MAINE	SUPREME	JUDICIAL	COURT	                                       Reporter	of	Decisions	
Decision:	 2018	ME	105	
Docket:	   Ken-17-478	      	
Argued:	   June	14,	2018	
Decided:	  July	24,	2018	
	
Panel:	    SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD,	GORMAN,	JABAR,	HJELM,	and	HUMPHREY,	JJ.	
	
	
                            TOWN	OF	MOUNT	VERNON	
                                       	
                                      v.	
                                       	
                             JAMES	LANDHERR	et	al.	
	
	
SAUFLEY,	C.J.	


      [¶1]	 	 James	 Landherr	 and	 Valerie	 Center,	 whom	 we	 refer	 to	 as	 the	

landowners,	appeal	from	a	judgment	entered	by	the	District	Court	(Waterville,	

Stokes,	 J.)	 in	 favor	 of	 the	 Town	 of	 Mount	 Vernon	 on	 its	 land	 use	 violation	

complaint	filed	pursuant	to	30-A	M.R.S.	§	4452	(2017)	and	M.R.	Civ.	P.	80K.		The	

dispute	 between	 the	 landowners	 and	 the	 Town	 centers	 on	 a	 relatively	 large	

generator	that	the	landowners	had	installed	on	their	small	lot	on	Minnehonk	

Lake	before	seeking	a	permit	or	a	variance.			

      [¶2]		Prior	to	the	proceedings	before	us,	on	appeal	from	a	decision	of	the	

Town’s	 code	 enforcement	 officer,	 the	 Mount	 Vernon	 Board	 of	 Appeals	

determined	that	the	landowners’	generator	was	a	“structure”	pursuant	to	the	

Town’s	Land	Use	Ordinance.		When	the	landowners	did	not	appeal	that	decision	
2	

and	 yet	 failed	 to	 comply	 with	 the	 Town’s	 request	 for	 the	 removal	 of	 the	

generator	 because	 that	 structure	 was	 placed	 on	 the	 lot	 in	 violation	 of	 the	

Ordinance,	the	Town	filed	a	land	use	violation	complaint.		The	court	determined	

that	 the	 previous	 decision	 of	 the	 Board	 of	 Appeals	 was	 res	 judicata	 as	 to	

whether	the	generator	met	the	definition	of	“structure”	in	the	Town’s	Land	Use	

Ordinance	and	found	the	landowners	in	violation	of	the	Ordinance,	assessing	a	

penalty	and	attorney	fees.		We	affirm	the	judgment	of	the	court.	

                                            I.		BACKGROUND	

          [¶3]		In	early	2015,	after	experiencing	a	number	of	power	outages,	the	

landowners	installed	a	generator	on	their	lakefront	property.		The	generator	

was	 set	 on	 a	 concrete	 pad	 and	 was	 connected	 to	 the	 house	 by	 underground	

electric	and	gas	lines.		The	landowners	did	not	consult	with	the	Town	or	apply	

for	a	permit	before	installing	the	generator.			

          [¶4]		The	Town’s	Land	Use	Ordinance	requires	that	all	new	and	accessory	

“structures”	be	set	back	at	least	100	feet	from	the	normal	high-water	line	of	any	

great	pond	within	the	shoreland	zone.		Mount	Vernon,	Me.,	Land	Use	Ordinance	

§	5(C)(2)(a)	(June	13,	2015).1		The	Ordinance	further	provides	that	“[n]o	person	



     1	 	 The	 Ordinance	 defines	 “structure”	 as	 “[a]nything	 temporarily	 or	 permanently	 located,	 built,	

constructed	or	erected	for	the	support,	shelter	or	enclosure	of	persons,	animals,	goods	or	property	
of	any	kind,	together	with	anything	constructed	or	erected	on	or	in	the	ground.”		Mount	Vernon,	Me.,	
                                                                                                   3	

shall	engage	in	any	activity,	land	use,	or	placement	of	a	structure	.	.	.	requiring	a	

permit	in	the	district	in	which	such	activity	or	use	would	occur	.	.	.	without	first	

obtaining	 a	 permit.”	 	 Id.	 §	 11(B).	 	 There	 is	 no	 dispute	 that	 the	 landowners’	

generator	was	placed	less	than	100	feet	from	the	lake.			

