Kimberly LaMarre v. Town of China

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2021 ME 45Docket: Ken-20-134
Argued: March 10, 2021
Decided: September 16, 2021
Panel: MEAD, GORMAN, JABAR, HUMPHREY, HORTON, and CONNORS, JJ.
KIMBERLY LAMARRE et al.
v.
TOWN OF CHINA et al.
CONNORS, J.
[¶1] The Town of China code enforcement officer (CEO) issued Nicholas
Namer an after-the-fact permit to allow the placement of a trailer on his lot.
Kimberly and Anthony LaMarre, abutters, objected, arguing that the trailer was
not a “recreational vehicle” (RV) within the meaning of the Town of China’s
Land Use Ordinance allowing such placement. The Board of Appeals affirmed.
The Superior Court (Kennebec County, Stokes, J.) reversed. See M.R. Civ. P. 80B.
The Town and Namer appeal to us from that reversal. Because the operative
decision of the CEO is deficient for purposes of judicial review, we remand for
the CEO to issue a reviewable decision, based on record evidence, after
proceeding in a manner that meets the minimum requirements of
administrative due process.
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I. BACKGROUND1
A. The Permit
[¶2] Namer owns a lot with five seasonal camps in China. In June and
July 2018, Namer cleared trees and vegetation, installed a gravel pad, and
placed a “Park Model” trailer on the pad without obtaining a permit. The CEO
apparently issued a notice of violation to Namer and his mother, Marie
Bourque-Namer, in late July 2018. The CEO later rescinded the notice of
violation on the grounds that the trailer’s placement complied with the Town’s
Land Use Ordinance2 and issued an after-the-fact permit. The LaMarres
objected to the trailer’s placement and sought review by the Board of Appeals
of the CEO’s decision.3
We draw the factual background from the undisputed facts and the procedural record. See Fair
1
Elections Portland, Inc. v. City of Portland, 2021 ME 32, ¶ 11, 252 A.3d 504.
The Town of China Land Development Code contains three chapters relevant to this appeal:
2
Chapter 2, Land Use Ordinance; Chapter 9, Appeals; and Chapter 11, Definitions. For purposes of this
opinion, we refer to the relevant provisions of the Land Development Code as “the Ordinance.”
3 More specifically—and confusingly—the CEO stated that in the spring of 2018, he “verbally
approved” the location of the trailer. In late July that year, the CEO issued a notice of violation to
Namer and Bourque-Namer for failing to obtain a permit. The notice of violation is not included in
the record, and nothing in the record indicates that this notice was ever in writing. The record
includes an email from Bourque-Namer to the CEO dated July 26, 2018, in which she stated that she
was disturbed by his “assertion” that she violated the Ordinance. In the email, Bourque-Namer makes
factual assertions about the trailer, indicates that the CEO had commented that it was a “mobile
home,” and compares the trailer to other models. She further stated that she remembered discussing
the issue “at the time of [their] walkthrough and had pictures on [her] cell phone to show [him]” and
that she had “ask[ed] [him] for something in writing and [he] asserted that it wasn’t necessary.” On
August 8, 2018, Kimberly LaMarre and another abutter complained, stating that they understood
that the Namers had been told to remove the trailer. In a “decision” memorialized in writing on
August 9, 2018, the CEO apparently rescinded his notice of violation. On August 15, 2018,
3
B. The Ordinance
[¶3] The Ordinance allows for “[i]ndividual private campsites,” China,
Me., Land Development Code, ch. 2, § 5(P)(II) (Apr. 6, 2019), which are defined
as “[a]ny premises providing temporary accommodation in a recreational
vehicle or tent and used exclusively by the owner of the property and his or her
family and friends,” id., ch. 11 (Apr. 6, 2019). Prior to establishing such a
campsite, “[a] permit is required from the CEO.” Id., ch. 2, § 5(P)(II)(h). The
Ordinance defines “recreational vehicle” as
[a] vehicle or an attachment to a vehicle designed to be
towed, and designed for temporary sleeping or living quarters for
one or more persons, and which may include a pick-up camper,
travel trailer, tent trailer, camp trailer, and motor home. In order
to be considered as a vehicle and not as a structure, the unit must
remain with its tires on the ground, and must be registered with
the State Division of Motor Vehicles.
