MAINE SUPREME JUDICIAL COURT                                                   Reporter of Decisions
Decision: 2020 ME 72
Docket:   Yor-19-331
Argued:   March 3, 2020
Decided:  May 19, 2020

Panel:       MEAD, GORMAN, JABAR, HUMPHREY, HORTON, and CONNORS, JJ.*
Majority:    GORMAN, HUMPHREY, HORTON, and CONNORS, JJ.
Dissent:     MEAD and JABAR, JJ.



                                DANIEL G. RAPOSA JR. et al.

                                                 v.

                                    TOWN OF YORK et al.


HORTON, J.

       [¶1] Daniel G. Raposa Jr. and Susan Raposa appeal from a judgment of

the Superior Court (York County, O’Neil, J.) pursuant to M.R. Civ. P. 80B,

affirming a decision of the Town of York Board of Appeals. The Board’s decision

purported to grant the Raposas’ appeal from a decision of the Town’s Code

Enforcement Officer (CEO). However, the Board’s written findings of fact

directly contradict and effectively nullify its decision to grant the appeal. We

conclude that the matter must be remanded for further proceedings.




   * Although Chief Justice Saufley participated in this appeal, she resigned before this opinion was
certified.
2

                               I. BACKGROUND

      [¶2] The following facts are supported by evidence in the record. See

Grant v. Town of Belgrade, 2019 ME 160, ¶ 2, 221 A.3d 112; see also Raposa v.

Town of York, 2019 ME 29, ¶¶ 2-4, 204 A.3d 129 (describing the factual and

procedural background of this case). The Raposas own residential property in

the Town of York that abuts property owned by Joshua Gammon, on which

Gammon operates a commercial landscaping business. Gammon’s lot was

created by his predecessor-in-title’s division of a larger lot.       Gammon’s

predecessor previously operated an excavation business on Gammon’s

property, a lawful nonconforming use pursuant to the Town’s Zoning

Ordinance. See York, Me., Zoning Ordinance, art 17.1 (Nov. 5, 2019). In 2016,

the Raposas contacted the Town’s CEO “to express their concern that

Gammon’s use of the property was not consistent with [his predecessor’s]

nonconforming use.” Raposa, 2019 ME 29, ¶ 3, 204 A.3d 129. In response to

this inquiry, the CEO determined that (1) she did not have jurisdiction to decide

whether the creation of Gammon’s lot violated the Town’s Shoreland Overlay

District Ordinance, York, Me., Zoning Ordinance, art. 8 (Nov. 5, 2019); (2) the

prior nonconforming use of the property by Gammon’s predecessor had not

been discontinued following the creation of Gammon’s property; and
                                                                                                      3

(3) Gammon’s current nonconforming use of his property did not represent a

change in use from the prior use.1

        [¶3] The Raposas appealed the CEO’s decision to the Board. At the

Board’s first public meeting on the matter, the Raposas asserted that all three

of the CEO’s determinations were in error. As particularly relevant to this

appeal, the Raposas contended that Gammon’s operation of his business on his

property was a change in use from his predecessor’s use of the property, and

not, as the CEO had determined, an intensification of the same use. 2

        [¶4] On July 27, 2016, the Board held another public hearing on the

matter. At this hearing, the Board granted, by a 3-2 vote, the Raposas’ appeal

as to both the lot-creation and change-of-use issues. However, the transcript

from the hearing reflects considerable uncertainty leading up to this vote. 3



   1 The CEO’s latter two conclusions allowed Gammon to continue operating his landscaping
business on his property. See York, Me., Zoning Ordinance, arts. 17.1.1, 17.1.2, 17.1.4 (Nov. 5, 2019).
Throughout this opinion, we refer to these two issues collectively as the “change of use” issue and the
Raposas’ other argument as the “lot creation” issue.

    2 The distinction between a change in use and an intensification of a prior use is significant
because “a mere increase in the intensity or volume of business is not an unlawful expansion of a
preexisting, nonconforming use, which is protected from an uncompensated public taking. In
contrast[,] a new use or a use of a different character can be proscribed by a zoning ordinance.” Boivin
v. Town of Sanford, 588 A.2d 1197, 1199 (Me. 1991); see York, Me., Zoning Ordinance, arts. 17.1.1,
17.1.4.