       [¶5]		On	July	15,	2015,	the	Town’s	CEO	 sent	a	letter	to	the	landowners	

advising	 them	 that	 “[a]ll	 structures	 located	 in	 a	 shoreland	 district	 require	 a	

permit”	 and	 stating	 that	 a	 generator	 on	 their	 property	 appeared	 to	 be	 in	

violation	of	the	Ordinance’s	setback	requirements.		The	letter	ordered	them	to	

either	remove	the	generator	or	apply	for	a	permit	on	or	before	August	10,	2015.			

       [¶6]		The	landowners	filed	an	application	for	an	after-the-fact	permit	to	

maintain	the	generator	in	its	location.		By	letter	dated	August	12,	2015,	the	CEO	

denied	the	permit,	stating	that	“the	structure	is	nonconforming	from	side,	front	

and	 rear	 setbacks	 on	 the	 lot.”	 	 The	 CEO	 provided	 the	 landowners	 with	

instructions	 for	 appealing	 his	 decision	 and	 applications	 for	 hardship	 and	

administrative	variances.		They	timely	appealed	the	CEO’s	denial	of	their	permit	

to	the	Mount	Vernon	Board	of	Appeals,	arguing	that	their	generator	was	not	a	

“structure”	as	defined	by	the	Town’s	Land	Use	Ordinance.			



Land	Use	Ordinance	§	3	(June	13,	2015).		“Accessory	structure”	is	defined	as	a	“structure	100	square	
feet	or	greater,	except	in	the	shoreland	zone,	where	there	is	no	minimum	size.”		Id.			
4	

         [¶7]		In	September	2015,	the	Board	of	Appeals	held	a	public	hearing	on	

the	appeal.		The	landowners	attended	the	hearing,	where	they	were	provided	

an	 opportunity	 to	 argue	 their	 position.	 	 At	 the	 conclusion	 of	 the	 hearing,	 the	

Board	of	Appeals	unanimously	voted	to	uphold	the	CEO’s	decision	and	issued	a	

written	decision	concluding	that	the	generator	was	a	“structure”	after	finding	

that	“the	generator	sits	on	a	pad,	has	underground	propane	pipes	and	[a]	power	

line,	and	was	intended	to	remain	in	place.”		The	landowners	did	not	appeal	the	

decision	 of	 the	 Board	 of	 Appeals	 to	 the	 Superior	 Court.2	 	 See	 30-A	 M.R.S.	

§	2691(3)(G)	(2017);	M.R.	Civ.	P.	80B.	

         [¶8]	 	 Approximately	 one	 month	 later,	 the	 CEO	 sent	 a	 letter	 requesting	

that	 the	 landowners	 agree	 in	 writing	 to	 either	 remove	 the	 generator	 by	

November	30,	2015,	or	incur	a	penalty	for	every	day	after	November	30	that	

the	generator	remained	in	violation	of	the	Ordinance.		On	November	11,	2015,	

after	the	landowners	failed	to	respond	to	his	letter	and	the	time	for	filing	 an	

appeal	 had	 expired,	 the	 CEO	 sent	 them	 a	 notice	 of	 violation	 pursuant	 to	

30-A	M.R.S.	 §	 4452,	 requiring	 the	 landowners	 to	 sign	 and	 return	 a	 consent	

agreement,	which	 would	require	that	they	 pay	a	 $1,000	fine	 and	remove	the	



     2		The	landowners	also	applied	for	a	variance,	which	the	Board	of	Appeals	denied	after	a	public	

hearing.		They	do	not	appeal	from	that	decision.	
                                                                                      5	

generator	by	November	30.		The	notice	stated	that	they	“must	notify	the	Code	

Enforcement	Officer	when	corrective	action	is	taken	so	that	a	compliance	check	

may	 be	 made”	 and	 warned	 that	 a	 failure	 to	 comply	 would	 “result	 in	 court	

action.”		(Emphasis	in	original.)		The	landowners	responded	with	an	email	to	

the	CEO,	acknowledging	the	notice	of	violation	and	stating	that	they	planned	to	

make	 the	 generator	 mobile,	 but	 that	 it	 was	 unlikely	 that	 the	 work	 would	 be	

completed	 by	 November	 30,	 and	 that	 they	 would	 update	 the	 CEO	 when	 the	

expected	 date	 of	 completion	 became	 known.	 	 They	 did	 not	 have	 any	 further	

communication	with	the	CEO.			

