Zbigniew v. Town of Falmouth

STATE OF MArNE CUMBERLAND, 5S.

KATlfLEEN KURLANSKI and ZBrGNfEW KURLANSKI,

Plaintiffs, ORDER ON v. MOTION TO DISMISS

TOWN OF FALMOUTH et a1.

Defendcmts

KJthleen Jnd Zbigniew Kurlanski JppeJl from a decision of the Town of Falmouth's Zoning Board of Appeals finding the Portland Yacht Club may park cars on a grass lot Cldjaccnt to the Kurlanskis' property. The Kurlanskis helVe Cllso filed independent clJims for breach of contrJct and promissory estoppel. The Portlm1d Yacht Club Jnd the Town of Falmouth now move to dismiss these independent claims.

BACKGROUND

The KurlJnskis allege the following. The Portland YJcht Club is ,1 private club in Falmouth, MCline. (Comp1. 919[ 5,7.) On June W, 1983 the Club purchased an unimproved parcel of property abutting its premises. (Compl. ([[CII '[E1-17, 19, 22.) This pewee! is ldenti fied ,1S I~ot 2. (Comp1. 9f 16.) On December 16, 1983, tlll' [(urlclllskis purchJscd an adjacent property identified as Lot L on 'Nhich they currently reside. (Compl. 9](11 2, 20-2'1.)

On September 12,1999, the KurJanskis submitted a letter to the Falmouth

Code Enforcement Officer (CEO) complaining that the Club had regularly used

Lot 2 for parking motor vehicles during the summer of 1999, in alleged violation

of the Falmouth zoning ordinance.' (Com pI. <j[ 29.) On October 19,1999, the CEO ordered the Club to stop parking cars on Lot 2 in violation of the ordinance prohibiting the establishment of a parking area without approval from the

Falmouth Planning Board. (Compl. <[ 36.)

The Club did not appei11 the CEO's decision. (CompJ. ~[ 38.) However, on November 24, 1999 the Club wrote the CEO to request that he reconsider the matter. (CompI. (1139.) In the letter, the Club reasserted its di1im that the Falmouth Planning Board had already approved the use of Lot 2 for parking in a parallel proceeding? (Com pI. ~r<j[ 39-40.) Finally, the Club indicated that it would be willing to accommodate the Kurlanskis and requested a meeting to discuss acceptable parking restrictions tha.t would not run afoul of the ordinance. (CompJ. ~[42; Amended Cornpl.1r 117.)

fn letters da.tcd May 22,2000, and June 19, 2000, the Club wrote the CEO to request written confirmation that special event parking on Lot 2 would be acceptable pursuant to an agreement reached at a meeting between the Club, the CEO, and (11'1Ot11er town officii11. (Amended CompJ. <I[~ 120-22.) The Kurlanskis olso played some role in these discussions. (Compl. 44.) The Club agreed to limit its use of Lot 2 for overflow porking to three events per yei1r, which would

I The p<'lrties have not placed the zoning ordinance in the record, i1nd courts "do not take judiciol notice of ordinances." Mills v. TOWII of Eliot, 200H ME D4, <1123, 955 A.2d 258, 266. 2 The Club vva.s also pursuing permits to build a boathouse zmd make other

cha.nges <It this time. Those proceedings arc not relevant to the pending motions. constitute allowilble incidellt<11use.~ (Steilrns AfE. Ex. 1.) However, the Club <11so stated that it was actively investigating the past use of Lot 2, c111d would attempt to establish that p<1rking was-allowed as a grandfathered use. (Stearns Aff. Ex. 1.) The letter closed with the following: "This request is not intended as a \vaiver of any rights that the Club may have to continue the use of [Lot 2] as a gralldfathered nonconforming use." (Stearns AfL Ex. 1.)

The CEO responded by affirming that the use of Lot 2 for parking on no more th<1n threec;pecific events during the summer would constitute occ<1sional use that would not be <1 zoning violation. (CompJ. err 46.) Tn a letter dated August 18,2000, the CEO informed the Kurlanskis that the Club would park C<lrs on Lot 2 during three events per year. (CompJ. 91 47.)

