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Sahl v. Town of York
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	2000 ME 180
Docket:	Yor-00-121
Submitted
on Briefs:	September 27, 2000
Decided:	October 24, 2000

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

							

STEVEN SAHL et al.

v.

TOWN OF YORK et al.

ALEXANDER, J.

	[¶1]  E.F.H., Inc., Peter and Patrick Hughes (collectively, the
Hugheses), and the Town of York appeal from a judgment entered in the
Superior Court (York County, Fritzsche, J.) vacating the decision of the York
Zoning Board of Appeals (ZBA) which had authorized the Hugheses to
complete a motel expansion.  The Hugheses contend that the Superior Court
erred in holding that (i) the Sahls and the Crafts, owners of residential
property near the motel, had standing to sue; and (ii) the ZBA erred in
determining that the Hugheses' right to complete construction had vested. 
Because there is sufficient evidence in the record to support the ZBA's
determination that the Hugheses' right to complete construction of the
motel had vested, we vacate the judgment.

I.  CASE HISTORY

	[¶2]  E.F.H., Inc. owns and operates the Cuttysark Motel located on
Long Beach Avenue in York.  Peter and Patrick Hughes are shareholders in
E.F.H., Inc.  The Sahls and the Crafts own residential property across the
street from the motel.  Their properties and the motel do not share a
common boundary.
	[¶3]  In 1991, the Town issued a shoreland permit{1} and other
permits to allow construction activities at the motel.  The shoreland permit
contained no expiration date.  In 1995, the Town encouraged and approved
phased construction of the motel project to minimize the impact of the
construction on the Town.  The Town Code Enforcement Officer (CEO)
testified that phasing the project was "very attractive" to the Town because
it allowed more work space for the project and would entail less soil
disturbance than if the project was undertaken in one stage.  Phase I of the
construction was completed in 1995, and a temporary occupancy permit
was issued.   Work on Phase II of the project has not started.
	[¶4]  On November 4, 1997, the Town amended its zoning
ordinance to require that work on all shoreland permits issued before
May 9, 1992 had to be completed by November 5, 1998.{2}  The Hugheses
determined that they could not start and finish Phase II under the new
deadline.  In October 1998, the CEO advised the Hugheses to delay work on
the project and to seek administrative relief from the ZBA.
	[¶5]  In December 1998, the Hugheses filed an application with the
ZBA seeking a determination either that the CEO erroneously interpreted
the amended ordinance, or that the ZBA grant them a variance from the
ordinance's requirements.  In February 1999, the ZBA conducted a public
hearing at which the Hugheses' counsel, the CEO, and counsel for the Sahls
and Crafts made presentations.  The Sahls and Crafts claimed that the
expanded motel would obstruct their view of the ocean, and that they would
be adversely affected by the additional traffic.  The CEO testified that the
Hugheses were unaware of the amended ordinance prior to its enactment.
	[¶6]  The ZBA initially voted to affirm the decision of the CEO but to
grant the variance.  Subsequently, the ZBA reconsidered both decisions.  At
the reconsideration hearing in March 1999, the ZBA rescinded the variance
but granted the appeal, concluding that the CEO erred in requesting that
the Hugheses defer building plans.  In its findings of fact, the ZBA concluded
that the building permit was issued in 1991 and that the permit had no
expiration date, that phasing for the construction was approved in 1995 to
minimize the impact of the construction on the Town, and that if
construction on Phase II had commenced after the amended ordinance was
passed, the Hugheses would not have been able to complete the project
within one year.  The Sahls and the Crafts appealed the ZBA's decision to
the Superior Court pursuant to M.R. Civ. P. 80B.
	[¶7]  In February 2000, the Superior Court entered a judgment
vacating the ZBA's decision to grant the Hugheses' appeal.  The court
concluded that:  (1) both the Sahls and the Crafts had standing; (2) under
the plain language of the ordinance the shoreland permit had lapsed; and
(3) the ordinance would not be superseded by the doctrine of vested rights. 
This appeal followed. 

