MAINE	SUPREME	JUDICIAL	COURT	                                          Reporter	of	Decisions	
Decision:	    2017	ME	195	
Docket:	      Cum-16-552	
Submitted	 	
  On	Briefs:	 June	29,	2017	
Decided:	     September	19,	2017	
	
Panel:	       SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD,	GORMAN,	JABAR,	HJELM,	and	HUMPHREY,	JJ.	
	
	
                               LESLIE	FISSMER	et	al.	
                                         	
                                        v.	
                                         	
                            TOWN	OF	CAPE	ELIZABETH	et	al.	
	
	
HJELM,	J.	

        [¶1]		Leslie	Fissmer,	individually	and	as	trustee	of	the	Leslie	S.	Fissmer	

Revocable	 Trust	 (collectively,	 Fissmer),	 appeals	 from	 a	 judgment	 of	 the	

Superior	Court	(Cumberland	County,	L.	Walker,	J.)	affirming	a	decision	of	the	

Cape	 Elizabeth	 Zoning	 Board	 of	 Appeals,	 which	 in	 turn	 determined	 that	 the	

Cape	 Elizabeth	 Code	 Enforcement	 Officer	 had	 properly	 issued	 a	 building	

permit	 to	 Cunner	 Lane	 LLC.1	 	 Fissmer,	 an	 abutting	 property	 owner,2	 argues	

that	the	ZBA	erred	by	determining	that	a	Declaration	of	Covenants	applicable	

to	Cunner	Lane	LLC’s	property	 satisfied	 a	 requirement	 of	 the	Cape	Elizabeth	


    1		Fissmer	and	Cunner	Lane	LLC	have	participated	in	this	appeal.		The	Town	of	Cape	Elizabeth	

has	not.	
   	
   2		Although	Fissmer	is	a	party	in	her	individual	capacity,	the	complaint	and	the	record	indicate	

that	the	property	is	owned	by	the	Trust.		Any	ambiguity	on	that	point	is	not	material	here.	
2	

Zoning	Ordinance	that	“legally	binding	arrangements	exist	to	provide	for	the	

long-term	 maintenance	 of	 [a	 private]	 road”	 before	 a	 permit	 can	 be	 issued	

allowing	 construction	 on	 a	 parcel	 located	 on	 that	 road.	 	 Cape	 Elizabeth,	 Me.,	

Zoning	 Ordinance	 §	 19-7-9(A)(2)	 (Sept.	 11,	 2014).3	 	 Although	 we	 treat	 the	

CEO’s	decision	as	the	operative	one,	we	agree	that	there	is	no	evidence	in	the	

record	 showing	 that	 the	 permit	 application	 met	 the	 requirements	 of	 section	

19-7-9(A)(2).		We	therefore	vacate	the	judgment	and	remand	for	the	CEO	to	

deny	the	application.			

                                           I.		BACKGROUND	

        [¶2]		The	following	facts,	which	are	not	disputed,	are	established	in	the	

administrative	record.			

        [¶3]		In	1998,	David	D.	Smith	acquired	a	7.6-acre	parcel	of	land	located	

in	Cape	Elizabeth	at	21	Cunner	Lane,	a	private	road.		In	February	2010,	Smith	

conveyed	a	2.4-acre	portion	of	his	parcel	to	Cunner	Lane	LLC.		The	address	of	

the	 newly	 created	 parcel	 is	 19	Cunner	 Lane.	 	 Smith	 retained	 the	 remaining	

portion	 of	 his	 parcel	 at	 21	 Cunner	 Lane.	 	 As	 shown	 on	 a	 boundary	 survey,	

Cunner	 Lane	 begins	 where	 it	 intersects	 with	 a	 public	 way	 and	 continues	 for	


   3		As	we	discuss	below,	see	infra	n.4,	certain	provisions	of	the	Cape	Elizabeth	Zoning	Ordinance	

were	 amended	 after	 the	 events	 pertinent	 to	 this	 case.	 	 See	 Cape	 Elizabeth,	 Me.,	 Zoning	 Ordinance	
(Nov.	5,	2016).		We	cite	to	the	version	of	the	Ordinance	in	effect	when	the	CEO	and	the	ZBA	issued	
their	decisions.			
                                                                                        3	

some	distance,	passing	other	parcels,	before	it	reaches	and	abuts	the	parcels	

at	19	and	21	Cunner	Lane.		

