 177

MAINE SUPREME JUDICIAL COURT 	Reporter of Decisions
Decision: 	2017 ME 177
Docket: 	Cum-16-373
Submitted
on Briefs: 	May 25, 2017
Decided: 	August 8, 2017
Panel: 	SAUFLEY, C.J., and ALEXANDER, GORMAN, JABAR, and HJELM, JJ.
APPLETREE COTTAGE, LLC
v.
TOWN OF CAPE ELIZABETH
JABAR, J.
[¶1] 	Appletree Cottage, LLC, appeals from a judgment of the Superior
Court 	(Cumberland 	County, 	Mills, 	J.) 	affirming 	the 	Cape 	Elizabeth 	Code
Enforcement Officer’s issuance of a building permit. 	Because the Town Code
Enforcement Officer’s decision granting the building permit is the operative
decision on appeal and because that decision lacks sufficient factual findings
to permit meaningful review, we vacate and remand.

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I. INTRODUCTION
[¶2] The following facts are supported by evidence in the record.1 	See
Mills v. Town of Eliot, 2008 ME 134, ¶ 6, 955 A.2d 258. Christopher Bond is the
owner of a plot of land in Cape Elizabeth. The property is a nonconforming lot
located in the Residence A District (RA District). 	See Cape Elizabeth, Me.,
Zoning Ordinance §§ 19-1-3, 19-6-1 (Sept. 11, 2014).2 	Currently situated on
the property is a 672-square-foot one-bedroom cottage.
[¶3] On June 30, 2015, Bond submitted to the Town Code Enforcement
Officer (CEO) an application for a building permit. 	Through his application,
Bond 	sought 	permission 	to 	construct 	two 	twelve-foot 	by 	twelve-foot
“accessory structures” on the property. 	The site plan appended to Bond’s
application 	proposed 	that 	the 	two 	structures, 	or 	“cubes,” 	would 	be
constructed twenty feet from the adjacent property line. 	In the application,
Bond represented that the proposed development would increase the number
of bedrooms on the property from one to three. 	The application contains no
other information regarding Bond’s proposed use for the structures. A stamp
1 Similar to the circumstances before us in Mills v. Town of Eliot, here, “[a]s discussed . . . below,
the factual underpinning for this case is complicated because the Board that created the record was
not authorized to hold a de novo hearing.” 2008 ME 134, ¶ 6 n.4, 955 A.2d 258.
2 	The Cape Elizabeth Zoning Ordinance has since been amended. 	See Cape Elizabeth, Me.,
Zoning Ordinance § 19-5-2(A) (Nov. 5, 2016). The changes in the Ordinance that are relevant to
this appeal are discussed below.

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reading “APPROVED” accompanied by a handwritten notation on the first
page 	of 	the 	application 	indicates 	that 	the 	Town 	CEO 	granted 	Bond’s
application on August 21, 2015.
[¶4] 	On September 18, 2015, Appletree Cottage, LLC, the owner of
property abutting Bond’s, appealed the CEO’s grant of the building permit to
the Town Zoning Board of Appeals (ZBA), arguing that the cubes were not
“accessory structures,” and therefore their construction would violate the
Town Zoning Ordinance.3 	Prior to the ZBA hearing, Bond submitted to the
Board a written response to Appletree Cottage’s appeal in which he asserted
that the cubes would not be used purely as bedrooms; rather, they would be
used as needed to supplement the small size of the cottage. Specifically, Bond
asserted that, in addition to sleeping, the cubes could also be used for hobbies,
home entertainment, or an office.
[¶5] 	At the hearing on Appletree Cottage’s appeal, the ZBA heard
testimony from Bond, counsel for Appletree Cottage, the Town CEO, and a
community member. 	Through his testimony, Bond reiterated that the cubes
3 The Ordinance defines the term “accessory building or structure” as “[a] detached, subordinate
building, the use of which is clearly incidental and related to that of the principal building or use of
the land, and which is located on the same lot as the principal building or use.” Cape Elizabeth, Me.,
Zoning Ordinance § 19-1-3 (Sept. 11, 2014). 	Accessory buildings are permitted within the RA
District as accessory uses. Id. § 19-6-1(B)(4)(a). Conversely, “[a]ll uses not specifically allowed as
permitted uses or conditional uses are prohibited within [the RA] district.” Id. § 19-6-1(D).

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would be used for “incidental sleeping,” as well as for various other hobbies.
The CEO testified to the reasons why he approved the application; namely,
that because the cubes did not constitute “dwelling units” as defined by the
Ordinance, 	the 	proposed 	structures 	were 	“accessory” 	and 	therefore
permissible within the RA District. See Cape Elizabeth, Me., Zoning Ordinance
§§ 19-1-3, 19-6-1(D).
[¶6] 	At the conclusion of the hearing, the ZBA issued factual findings
and affirmed the CEO’s decision after determining that the cubes constituted
“accessory structures” and were therefore permitted in the RA District. See id.
§§ 19-1-3, 19-6-1(B)(4). Pursuant to M.R. Civ. P. 80B Appletree Cottage filed a
complaint 	in 	the 	Superior 	Court 	seeking 	appellate 	review 	of 	the 	ZBA’s
decision. Appletree Cottage asserted that the ZBA erred in concluding that the
cubes were “accessory structures” as defined by the Zoning Ordinance and
challenged the Board’s determination that the 	location of the 	cubes, as
depicted 	on 	the 	site 	plan, 	complied 	with 	the 	Ordinance’s 	set-back
requirements.
[¶7] 	The Superior Court rejected these arguments and affirmed the
ZBA’s decision. Appletree Cottage now appeals from that decision.