Parking on Lot 2 was limited to three events per ye<1r from 2000 through 2006. (CompI. (1152.) fn 2007, the Kurl<111skis' daughter reported that motor vehicles were parking on Lot 2 more frequently. (CompJ. 9l 54.) The Kurlallskis con taeted the Cl ub, whi ch tol d them that it intended to usc Lot 2 for p<lrki ng more frequently in the future. (Compl. 9f 55.) On April 2, 2009, the Kurbnskis sent the Town's new CEO a formal complaint <1lJeging th<1t the Club had violated the Town's ordinance by allowing vehicles to regularly park on [Jot 2 <lnd by depositing crushed rock onto the gr<1SS at the boundary of Lot 2. (CompJ. (II 59.)

On August 6, 2009, the new CEO fOllnd that there was no violation beGlllSe intermittent seasoni11 usc for parking had been established on the property prior to the ildoption of zoning in 1965. (Compl. (If 6'1.) The Kurlclnskis appealed the CEO's decision to the Falmouth Zoning BO<lrd of Appe<lls (213A).

~ The letters form the written evidence of the <llleged contr<lct, so milY be considered 011 a motion to dismiss without converting the motion into one for summary judgmcnt.lVIoor1y v. Stnfc Liq/lor {;- IJo((ery COI/JlI/'/l, 2()04ME 20, (II '[2, 843 A.2d 43, 48.

(CampI. (ll 65.) At a hearing on April 20, 201 0, the ZSA ruled th<lt it had jurisdiction to hear the appeal over the Kurlanskis' objection. (Compl. 91 66.)

A special hearing was then held on July 20,2010, at which the ZBA conducted <l de novo inquiry into whether the use of Lot 2 was a grandfathcred nonconfonning use. (CampI. 74.) The new CEO was on a leave of absence and W<lS not <lvailable to defend his decision, but a deputy CEO was present to assist the ZBA. (Compl. 9191 70, 74.) The ZI3A heard statements from various indiviclLlC11s, <lnd received from the Kurlanskis an affidavit from Lot 2's prior owner. (CompJ. (1175.) The ZBA discussed this evidence at its regular meeting on July 27, 201 0, took a preliminary vote on the matter, and instructed its attorney to draft findings of fact and conclusions of law. (Compi. 9fcrr 76-77.) FinaJJy, on October 26, 2010, the ZBA adopted findings of fact showing that Lot 2 was a grandfathered, nonconforming use that could be used for parking during four to eight events per season. (Compl. (If 79.)

The Kurlanskis filed their Rule 80B appecll <lnd compJ<lint on December 7, 20W, cliliming ilmong other things that the communic<ltions bctvveen Town, the Club, and the Kurlanskis in the year 2000 formed a contr<lct. This <ll1eged contract bound the Club to use Lot 2 for parking no more than three times per year, and bound the Town to prevent all parking on the Lot if the Club exceeded the three­ event limit. The Kurlanskis later amended their complaint to <ldd il clclim for promissory estoppel. crhe Town and Club move to dismiss these independent claims.

DISCUSSION

"A motion to dismiss tests the legal sufficiency of the complclint." I1cl7(>r v. Lllcerl/c-;II-;\[nil/e ViI/age Corp" 2000 MI:;: 137, 91 7, 755 A2d 1064, "1066 (quoting *5 McAfcc v. Cofe, 637 A.2d 463, 4(;5 (Me. 1994)). "For purposes of " 12(b)((;) Illotion, the m"teriCl] i'llleg"tions of the complaint must be ti'lken ClS Cldmitted." McAfce, (;37 A.2d Clt 4(;5. The Court eXClmines "the compl"int 'in the light most fClvorClble to the plClintiff to determine whether it sets forth elements of Cl cause of action or alleges bcts that would entitle the pl2lintiff to relief pursuant to some legCll theory.'" [ohmlsoll v. Dllllllingto7l, 2001 ME 1(;9, 9I 5,785 A.2d 1244, 1245-46 (quoting Til rc Wagc Paylllcn! U!ig. v. Waf-Ajar! Stores, Inc., 2000 ME 162, (If 3, 759 A.2<.1 217, 220).