      [¶4]	 	 Also	 in	 February	 2010,	 the	 Cape	 Elizabeth	 Code	 Enforcement	

Officer	 confirmed	 to	 Smith	 in	 writing	 that	 “the	 2.4	 acre	 parcel	 .	.	.	 may	 be	

created	and	conveyed	out	so	long	as”	the	grantee,	Cunner	Lane	LLC,	satisfied	

section	19-7-9(A)	of	the	Zoning	Ordinance.		That	provision	would	require	that	

the	 private	 road—Cunner	 Lane—leading	 to	 the	 new	 parcel	 “provides	

adequate	 all-season	 emergency	 access	 for	 the	 existing	 and	 proposed	 use,”	

Cape	 Elizabeth,	 Me.,	 Zoning	 Ordinance	 §	19-7-9(A)(1),	 and	 that	 “legally	

binding	 arrangements	 exist	 to	 provide	 for	 the	 long-term	 maintenance	 of	 the	

road.”		Id.	§	19-7-9(A)(2).			

      [¶5]		In	March	2010,	the	CEO	sent	Smith	a	second	letter	stating	that	he	

and	 the	 Town’s	 Fire	 Chief	 had	 inspected	 Cunner	 Lane	 “in	 conjunction	 with	

section	 19-7-9”	 and	 had	 determined	 that,	 “in	 its	 current	 condition,”	 Cunner	

Lane	provided	“adequate	.	.	.	emergency	access”	to	the	“proposed”	new	parcel,	

but	that	to	accommodate	“large	fire	equipment”	a	driveway	and	turn-around	

would	 have	 to	 be	 installed	 “prior	 to	 occupancy	 of	 any	 future	 dwelling”	 and	

would	have	“to	be	included	in	the	long-term	[road]	maintenance	agreement.”		
4	

      [¶6]	 	 The	 next	 month,	 Smith	 executed	 and	 recorded	 a	 “Declaration	 of	

Covenants	 with	 Respect	 to	 Road	 Maintenance”	 that	 subjected	 the	 “parcel	 of	

land	 located	 at	 21	 Cunner	 Lane”—described	 as	 encompassing	 the	 entire	 lot	

conveyed	 to	 Smith	 in	 1998,	 including	 the	 new	 lot	 at	 19	 Cunner	 Lane—to	

several	 “covenants	 running	 with	 the	 land,”	 including	 the	 following:	 “The	

Undersigned	 hereby	 agrees	 to	 provide	 for	 the	 maintenance	 and	 repairs	

necessary	to	keep	that	portion	of	Cunner	Lane	abutting	the	Property	passable	

on	 foot	 and	 by	 motor	 vehicles,	 including	 without	 limitation,	 the	 emergency	

vehicles	 of	 the	 Town	 of	 Cape	 Elizabeth,	 including	 grading,	 snowplowing,	

sanding	 and	 trimming	 of	 vegetation.”	 	 (Emphasis	 added.)	 	 The	 Declaration	

further	stated	that	Smith	agreed	to	install	the	improvements	identified	in	the	

CEO’s	 March	 2010	 letter	 “prior	 to	 the	 occupancy	 of	 any	 future	 dwelling”	

located	on	the	parcel.		

	     [¶7]	 	 Five	 years	 later,	 in	 April	 2015,	 Cunner	 Lane	 LLC	 applied	 for	 a	

building	 permit	 to	 construct	 a	 “new	 single	 family	 dwelling”	 on	 its	 2.4-acre	

parcel	 located	 at	 19	 Cunner	 Lane.	 	 The	 Town’s	 new	 CEO	 approved	 the	

application	except	for	one	aspect	of	the	building	design	that	is	not	relevant	to	

this	appeal.		
                                                                                        5	

      [¶8]	 	 Fissmer,	 an	 abutting	 property	 owner,	 filed	 an	 appeal	 with	 the	

Zoning	Board	of	Appeals	from	the	CEO’s	decision	to	issue	the	permit.		In	the	

written	 appeal,	 she	 asserted	 that	 Cunner	 Lane	 LLC	 had	 not	 satisfied	 section	