   3 The Board voted on three motions at the July 27 hearing. First, the Board declined, by a vote of
2-3, to adopt a motion regarding the lot-creation issue: that the CEO “incorrectly determined
[Gammon’s property] to be a legally non-conforming grandfathered lot.” Shortly thereafter, the
Board voted 2-3 against a motion regarding the change-of-use issue: that “the CEO correctly
4

       [¶5] On August 24, 2016, the Board met to vote on the language of its

written decision concerning the Raposas’ appeal. See 30-A M.R.S. § 2691(3)(E)

(2020) (“All decisions . . . must include a statement of findings and conclusions,

as well as the reasons or basis for the findings and conclusions . . . .”). The

written decision references the July 27 vote and indicates that the Raposas’

appeal was granted. The decision includes the following findings of fact:




determined that [Gammon’s] property is a legally non-conforming use that is permitted to continue
on the property.”

     Following the Board’s vote on the second motion, the Chairman expressed his belief that the
Board was having trouble resolving the Raposas’ appeal because the two prior motions did not make
clear whether approving them would result in granting the Raposas’ appeal. He suggested that the
Board vote on “a motion that disposes with the appeal in favor or opposed with it, either grants [the
appeal] or doesn’t.” The following exchange then occurred:

       MR. MOULTON: I think you need to specify [in a motion] that you’re either approving
       the appeal of Daniel and Susan Raposa or you’re not.

       ....

       MR. MOULTON: . . . I would move that the appeal of Daniel and Susan Raposa be
       approved.

       MR. MOTOLLA: I second.

       ....

       MR. MOULTON: They appealed two things, the lot line adjustment and they appealed
       the use. If you don’t agree with both of those things, don’t vote for it.

       CHAIRMAN LASCELLES: Okay. So[,] we’ve had a motion . . . to grant the administrative
       appeal.

(Emphasis added.) The moving board member thus clarified that other members should vote in favor
of the motion only if they intended to grant the Raposas’ appeal as to both issues. Thereafter, the
Board voted to grant the motion.
                                                                             5

      11) The use of the lot by Mr. Gammon’s landscaping business does
      not constitute a change of use but is an intensification of the same
      use.

      12) The legally non-conforming use ha[s] not been shown to be
      interrupted during [Gammon’s predecessor’s] ownership.

      [¶6] Prior to the August 24 meeting, the Raposas’ attorney expressed her

concern to the Chairman of the Board that these findings were inconsistent

with the Board’s July 27 vote to grant the Raposas’ appeal on the change-of-use

issue. Ultimately, however, the Board accepted the written decision, including

the two findings listed above.

      [¶7] The Raposas and Gammon each appealed to the Superior Court

pursuant to M.R. Civ. P. 80B. The Raposas contended, among other things, that

the Board could not grant their appeal as to the change-of-use issue and

simultaneously adopt findings that contradict that decision. Gammon appealed

the Board’s decision to grant the Raposa’s appeal as to the lot-creation issue.

Gammon’s appeal was resolved in his favor, and the lot-creation issue is no

longer in contention. Gammon joined the Town in opposing the Raposas’

appeal.

      [¶8] The Superior Court granted the Town’s motion to dismiss the

Raposas’ appeal for lack of subject matter jurisdiction. The Raposas appealed

that decision to us, and we vacated the judgment and remanded for the court to
6

reach the merits of the Raposas’ Rule 80B appeal. See Raposa, 2019 ME 29, ¶ 13,

204 A.3d 129. On remand, the court affirmed the Board’s decision, concluding

that (1) the Board’s written decision issued on August 24 was the operative

decision for judicial review and (2) the findings contained in that decision were

supported by substantial evidence in the record. The Raposas timely appealed.

See 14 M.R.S. § 1851 (2020); M.R. App. P. 2B(c)(1).