	II.  STANDING

	[¶8]  Pursuant to Maine law governing appeals from municipal
boards, "[a]ny party may take an appeal, within 45 days of the vote on the
original decision, to Superior Court from any order, relief or denial in
accordance with the Maine Rules of Civil Procedure, Rule 80B." 30-A
M.R.S.A. § 2691(3)(G) (1996).  To challenge the decision of a municipal
zoning board of appeals, a party must "(1) have appeared before the board of
appeals; and (2) be able to demonstrate a particularized injury as a result of
the board's action."  Sproul v. Town of Boothbay Harbor, 2000 ME 30, ¶ 6,
746 A.2d 368, 371-72 (quoting Rowe v. City of South Portland, 1999 ME 81,
¶ 4, 730 A.2d 673, 674-75).  If the appealing party is an abutter, the
threshold requirements to establish standing are minimal.  See Sproul,
2000 ME 30, ¶ 6, 746 A.2d at 371 (stating that abutters need allege only "a
potential for particularized injury to satisfy the standing requirement");
Pearson v. Town of Kennebunk, 590 A.2d 535, 537 (Me. 1991) ("When the
person who has appeared before the board is an abutter . . . a reasonable
allegation of a potential for particularized injury is all that is necessary to
establish the real controversy required for adjudication in a court.").  
	[¶9]  An abutting owner is "[a]n owner of land which abuts or adjoins. 
The term usually implies that the relative parts actually adjoin, but is
sometimes loosely used without implying more than close proximity." 
black's law dictionary 11 (6th ed. 1990).  We have applied the "close
proximity" definition to an abutting landowner in similar cases.  See Brooks
v. Cumberland Farms, Inc., 1997 ME 203, ¶ 8, 703 A.2d 844, 847 (stating
that a landowner directly across the street, although not sharing a common
boundary, is nevertheless an abutter for purposes of standing).  Similarly, in
Harrington v. City of Biddeford, 583 A.2d 695 (Me. 1990), a landowner
challenged the construction of a new home to be located on the owner's
street.  Id. at 696.  The plaintiff's property and the proposed home site were
separated by a third lot, and thus were not "abutting" properties.  See id. 
Nevertheless, we concluded that "[g]iven the location of the [plaintiff's]
house, a decision by the Board of Appeals that entitled [defendant] to build a
house closer to the street than their house rose to the level of particularized
injury sufficient to confer standing."  Id.  
	[¶10]  The Sahls and the Crafts own property across the street from
the proposed motel expansion.  They appeared at the ZBA hearing.  They
contend that the motel expansion would obstruct their view of the ocean,
and that additional traffic would adversely affect them.  These factors are
sufficient to confer standing.  See Forester v. City of Westbrook, 604 A.2d
31, 32 (Me. 1992) (stating that "the proximate location of the abutter's
property, together with a relatively minor adverse consequence if the
requested variance were granted, such as the threatened obstruction of the
abutter's view, sufficiently demonstrates a potential for particularized
injury").

	III.  VESTED RIGHTS

	[¶11]  We directly review the decision of a municipal zoning board of
appeals when the Superior Court acts as an intermediate appellate court
pursuant to M.R. Civ. P. 80B.  See DeSomma v. Town of Casco, 2000 ME 113,
¶ 7, 755 A.2d 485, 487.  Our review of municipal decisions is limited to
"error[s] of law, abuse of discretion or findings not supported by substantial
evidence in the record."  Adelman v. Town of Baldwin, 2000 ME 91, ¶ 8,
750 A.2d 577, 581-82.  Consequently, we examine the record developed
before the ZBA to determine whether the standard has been met, and may
not substitute our own judgment for that of the ZBA.  See Brooks, 1997 ME
203, ¶ 12, 703 A.2d at 847-48.
	[¶12]  The Hugheses contend that they have vested rights to
complete construction of the motel, and that application of the amended
ordinance infringes on those rights.  In order for a right to proceed with
construction under the existing ordinance to vest, three requirements must
be met:

1) there must be the actual physical commencement of some
significant and visible construction; 2) the commencement
must be undertaken in good faith . . . with the intention to
continue with the construction and to carry it through to
completion; and 3) the commencement of construction must
be pursuant to a validly issued building permit.