19-7-9-(A)(2)	 of	 the	 Zoning	 Ordinance	 because	 there	 was	 no	 legally	 binding	

arrangement	for	the	long-term	maintenance	of	the	road.		At	a	hearing	held	by	

the	 ZBA	 in	 July	 2015,	 Fissmer	 also	 argued	 that	 the	 2010	 Declaration	 of	

Covenants	did	not	satisfy	section	19-7-9(A)(2)	because	it	applied	only	to	the	

portion	 of	 Cunner	 Lane	 that	 abutted	 the	 original	 7.6-acre	 parcel,	 not	 to	 the	

entirety	of	the	private	way.		

      [¶9]	 	 Based	 on	 the	 evidence	 submitted	 by	 the	 parties	 both	 before	 and	

during	the	hearing—which	went	beyond	the	evidence	that	had	been	the	basis	

for	the	CEO’s	decision—the	ZBA	voted	unanimously	that	the	CEO	“did	not	err	

by	 approving”	 the	 permit	 application	 and	 issued	 three	 “findings,”	 which	

merely	summarized	procedural	events.		Fissmer	appealed	the	ZBA’s	decision	

to	the	Superior	Court,	see	30-A	M.R.S.	§	2691(4)	(2016);	M.R.	Civ.	P.	80B,	and	

in	 May	 2016,	 the	 court	 (L.	 Walker,	 J.)	 issued	 a	 judgment	 concluding	 that	 the	

ZBA’s	decision	was	the	operative	one	for	purposes	of	judicial	review	but	that	

the	 decision	 was	 insufficient	 to	 allow	 for	 meaningful	 appellate	 review.	 	 For	
6	

that	 reason,	 the	 court	 remanded	 the	 matter	 for	 the	 ZBA	 to	 issue	 further	

findings	of	fact.		

	      [¶10]	 	 On	 remand,	 in	 June	 2016,	 the	 ZBA	 issued	 several	 additional	

findings	 of	 fact	 based	 on	 the	 record	 that	 had	 been	 developed	 at	 the	 first	

hearing,	 including	 a	 finding	 that	 Cunner	 Lane	 LLC	 had	 satisfied	 section	

19-7-9(A)(2)	 “[b]y	 virtue	 of”	 the	 2010	 Declaration	 of	 Covenants.	 	 Fissmer	

again	 appealed	 to	 the	 Superior	 Court	 pursuant	 to	 30-A	 M.R.S.	 §	 2691(4)	 and	

M.R.	Civ.	P.	80B,	and	the	court	affirmed	the	ZBA’s	decision.		Fissmer	appeals	to	

us	 pursuant	 to	 14	 M.R.S.	 §	 1851	 (2016),	 M.R.	 Civ.	 P.	 80B(n),	 and	 M.R.	

App.	P.	2(b)(3).			

                                   II.		DISCUSSION	

	      [¶11]	 	 Fissmer	 argues	 that	 the	 2010	 Declaration	 of	 Covenants	 was	

insufficient	 to	 support	 the	 ZBA’s	 determination	 that	 Cunner	 Lane	 LLC’s	

application	 satisfied	 section	 19-7-9(A)(2)	 of	 the	 Cape	 Elizabeth	 Zoning	

Ordinance,	which	is	a	predicate	to	the	issuance	of	a	building	permit.		See	Cape	

Elizabeth,	Me.,	Zoning	Ordinance	§	19-7-9(A).	

       [¶12]	 	 “In	 a	 Rule	 80B	 appeal,	 the	 Superior	 Court	 acts	 in	 an	 appellate	

capacity,	 and,	 therefore,	 we	 review	 the	 agency’s	 decision	 directly.”		

21	Seabran,	 LLC	 v.	 Town	 of	 Naples,	 2017	 ME	 3,	 ¶	 9,	 153	 A.3d	 113	 (quotation	
                                                                                                                        7	

marks	omitted).		We	have	recently	stated	that	pursuant	to	the	same	version	of	

the	 Ordinance	 governing	 this	 action,	 the	 CEO’s	 decision—not	 the	 ZBA’s—is	

the	operative	one	for	purposes	of	appellate	review	because	the	Ordinance	did	

not	authorize	the	ZBA	to	decide	the	matter	de	novo.		Appletree	Cottage,	LLC	v.	

