Theresa Desfosses v. City of Saco

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2015 ME 151
Docket: Yor-14-527
Argued: September 18, 2015
Decided: November 24, 2015

Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and
HUMPHREY, JJ.

THERESA DESFOSSES

v.

CITY OF SACO et al.

GORMAN, J.

[¶1] Theresa Desfosses appeals from a decision of the Superior Court

(York County, Fritzsche, J.) affirming, pursuant to M.R. Civ. P. 80B, the decisions

of the City of Saco Planning Board and Zoning Board of Appeals (ZBA) on

Desfosses’s challenges to three City decisions issued in connection with the

construction of a car dealership by WWS Properties, LLC. Desfosses challenges

the Planning Board’s and the ZBA’s conclusions that each lacked jurisdiction to

review the City Planner’s grant of an amendment to WWS’s approved site plan.

She also challenges the ZBA’s determination that it did not have jurisdiction to

consider her appeal of the certificate of occupancy issued to WWS. We vacate the

judgment.
2

I. BACKGROUND

[¶2] The parties do not dispute the relevant procedural facts. On

June 25, 2013, WWS obtained site plan approval from the Planning Board to

construct a large building and accompanying parking lots on a parcel of property

on Route One in Saco, where WWS planned to operate a car dealership. Among

the conditions of the approval was the following: “No deviations from the

approved plans are permitted without prior approval from the Planning Board for

major changes, and from the City Planner for minor changes. The determination of

major or minor shall be made by the City Planner.” See Saco, Me., Zoning

Ordinance § 1107 (Feb. 17, 2004) (authorizing the imposition of conditions of

approval in a site plan). Another condition, Condition #11, stated as follows:

The June 20, 2013 Deluca Hoffman comments shall be addressed to
the satisfaction of City staff and of Joe Laverriere, P.E. Further, the
applicant shall be responsible for addressing to the satisfaction of
City staff the potential liability/safety issue that exists along the
southwesterly side of the site due to the removal of ledge by a
previous owner of the property, prior to the issuance of an occupancy
permit for the new building.

(Emphasis added.) “Deluca Hoffman comments” referred to the opinion of the

City’s consulting engineers, and specifically senior engineer Joseph Laverriere, as

stated in his letter to the City dated June 20, 2013:

Our office remains concerned with the steep cut slopes along the
southwesterly side of the site and potential liability/safety issue to the
applicant and abutting landowner. It appears the previous excavation
 3

work encroached onto adjacent properties without the approval of the
abutting landowner. Our office is uncertain as to how to remedy this
situation; however, one solution is to create a safe condition on the
applicant property and restore the adjacent property to [its] previous
condition. Our office would suggest this issue be reviewed by the
City’s Code Enforcement Office.

[¶3] Desfosses owns the property abutting WWS’s that is discussed in this

comment. She received notice of the initial site plan hearings, but did not object

to, appeal from, or otherwise participate in the initial site plan proceedings before

the City.

[¶4] Less than three months after receiving its site plan approval, WWS

requested and obtained approval from the City Planner for a “minor change” to its

site plan, providing for the installation of a four-foot-tall freestanding retaining

wall with an embedded eight-foot-tall fence atop it along its and Desfosses’s

common boundary. Desfosses was given no notice of WWS’s proposed

amendment to its site plan approval or the City Planner’s apparent grant of that

amendment.1

[¶5] Desfosses appealed the City Planner’s approval of the site plan

amendment to both the Planning Board and the ZBA. After a hearing, the

1
The City Planner issued no formal decision; the approval of the amendment is referred to only in
emails between the City Planner and WWS’s engineer. Further, in its minutes for the hearing on
Desfosses’s later appeal, the Planning Board explained its failure to notify Desfosses of WWS’s requested
site plan amendment by stating, “At some point abutters must assume responsibility for staying
informed.”
4

Planning Board determined that it did not have jurisdiction to consider the appeal.2

Desfosses appealed this decision of the Planning Board to the ZBA as well. In

February of 2014, after a hearing, the ZBA determined that it also had no

jurisdiction to hear either Desfosses’s direct appeal of the site plan amendment

approval or her appeal from the Planning Board’s determination that it had no

jurisdiction over the site plan amendment.3

[¶6] Just over a month after the ZBA’s decision, the City’s Code

Enforcement Officer (CEO) issued WWS a certificate of occupancy. Desfosses

appealed the grant of the certificate of occupancy to the ZBA, which, after a

hearing held on May 5, 2014, determined that it lacked jurisdiction to hear that

appeal as well.