                                II. DISCUSSION

      [¶9] “Because the Board conducted a de novo review of the CEO’s

determination, we review the Board’s decision directly.” Raposa, 2019 ME 29,

¶ 12, 204 A.3d 129. We review the Board’s decision “for errors of law, abuses

of discretion, or findings not supported by substantial evidence in the

administrative record.” Bryant v. Town of Wiscasset, 2017 ME 234, ¶ 11,

176 A.3d 176. As the parties seeking to vacate the Board’s decision, the

Raposas bear the burden of persuasion. See id.

      [¶10] In both its July 27 vote and its August 24 written decision, the

Board purported to grant the Raposas’ appeal in its entirety, without

differentiating between the lot-creation and the change-of-use issues.

The Board was required to justify that result with written findings that
                                                                                                    7

support—not contradict—its decision. See 30-A M.R.S. § 2691(3)(E); Carroll v.

Town of York, 2003 ME 135, ¶ 27, 837 A.2d 148.

       [¶11]       However, the Board’s findings that are pertinent to the

change-of-use issue support a denial, rather than a grant, of the Raposas’ appeal

on that issue. Because the Board’s August 24 decision purports to grant the

Raposas’ appeal on the change-of-use issue but contains factual findings that

directly contradict that result, we vacate the decision and remand for further

proceedings.4

       [¶12] On remand, the Board must (1) decide, based on the evidence in

the record, whether to grant or deny the Raposas’ appeal on the change-of-use

issue and (2) issue findings that support the Board’s decision, see 30-A M.R.S.

§ 2691(3)(E).

       The entry is:

                       Judgment vacated. Remanded to the Superior
                       Court with instructions to remand to the Town


    4 Assuming the dissent’s operative decision analysis applies where, as here, a Rule 80B appeal
involves the actions of a single board, we conclude that this appeal cannot be resolved by determining
whether the July 27 vote or the August 24 decision was the Board’s operative decision for review.
The dissent adopts the view that “the August 24 written findings narrowed the basis for granting the
Raposas’ appeal to the lot-creation issue and found in favor of Gammon on the change-of-use issue.”
Dissenting Opinion ¶ 19. That may have been the Board’s intent in adopting the findings, but the
written decision in which the findings appear says, consistent with the July 27 vote, that the appeal
is granted in its entirety, without differentiating between the two issues. If we were to affirm the
Board’s decision, we would be affirming the grant of the Raposas’ appeal on the change-of-use issue,
even though, as the dissent points out, the Board may have meant to deny the appeal on that issue.
See Dissenting Opinion ¶¶ 13, 18-19, 27.
8

                  of York Board of Appeals for further proceedings
                  consistent with this opinion.



MEAD, J., with whom JABAR, J., joins, dissenting.

      [¶13] In its meeting on August 24, 2016, the Town of York Board of

Appeals debated and very purposely adopted written findings of fact

determining that there had been no change in Joshua Gammon’s use of his lot

and that Gammon’s grandfathered nonconforming use had not been

interrupted while his predecessor owned the lot. Although the Board had

earlier conflated those issues with a separate issue concerning the creation of

Gammon’s lot when it voted to grant the Raposas’ appeal, the Board’s later

written findings clarified and conclusively resolved its decision concerning the

discrete change-of-use issue. I would hold that the written findings are the

operative decision of the Board for our review and that they are supported by

substantial evidence in the record. Accordingly, I respectfully dissent.

      [¶14] Gammon operates a commercial landscaping business on his

property, which, in response to an inquiry by the Raposas, the Code

Enforcement Officer (CEO) found, pursuant to the Town’s Zoning Ordinance, to

be a grandfathered nonconforming use occurring on a “legally non-conforming

grandfather[ed] lot exempt from Code Enforcement jurisdiction.” See York, Me.,
                                                                                                      9

Zoning Ordinance art. 17.1.1 (Nov. 5, 2019) (“A non-conforming use which is

otherwise lawful according to all applicable regulations may continue . . . .”).

       [¶15] The Raposas appealed the CEO’s decision to the Board, which held

four public meetings:

       • June 8, 2016: The Raposas presented two primary but very separate
         concerns to the Board: (1) that Gammon’s lot, created by his
         predecessor-in-title’s division of a larger lot, did not meet the
         requirements of the Town’s Shoreland Overlay District Ordinance;
         and (2) that the operation of Gammon’s business represented a
         change in use from his predecessor’s nonconforming use.5 The Board
         continued the matter so that the CEO could appear.