"Generally, 'the existence of a contract is a question of f"ct to be determined by the jury.'" Sul/ivall v. Porter, 2004 ME 134, 9, 13, 861 A.2d (;25, 631 (quoting [III1C Rohcrts Agency, Tllc. v. Venturc Props., TIIC., 676 A.2d 4(;, 48 (Me. 199(;)) (quotations omitted). However, in order for Cl contract to exist, a jury must be "ble to find that "the porties l1lUtUZl1Jy assent[edl to be bound by Clil its mClterial terms, the assent is either expressly or impliedly manifested in the contrClct, Clnd the contract is sufficiently definite to enClble the court to clscertZlin its ex"ct me"ning and fix exactly the legal liabilities of each party." Td. (citing /-'orrcst Assocs. v. Passalllaqlloddy Tribe, 2000 ME 195, (I[ 9, 760 A.2d 1041, 1(44). Furthermore, the contrClct must be legell, Lelligfl v, Pittstoll Co., 456 A.2d 355, 3G'j (Me. 'I (83), and there must be consideration. Laj7an/lllc v. HOfflllall, 148 Me. 444, 450, 95 A.2d 802, 805 (1953).

While it is de"r thClt the parties did re"ch sorne form of Clgreelllent, the question is whether their mutuClI understanding could have creClted Cl legCllly binding contract. The Clnswer is no. Giving the Kur1Clnskis the benefit of ,,11 reasonClble inferences, the court could llSSl1111e for the purpose of these rllotions thelt the Zlttorney representing the Club had authority to bind the Club to" *6 contrC1ct. The CEO, however, could not hC1ve hC1d legC11 authority to enter into C1 contrC1ct on behalf of tIle Town.

The executive C1nd C1dministrative C1uthority of a town is generC1/ly vested in the board of selectmen, acting as a body. Sirois v. Frenchville, 441 A.2d 291, 294 (Me. 1982) (quoting 30 M.R.S.A. 8 2316 (1978) (current version at 30-A M.R.S. § 2635 (2010))). A municipality's code enforcement officer, in contrast, lias limited authority defined by stC1tute. See id. (discussing the limited C1uthority of selectman acting alone). This au thority does not C1lJow the officer to enter contracts on the town's behal f. See 30-A M.R.S. §§ 4451-52 (2000). "All persons contracting with town or city officers must tC1ke notice at their peril of the extent of the C1uthority of such officers. Jt is not the town's burden to establish the absence of authority, but the plointiff's burden to prove the authority." Sirois, 441 A.2d at 294.

The Kurlanskis hC1ve not alleged any bC1sis from which they might prove that tIle Town's CEO had the clUthority to bind the Town to the alleged contract. A jury would hC1ve to speculC1te that tIle CEO's action had been C1l1thorized or rC1tified at some unidentified meeting of the Board of Selectmen. Sec Bell AI!. Corp. v. Twolllbly, 550 U.S. 544, 555 (2007) (pll'C1ding must allege more than speculative grounds for relief in order to C1void dismissC1I). The Kl1rlanskis hC1ve thus foiled to C1l1ege C1 prin1C1 fC1cic CC1se for breoch of contrC1ct agC1inst the Town.

r~ven assuming thC1t C111 pC1rties were represented by ogents with cldequC1te cluthority, the Lillegcd contrC1ct must fail for lack of mutuC11 C1ssent to be bound Lind C1 rclC1ted wC1nt of consideration. Confusion on this point C1ppeC1rs to stem from the terms of the alleged agreelliellt reC1ched in 2000. The KurlC1nskis C1l1ege thC1t the CEO found thC1t the Club's usc of Lot 2 up to that point hC1d violLlted the ordinance. Hov\,ever, the CI~O also determined th<1t parking CMS on Lot 2 for no *7 more than three events per year would be occasional use not violating the ordinance. The Club declared that it would conform its usc of the Lot to meet the CEO's interpretation of the ordilllll1Ce, but expressly reserved its right to challenge the CEO's interpretation in the future if llnd when it gained more information regarding Lot 2's history.