Id., ch. 11.
Bourque-Namer applied for an after-the-fact permit for the trailer, which the CEO issued on
August 21, 2018. Almost a year later, in July 2019, the LaMarres met with the town manager to follow
up on their complaints. By this time, there was a new CEO, who told them that a permit had been
issued but that “the Town was investigating that decision.” Following a site visit on July 8, 2019, the
new CEO then orally told the LaMarres that he agreed with the first CEO’s decision to grant the permit
and that the LaMarres could appeal “this decision” to the Board. The LaMarres filed their appeal with
the Board on August 6, 2019, within thirty days after this oral communication.
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II. DISCUSSION
A. The Operative Decision Is That of the CEO.
[¶4] If the scope of the Board’s review is de novo, we review the Board’s
decision on appeal; if, however, the scope of the Board’s review is appellate, we
review the CEO’s decision directly. See Mills v. Town of Eliot, 2008 ME 134,
¶¶ 13-16, 955 A.2d 258.
[¶5] In the absence of ordinance language explicitly providing for
appellate review, by statute, the Board’s review of the CEO’s decision is de novo.
30-A M.R.S. § 2691(3)(C) (2021); Mills, 2008 ME 134, ¶ 14, 955 A.2d 258. The
relevant ordinance language here provides:
Scope of Review: The Board of Appeals may reverse the
determination of the Planning Board or the Code Enforcement
Officer if it determines that either:
a. Any finding of fact is unsupported by substantial evidence
and/or;
b. Any conclusion of law is clearly erroneous.
China, Me., Land Development Code, ch. 9, § 2(B)(IV) (June 1, 1996). This
language is similar to ordinance language that we have previously held
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provides for appellate review. See Gensheimer v. Town of Phippsburg,
2005 ME 22, ¶ 11, 868 A.2d 151. We therefore review the decision of the CEO.4
B. The CEO Did Not Issue a Judicially Reviewable Decision.
[¶6] It is black letter law that meaningful judicial review of a decision
requires that the decision contain findings of fact sufficient to apprise the
reviewing court of the decision’s basis and that those findings be based on
substantial evidence in the record. See Mills, 2008 ME 134, ¶ 19, 955 A.2d 258;
Chapel Rd. Assocs., L.L.C. v. Town of Wells, 2001 ME 178, ¶¶ 9-10, 787 A.2d 137.
The administrative record here does not contain a CEO decision with
reviewable findings of fact based on record evidence.
[¶7] Among the records of the activity before the CEO, see supra n.3, the
most likely candidate for the relevant decision for review is the issuance of the
after-the-fact permit. But that permit is merely that—a permit. It provides only
that the CEO is authorizing Namer to “locate a camper pursuant to the
Before the Board hearing, there was some uncertainty as to whether its review would be de novo
4
or appellate. The Board decision itself does not recite the standard of review it applied, and it is
unclear whether the Board in fact undertook a de novo or appellate review. Although we have
previously noted that “[a] town need not use particular language, such as the word ‘appellate’ in
establishing appellate review” and that “[w]e have on numerous occasions construed an ordinance
that did not use the word ‘appellate’ to nonetheless require the appeals board to undertake appellate,
rather than de novo, review,” Friends of Lamoine v. Town of Lamoine, 2020 ME 70, ¶ 15, 234 A.3d 214,
to avoid confusion and uncertainty, we strongly encourage municipalities to use clear language, such
as expressly including the terms “de novo” and “appellate,” when drafting their ordinances.
6
application and site plan” and contains no findings of fact or conclusions of law.
Accordingly, the permit “is insufficient to allow for meaningful appellate
review.” Appletree Cottage, LLC v. Town of Cape Elizabeth, 2017 ME 177, ¶ 10,
169 A.3d 396.
[¶8] Despite the fact that the LaMarres’ Board appeal identifies the
decision being appealed as the issuance of the permit, the decision on which the
parties and the Board have focused is the CEO’s rescission of the notice of
violation. Presumably, the parties have done so because this is the only CEO
position stated in writing and that includes some analysis and statements
labeled “findings.” But there is no reviewable record associated with this
rescission decision.