      [¶9]	 	 On	 February	 3,	 2016,	 the	 Town	 filed	 a	 land	 use	 citation	 and	

complaint	 in	 the	 District	 Court	 pursuant	 to	 30-A	 M.R.S.	 §	 4452	 and	 M.R.	

Civ.	P.	80K,	alleging	that	the	generator	had	not	been	removed	as	required	by	the	

notice	of	violation	and	order	for	corrective	action	dated	November	11,	2015.		

The	 Town	 sought	 a	 permanent	 injunction	 and	 order	 for	 the	 removal	 of	 the	

generator	as	well	as	attorney	fees	and	civil	penalties.		The	landowners	denied	

the	allegations	and	the	matter	was	set	for	trial.		

      [¶10]		Prior	to	trial,	the	Town	moved	for	summary	judgment	on	the	issue	

of	whether	the	generator	was	a	“structure”	as	defined	by	the	Town’s	Land	Use	

Ordinance,	see	M.R.	Civ.	P.	56,	asserting	that	the	decision	of	the	Board	of	Appeals	
6	

was	 a	 valid,	 final	 judgment	 and	 that	 relitigating	 the	 matter	 was	 barred	 by	

principles	 of	 res	 judicata,	 see	 30-A	 M.R.S.	 §	 2691(4)	 (2017).	 	 Landherr	 and	

Center	objected.			

      [¶11]	 	 The	 court	 held	 a	 one-day	 trial	 in	 April	 2017.	 	 After	 hearing	

argument,	 the	 court	 granted	 the	 Town’s	 motion	 for	 summary	 judgment.		

Because	the	landowners	did	not	dispute	that	the	generator	was	located	within	

100	feet	of	a	great	pond	in	violation	of	the	Town’s	Land	Use	Ordinance,	the	trial	

proceeded	 to	 the	 dispositional	 phase	 during	 which	 the	 landowners	 asserted	

that	the	Town	should	be	equitably	estopped	from	prosecuting	the	violation	and	

that	 the	 violation	 was	 de	 minimis.	 	 On	 August	 21,	 2017,	 the	 court	 entered	 a	

judgment	in	favor	of	the	Town.		The	court	found	that	the	landowners	failed	to	

present	sufficient	evidence	to	prove	their	equitable	defenses,	ordered	them	to	

pay	a	minimal	civil	penalty	of	$500,	and	awarded	the	Town	attorney	fees	and	

costs	totaling	$2,264.73.		The	landowners	timely	filed	a	notice	of	appeal.		See	

14	M.R.S.	§	1901	(2017);	M.R.	App.	P.	2A,	2B.	

                                   II.		DISCUSSION	

      [¶12]		The	landowners	contend	that	the	court	erred	by	concluding	that	

the	decision	of	the	Board	of	Appeals	precluded	them	from	relitigating	the	issue	

of	whether	their	generator	was	a	“structure”	as	defined	by	the	Town’s	Land	Use	
                                                                                        7	

Ordinance,	arguing	that	summary	judgment	was	inappropriate	in	 a	Rule	80K	

proceeding	and	that	they	were	entitled	to	a	de	novo	hearing	on	the	merits.		They	

urge	us	to	determine	that,	as	a	matter	of	judicial	policy,	it	would	be	better	for	

the	public	to	be	able	to	litigate	issues	anew	in	any	land	use	violation	litigation.

      [¶13]		The	effect	of	a	prior	judgment	on	a	present	action	is	a	question	of	

law	that	we	review	de	novo.		State	v.	Thompson,	2008	ME	166,	¶	8,	958	A.2d	887.		