Town	 of	 Cape	 Elizabeth,	 2017	 ME	 177,	 ¶¶	 2	 n.1,	 11,	 ---	 A.3d	 ---;	 see	 also	

Portland	Cellular	P’ship	v.	Town	of	Cape	Elizabeth,	139	F.	Supp.	3d	479,	486-87	

(D.	Me.	2015)	(stating	that	pursuant	to	the	Ordinance	applicable	here,	the	ZBA	

is	to	act	in	an	appellate	capacity	and	that	a	court	therefore	reviews	the	CEO’s	

decision);	 see	 generally	 Stewart	 v.	 Town	 of	 Sedgwick,	 2000	 ME	 157,	 ¶¶	 6-8,	

757	A.2d	773.		Therefore,	although	the	parties	have	cast	the	ZBA	as	the	body	

that	issues	the	operative	decision,	we	review	the	CEO’s	decision.4		

         [¶13]		“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.”		

Appletree	 Cottage,	 2017	 ME	 177,	 ¶	 9,	 ---	 A.3d	 ---	 (quotation	 marks	 omitted).		

    4		In	the	end,	the	question	of	whether	the	CEO	or	the	ZBA	issued	the	operative	decision	does	not	

affect	our	analysis	because	the	record	associated	with	both	phases	of	the	municipality’s	action	is,	as	
a	 matter	 of	 law,	 insufficient	 to	 support	 the	 permit.	 	 The	 only	 effect	 flowing	 from	 this	 issue	 is	 the	
determination	of	which	municipal	office	will,	on	remand,	be	required	to	deny	the	application.	
    	
    We	 note,	 as	 we	 did	 in	 in	 Appletree,	 that	 the	 Town’s	 Zoning	 Ordinance	 was	 amended	 effective	
several	months	after	the	ZBA	issued	its	final	decision	in	this	case	and	now	expressly	authorizes	the	
ZBA	 to	 “hear	 .	 .	 .	 administrative	 appeals	 on	 a	 de	 novo	 basis	 .	 .	 .	 by	 deciding	 .	 .	 .	 matters	 afresh,	
undertaking	its	own	independent	analysis	of	evidence	and	the	law	and	reaching	its	own	decision.”		
See	 Cape	 Elizabeth,	 Me.,	 Zoning	 Ordinance	 §	 19-5-2(A)	 (Nov.	 5,	 2016);	 Appletree	 Cottage,	 LLC	 v.	
Town	 of	 Cape	 Elizabeth,	 2017	 ME	 177,	 ¶	 8,	 n.4,	 ---	 A.3d	 ---	 (“The	 current	 Ordinance	 explicitly	
provides	the	ZBA	with	the	authority	to	consider	issues	de	novo.”).		The	current	Zoning	Ordinance	
therefore	now	establishes	the	ZBA’s	authority	to	conduct	a	de	novo	hearing.		
8	

“Although	 interpretation	 of	 an	 ordinance	 is	 a	 question	 of	 law,	 we	 accord	

substantial	deference	to	[a	municipality’s]	characterizations	and	fact-findings	

as	 to	 what	 meets	 ordinance	 standards.”	 	 Bizier	 v.	 Town	 of	 Turner,	 2011	 ME	

116,	 ¶	 8,	 32	A.3d	 1048	 (quotation	 marks	 omitted).	 	 Cunner	 Lane	 LLC,	 as	 the	

permit	applicant,	had	the	burden	to	establish	“the	factual	elements	necessary	

for	 the	 grant	 of	 [its]	 application.”	 	 Mills	 v.	 Town	 of	 Eliot,	 2008	 ME	 134,	 ¶	 20,	

955	A.2d	258.		Fissmer,	however,	has	the	burden	of	persuasion	on	appeal	to	

show	 that	 “no	 competent	 evidence”	 supports	 the	 CEO’s	 findings.	 	 See	 Osprey	

Family	 Trust	 v.	 Town	 of	 Owls	 Head,	 2016	 ME	 89,	 ¶¶	9-10,	 141	 A.3d	 1114	

(quotation	marks	omitted).		