       • June 22, 2016: At a public hearing, the Board heard from a number of
         speakers, including the Raposas and the CEO, concerning the two
         issues. As to the lot-creation issue, which was the Board’s primary
         concern, it decided to continue the matter in order to obtain an
         opinion from the Town’s attorney. Concerning Gammon’s use of the
         lot, most of the Board members viewed the issue as one of an
         intensification of the previous use rather than a change of use.

       • July 27, 2016: The Board discussed the Town attorney’s opinion that
         the creation of Gammon’s lot by his predecessor-in-title required
         Planning Board approval; counsel did not opine on the change-of-use
         issue.

           The Board then considered and voted on three motions. The first,
           which would have found that the CEO erred in her decision on the lot-
           creation issue, was defeated, as was the second, which would have
           found that the CEO was correct in her decision on the change-of-use
           issue.


    5 The Court refers to these separate and distinct issues as the “lot creation” issue and the “change
of use” issue. Court’s Opinion ¶ 2 n.1.
10

       Following the failure of the first two motions, the Chair expressed the
       view that “we do need to decide the appeal, I think up or down . . . I
       would look to see a motion that disposes with the appeal in favor or
       [is] opposed [to] it, either grant[s] it or doesn’t.” A motion to grant the
       appeal carried by a 3-2 vote.

       In voting to grant the appeal as a whole, the Board did not separately
       consider an alternative that had been suggested by its earlier
       discussion of the first motion: granting the appeal on the lot-creation
       issue and not on the change-of-use issue:

              MR. MOULTON: Does [voting for the motion concerning
              the lot-creation issue] grant the Raposas’ appeal?

              MR. SWANT: [T]hat was part of the question that I posed
              earlier, does it grant their appeal?

              MR. MANOUGIAN: I think it does. No matter what you do,
              they’re gonna wind up in the planning board no matter
              what we decide, but I think it does.

              ....

              MR. SWANT: . . . That’s where it’s gonna go anyhow [to the
              Planning Board]. . . . [W]e can say that the planning board
              needs to come to a decision on the matter.

     • August 24, 2016: The Board clarified the basis for its July 27 vote to
       grant the appeal when it met to finalize its written findings of fact.
       Before the meeting, the Raposas’ attorney expressed her concern to
       the Chair that proposed draft findings concerning the change-of-use
       issue did not reflect the July 27 votes taken by the Board. Alerted to
       the Raposas’ concerns, the Board nonetheless discussed the draft
       findings at length, and, relevant to this appeal,

        ▪ concerning a proposed finding that “[t]he use of the lot by
          Mr. Gammon’s landscaping business does not constitute a change
          of use but is an intensification of the same use,” the Board rejected
                                                                               11

             a motion to delete that finding and passed a separate motion
             explicitly retaining it;
          ▪ the Board rejected a motion to delete a proposed finding that “[t]he
            legally non-conforming use had not been shown to be interrupted
            during [Gammon’s predecessor’s] ownership”; and
          ▪ separately addressing the lot-creation issue, the Board found that
            “[t]he lot in question is not a legally created lot of record since
            Planning Board approval . . . is required.”
         The Board concluded the meeting by accepting the written findings on
         a 3-1 vote of the members present, including the findings resolving the
         change-of-use issue in Gammon’s favor.

      [¶16] On August 29, 2016, the Chair signed a document entitled “Official

Record of the Town of York Board of Appeals,” reflecting both the July 27 vote

taken on the motion to approve the Raposas’ appeal and the Board’s written

findings of fact, adopted after that vote had been taken, which narrowed the

basis for the grant of the Raposas’ appeal.