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II. DISCUSSION
A. 	The Operative Decision
[¶8] 	Although the Superior Court noted in its judgment that there was
uncertainty surrounding whether the CEO’s or the ZBA’s decision was the
operative decision for the purpose of appellate review, the parties agree that,
pursuant to the Town Zoning Ordinance in effect at the time of the proceeding,
the CEO’s decision is the operative decision.4
B. 	The CEO’s Decision
[¶9] We review the CEO’s decision for an “abuse of discretion, errors of
law, or findings not supported by the substantial evidence in the record.”
Mills, 2008 ME 134, ¶ 18, 955 A.2d 258. However,
[m]eaningful judicial review of an agency decision is not possible
without findings of fact sufficient to apprise the court of the
decision’s basis. In the absence of such findings, a reviewing court
cannot effectively determine if an agency’s decision is supported
by the evidence, and there is a danger of judicial usurpation of
administrative functions.
Id. ¶ 19 (quotation marks omitted). 	Further, in conducting this review we
neither “embark on an independent and original inquiry,” nor do we “review
4 The current Ordinance explicitly provides the ZBA with the authority to consider issues de
novo. See Cape Elizabeth, Me., Zoning Ordinance § 19-5-2(A) (Nov. 5, 2016) (providing that the ZBA
is to consider issues “afresh,” reviewing “materials presented to or used by the Code Enforcement
Officer (if any), as well as any new evidence or testimony presented at the hearing before the
Board”).

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the matter by implying the findings and grounds for the decision from the
available record.” 	Chapel Rd. Assocs. v. Town of Wells, 2001 ME 178, ¶ 13,
787 A.2d 137 (quotation marks omitted).
[¶10] 	Here, in granting Bond’s application for a building permit, the
CEO made no factual findings. 	The only evidence of the CEO’s decision in the
record is a copy of Bond’s building permit application bearing a stamp that
reads “APPROVED” on the first page.5 	Using this scant record to review the
CEO’s decision would necessarily require us to improperly imply the findings
and the grounds upon which he based his decision. 	See id. 	Further, the
absence 	from 	the 	record 	of 	the 	CEO’s 	factual 	findings 	is 	particularly
problematic here, where Bond’s eligibility for a permit depends in large part
on his proposed use of the structures, which is a fact-intensive inquiry. 	See
Cape Elizabeth, Me., Zoning Ordinance §§ 19-1-3, 19-6-1(B). 	Therefore, the
CEO’s decision is insufficient to allow for meaningful appellate review.
[¶11] Although a more detailed record was developed through the ZBA
hearing, pursuant to the then-existing Ordinance, the ZBA was not authorized
to conduct a de novo hearing and therefore its decision is not operative. 	See
Mills, 2008 ME 134, ¶ 13, 955 A.2d 258. 	Thus, considering that evidence in a
5 The only other “findings” by the CEO in the record are found in his testimony given at the ZBA
hearing on Appletree Cottage’s appeal of his decision to grant Bond’s application.

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M.R. Civ. P. 80B appeal would run afoul of the Rule’s mandate that “review
shall be based upon the record of the proceedings before the governmental
agency” that issued the operative decision. M.R. Civ. P. 80B(f).
C. 	Conclusion
[¶12] 	Because 	the 	CEO’s 	grant 	of 	Bond’s 	building 	permit 	is 	the
operative decision, and because that decision lacks sufficient factual findings
to permit meaningful appellate review, we vacate and remand to the CEO to
make detailed findings and conclusions.6 	See Mills, 2008 ME 134, ¶ 20,
955 A.2d 258. On remand, the CEO must determine whether Bond’s proposed
use of the cubes conforms with the uses permitted within the RA District and
whether 	the 	location 	of 	the 	proposed 	structures 	complies 	with 	the
Ordinance’s set-back requirements.
The entry is:
Judgment vacated. 	Remanded to the Superior
Court with instructions to remand the matter to
the Zoning Board of Appeals with instructions
to 	remand 	to 	the 	Town 	Code 	Enforcement
6 We recognize that—as was the case here—municipal ordinances governing a CEO’s review of
and action on a permit application may not provide a mechanism for creating a record adequate for
appellate review. 	Nonetheless, since at least 2008, municipalities have been on notice of their
obligation to create such a record when the decision of the CEO is the operative one for appellate
purposes. See Mills, 2008 ME 134, ¶¶ 18-20, 955 A.2d 258. Here, until the Town recently amended
its Ordinance to authorize the ZBA to conduct de novo hearings, the CEO’s decision had been the
operative one, so the Town bore the responsibility for creating a record of the CEO’s findings and
conclusions, as the CEO will be required to do on remand.

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Officer for further proceedings consistent with
this opinion.
Sigmund D. Schutz, Esq., and Jonathan G. Mermin, Esq., Preti Flaherty Beliveau
& Pachios, LLP, Portland, for appellant Appletree Cottage, LLC
John J. Wall, III, Esq., Monaghan Leahy, LLP, Portland, for appellant Town of
Cape Elizabeth
Cumberland County Superior Court docket number AP-2015-45
FOR CLERK REFERENCE ONLY