[¶7] Between December of 2013 and June of 2014, Desfosses filed three

appeals—later consolidated—in the Superior Court pursuant to M.R. Civ. P. 80B

in which she challenged (1) the Planning Board’s decision determining that it

lacked jurisdiction to consider the City Planner’s site plan amendment, (2) the

ZBA’s determination that it lacked original jurisdiction to consider the City

Planner’s site plan amendment and appellate jurisdiction to consider the appeal

2
The Planning Board’s decision was contrary to the advice of the City’s attorney, Natalie Burns, who
had advised the Planning Board to conduct a de novo hearing on the merits of Desfosses’s appeal.
3
Although the ZBA noted that “the Zoning Ordinance indirectly infers that the appeal is within the
jurisdiction of the Planning Board,” it did not remand the matter to the Planning Board.
 5

from the Planning Board’s decision as to the site plan amendment, and (3) the

ZBA’s determination that it lacked appellate jurisdiction over the CEO’s issuance

of the certificate of occupancy. The Superior Court affirmed all three decisions

after concluding, “Nowhere in the Saco Zoning Ordinance has the City of Saco

specified that these precise subject matters can be appealed.” Desfosses timely

appeals from the court’s denial of her motion to reconsider.

II. DISCUSSION

[¶8] Desfosses challenges the Planning Board’s and the ZBA’s

determinations that they lacked jurisdiction over her appeals of the City Planner’s

approval of the site plan amendment, as well as the ZBA’s determination that it

lacked jurisdiction over her appeal of the CEO’s issuance of a certificate of

occupancy. We determine the jurisdiction of a municipal board by interpreting

de novo any municipal, statutory, and constitutional provisions relevant to the

inquiry. Wister v. Town of Mt. Desert, 2009 ME 66, ¶ 17, 974 A.2d 903; Sanborn

v. Town of Sebago, 2007 ME 60, ¶ 6, 924 A.2d 1061. We first evaluate the plain

language of the City’s ordinance provisions in light of the “entire [ordinance]

scheme to achieve a harmonious result.” Wister, 2009 ME 66, ¶ 17, 974 A.2d 903.

“[I]f the meaning of the statute or ordinance is clear, we need not look beyond the

words themselves” to interpret the provision according to that plain meaning. Id.

In doing so, we avoid any interpretation that creates absurd or illogical results.
6

Dickau v. Vt. Mut. Ins. Co., 2014 ME 158, ¶ 21, 107 A.3d 621. We also interpret

all provisions in a manner that avoids any “danger of unconstitutionality.” Wister,

2009 ME 66, ¶ 21, 974 A.2d 903.

A. Site Plans

1. Site Plan Approval and Amendment

[¶9] We first consider Desfosses’s argument regarding her right to appeal

the City Planner’s approval of WWS’s site plan amendment. The Ordinance

generally requires that parties seeking “commercial, industrial, institutional and

multifamily residential developments” of a certain scale must first obtain site plan

approval. Saco, Me., Zoning Ordinance § 1101 (Feb. 17, 2004); see Saco, Me.,

Zoning Ordinance §§ 1102, 1103(1), 1106 (Feb. 17, 2004). The Ordinance further

distinguishes between major site plans and minor site plans; although major site

plans must be approved by the Planning Board, minor site plans can be approved

by the City Planner alone.4 Saco, Me., Zoning Ordinance §§ 1103(1), (7)

(Feb. 17, 2004). There is no dispute that WWS initially obtained site plan approval

for its major plan from the Planning Board.