[¶9] The after-the-fact permit was issued pursuant to an application that
includes evidentiary material, such as a photograph of the trailer. This material
cannot provide a reviewable record for the recission, however, because the
CEO’s decision rescinding the notice of violation was issued a week before that
permit application was even filed. The recission decision itself simply states
that the rescission is “due to new information that [the CEO] discovered when
meeting with the Namers on 8-7-18 and more carefully investigating facts and
Ordinance requirements.” There is no identification of what this “new
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information” was, or what other material the CEO reviewed in his investigation
of the facts. This is not sufficient to provide a record for appellate review. See
Appletree Cottage, LLC, 2017 ME 177, ¶¶ 9-10, 169 A.3d 396.
[¶10] In sum, because there appears to be no CEO decision with findings
of fact tethered to a reviewable record, we must remand.
C. A Remand to the CEO Is Often Necessary when Board of Appeals
Review Is Appellate.
[¶11] This difficulty in identifying a reviewable CEO decision is not
unusual, and we have remarked on it before. See id. ¶ 12 n.6 (“[O]rdinances
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.”).
[¶12] In the vast majority of local permitting processes, an applicant
seeks a permit, the CEO grants or denies it based on the application, and that is
the end of the matter, with no appeal. A two-fold problem arises, however,
when someone objects to a permit and the scope of the Board’s review is
appellate.
[¶13] First, often by the time interested persons, such as abutters, learn
of the issuance of a permit to which they object, the decision has already been
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made by the CEO based on whatever information the applicant submitted.5 If
objectors cannot submit their opposing evidence to the Board—a material
distinction between de novo and appellate review—then they are deprived of
a critical component of administrative due process. See Town of Ogunquit v. Cliff
House & Motels, Inc., 2000 ME 169, ¶ 11, 759 A.2d 731 (stating that the essential
elements of adjudication include the right to present evidence and rebut
opposing evidence).
[¶14] Second, courts, planning boards, and some boards of appeals
adjudicate; that is their function. In contrast, adjudication is not a usual CEO
task. Unsurprisingly, when an objection by an interested person comes to the
attention of a CEO during the permitting process, the CEO is unfamiliar with the
minimum requirements of due process and the prerequisites for preparing a
record and a decision sufficient for meaningful appellate review.
5There is no statutory requirement for a CEO to notify abutters of permit applications. See Viles
v. Town of Embden, 2006 ME 107, ¶ 12, 905 A.2d 298. The Ordinance did not impose any such
requirement either. Given the lack of clear notice to the LaMarres as to what was happening before
the CEO with respect to their objections, the Board voted to allow the LaMarres to file their appeal
after the time period set forth in the Ordinance. Because the Ordinance itself does not contain a
good-cause provision extending the filing deadline with the Board, the decision whether good cause
existed to extend that deadline was one for the Superior Court, not the Board, to make, see id. ¶ 9, and
we would review the Superior Court’s decision subject to an abuse-of-discretion standard as to the
court’s determination of the existence of good cause and a clearly erroneous standard as to the
court’s factual findings. See id. ¶ 9; Otis v. Town of Sebago, 645 A.2d 3, 4-5 (Me. 1994). The Superior
Court here, after looking at the evidence submitted to the Board on this issue, concluded that good
cause existed. No one has challenged this good-cause determination.
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[¶15] For these reasons, in order to avoid the frequent necessity of
time-consuming and costly remands, we strongly urge municipalities to
provide for de novo review of CEO decisions by boards of appeals. Because the
Ordinance here provides for appellate review, China, Me., Land Development
Code, ch. 9, § 2(B)(IV), we must remand for the CEO to issue a reviewable
decision. See Appletree Cottage, LLC, 2017 ME 177, ¶ 12, 169 A.3d 396. The
evidence upon which the CEO makes his decision must be identified and
contained in the record. See Mills, 2008 ME 134, ¶¶ 19-20, 955 A.2d 258.
Namer and the LaMarres must be permitted to submit their evidence and rebut
each other’s evidence, no substantive ex parte communications with the CEO
should take place, and the CEO’s decision must include findings of fact and
conclusions of law sufficient to understand the basis for that decision. See
id. ¶ 20.
D. On Remand, the CEO Should Consider the Evidence in Light of the
Language of the Ordinance as a Whole.