       [¶14]		The	Ordinance	central	to	this	appeal	is	section	19-7-9(A),	which	

states:	

       A	private	road	that	existed	as	of	June	4,	1997,	and	is	shown	on	the	
       Town	 Street	 Map	 may	 be	 used	 to	 provide	 access	 to	 and	 street	
       frontage	 for	 a	 residential	 lot	 upon	 certification	 by	 the	 Code	
       Enforcement	Officer	that:		
       	
             1.	   based	 upon	 the	 recommendation	 of	 the	 Fire	 Chief,	
                   that	the	road	provides	adequate	all-season	emergency	
                   access	for	the	existing	and	proposed	use,	and	
             	
             2.	   legally	 binding	 arrangements	 exist	 to	 provide	 for	 the	
                   long-term	maintenance	of	the	road.	
             	
                                                                                            9	

Cape	Elizabeth,	Me.,	Zoning	Ordinance	§	19-7-9(A). 	Section	19-7-9(A)	further	

states,	 “No	 building	 permit	 shall	 be	 issued	 until	 .	 .	 .	 legally	 binding	

arrangements	for	long-term	maintenance	are	in	place.”		Id.		Whether	Cunner	

Lane	LLC’s	permit	application	satisfied	the	requirements	of	the	Ordinance	is	a	

mixed	 question	 of	 law	 and	 fact.	 	 See	 Osprey	 Family	 Trust,	 2016	 ME	 89,	 ¶	11,	

141	A.3d	1114.			

	      [¶15]		“[T]he	terms	or	expressions	in	an	ordinance	are	to	be	construed	

reasonably	 with	 regard	 to	 both	 the	 objectives	 sought	 to	 be	 obtained	 and	 the	

general	 structure	 of	 the	 ordinance	 as	 a	 whole	 .	 .	 .	 .”	 	 Gensheimer	 v.	 Town	 of	

Phippsburg,	2005	ME	22,	¶	22,	868	A.2d	161	(quotation	marks	omitted).		Here,	

the	obvious	purpose	of	section	19-7-9(A)	is	to	ensure	that	emergency	vehicles	

will	 be	 able	 to	 obtain	 access	 to	 a	 new	 lot	 located	 on	 a	 private	 road	 and,	

because	 that	 requirement	 must	 be	 met	 for	 the	 CEO	 to	 properly	 issue	 a	

building	permit	for	a	structure	located	on	that	lot,	the	road	will	be	maintained	

to	 allow	 emergency	 access	 throughout	 the	 year.	 	 This	 interpretation	 is	

supported	 not	 only	 by	 the	 nature	 of	 the	 requirements	 the	 provision	 creates,	

but	also	by	the	stated	purpose	of	the	Zoning	Ordinance,	which	“is	to	promote	

the	 health,	 safety	 and	 general	 welfare	 of	 the	 residents	 of	 Cape	

Elizabeth;	.	.	.	[and]	 to	 provide	 safety	 from	 fire	 and	 other	 hazards;	 .	 .	 .	 [and]	
10	

adequate	 public	 services.”	 	 Cape	 Elizabeth,	 Me.,	 Zoning	 Ordinance	 §	19-1-2	

(Sept.	11,	2014).			

      [¶16]		Construing	section	19-7-9(A)	in	light	of	that	overall	objective,	see	

Gensheimer,	2005	ME	22,	¶	22,	868	A.2d	161,	we	conclude	that	the	provision’s	

reference	 to	 a	 “road”	 must	 be	 to	 the	 entire	 part	 of	 the	 road	 from	 its	

intersection	 with	 a	 public	 way	 to	 at	 least	 the	 location	 of	 the	 proposed	

structure,	 and	 not	 just	 the	 section	 of	 the	 road	 abutting	 a	 permit	 applicant’s	

property.	 	 To	 hold	 otherwise	 would	 defeat	 the	 purpose	 of	 ensuring	 that	

emergency	 vehicles	 can	 gain	 access	 to	 structures	 located	 on	 private	 roads,	

which	the	Town	may	not	be	responsible	to	maintain.			

