MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions Decision: 2017 ME 177 Docket: Cum

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- 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	 t he	 operative decision	on	appeal and	because	 that	decision lacks	sufficient	 factual	 findings to	permit meaningful	review, we vacate	and	remand

.2 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

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- 1	 (Sept.	11,	2014)

. 2 Currently	 situated	 on the	pr operty	is	a	672

- square - foot	one

- bedroom	cottage. [¶ 3 ]		On June	30,	2015,	Bond	submitted	to	the	Town	Code	Enforcement Officer	 (CEO)	 an	 appli cation	 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	 p lan	 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 th e	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.”		200 8	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

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- 2(A)	 (Nov.	 5,	 2016).	 	 The	 changes	in	 the	Ordinance	 that	are	 relevant	 to this	appeal	are	discussed	below.3 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	 O rdinance. 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	t he	small	size	of	the	cottage. Specifically ,	Bond asserted	that,	in	addition	to	sleeping,	t he	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	O rdinance	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	E lizabeth,	Me., Zoning	 Ordinance §	 19

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- 3	 (Sept.	 11,	 2014).	 	 Accessory	 buildings	 are	 permitted	 within	 the	 RA District	as	accessory	uses. Id. § 19

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- 1(B)(4)(a).		Conversely,	“[a]ll uses	not	specifically allowed	as permitte d	uses	or	conditional	uses	are	prohibited	within	[the	RA]	district.” Id. § 19

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- 1(D).4 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	 “dwe lling	 units”	 as	 defined by the
O rdinance,	 the	 proposed	 structures	 were	 “accessory”	 and	 ther efore permissible within	the	RA	District

. See Cape	Elizabeth ,	Me.,	Zoning	Ordinance §§ 19

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- 3,	19

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- 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

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- 3,	19

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- 1(B) (4)

. Pursuant	to	M.R.	Civ.	P .	80B Appletree	Cottage	filed a complaint	 in the	 Supe rior	 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 Z oning O rdinance and challenged	 the	 Board’s	 determination	 that	 the location	 of	 the cube s,	 as depicted	 on	 the	 site	 plan, complied with	 the	 O rdinance’s	 set

- back requirements

. [¶ 7 ]	 	 The Superior	 Court rejected	 these	 arguments	 and affirmed the
ZBA ’s	decision

. Appletree	Cottage now appeals from that decision

.5 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	ag ree	t hat, pursuant	to	the	Town	Zoning	O rdinance	in	effect	at	the	time	of the proceeding, the	CEO’s	decision	is the operative decision

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B. The	CEO’s D ecision [¶ 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 ,	20 08	ME	134,	¶	18,	955	A.2d	258. However, [m]eaningful	judicial	review	of	an	agency	decision	is	not	possible without	 findings	 of	 fact	 suffi cient	 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	functi ons. Id. ¶	 19	 (quotation	 marks	 omitted). Further,	 in	 conducting	 this	 review w e neither	“embark	on	an	independent	and	original	inquiry,”	nor	do	we	“review

4 The	 current	 Ordinance explicitly	 provide s the	 ZBA	 with	 the	 authority	 to	 consider	issues	 de novo. See Cape	Elizab eth,	Me.,	Zoning	Ordinance	§ 19

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- 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	 t he	 hearing	 before	 the Board”).6 the	 matter	 by	 implying the findings	 and	 grounds	 for	 the	 decision	 from	 the available	 record.” Chape l	 Rd.	 Assocs

. v.	 Town	 of	 Wells ,	 2001	 ME	 178,	 ¶	 13,
787 A.2d	137 (quotation	marks	omitted). [¶1 0 ] 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 upo n	 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

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- 3,	 19

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- 1(B). Therefore, the CEO’s	decision is insufficient	to	allow	for	meaningful	appellate	review. [¶ 1 1] Although	a	more	detailed	record	was	developed	through	th e	ZBA hearing, pursuant	to the	then

- existing	O rdinance , 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 ,	c onsidering that	evidence in	a

5 The	only	other	“fin dings”	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	 R ule’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 [¶1 2 ]	 	 B ecause	 the CEO’s	 grant	 of Bond’s buildin g	 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	Distri ct and whether	 the	 location	 o f	 the	 proposed	 structures compl ies with	 the
O rdinance’s	set

- back	requirements. The	entry	is: Judg ment 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	r ecently	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 con c lusions ,	as	the	CEO	will	be	required	to	do	on	remand.8 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 F OR C LERK R EFERENCE O NLY