Preliminarily,	we	reject	the	landowners’	contention	that	Rule	80K	prohibits	the	

use	 of	 summary	 judgment	 in	 land	 use	 violation	 proceedings.	 	 See	 M.R.	

Civ.	P.	80K(a)	 (stating	 that	 “[e]xcept	 as	 otherwise	 provided	 in	 this	 rule,	 [the	

Rules	 of	 Civil	 Procedure]	 shall	 apply	 to	 proceedings	 in	 the	 District	 Court	

involving	alleged	violations	of	land	use	laws	and	ordinances”).	

      [¶14]		We	note,	however,	that	the	Town	was	not	required	to	file	a	motion	

for	 summary	 judgment	 in	 order	 to	 have	 the	 court	 apply	 the	 decision	 of	 the	

Board	 of	 Appeals.	 	 The	 issue	 could	 have	 been	 addressed	 in	 a	 more	

straightforward	manner	by	a	request	from	the	Town	that	the	court	take	judicial	

notice	of	that	decision.		See	M.R.	Evid.	201;	see	also	Manguriu	v.	Lynch,	794	F.3d	

119,	121	(1st	Cir.	2015)	(noting	that	courts	may	take	judicial	notice	of	agency	

determinations);	 Furnari	 v.	 Warden,	 Allenwood	 Fed.	 Corr.	 Inst.,	 218	 F.3d	 250,	

255-56	(3d	Cir.	2000)	(same);	Opoka	v.	INS,	94	F.3d	392,	394-95	(7th	Cir.	1996)	
8	

(citing	 cases	 from	 several	 federal	 circuit	 courts	 of	 appeals	 supporting	 the	

“well-settled	principle	that	the	decision	of	another	court	or	agency,	including	

the	 decision	 of	 an	 administrative	 law	 judge,	 is	 a	 proper	 subject	 of	 judicial	

notice”);	 cf.	 United	 States	 v.	 Jones,	 29	 F.3d	 1549,	 1553	 (11th	 Cir.	 1994)	 (“[A]	

court	may	take	judicial	notice	of	a	document	filed	in	another	court	not	for	the	

truth	of	the	matters	asserted	in	the	other	litigation,	but	rather	to	establish	the	

fact	of	such	litigation	and	related	filings.”	(quoting	Liberty	Mut.	Ins.	Co.	v.	Rotches	

Pork	Packers,	Inc.,	969	F.2d	1384,	1388	(2d	Cir.	1992))).	

       [¶15]	 	 Ultimately,	 regardless	 of	 the	 vehicle	 by	 which	 the	 issue	 was	

brought	 to	 the	 court,	 the	 court	 correctly	 determined	 that	 the	 decision	 of	 the	

Board	 of	 Appeals	 was	 binding	 on	 the	 landowners.	 	 An	 issue	 of	 law	 or	 fact	

litigated	 and	 decided	 in	 a	 valid,	 final	 judgment	 is	 conclusive	 in	 a	 subsequent	

legal	proceeding	between	the	same	 parties.		Town	 of	N.	Berwick	v.	Jones,	534	

A.2d	 667,	 669	 (Me.	1987).	 	 That	 form	 of	 res	 judicata	 known	 as	 “collateral	

estoppel”	 or	 “issue	 preclusion”	 prevents	 the	 relitigation	 of	 issues	 already	

decided	“if	the	identical	issue	was	determined	by	a	 prior	final	judgment,	and	

the	party	estopped	had	a	fair	opportunity	and	incentive	to	litigate	the	issue	in	

a	prior	proceeding.”		Macomber	v.	MacQuinn-Tweedie,	2003	ME	121,	¶	22,	834	

A.2d	131	(alteration	omitted)	(quotation	marks	omitted).		The	doctrine	of	res	
                                                                                            9	

judicata	applies	to	decisions	made	by	municipal	bodies	as	well	as	to	judgments	

issued	by	the	court.		See	30-A	M.R.S.	§	2691(4)	(“Any	such	decision	that	is	not	

timely	appealed	is	subject	to	the	same	preclusive	effect	as	otherwise	provided	

by	law.”);	Jones,	534	A.2d	at	670	(establishing	that	res	judicata	applies	to	“a	final	

adjudication	in	an	administrative	proceeding	before	a	quasi-judicial	municipal	

body”).	

