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.			
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,	 19-6-1	 (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.			
                                                                                                        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	 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).				
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	 “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.			
                                                                                                              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	agree	that,	

pursuant	to	the	Town	Zoning	Ordinance	in	effect	at	the	time	of	the	proceeding,	

the	CEO’s	decision	is	the	operative	decision.4				

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”).			
6	

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.			
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	
FOR	CLERK	REFERENCE	ONLY	