It is clear from the above that the Club did not assent to be bound or offer any other form of consideration. The Club only agreed to conform its behavior to what the CEO interpreted the law to demand. Perfornlance of an existing legal obliglltion, in this Cllse by refraining to usc the Lot for general pllrking, cannot serve as considerlltion for a reciprocal promise in a contract. PI711I7S0Ilic COllIlIIC'IIS ti Sys. Co. v. Dept. of Admin, 1997 ME 43, 9114,691 A.2d 190, 195 (citing Restatement (Second) of Contracts § 73 (l9R1)). Even this promise was illusory, bec,luse the Club 'llso expressly reserved its right to chllllenge the CEO's interpretlltion of the ordinance or develop new evidence that would change how the ordinance applied. Ultimately, the Club only agreed to comply with the CEO's interpretation of the law until it felt like it didn't have to. This is not II promise.

Silllilllrly, the CEO did not promise to refrain from enforcing the ordinance.~ Assuming thllt he could hllve made such II promise, lllJ the C[~O did was interpret the ordin{1nce llS {1llowing occasional use of the Lot for parking. In the CEO's opinion, using Lot 2 for overflow pllrking on no more thlln three events per summer would fllil short of establishing II parking ,lrea without prior llpprov,ll, llnd thus not violate the ordinance. So long {1S the Club did not attempt

~ The court cannot llsclTtain the limits of the CEO's prosecutorial discretion without reference to the Town of Falmouth's ordinllnce. Sec Arfl7l115 v. Tml111 of BrtlllSwick, 201 0 ME 7, (j[91 8-9, 987 A.2d 502, 506.

to usc the Lot more frequently and thereby establish a parking area, there would be no violation and the CEO could not initiate an enforcenlent tlction.

As alleged in the complaint, the supposed promise to not enforce the order of October 19, 1999 was really nothing more than a promise not to bring tin enforcement action so long as there WtlS no violation. Like the Club's promise to obey the lelW, the CEO's promise to enforce the law only when there was a vjolotion connot constitute considerotion for 0 contract.

Finillly, the Kurltlnskis allege that they tlgreed to refrain from filing a complclint with the CEO or seeking relief in the nature of a writ of mandJmus so long elS the Club limited its use of Lot 2 to three events per year. Only the Town could actuolly initiate an enforcement action, so the Kur1anskis retllly promised to refrain from two actions. Herrle v. Town ojWnferborCJ, 2001 ME 1, 1f 1"1, 763 A.2d 1159,1102 (citing 30-A M.R.S. § 4452(4)).

First, the Kurlanskis promised not to bring an action oS abutters to compel the CEO to enforce the October 19, 1999 order, assuming that they could do so under the ordinonce. The problem here is that the order of October 19, 1999 was issued in response to the Club's supposed attempt to establish a parking area. So long as the Club did not regularly park GlrS on the Lot, there would be no violation to enforce the order against, so the promise was empty. The Kurltlnskis' second promise WelS to refrain from challenging the CEO's detennineltio!l that pJrking on Lot 2 during three events per year would not violote the ordinance, agelin assuming they could do so. This IntlY conceivably have constituted legell considerJtion, but it would htlve been non-mutual elnd therefore insufficient to bind the other parties to a contreLCt.

The illusory nature of the alleged contract in this case becomes clear if the court tries "ascertain its exact meaning and fix exactly the legal liabilities of each party." SuI/ivan, 2004 ME 134, <j[ 13, 861 A.2d at 631. If the Club were to "breach" the agreement by parking motor vehicles on the Lot more than three times per year, the Kurlanskis would be free to file a complaint with the Town CEO LlgC1inst the C111eged breach of the ordinallce. The CEO would then determine whether the Club's increased use violated the ordinLlnce, C1nd be free to initiC1te an enforcement action if the law was being violated. Either the Kurll1nskis or the Club could appeal the CEO's decision to the ZBA. This is exactly whLlt would hC1ppen in the ordinary course without the Lllleged contract, and is exactly wh<lt hC1ppened in this CLlse.