	     [¶17]		Here,	the	CEO	did	not	issue	findings	of	fact	or	conclusions	of	law	

to	 explain	 the	 basis	 for	 his	 approval	 of	 Cunner	 Lane	 LLC’s	 building	 permit	

application.		Rather,	the	record	of	the	CEO’s	actions	is	limited	to	a	stamp	at	the	

top	 of	 the	 application	 stating	 “APPROVED.”	 	 We	 have	 held	 that	 we	 will	 not	

imply	findings	or	create	an	analytical	construct	that	we	would	then	attribute	

to	a	municipal	decision-maker,	because	that	judicial	intervention	would	both	

prevent	 us	 from	 determining	 properly	 whether	 the	 municipal	 action	 is	

supported	 by	 the	 evidence	 and	 invite	 “judicial	 usurpation	 of	 administrative	
                                                                                                                 11	

functions.”		Appletree	Cottage,	2017	ME	177,	¶	9,	---	A.3d	---	(quotation	marks	

omitted).					

	        [¶18]	 	 Here,	 regardless	 of	 the	 absence	 of	 findings,	 the	 issuance	 of	 the	

building	permit	was	erroneous	as	a	matter	of	law	because	there	is	no	evidence	

in	 this	 record	 that	 could	 support	 the	 CEO’s	 determination	 that	 Cunner	 Lane	

LLC	 had	 met	 the	 requirements	 of	 section	 19-7-9(A)(2).	 	 Cunner	 Lane	 LLC’s	

entire	argument	here	is	that	the	2010	Declaration	of	Covenants	satisfied	that	

provision.	 	 Even	 assuming	 that	 the	 CEO	 considered	 the	 2010	Declaration	 as	

part	 of	 the	 permit	 application,5	 that	 instrument	 provides	 only	 for	 the	

maintenance	of	that	portion	of	the	private	road	abutting	the	parcel	conveyed	

to	Smith	in	1998,	which	today	encompasses	19	and	21	Cunner	Lane.		It	does	

nothing	to	require	or	otherwise	provide	for	any	maintenance	of	the	section	of	

Cunner	 Lane	 between	 its	 intersection	 with	 a	 public	 way	 and	 Cunner	 Lane	

LLC’s	parcel	itself,	over	which	emergency	vehicles	will	need	to	travel	in	order	



    5	 	 The	 record	 is	 not	 entirely	 clear	 on	 that	 point.	 	 Smith	 executed	 the	 2010	 Declaration	 shortly	

after	 the	 Town’s	 prior	 CEO	 wrote	 to	 him	 about	 the	 adequacy	 of	 Cunner	 Lane	 to	 accommodate	
emergency	 vehicles	 and	 made	 reference	 to	 “the	 long-term	 maintenance	 agreement”	 for	 the	 road.		
Despite	these	communications,	the	copy	of	the	2015	permit	application	contained	in	the	record	on	
appeal	does	not	include	the	Declaration.		Nonetheless,	a	copy	of	the	Declaration	was	submitted	to	
the	ZBA	as	part	of	its	consideration	of	“whether	the	decision	of	the	Code	Enforcement	Officer	is	in	
conformity	 with	 the	 provisions	 of	 this	 Ordinance.	 .	 .	 .”	 	 See	 Cape	 Elizabeth,	 Me.,	 Zoning	 Ordinance	
§	19-5-2(A);	(AR.	54,	115.)		Further,	if	the	CEO	had	not	been	presented	with	the	2010	Declaration	at	
all	as	part	of	Cunner	Lane	LLC’s	permit	application,	then	the	CEO	would	have	had	no	information	
about	any	agreement	regarding	the	maintenance	of	the	road,	as	opposed	to	covenants	that—as	we	
discuss	in	the	text—are	insufficient	to	meet	the	requirements	of	section	19-7-9(A)(2).			
12	

to	get	to	19	Cunner	Lane.		Accordingly,	the	2010	Declaration	fails	to	fulfill	both	

section	 19-7-9(A)(2)	 and	 the	 overall	 purpose	 of	 the	 Zoning	 Ordinance	 to	

ensure	emergency	access	and	public	safety,	and	the	instrument	is	insufficient	

to	support	a	proper	determination	that	a	permit	application	should	be	issued.			