[¶10] Once a site plan has been approved, the Ordinance allows

amendments to the approved plan depending on whether the project involves a

4
The Ordinance defines minor site plans as, inter alia, those involving structures of less than 6,000
square feet. Saco, Me., Zoning Ordinance § 1103(7) (Feb. 17, 2004).
 7

major or minor site plan and whether the proposed change is a major or minor

amendment.5 One provision of the Ordinance requires that “[a]ny changes in the

plan after approval must be approved by the Planning Board, or in the case of a

minor site plan, the City Planner. Minor changes during construction can be

approved by the City Planner.” Saco, Me., Zoning Ordinance § 1109

(Feb. 17, 2004). In a similar, but not identical, provision entitled “SITE

LOCATION OF DEVELOPMENT AMENDMENT,” the Ordinance provides:

“Once approved and signed by the Planning Board, no changes may be made to

approved plans, without an amended approval from the Planning Board in the case

of a major amendment, or from the City Planner in the case of a minor

amendment.” Saco, Me., Zoning Ordinance § 1103(8) (Feb. 17, 2004).

[¶11] Sections 1103(8) and 1109 do not otherwise explain the scope of their

application, and site location of development amendments are not distinguished

from site plan approvals anywhere else in the Ordinance. When read together,

however, sections 1103 and 1109 provide that the Planning Board decides major

amendments to major site plans and the City Planner decides minor amendments to

5
Examples of minor amendments include “changes in the record owner, altering phases of
development, the addition of accessory structures of less than two thousand . . . s.f. each, . . . the addition
of minor site features, such as lighting . . . , and changes in construction details necessitated by changing
circumstances found during construction.” Saco, Me., Zoning Ordinance § 1103(8) (Feb. 17, 2004). The
determination of whether a proposed amendment is a minor or major amendment also rests with the City
Planner: “The City Planner will have the authority to refer any changes to the [Planning] Board if it is
determined to be necessary.” Saco, Me., Zoning Ordinance § 1103(8).
8

both major and minor site plans, as well as major amendments to minor site plans.6

Here, the City Planner approved WWS’s request to construct the retaining wall and

fence as a minor amendment to its major site plan.

2. Site Plan Appeals

[¶12] Unfortunately, the provisions of the Ordinance that purport to explain

the appellate jurisdiction of the City’s Planning Board present an imbroglio of

confusion and contradiction.7

[¶13] The Ordinance does not set out the jurisdiction and authority of the

Planning Board in any one provision or set of provisions. Neither do any of the

Ordinance sections regarding site plans provide a picture of clarity on the question

of appeals. Of the two provisions that discuss site plan amendments in particular,

section 1109 contains no mention of any right of appeal and section 1103 presents,

at best, a procedure rife with glaring holes.

[¶14] Specifically, section 1103(7) discusses the City Planner’s authority to

approve minor site plans, and allows appeals of City Planner decisions on minor
6
In approving WWS’s initial site plan, the Planning Board also required that it approve major
amendments to the site plan, and that the City Planner approve minor amendments to the site plan, and
vested with the City Planner the determination of whether a change was major or minor. See Fitanides v.
City of Saco, 2015 ME 32, ¶¶ 14-15, 113 A.3d 1088 (holding that the City may delegate decision-making
authority to the City Planner with regard to minor amendments to conditional use plans).
7
The Ordinance provisions regarding the nature and scope of the ZBA’s appellate jurisdiction are
similarly obscured by their inconsistent terminology, puzzling section headings, unnecessary duplication
of procedural requirements, and various organizational deficiencies. We could locate no provision that
suggests that the ZBA has jurisdiction over site plan decisions or City Planner decisions of any type.
See Saco, Me., Zoning Ordinance §§ 1003-1 to 1003-6, 1004-1 to 1004-8 (Feb. 17, 2004).
 9

site plans made by the applicants for those site plans to go to the Planning Board,8

but it makes no mention of site plan amendments or appeals of site plan

amendments. Saco, Me., Zoning Ordinance § 1103(7) (Feb. 17, 2004) (“If the

applicant is not satisfied with the determination of the City Planner, the applicant

shall be permitted to have the entire application reviewed by the Planning Board.”