       [¶16]	 	 Each	 of	the	 elements	 of	 issue	 preclusion	 was	 established	 in	 this	

case.		See	Macomber,	2003	ME	121,	¶	22,	834	A.2d	131.		First,	the	landowners	

had	 a	 fair	 opportunity	 and	 incentive	 to	 litigate	 the	 issue	 of	 whether	 their	

generator	 was	 a	 “structure”	 before	 the	 Board	 of	 Appeals.	 	 A	 review	 of	 the	

minutes	of	the	public	hearing	reveals	that	they	had	notice	and	an	opportunity	

to	be	heard.		They	did,	in	fact,	advocate	assertively	for	their	position.		Second,	

after	the	Board	of	Appeals	issued	its	decision	and	the	period	for	filing	a	Rule	

80B	 appeal	 expired	 without	 an	 appeal,	 the	 Board’s	 decision	 became	 a	 valid,	

final	judgment.		See	30-A	M.R.S.	§	2691(3)(G),	(4).		Third,	the	issue	before	the	

Board	 of	 Appeals—whether	 the	 landowners’	 generator	 is	 a	 “structure”	 as	

defined	 by	 the	 Town’s	 Ordinance—is	 the	 identical	 issue	 that	 they	 sought	 to	

litigate	 in	 the	 District	 Court	 in	 the	 land	 use	 violation	 trial.	 	 Based	 on	 these	

facts—which	the	landowners	do	not	dispute—and	for	these	reasons,	the	court	
10	

did	not	err	by	concluding	that	they	were	precluded	from	relitigating	the	issue	

of	the	generator	as	a	structure	pursuant	to	the	Ordinance.3			

       [¶17]	 	 Finally,	 the	 landowners’	 argument	 that	 the	 application	 of	 the	

principles	of	res	judicata	in	these	circumstances	will	make	municipal	land	use	

compliance	 more	 difficult	 and	 more	 expensive	 for	 landowners	 is	 not	

persuasive.	 	 To	 the	 contrary,	 knowing	 the	 Town’s	 interpretation	 of	 the	

Ordinance	 before	 the	 initiation	 of	 a	 land	 use	 violation	 complaint	 pursuant	 to	

Rule	 80K	 allows	 a	 landowner	 to	 take	 corrective	 action	 before	 risking	 the	

potentially	draconian	penalties	flowing	from	the	filing	of	a	land	use	violation	

complaint,	if	the	landowner	is	willing	to	work	with	the	Town	toward	a	solution.		

See	 30-A	 M.R.S.	 §	 4452(3)	 (allowing	 penalties	 to	 be	 assessed	 “on	 a	 per-day	

basis”).	

       [¶18]	 	 Pursuant	 to	 the	 final	 decision	 of	 the	 Mount	 Vernon	 Board	 of	

Appeals,	 the	 generator	 on	 Landherr	 and	 Center’s	 property	 is	 a	 structure.	 	 It	

must	meet	the	requirements	of	Mount	Vernon’s	Land	Use	Ordinance	regarding	

structures.		It	does	not.		The	court	did	not	err	in	finding	that	the	landowners	

were	in	violation	of	the	Ordinance	and	assessing	a	modest	penalty.	


   3		The	landowners	also	argue	that	the	court	erred	by	finding	that	they	had	failed	to	carry	their	

burden	of	proof	in	establishing	their	equitable	defenses.		We	are	not	persuaded	by	their	argument	
and	do	not	address	it	further.	
                                                                              11	

         The	entry	is:	

                            Judgment	affirmed.		
	
	    	      	     	      	      	
	
Robert	E.	Sandy,	Jr.,	Esq.	(orally),	Sherman	&	Sandy,	Waterville,	for	appellants	
James	Landherr	and	Valerie	Center	
	
David	M.	Sanders,	Esq.	(orally),	Sanders	&	Hanstein,	Farmington,	for	appellee	
Town	of	Mount	Vernon	
	
	
Waterville	District	Court	docket	number	CV-2016-11	
FOR	CLERK	REFERENCE	ONLY	