	        [¶19]		Because	there	is	no	competent	evidence	in	the	record	to	support	

the	 determination	 that	 Cunner	 Lane	 LLC’s	 application	 satisfied	 section	

19-7-9(A)(2),	 see	 Osprey	 Family	 Trust,	 2016	 ME	 89,	 ¶¶	 9-10,	 141	 A.3d	 1114,	

we	vacate	the	judgment	and	remand	this	matter	for	the	court	to	remand	to	the	

ZBA	with	instructions	to	issue	a	decision	determining	that	the	CEO’s	approval	

of	 Cunner	 Lane	 LLC’s	 permit	 application	 was	 not	 “in	 conformity	 with	 the	

provisions”	 of	 the	 Cape	 Elizabeth	 Zoning	 Ordinance,	 see	 Cape	 Elizabeth,	 Me.,	

Zoning	 Ordinance	 §	 19-5-2(A),	 and	 directing	 the	 CEO	 to	 deny	 the	 permit	

application.6		


    6	 	 The	 parties	 have	 indicated	 that	 after	 the	 ZBA	 issued	 its	 second	 decision	 affirming	 the	 CEO’s	

approval	of	the	permit	application	based	on	the	2010	Declaration	of	Covenants,	Smith	executed	and	
recorded	an	“Amended	Declaration	of	Covenants	with	Respect	to	Road	Maintenance”	that	applies	to	
the	entirety	of	Cunner	Lane,	not	just	the	portion	of	the	private	road	abutting	19	and	21	Cunner	Lane.		
(Emphasis	added.)		As	Fissmer	correctly	states,	the	Amended	Declaration	of	Covenants	is	not	part	
of	the	record	on	appeal	because	it	did	not	even	exist	until	after	the	municipal	proceedings	had	been	
completed.		See	M.R.	Civ.	P.	80B(f)	(stating	that	with	limited	exception,	“review	shall	be	based	upon	
the	 record	 of	 the	 proceedings	 before	 the	 governmental	 agency”).	 	 For	 this	 reason,	 we	 cannot	
properly	 consider	 whether	 the	 Amended	 Declaration	 satisfies	 section	 19-7-9(A)(2).	 	 In	 light	 of	
Fissmer’s	arguments	that	are	based	on	the	original	Declaration	of	Covenants,	however,	the	creation	
of	 the	 Amended	 Declaration	 is	 a	 matter	 that	 likely	 could	 have	 been	 presented	 to	 the	 CEO	 for	 a	
determination	of	whether	that	new	instrument	satisfied	the	Ordinance,	thereby	avoiding	both	the	
consumption	of	judicial	resources	and	expense	to	the	parties	from	this	appeal	that	is	based	entirely	
on	an	instrument	that	appears	to	have	been	superseded.		
                                                                                    13	

         The	entry	is:	

                            Judgment	 vacated.	 	 Remanded	 to	 the	 Superior	
                            Court	with	instructions	to	remand	to	the	Zoning	
                            Board	of	Appeals	to	issue	a	decision	stating	that	
                            the	 Code	 Enforcement	 Officer’s	 approval	 of	 the	
                            building	 permit	 did	 not	 conform	 with	 the	
                            provisions	 of	 the	 municipal	 ordinance	 and	
                            directing	 the	 CEO	 to	 deny	 the	 permit	
                            application.		
	
	     	      	      	       	      	
	
John	 B.	 Shumadine,	 Esq.,	 Murray,	 Plumb	 &	 Murray,	 Portland,	 for	 appellant	
Leslie	Fissmer	
	
Alan	 Atkins,	 Esq.,	 Alan	 R.	 Atkins	 &	 Associates,	 Portland,	 and	 Aaron	 Mosher,	
Esq.,	Mosher	Law	Firm,	LLC,	Portland,	for	appellee	Cunner	Lane	LLC	
	
	
Cumberland	County	Superior	Court	docket	number	AP-2016-32	
FOR	CLERK	REFERENCE	ONLY	
	
	