(emphases added)). In another provision, the Ordinance reiterates that all

“[a]ppeals of decisions on minor site plans shall be made to the Planning Board.”

Saco, Me., Zoning Ordinance § 1114 (Feb. 17, 2004). To the extent either section

1103(7) or section 1114 is read to apply to appeals of site plan amendments,

however, both mention only minor site plans, and neither addresses decisions on

minor amendments to major site plans, as is at issue here. Furthermore, section

1103(7) mentions only those appeals brought by the applicant, and does not

discuss appeals brought by any party other than the applicant.

[¶15] Section 1103(8) does specifically refer to minor amendments granted

by the City Planner, and does provide an avenue for review by the Planning Board

of the City Planner’s decision on a minor amendment—“If the applicant is not

satisfied with the determination of the City Planner, the applicant shall be

permitted to have the entire application reviewed by the Planning Board, if such a

8
The Ordinance appears to place no time limitation on appeals by applicants who are “not satisfied
with the determination of the City Planner” concerning minor site plans. Saco, Me., Zoning Ordinance
§ 1103(7).
10

request is made within thirty (30) days of the City Planner’s determination.”

Saco, Me., Zoning Ordinance § 1103(8) (emphases added). As is the case with

section 1103(7), section 1103(8) of the Ordinance expressly provides an

opportunity for appeal or review only by request of the applicant, and not by

request of an abutter like Desfosses.

[¶16] Notwithstanding these problematic aspects of the Ordinance, we must

interpret it to avoid “absurd, illogical, unreasonable, inconsistent, or anomalous

results if an alternative interpretation avoids such results.” Dickau, 2014 ME 158,

¶ 21, 107 A.3d 621. To interpret section 1103(8) to provide the applicant a right of

appeal of a City Planner’s determination on a site plan amendment to the Planning

Board, but to provide no such appeal to a nonapplicant challenging the same

decision would be to condone precisely the type of absurd result we are charged

with avoiding. Similarly, to interpret sections 1103(7) and 1114 to allow appeals

of all City Planner decisions on minor site plans to the Planning Board, but not

allow appeals of City Planner decisions on minor amendments to major site plans

would create an additional absurd result.

[¶17] To avoid these absurdities, we therefore interpret “applicant” in

sections 1103(7) and 1103(8) to include nonapplicants alike, and we interpret

“minor site plan[s]” in sections 1103(7) and 1114 to include minor amendments to
 11

major site plans. In this way, all appeals of the City Planner’s decisions on site

plans and site plan amendments may be taken to the Planning Board.9

[¶18] Other aspects of the City’s Ordinance support this conclusion.

See Dickau, 2014 ME 158, ¶ 22, 107 A.3d 621 (evaluating the entire statutory

scheme—including its “design, structure, and purpose as well as [its] aggregate

language”—as a component of a plain language interpretation (quotation marks

omitted)). The fact that it is the Planning Board that decides site plan approvals

and amendments for major site plans indicates that the Planning Board was meant

to take the primary role in considering site plan issues. See Saco, Me., Zoning

Ordinance § 1103(1) (“No building permit, plumbing permit, or certificate of

occupancy shall be issued by the Code Enforcement Officer . . . for any use or

development within the scope of this Article until a site plan of development has

been approved and signed by the Planning Board . . . .”); Saco, Me., Zoning

Ordinance § 1103(8) (“Once approved and signed by the Planning Board, no

9
WWS encourages us to interpret the absence of any Ordinance provision expressly permitting an
appeal of a City Planner decision on a minor amendment to a major site plan by a nonapplicant to mean
that no such appeal is allowed. Even if we were to conclude that the Planning Board lacked jurisdiction
over such appeals, we would nevertheless reject WWS’s argument based on our extensive body of law
interpreting 30-A M.R.S. § 4353(1) (2014) to provide for the ZBA’s appellate jurisdiction over such
municipal enforcement decisions by default. See Wister v. Town of Mt. Desert, 2009 ME 66, ¶¶ 15-26,
974 A.2d 903; Sanborn v. Town of Sebago, 2007 ME 60, ¶¶ 7-11, 924 A.2d 1061; Hodsdon v. Town of
Hermon, 2000 ME 181, ¶¶ 3-6, 760 A.2d 221; Freeman v. Town of Southport, 568 A.2d 826, 827-29
(Me. 1990); Cushing v. Smith, 457 A.2d 816, 819-21 (Me. 1983); see also Fitanides v. City of Saco,
2015 ME 32, ¶ 15 n.4, 113 A.3d 1088 (suggesting that an appeal of a City Planner’s decision on a
conditional use permit would have to go to the ZBA in the absence of an express Ordinance provision
requiring it to go elsewhere).
12