Giving the Kurlanskis the benefit of ell! reasonable inferences, they hC1ve fLliled to lll1ege fLlcts thC1t could prove the existence of the Lllleged contrC1ct between the pC1fties. Their Count VI for breLlch of contrC1ct is dismissed.

In C1dd i tion to their contract clC1im, the KurlLlnskis contend that the defend,:mts C1re bound by their alleged promises through the doctrine of estoppel. Maine hllS adopted the RestC1tement dcfini tion of promissory estoppel, \lvhich states:

A promise which the promisor should rellsonC1bly expect to induce C1ction or forbeLlrance on the pC1rt of the promisee or el third person C1nd which does induce such action or forbearC1nce is binding if injustice CC1n be C1voided only by enforcement of the promise. The remedy granted for breLlch mllY be limi ted C1S justice reqlllres.

Harvey v. Dow, 2008 ME 192, Clf 11, %2 1\.2d 322, 325 (quoting RestC1ternent (Second) of ContrC1cts § 90(1) (19B1)). The Kurlanskis argue thC1t the Club promised them and the CEO that it would limit its use of Lot 2, and that the C[~O promised to refnlin from enforcing the October 19, 1999 order so long <lS the usc *10 was so limited. The Kurlanskis, reasonably relying on these promises, refrained from seeking enforcement of their complaint and the October 19,1999 order.

The promissory estoppel claim suffers from many of the same deficiencies as the contract claim. Assuming that the Kurlanskis reasonably believed the defendants' statements were directed at them, the only written evidence of the Club's alleged promise shows that it expressly reserved the right to increase its use of Lot 2 for parking in the future. This is not a promise, and it would be unreasonable to view it as such. Similarly, the CEO merely interpreted the ordinance and promised to enforce its terms. The Kurlanskis could not reasonably hClve read anything extraordinary into this statement from a town offi cial.

The Kurlell1SkiS have also not alleged tllat they materia]]y changed their legal position in reliclllce on the defendants' Cllleged promises. Here it is irnportant to note that private citizens cannot enforce an ordinance. Herrle, 2001 ME 1, 9[11, 763 A.2d at 1162. The Kurlanskis could have filed a new complaint if they felt the Club was at any time using Lot 2 in violation of the ordinance, or they could have sought mandamus to compel action on the CEO's prior order if they felt it was not being enforced. See RI7Y v. TaWil afCl7l11dell, 533 A.2d 912,9'13­ 14 (Me. 1987). "[M!andamus can only overcome a failure to act and set the deliberative process in motion, assuJ1l.ing the applicant is entitled to have the process performed." Jr!. elt 914. It cannot guaranty an outcome.

While the Kurlanskis did refrain from taking the above elctions while the Club limited overflow parking on Lot 2 to three events per year, they initiclted this current complaint as soon as the Club began to use the Lot lllo,-e extensively. They have not alleged any undue prejudice arising from this delay, nor have they shown any injustice resulting from the seven-year detente between the parties. The Kurlanskis have not alleged a viClble claim for promissory estoppel, and their Count vn is dismissed. The en try is: The PortlCllld Y<Jcht Club's motion to dismiss Counts VI Clnd VJf is granted. The Town of FCllmouth's motion to dismiss Counts V anted.

Datc Filcd 12-07-10 Cumb e r-=-l,..,ac=:n:.,-d'-- _ Docket No. AP-10-44 County

Action 80B Aj:>LP-=e=a=l _

KATHLEEN KURLANSKI TOWN OF FALMOUTH ZBIGNIEW J. KURLANSKI THE PORTLAND YACHT CLUB

Ys.