A.    Operative Decision of the Board

      [¶17] “Because the Board conducted a de novo review of the CEO’s

determination, we review the Board’s decision directly,” Raposa v. Town of

York, 2019 ME 29, ¶ 12, 204 A.3d 129, but before proceeding we must first

determine which of the Board’s decisions to review, see Fitanides v. City of Saco,

2015 ME 32, ¶ 8, 113 A.3d 1088 (stating that we review “the operative decision

of the municipality” (emphasis added) (quotation marks omitted)).
12

           [¶18] I conclude that the Board’s August 24 written findings are the

operative decision of the Board for purposes of appellate review.                       The

Ordinance governing the Board provides:

           The Board of Appeals shall render a decision on an application not
           later than 30 days from the date of the final [h]earing. The final
           decision on any matter before the Board shall be made by written
           order signed by the Chair . . . .”

Zoning Ordinance art. 18.8.3.4 (emphasis added); see 30-A M.R.S. § 2691(3)(E)

(2020) (stating that a municipal board of appeals decision “must include a

statement of findings and conclusions, as well as the reasons or basis for the

findings and conclusions, upon all the material issues of fact, law or discretion

presented”).         The Board’s bylaws restate the requirement for a written

decision: “The final decision on any matter before the Board shall be made by

written order signed by the Chairman . . . .” York, Me., Appeals Board Bylaws

§ X(B) (May 26, 2004) (emphasis added). 6

           [¶19] Here, the “Official Record of the Town of York Board of Appeals,”

although referencing the initial July 27 vote, was signed by the Chair after the

Board had approved its August 24 written findings, which are explicitly

incorporated in the “Official Record.” In my view, the August 24 written


     6   Available at https://www.yorkmaine.org/DocumentCenter/View/569/Appeals-Board-Bylaws-
PDF.
                                                                             13

findings narrowed the basis for granting the Raposas’ appeal to the lot-creation

issue and found in favor of Gammon on the change-of-use issue. As the Court

notes, the lot-creation issue is no longer contested. Court’s Opinion ¶ 7.

B.    Substantial Evidence

      [¶20] We review the Board’s written findings deferentially

      for abuse of discretion, error of law, or findings unsupported by
      substantial evidence in the record. [The Raposas have] the burden
      of showing that the evidence compels a contrary conclusion.
      A board of appeals has discretion in determining whether an
      activity is within the scope of a permitted, nonconforming use. We
      may not substitute our judgment for that of the Board. If there is
      relevant evidence in the record to reasonably support the Board’s
      conclusion, the fact that the record contains inconsistent evidence
      or [that] inconsistent conclusions could be drawn from the
      evidence does not invalidate the Board’s holding.

Boivin v. Sanford, 588 A.2d 1197, 1199 (Me. 1991) (alteration and quotation

marks omitted); see Grant v. Town of Belgrade, 2019 ME 160, ¶ 8, 221 A.3d 112;

MSR Recycling, LLC v. Weeks & Hutchins, LLC, 2019 ME 125, ¶ 13, 214 A.3d 1

(“A demonstration that no competent evidence supports the Board’s findings is

required in order to vacate the Board’s decision.” (alterations and quotation

marks omitted)).

      [¶21] Given this record, the Board, faced with the task of resolving

conflicting testimony, made a decision supported by substantial evidence that

did not compel a contrary finding. See Boivin, 588 A.2d at 1199. “Substantial
14

evidence is evidence that a reasonable mind would accept as sufficient to

support a conclusion.     That inconsistent conclusions can be drawn from

evidence does not mean that a finding is not supported by substantial

evidence.” Toomey v. Town of Frye Island, 2008 ME 44, ¶ 12, 943 A.2d 563

(quotation marks omitted).

      1. Change of Use

      [¶22]    In the first finding challenged by the Raposas, the Board

determined that “[t]he use of the lot by Mr. Gammon’s landscaping business

does not constitute a change of use but is an intensification of the same use.”