changes may be made to approved plans, without an amended approval from the

Planning Board in the case of a major amendment . . . .”); see also Saco, Me.,

Zoning Ordinance § 1109 (“Any changes in the [site] plan after approval must be

approved by the Planning Board . . . .”).

[¶19] Moreover, the fact that sections 1103(7), 1103(8), and 1114 already

expressly require that certain appeals of City Planner site plan decisions go to the

Planning Board can only be interpreted to reflect a municipal determination that it

is the Planning Board that has the expertise to evaluate City Planner decisions as to

site plans and site plan amendments. See Saco, Me., Zoning Ordinance

§§ 1103(7), (8), 1114. Finally, the Ordinance’s provision that all Planning Board

decisions may be appealed directly to the Superior Court demonstrates that the

ZBA was not intended to have any role in the site plan approval or amendment

process, whether undertaken by the Planning Board or the City Planner. See Saco,

Me., Zoning Ordinance §§ 1003-6(1)(b), 1114 (Feb. 17, 2004).

[¶20] In sum, given the current state of the City’s Ordinance, we interpret

the Ordinance to provide equally that any party with standing10—whether applicant

10
WWS offers no support for its contention that because Desfosses failed to oppose WWS’s initial
site plan approval proceedings, she lacked standing to challenge the later site plan amendment.
Desfosses, as an abutting landowner, has standing as a general matter to challenge the land use approvals
of her neighbor, and has a particular interest in WWS’s construction of a retaining wall and fence along
their common boundary. See Wister, 2009 ME 66, ¶¶ 12-13, 974 A.2d 903. Although Desfosses did not
participate in the initial site plan approval proceedings, she is not challenging the City’s decision in those
initial proceedings. Instead, she challenges only the City Planner’s amendment to that approval.
Cf. Friends of Lincoln Lakes v. Town of Lincoln, 2010 ME 78, ¶¶ 11-15, 2 A.3d 284.
 13

or nonapplicant—may timely appeal a City Planner’s decision on a site plan

amendment—whether a major or minor site plan—to the City’s Planning Board.11

By this interpretation, Desfosses’s appeal of the City Planner’s approval of the site

plan amendment was properly before the Planning Board, and the Planning Board

erred in determining that it lacked jurisdiction.12 We therefore vacate the judgment

of the Superior Court and remand the site plan amendment appeal to the Superior

Court with instructions to remand the matter to the Planning Board for

consideration of Desfosses’s appeal on its merits.