Plaintiff's Attorncy Dcf'cndant's Attorney AARON BURNS ESQ (TOWN OF FALMOUTH) ZBIGNIEW J. KURLANSKI, ESQ. DAVID LOURIE ESQ (PORTLAND YACHT CLUB) PO BOX 46 PORTLAND, ME 04112

PETER M. MCGEE, ESQ. 80 EXfHANGE STREET Datc of PORTLAND, ME 04101 Entry 2010

STATE OF MAINE SUPERIOR COURT CUMBERLAND, ss. CIVIL ACTION DOCKET NO: AP-10-0~ r< A G- "'\.1 -- ?1; / o.;-">.c' c.cu ', -, 2 KATHLEEN KURLANSKI STATE OF MAINE and Cumberland,ss,Crerk's Office

ZBIGNIEW KURLANSKI MAY 0 9 2012

Plaintiffs, RECEIVED V. ORDER TOWN OF FALMOUTH

and

PORTLAND YACHT CLUB

Defendants. Kathleen and Zbigniew Kurlanski's Rule SOB appeal of the Town of Falmouth Board of Zoning Appeal's decision is before the court.

BACKGROUND 1. Factual Background

Prior to 1965, the Portland Yacht Club (PYC) purchased property located on the shore of Casco Bay in Falmouth, Maine. Part of this property was paved and used as a parking area for its members and guests. In the early 1960s, Clifton and Albertina Bryant owned two lots and used them for residential purposes. They had a house on lot 1. Lot 2, which abutted lot 1 and PYC' s parking area, contained a pond and grassy area. On June 10, 1983, PYC purchased lot 2.

The parties presented contradicting regarding the use of the property while the Bryants owned lot 2, however, several members of PYC recall lot 2 being used for *2 occasional overflow parking prior to 1983. On December 16, 1983, Kathleen and Zbigniew Kurlanski (the Kurlanskis) purchased lot 1 and use it as their primary residence. PYC continues to own lot 2. 2. Procedural Background

In 1998 or 1999 PYC submitted an application regarding the construction of a boathouse on its existing paved parking area. (R. 278.) In the application, PYC claimed "that it could utilize open space that it purchased in 1983 from the Bryant estate for overflow parking in the event that the paved parking lot had reached its capacity for parking motor vehicles." (Pet's Br. 3.) The Falmouth Planning Board approved the application and the Kurlanskis appealed the approval to the Superior Court and then to the Law Court. (R. 286, 255.) The Law Court remanded the decision "for site plan review as required by the applicable ordinance." (R. 255.)

On September 12, 1999, the Kurlanskis filed a complaint with the Town of Falmouth Code Enforcement Officer (CEO) regarding PYC's use of lot 2 for overflow parking. (R. 228.) After hearing from PYC's attorney, the CEO issued a decision asking PYC to "cease parking on the lawn area in question." (R. 231.) The letter also stated, "You also have the right to appeal this decision to the Zoning Board of Appeals." (R. 232.) After receiving this decision, PYC did not appeal the decision. Instead, it "agree[d] to limit its use of the Field for overflow parking to three (3) events representing incidental use of the Field." (R. 233.) The CEO approved that plan, but encouraged PYC to formalize the plan through the planning board. (R. 235.) Although the planning board never considered the agreement, it was followed without issue through 2006.

In 2007 the use of the lot increased while the Kurlanskis were out of the country. In 2008, after the Kurlanskis returned home, they met with the new CEO. On April 2, *3 2009, the Kurlanskis sent a formal letter to the CEO complaining about the excessive use of the lot for overflow parking. (R. 2S.) The CEO responded on August 6, 2009, stating that the use of the lot as overflow parking is a permissible non-conforming use. (R. 52.)

The Kurlanskis appealed the decision. On April27, 2010, the Town of Falmouth Board of Zoning Appeal (the Board) determined that it had jurisdiction to hear the appeal. At the July 20, 2010, hearing the Kurlanskis learned that the new CEO was on a leave of absence and would not be able to testify. A de novo hearing took place. On October 26, 2010, the Board determined that "[o]verflow parking on lot 2 is grandfathered up to S events per year." (R. 11.) The Kurlanskis filed a motion for reconsideration, which was denied. On December 7, 2010, the Kurlanskis filed a Rule SOB complaint with the Superior Court. This court dismissed Counts VI and VII on April2S, 2011. Additionally, the court denied the Kurlanskis' motion for a trial on the facts on August 17, 2011.