At the June 22 public hearing, the Board heard from several witnesses who said

that Gammon’s use of his property was different in both kind and intensity from

that of his predecessor. The Board also heard from one witness who said that

it was not, and received documentary evidence suggesting that Gammon’s use

was similar to the previous use. At the July 27 hearing, the CEO told the Board,

“I didn’t see that there has been a change of use.” Although it could have done

otherwise, the Board was entitled to credit the evidence in favor of a conclusion

that Gammon’s business did not constitute a change of use. See id.
                                                                                    15

      2. Discontinuation of Prior Nonconforming Use

      [¶23] The Raposas also challenge the Board’s finding that “[t]he legally

non-conforming use had not been shown to be interrupted during [Gammon’s

predecessor’s] ownership.” The York Zoning Ordinance provides that: “A lot . . .

on which a non-conforming use is discontinued for a period exceeding

24 months . . . may not again be devoted to a non-conforming use . . . .” Zoning

Ordinance art. 17.1.2. Here, the Board had before it a letter from the Town to

Gammon’s predecessor indicating that the Town had foreclosed on the

property before 2011 and a quitclaim deed indicating that Gammon’s

predecessor had redeemed the property more than twenty-four months later

by satisfying outstanding tax liens in 2014, the same year that Gammon

acquired his property.

      [¶24] However, as the Superior Court noted, the Raposas failed to

establish that the Town had ever taken actual possession of the property, or

that Gammon’s predecessor had discontinued his nonconforming use during

the period when the property was in foreclosure. The CEO stated at the July 27

hearing that “whether [Gammon’s predecessor] owned [the lot] or the [T]own

owned it, the use continued. I don’t see that it stopped, I don’t see that it changed.”

(Emphasis added.)       Furthermore, the record before the Board contained
16

receipts from which the Board could infer that Gammon’s predecessor

continued to conduct business between 2011 and 2014.

      [¶25] One Board member, noting that the evidence was not definitive,

speculated that “[Gammon’s predecessor] could have been using the property

to . . . make money to pay for the taxes. Who knows.” Our jurisprudence assigns

to the Raposas the burden to show that the nonconforming use was

discontinued for the requisite period.      See Fitanides, 2015 ME 32, ¶ 8,

113 A.3d 1088; Boivin, 588 A.2d at 1199. The Board was entitled to accept the

evidence that it found to be credible and persuasive, and it could reasonably

conclude from the conflicting evidence that Gammon’s predecessor did not

discontinue his nonconforming use for a period exceeding two years. See

Toomey, 2008 ME 44, ¶ 12, 943 A.2d 563; Boivin, 588 A.2d at 1199. Accordingly,

the Ordinance did not prohibit Gammon’s ongoing nonconforming use. See

Zoning Ordinance art. 17.1.2.

C.    Conclusion

      [¶26] I would conclude that the Board’s August 24 written findings are

the operative decision for our review, and that those findings were intended to,

and did, narrow the basis for granting the Raposas’ appeal to the lot-creation

issue. I would further determine that the Board’s written findings concerning
                                                                            17

the change-of-use issue, reviewed deferentially, are supported by substantial

evidence.

       [¶27]   It is enough that the basis for the Board’s decision can be

ascertained from the record, whether or not the Board’s mandate is framed in

the polished niceties of a judicial opinion. Here, the basis for the Board’s

decision to grant the Raposas’ appeal was its determination that the

lot-creation issue required Planning Board review. Concerning the use issue,

the Board clearly and purposely found, following discussion and separate votes,

that there had been no change or discontinuation of the prior nonconforming

use.   Those findings were grounded in the Board’s determinations of

witness credibility and the weight to be given to the evidence before the

Board—determinations that we purport to review with considerable

deference.

       [¶28] There is no reason to further delay the resolution of this matter,

which has now been pending for well over three years. Accordingly, I would

affirm the judgment of the Superior Court denying the Raposas’ M.R. Civ. P. 80B

appeal, and I respectfully dissent from the Court’s decision to vacate that

judgment.
18


Sandra L. Guay, Esq. (orally), Woodman, Edmands, Danylik & Austin, P.A.,
Biddeford, for appellants Daniel Raposa Jr. and Susan Raposa

Mary E. Costigan, Esq. (orally), and Letson B. Douglass, Esq., Bernstein Shur,
Portland, for appellee Town of York

Matthew W. Howell, Esq. (orally), Clark & Howell, LLC, York, for appellee Joshua
Gammon



York County Superior Court docket numbers AP-2016-34 & AP-2016-35
FOR CLERK REFERENCE ONLY