Nor are we persuaded by WWS’s argument that Desfosses waived her due process arguments.
Cf. Antler’s Inn & Rest., LLC v. Dep’t of Pub. Safety, 2012 ME 143, ¶ 9, 60 A.3d 1248.
11
The Planning Board conducts a de novo review of a City Planner decision on a site plan
amendment. Saco, Me., Zoning Ordinance § 1114 (Feb. 17, 2004) (“This appeal may include new
evidence and testimony.”). Any subsequent appeal of the Planning Board’s decision is taken to the
Superior Court pursuant to Saco, Me., Zoning Ordinance § 1003-6(1)(b) (Feb. 17, 2004).
12
Further, although the City’s actions in failing to provide Desfosses with notice of the requested
amendment and the approval of the amendment are not before us in this appeal, we reject WWS’s
unsupportable contention that “[t]here is no way that permission to construct a retaining wall to protect
Desfosses’s property can be viewed as a governmental deprivation of her property” in the context of a due
process analysis. Cf. U.S. Const. amend. XIV, § 1; Me. Const. art. I, § 6-A; Mathews v. Eldridge,
424 U.S. 319, 335 (1976); Kirkpatrick v. City of Bangor, 1999 ME 73, ¶ 13 & n.6, 728 A.2d 1268. On
the contrary, Desfosses enjoys a protected property interest in WWS’s ability to construct a retaining wall
and fence along their common boundary, and has a right to the notice and opportunity to be heard in all
proceedings related to that interest that are the hallmarks of due process. See, e.g., Duffy v. Town of
Berwick, 2013 ME 105, ¶ 15, 82 A.3d 148 (“Both an applicant and members of the public who oppose a
project are entitled under the Due Process Clause of the United States and Maine Constitutions to a fair
and unbiased hearing.” (alterations omitted) (quotation marks omitted)); Wister, 2009 ME 66, ¶ 21,
974 A.2d 903; Stewart v. Town of Sedgwick, 2000 ME 157, ¶ 8 n.4, 757 A.2d 773; Kirkpatrick,
1999 ME 73, ¶ 15, 728 A.2d 1268; see also Saco, Me., Zoning Ordinance § 1101 (Feb. 17, 2004)
(recognizing among its purposes the goal of addressing “the value and rights of adjoining properties”).
14

B. Certificate of Occupancy

[¶21] We turn to Desfosses’s contention regarding her right to appeal the

CEO’s issuance of a certificate of occupancy. Certificates of occupancy are issued

pursuant to Saco, Me., Zoning Ordinance § 1203-1 (Feb. 17, 2004), which states:

“No new structure shall be occupied or used . . . prior to the issuance of an

occupancy permit by the Code Enforcement Officer. The Code Enforcement

Officer shall not issue an occupancy permit unless the new structure or proposed

use is in conformance with the Zoning Ordinance.” On appeals, the Ordinance

instructs the ZBA “[t]o affirm, modify, or set aside the action of the Building

Inspector in issuing or denying building permits or certificates of occupancy when

it is alleged that the action is based on an erroneous interpretation of this

Ordinance.” Saco, Me., Zoning Ordinance § 1003-1 (Feb. 17, 2004). Thus,

section 1003-1 apparently limits the ZBA’s appellate jurisdiction over challenges

to certificates of occupancy to those instances in which it is the “Building

Inspector” who issued the certificate of occupancy, and only “when it is alleged

that the action is based on an erroneous interpretation” of the Ordinance. Saco,

Me., Zoning Ordinance § 1003-1. Another provision of the Ordinance, in contrast,

more broadly allows that “[a]n administrative or variance appeal may be taken to

the Board of Appeals by an aggrieved party from any decision of the Code
 15

Enforcement Officer.”13 Saco, Me., Zoning Ordinance § 1003-6(1)(a)(1)

(Feb. 17, 2004) (emphases added).

[¶22] These provisions, like those regarding site plan amendments, are not

models of clarity. Although section 1003-1 refers to certificates of occupancy as

issued by the “Building Inspector,” section 1203-1, which provides the very

requirement of obtaining a certificate of occupancy, states that those certificates

must be obtained from the CEO. Saco, Me., Zoning Ordinance §§ 1003-1, 1203-1.

Section 1003-6(1)(a)(1) likewise refers to decisions of the CEO, but contains no

mention of the “Building Inspector.” Given that the Ordinance requires that the

CEO issues certificates of occupancy, given that the term “Building Inspector”

suggests a role identical to that of the CEO, and given that the Ordinance does not

otherwise distinguish between a Building Inspector and a CEO, we interpret

section 1003-1 to regard appeals of certificates of occupancy issued by the City’s

CEO.