[¶16] Finally, in assessing the evidence submitted on remand, the CEO
should consider the following when interpreting the Ordinance.6
The parties argue that a remand is not necessary because the question whether the trailer is an
6
RV is purely legal. But the issue whether a particular trailer is a “recreational vehicle” within the
meaning of the Ordinance is a mixed question of fact and law. See Jordan v. City of Ellsworth, 2003
ME 82, ¶ 8, 828 A.2d 768. This means that, if the administrative decision maker’s characterization of
the trailer is reasonable, we will give it deference. See id. ¶ 9. (“[W]e review the interpretation of the
ordinance de novo, but we afford the Board’s ultimate characterization of the structure substantial
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[¶17] The definition of “recreational vehicle,” China, Me., Land
Development Code, ch. 11, must be read in light of the Ordinance as a whole.
See Davis v. SBA Towers II, LLC, 2009 ME 82, ¶ 22, 979 A.2d 86.
Section 5(P)(II)(g) of the Ordinance provides that when “a recreational vehicle,
tent or similar shelter is placed on-site for more than one hundred and twenty
(120) days per year, all requirements for residential structures shall be met.”
China, Me., Land Development Code, ch. 2.
[¶18] In rescinding the notice of violation, the CEO read “placed” as
meaning “occupied,” with the result being that the trailer need never be
physically moved as long as it is not occupied for more than 120 days of the
year. This construction of section 5(P)(II)(g) is contrary to its plain language.
Compare Placed, American Heritage Dictionary of the English Language (5th ed.
2016) (defining “placed” as “[t]o put in or as if in a particular place or position”),
with Occupy, id. (defining “occupy” as “[t]o fill up” and “[t]o dwell or reside in”).
Whether this trailer is an RV or not, it must be moved off-site every 120 days or
be treated as a structure. China, Me., Land Development Code, ch. 2,
§ 5(P)(II)(g).
deference.”). Given the limited scope of our review of an administrative decision, we must remand
for the decision maker to issue a reviewable decision based on record evidence. See Palian v. Dep’t of
Health & Hum. Servs., 2020 ME 131, ¶¶ 41-43, 47-48, 242 A.3d 164.
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[¶19] Relatedly, the language of the Ordinance indicates that it
distinguishes between a “vehicle” and a “structure.” See id., ch. 11 (“In order to
be considered as a vehicle and not as a structure . . . ”). Although the Ordinance
does not define “vehicle,” the dictionary defines “vehicle” as “[a] device or
structure for transporting persons or things.” Vehicle, American Heritage
Dictionary of the English Language. Maine statutes similarly define “vehicle” as
“a device for conveyance of persons or property on a way.” 29-A M.R.S.
§ 101(91) (2021). The Ordinance defines a “structure” as “[a]nything built for
the support, shelter or enclosure of persons, animals, goods or property of any
kind, together with anything constructed or erected with a fixed location on or
in the ground, attached or unattached,” including “structures temporarily or
permanently located.” China, Me., Land Development Code, ch. 11.
[¶20] Finally, the Ordinance defines “recreational vehicle” as a vehicle or
an attachment to a vehicle “designed” to be towed. Id. A trailer that can be
towed is not necessarily designed to be towed. See Design, American Heritage
Dictionary of the English Language (defining “design” as “[t]o create or contrive
for a particular purpose or effect”).
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[¶21] Whether the Namer trailer fits the Ordinance’s definition given
these considerations and the evidence and arguments of the interested parties
is, in the first instance, for the CEO to decide.
The entry is:
Judgment vacated. Remanded to the Superior
Court with instructions to remand the matter to
the Board of Appeals with instructions to
remand to the code enforcement officer for
proceedings consistent with this opinion.
Amanda Meader, Esq., East Winthrop, and Theodore Small, Esq. (orally),
Skelton Taintor & Abbott, Auburn, for appellant Town of China
Alton C. Stevens, Esq. (orally), Marden, Dubord, Bernier & Stevens, Waterville,
for appellant Nicholas Namer
Edmond J. Bearor, Esq., and Stephen W. Wagner, Esq. (orally), Rudman
Winchell, Bangor, for appellees Kimberly and Anthony LaMarre
Kennebec County Superior Court docket number AP-2019-50
FOR CLERK REFERENCE ONLY