Burgess v. Town of Phippsburg

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STATE OF MAINE SUPERIOR COURT
SAGADAHOC, SS. Civil Action
Docket No. AP-2019-03

SAMUEL E. BURGESS Ill, )
Plaintiff, )
)
)
V. ) ORDER ON SOB APPEAL
)
)
TOWN OF PHIPPSBURG, )
Defendant. )

Pending before the court is the Plaintiff's BOB appeal of the Phippsburg Board of
Selectmen's ("BOS") September 4, 2019 decision upholding the Harbor Commission's
decision that moorings #215 and #216 were abandoned pursuant to Section 8(C) of the
Harbor Ordinance of the Town of Phippsburg. The administrative record has been filed
with the court and both parties have filed briefs.

STANDARD OF REVIEW

When the Superior Court acts as an appellate court under M.R.Civ.P. BOB, it must
review directly the operative decision of the municipality, Stewart v. Town of
Sedgwick, 2000 ME 157, ,r 4, 757 A.2d 773, 775, for "error of law, abuse of discretion or
findings not supported by substantial evidence in the record," Sproul v. Town of
Boothbay Harbor, 2000 ME 30, ,r 8,746 A.2d 368,372 (internal quotations omitted). One
seeking to overturn a decision such as the one at issue here has the burden of
establishing that the evidence compels a contrary conclusion. Id. The court "may not ...
substitute [its own] judgment for that of the Board." Tompkins v. City of Presque Isle,
571 A.2d 235, 236 (Me.1990). "If there is relevant evidence in the record to reasonably
support the Board's conclusion, the fact that the record contains inconsistent evidence
or inconsistent conclusions could be drawn from the evidence does not invalidate the
Board's holding." Boivin, 588 A.2d at 1199. "Substantial evidence exists when a
reasonable mind would rely on that evidence as sufficient support for a conclusion."
Camp vs. Town of Shapleigh, 2008 ME 53, ,r 9,943 A.2d 595,598.

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DISCUSSION

As a preliminary matter, the court notes that the Harbor Master for the Town of
Phippsburg, Douglas Alexander, is married to the Clerk of Court, with whom the
undersigned works closely on a daily basis. The undersigned justice's only significant
dealings with Mr. Alexander has been when he appeared before the court as a witness
in an earlier proceeding. After careful consideration, the court does not believe that
recusal is necessary or appropriate.

The only issue advanced by the Plaintiff in this 80B Appeal is that the Harbor
Ordinance as written and applied is unconstitutional because it deprived him of his
property interest in the two moorings without due process. The Plaintiff does not
challenge the factual findings of the Harbor Commission; the conduct of the
Commission's hearing; or argue that the findings are not supported by substantial
evidence in the record.

In response, the Town chose not to address the substance of the Plaintiff's
argument and instead advances an unhelpful argument, never raised below, that the
Plaintiff's claim is moot. The Town's argument is completely without merit. If the
Plaintiff's claims did not rely on a claim of unconstitutionality of a municipal ordinance,
the court would be inclined to find that the Town had conceded the points advanced by
the Plaintiff and enter judgment in his favor.

However, the court is required to interpret statutes and ordinances to avoid
unconstitutionality, Town of Baldwin v. Carter, 2002 ME 52 ~ 9, 794 A.2d 62, 66-67, and
must attempt to do so in this case, despite the flaws in the Town's pleadings.

The Law Court has held that the operative decision on appeal is the decision of
the tribunal of original jurisdiction - the fact finder and decision maker. Gensheimer ·v.
Town of Phippsburg, 2005 ME 22, ~7, 868 A.2d 161. In this case, the Harbor
Commission was the fact finder with original jurisdiction. Section 13 of the Harbor
Ordinance establishes that the Board of Selectmen acts only in an appellate capacity
based on the evidence and record established before the Harbor Commission,

There is no doubt that State law and the Harbor Ordinance gave the Plaintiff a
property interest in the location of his moorings. It also can't be disputed that both the
U.S. and Maine Constitutions do not allow the deprivation of a person's property
interest without due process - which is essentially notice and an opportunity to be
heard.

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Section 8 of the Harbor Ordinance governs Abandoned Moorings. In this case, it
was found by the Harbor Commission, after a hearing, that the Plaintiff had abandoned
his moorings pursuant to Section 8(C) which states that a mooring may be considered
abandoned if "[t]he mooring has not been used for twelve (12) months."

The Plaintiff's argument is that Section 8(C) is constitutionally deficient because
it does not require notice and opportunity to be heard before a mooring is considered
abandoned. However, other sections of the ordinance do allow for due process.

Section 4 of the Harbor Ordinance governs the duties of the Harbor Commission.
Section 4(D) state that "[t]he Harbor Commission shall sit as a Board of Appeals to hear
appeals of any person aggrieved by any decision, act, or failure to act of the Harbor
Master." That is exactly what happened in this case.

Concerned that someone was using one of his moorings, the Plaintiff contacted
the Harbor Master in June 2019 and was told that his moorings were considered
abandoned. The Plaintiff requested a hearing that was conducted on July 15, 2019. The
Plaintiff appeared and was allowed to provide information and argument to the
Commission. At that hearing, the Plaintiff admitted that the moorings had not been
used since 2008. After considering the evidence presented at the hearing, the Harbor
Commission determined that it agreed that moorings #215 and #216 had been
abandoned.

As a matter of law, no determination that a mooring has been abandoned can be
effective until the owner of the mooring is provided notice by the Harbor Master and
provided an opportunity for a hearing. It is only when a party is informed of a
determination of the Harbor Master that the party can be aggrieved and trigger the due
process provisions outlined in Section 4(D) of the Harbor Ordinance. When that is
done, the appeal process outlined in Section 4(D) is sufficient to meet the requirements
of due process and to overcome the facial challenge to the Harbor Ordinance.

In this case, the Plaintiff was provided due process. After being told by the
Harbor Master that his moorings were considered abandoned, a hearing was held by
the Harbor Commission and the Plaintiff was allowed to present information and
argument to the Commission. After consideration of all the information presented, the
Harbor Commission made findings of fact; applied the provisions of the Harbor
Ordinance to those facts; and reasonably concluded that the Plaintiff's moorings had in

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fact been abandoned. This process was more than sufficient to satisfy the requirements
of due process and, as a result, the Plaintiff's as applied challenge1 also fails.

For these reasons, the decision of the Town of Phippsburg Harbor Commission
that the Plaintiff's moorings were abandoned is AFFIRMED.

The Clerk is directed to incorporate this Order by refer~e into the docket for
this case, pursuant to Rule 79(a), Maine Rules of Civil Procedure.

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Dated: April 21, 2020

JUSTICE, MAINE SUPERIOR COURT

1 Even if the as applied challenge had been successful, the appropriate remedy would
have been a remand to the Harbor Commission along with an order to conduct a de
novo hearing. In this case, such a hearing was already conducted on July 15, 2019.

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