DISCUSSION 1. Standard of Review

When reviewing governmental action under M.R. Civ. P. SOB, the Superior Court reviews the operative decision of the municipality for "abuse of discretion, errors of law, or findings not supported by the substantial evidence in the record." Camp v. Town of Shapleigh, 200S ME 53, <J[ 9, 943 A.2d 595 (quoting McGhie v. Town of Cutler, 2002 ME 62, <J[ 5, 793 A.2d 504). "Substantial evidence is evidence that a reasonable mind would accept as sufficient to support a conclusion." Toomey v. Town of Frye Island, 200S ME 44, <J[ 12, 943 A.2d 563 (quoting Sproul v. Town of Boothbay Harbor, 2000 ME 30, <J[ S, 746 A.2d 36S). "That inconsistent conclusions can be drawn from evidence does not mean that a finding is not supported by substantial evidence." Id.

2. Rule SOB Appeal

The Kurlanskis dispute the Board's findings on three grounds. First, they argue that PYC is precluded from disputing the CEO's decision from October 1999. Second, they argue that the Board violated the town ordinance by conducting the hearing de novo. Third, they argue that PYC' s use of lot 2 as a parking area is not a nonconforming use and, therefore, is in violation of the zoning ordinance. After reviewing these three arguments, the court upholds the Board's determination.

a. Preclusion

The Kurlanskis argue that PYC is precluded from disputing the CEO's decision from October 1999, but PYC argues that the 1999 decision did not provide proper notice to constitute preclusion. "The doctrine of res judicata prevents 'the relitigation of claims that were tried or could have been tried between the same parties or their privies ... in an earlier suit on the same cause of action.' An administrative proceeding that includes the essential elements of adjudication is given the same preclusive effect as an adjudication in court." Town of Boothbay v. Jenness, 2003 ME 50, <JI 20, 822 A.2d 1169 (quoting Town of Ogunquit v. Cliff House & Motels, Inc., 2000 ME 169, <JI<JI 10, 11, 759 A.2d 731).

"[A]dequate notice of the proceeding and of the risk of failing to appear are 'essential elements' for preclusion." Jenness, 2003 ME 50, <JI 21, 822 A.2d 1169. In order to constitute adequate notice, a "CEO's order must, at a minimum, contain" notice informing the violator of a right to appeal, how to appeal, and the consequences of the failure to appeal. Id. at <JI 22 (citing Town of Freeport v. Greenlaw, 602 A.2d 1156, 1161 (Me. 1992)). The October 1999 CEO decision did not specify the consequences of a failure to appeal, and therefore its outcome is not subject to preclusion.

b. De Novo Hearing

The Kurlanskis assert that the Board violated the Town's ordinance when it conducted the hearing de novo, instead of conducting a legal review based on the CEO's findings. (Pet's Br. 19.) The Kurlanskis have waived this argument, however, since they did not raise it before the Board. 1

"[A] party in an administrative proceeding must raise any objections it has before the agency to ensure that the agency, and not the court, has the first opportunity to pass upon the claims of the parties." Oliver v. City of Rockland, 1998 ME 88, <I[ 7, 710 A.2d 905. "An issue is considered raised and preserved for appeal'if there is sufficient basis in the record to alert the court and any opposing party to the existence of that issue."' Wells v. Portland Yacht Club, 2001 ME 20, <I[ 5, 771 A.2d 371 (quoting Farley v. Town ofWashburn, 1997 ME 218, <I[ 5, 704 A.2d 347).

Here, the issue was not raised before the Board. Instead the Kurlanskis fully participated in the de novo hearing without dispute. 2 Therefore, they waived this argument since the Board was not given the opportunity to address it.

c. Existence of Non-Conforming Use

Finally, the Kurlanskis argue that the Board's finding that lot 2 permitted parking eight times a year as a nonconforming use is not supported by substantial evidence. A nonconforming use is one that existed prior to the effective date of the ordinance. Falmouth, Me. Zoning Ordinance§ 2.119 (Feb. 28, 1983). Additionally, the