Town of Sykesville v. West Shore Communications, Inc., 677 A.2d 102, 104
(Md. 1996).  See also Town of Orangetown v. Magee, 665 N.E.2d 1061, 1064
(N.Y. 1996) (stating that "a vested right can be acquired when, pursuant to a
legally issued permit, the landowner demonstrates a commitment to the
purpose for which the permit was granted by effecting substantial changes
and incurring substantial expenses to further the development").  
	[¶13]  Maine law is in accord with this view.  See Thomas v. Zoning
Bd. of Appeals of City of Bangor, 381 A.2d 643, 647 (Me. 1978) (stating that
the rights of a building permit applicant may vest if the applicant makes a
"substantial good faith change . . . in reliance on the zoning law in effect at
the time of the application").  In addition, we recently recognized that the
"circumstances when rights vest . . . occur when a municipality applies a
new ordinance to an existing permit."  Peterson v. Town of Rangeley, 1998
ME 192, ¶ 12 n.3, 715 A.2d 930, 933.  However, we have also limited the
circumstances under which rights to proceed with construction may vest. 
Such rights may not vest, for instance, solely because a property owner: (1)
filed an application for a building permit; (2) was issued a building permit;
(3) relied on the language of the existing ordinance; or (4) incurred
preliminary expenses in preparing and submitting the application for a
permit.  See Thomas, 381 A.2d at 647; Waste Disposal Inc. v. Town of
Porter, 563 A.2d 779, 782 (Me. 1989); City of Portland v. Fisherman's Wharf
Assocs. II, 541 A.2d 160, 164 (Me. 1988).
	[¶14]  In the present case, there was evidence before the ZBA that:
(1) the Hugheses received a shoreland permit, with no expiration date, to
allow construction activity at the motel; (2) the Town encouraged and
approved phasing of the project in 1995 to minimize the impact of the
construction; and (3) the Hugheses began the construction work and
completed Phase I in 1995.  In November 1997, the Town enacted the
amended ordinance requiring that the entire phased project be completed
within one year.  The CEO testified that the Hugheses were unaware of the
amended ordinance prior to its enactment.  Thus, the evidence before the
ZBA and all reasonable inferences drawn therefrom support a determination
that: (1) the Hugheses had a valid permit; (2) they made substantial changes
by completing Phase I and incurred substantial expenses in its completion;
(3) the construction was undertaken in good faith as supported by the later
phasing agreement; and (4) the Hugheses relied upon both the ordinances
in existence at the time the 1991 permit was issued and the 1995
agreement to phase the project.  Because there was sufficient evidence
before the ZBA to support its conclusion that the Hugheses' right to
complete construction of the motel had vested, the Superior Court erred in
vacating the ZBA's decision.

	The entry is:
Judgment vacated.  Remanded to the
Superior Court to affirm the decision of
the Town of York Zoning Board of
Appeals.

Attorney for plaintiffs:	

Robert E. Mongue, Esq.	
40 High Street	
Kennebunk, ME 04043	
	
Attorneys for defendants:	
	
Peggy L. McGehee, Esq.
John S. Upton, Esq.	
Perkins, Thompson, Hinckley & Keddy, P.C.	
P O Box 426	
Portland, ME 04112-0426	
(for E.F.H., Inc. & Hugheses)	

Durward W. Parkinson, Esq.
Bergen & Parkinson, LLC
62 Portland Road
Kennebunk, ME 04043
(for Town of York)