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.

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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.
7

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