1 Additionally, the Board was correct to hear the case de novo. A board of appeals "may receive any oral or documentary evidence," unless there is an explicit local ordinance to the contrary. . 30-A M.R.S. § 2691 (3)(D) (2011); Stewart v. Town of Sedgwick, 2000 ME 157, <[ 7, 757 A.2d 773. Upon review of section 8 of the Town's ordinance, there is no explicit indication that the Board should not review the case de novo. 2 The Kurlanskis argue that the new CEO was biased in his decision and that he did not properly review the situation. They also argue that since he was not present at the hearing, they were unable to properly question him. Any of his possible biases were overcome, however, since the Board considered the evidence de novo.

earlier use must have been actual and substantial. Town of Orono v. Lapointe, 1997 ME 185, <][ 13, 698 A.2d 1059. The Law Court set forth a three-part test to determine whether a property's use is nonconforming:

(1) whether the use reflects the 'nature and purpose' of the use prevailing when the zoning legislation took effect; (2) whether there is created a use different in quality or character, as well as in degree, from the original use, or (3) whether the current use is different in kind in its effect on the neighborhood. Keith v. Saco River Corridor Comm'n, 464 A.2d 150, 155 (Me. 1983).

The date PYC acquired the lot is irrelevant to the analysis of nonconforming status since "it is the building or the land that is 'grandfathered' and not the owner." Keith, 464 A.2d 150, 154 (Me. 1983). The Board considered how the lot was used prior to the enactment of the relevant ordinance provision, but the parties disagree about the facts concerning the property's prior use.

At the hearing Ellen Snyder, the daughter of the former owner of lots 1 and 2 who lived on the property for several years, testified on behalf of the Kurlanskis regarding parking on lot 2 prior to 1983. (PYC's Br. 2; R. 315.) She testified that she did not recall any events where PYC used lot 2 for parking while she lived on the property. (R. 321.) PYC presented multiple witnesses who testified that PYC used the lot for parking several times a year. (R. 322-324.) One witness said "there were eight to ten times a season when they would use this property to park, but most would be for a Saturday daytime only." (R. 323.) The Kurlanskis admit that "there may have been occasional' actual' permissive use of lot 2 and other surrounding properties for overflow parking for special events" but they deny that the use was substantial. (Pet.' s Br. 28.)

Regarding the conflicting testimony the Board said it "finds the testimony of witnesses to be irreconcilable in certain instances and respects. In making its findings,

the Board assessed and weighed the credibility of witnesses, and reviewed documents and correspondence of the parties included in the record, including correspondence made at or about the time of important dates in the long standing dispute that has simmered, if not boiled, for over a decade." (R. 4.) Concerning prior use the Board found that PYC used lot 2 for overflow parking on an occasional basis for special events and as necessary for Thursday night races or extremely busy weekends. (R. 5.)

Based on the evidence before it, the Board allowed PYC to use the lot for overflow parking, but limited the use to up to 8 events per year. 3 Although an inconsistent conclusion could be drawn from the evidence, the Board's decision is properly supported with substantial evidence.

The entry is:

The Town of Falmouth's Board of Zoning Appeal's decision is AFFIRMED.

3 The Kurlanskis also argue that the nonconforming use changed after the enactment of the zoning ordinance because the lot was only used for parking up to three times a year for several years. The facts indicate that the number of times the lot is used for parking throughout the years has varied. Using the lot for eight events per year is still occasional use, which is supported by substantial evidence.

Date Filed 12-07-10 Cumberland Docket No. _...::A=P_-...::1-=-0_-_:.._44.:____ County

Action _ _8=-0:::..:B:o--.::A=-:P::..<P:..:::e'-"a=-=1'-------------

KATHLEEN KURLANSKI TOWN OF FALMOUTH ZBIGNIEW J. KURLANSKI THE PORTLAND YACHT CLUB

vs. Plaintiff's Attorney Defendant's Attorney AARON BURNS ESQ (TOWN OF FALMOUTH) ZBIGNIEW J. KURLANSKI, ESQ. PO BOX 46 DAVID LOURIE ESQ (PORTLAND YACHT CLUB) PORTLAND, ME 04112

KRISTINA KURLANSKI ESQ/20 FEDERAL STREET BRUNSWICK PETER M. MCGEE, ESQ. 80 EX~GE STREET Date of PORTLAND, ME 04101 Entry