[¶23] In any event, WWS argues that because Desfosses’s challenge to the

certificate of occupancy is based on whether the construction of the retaining wall

and fence complies with the terms of the site plan, it technically does not regard

“an erroneous interpretation of [the] Ordinance,” as is required for appeals of

13
Section 1003-6 is inexplicably titled, “SHORELAND VARIANCES,” but otherwise contains no
discussion of either shoreland or variances. Saco, Me., Zoning Ordinance § 1003-6 (Feb. 17, 2004).
16

certificates of occupancy pursuant to section 1003-1, and therefore that section

1003-1 provides no authority for Desfosses’s particular appeal of WWS’s

certificate of occupancy. WWS’s reading of section 1003-1 is unnecessarily

narrow. A certificate of occupancy cannot be issued unless the new structure

conforms to the Zoning Ordinance. Saco, Me., Zoning Ordinance § 1203-1(A).

Among the terms of the Zoning Ordinance are those that set out the criteria for

obtaining site plan approval, require an applicant to obtain site plan approval, and

allow the imposition of conditions for site plan approval. Saco, Me., Zoning

Ordinance §§ 1106, 1107. The issuance of a certificate of occupancy when the

terms of that site plan approval—including its conditions—are not fulfilled is

necessarily a violation of the very portions of the Ordinance that require site plan

approval and a certificate of occupancy. An evaluation of whether the terms of the

site plan approval and its conditions were met is dependent on the CEO’s

interpretation of the Ordinance provisions pursuant to which that approval was

granted and those conditions imposed. Therefore, we interpret the plain language

of section 1003-1 to provide that the ZBA had jurisdiction to consider Desfosses’s

appeal of the issuance of a certificate of occupancy. For this reason, we conclude

that the ZBA erred in refusing to exercise that jurisdiction,14 and we remand the

14
Even if the plain language of the Ordinance provided for no such right of appeal, we would again be
bound by our interpretation of 30-A M.R.S. § 4353(1) to require that certificates of occupancy may be
appealed to the ZBA in any event. Notwithstanding WWS’s attempts to argue that no such appeal is
 17

matter to the Superior Court with instructions to remand the certificate of

occupancy appeal to the ZBA for consideration of the appeal on its merits.

The entry is:

Judgment of the Superior Court vacated and
remanded with instructions to enter an order
(1) remanding Desfosses’s appeal of the approval
of the site plan amendment to the City of Saco
Planning Board for consideration on the merits,
and (2) remanding Desfosses’s appeal of the
issuance of the certificate of occupancy to the City
of Saco Zoning Board of Appeals for consideration
on the merits.

authorized, we have held that “the issuance or denial of a certificate of occupancy is a decision subject to
judicial review.” Salisbury v. Town of Bar Harbor, 2002 ME 13, ¶ 13, 788 A.2d 598. The limitation we
have placed on appeals of certificates of occupancy is that such appeals “may not . . . substitute for an
appeal of the underlying permit.” Id. ¶ 14. We explained:

If the permittee has complied with the terms of a valid permit, an abutter may not
challenge the issuance of the certificate of occupancy based on a defect in the permit. If,
however, the permittee has meaningfully exceeded the authority contained in the permit,
or otherwise violated conditions of the permit, the issuance of the certificate of
occupancy may be challenged.

Id. Desfosses is not attempting to appeal the certificate of occupancy in lieu of appealing the initial site
plan review; she does not object, and has never objected, to the terms of the initial site plan approval,
including Condition #11. Although she does challenge the site plan amendment in a separate portion of
the matter, her appeal of the certificate of occupancy regards whether WWS actually complied with all of
the conditions of the site plan approval necessary to obtain the certificate of occupancy, and more
particularly, whether Condition #11 was ever satisfied.
18

On the briefs:

C. Alan Beagle, Esq., Beagle, Steeves & Ridge, LLC, Portland,
for appellant Theresa Desfosses

Timothy S. Murphy, Esq., Prescott Jamieson Murphy Law
Group, LLC, Saco, for appellee City of Saco

David M. Hirshon, Esq., and Marshall J. Tinkle, Esq., Hirshon
Law Group, PC, Portland, for appellee WWS Properties, LLC

At oral argument:

C. Alan Beagle, Esq., for appellant Theresa Desfosses

Marshall J. Tinkle, Esq, for appellee WWS Properties, LLC

York County Superior Court docket numbers AP-2013-45, AP-2014-09, AP-2014-17
FOR CLERK REFERENCE ONLY