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Lewis v. Maine Coast Artists
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	2001 ME 75
Docket:	Kno-00-244
Argued:	October 5, 2000
Decided:	May 4, 2001	




	[¶1]  Maine Coast Artists (MCA) appeals from a judgment entered in
the Superior Court (Knox County, Atwood, J.) vacating a decision of the
Rockport Zoning Board of Appeals.  The Superior Court ruled in favor of
Patricia Lewis in her action challenging MCA's construction renovations of
its art gallery located in Rockport.  The Superior Court concluded that the
doctrine of res judicata precluded MCA from relying on a previously issued
building permit.  The court also concluded that MCA had abandoned and
waived its rights under that permit.  We agree with MCA that the Superior
Court erred.  Therefore, we vacate the judgment, but because the Town
must redo the measurements to establish the extent of nonconformity with
what is allowed by the first permit, we remand to the Superior Court for
remand to the Board for further proceedings.
	[¶2]  MCA owns and operates a nonprofit art gallery.  On June 8, 1996,
MCA was granted a special exception permit from the Board and the Code
Enforcement Officer (CEO) issued a building permit (the first permit) to
allow MCA to expand and modify its existing building.  There was no appeal
from the decision to issue that first permit.  The Town amended its Land
Use Ordinance with new site plan review requirements on June 12, 1996. 
Three months later, MCA applied for a new special exception permit to
allow it to incorporate revised plans for the modification of its building that
included an additional one hundred square feet of space.  MCA then
commenced foundation and structural changes and began demolition
pursuant to the first permit.
	[¶3]  The Board found that MCA's building was a nonconforming
structure and that the modifications to the building that would be made
pursuant to the new permit would violate the height and setback
requirements of the Town's Land Use Ordinance.  Although the new
construction, or parts of it, would violate the new Land Use Ordinance, the
Board approved the special exception because the Board concluded that the
building would be no more nonconforming than the then-existing structure. 
The Board granted, and the CEO then issued, a new building permit (the
second permit) to MCA on December 2, 1996.
	[¶4]  Pursuant to M.R. Civ. P. 80B, Lewis, the owner of property
abutting the MCA property, filed a complaint in the Superior Court seeking
judicial review of the Board's actions regarding the issuance of the second
permit.  The Superior Court affirmed the decision of the Board.  Lewis then
appealed to this Court, and we held that the second permit was invalid
because it violated the Town's zoning ordinance by increasing the building's
nonconformity.  We concluded that any modification or addition to MCA's
building that would result in an increase of nonconforming space was
prohibited by the ordinance.  Lewis v. Town of Rockport, 1998 ME 144, ¶
13, 712 A.2d 1047, 1050 (Lewis I).  We remanded to the Superior Court for
the entry of a judgment in favor of Lewis on her appeal from the Board's
grant of the new special exception and the CEO's issuance of the second
building permit.  Id. ¶ 15, 712 A.2d at 1050.  We noted that the validity of
the first permit was not before the Court because Lewis did not appeal the
grant of the first permit by the Board.  Id. ¶ 7 n.2, 712 A.2d at 1049 n.2.
	[¶5]  After remand, aware that the second permit was invalid, the CEO
measured MCA's property to determine its conformity to the building that
MCA was authorized to build pursuant to the first plan and permit.  Lewis
protested the CEO's actions and contested the method by which the CEO
completed the measurements.  She appealed to the Board, claiming that the
notice of violations issued to MCA by the CEO omitted many of the
significant nonconformities with the ordinance.  The CEO found a small
sideyard encroachment of a few inches with the roof overhang and jail
portion of the building, plus a need for an additional parking space.  The
property line used by the CEO for purposes of measuring was the original
boundary line that existed between the MCA and Lewis properties prior to
the issuance of the declaratory judgment in another action, brought by Lewis
against MCA involving the boundary between the properties owned by those
parties.  In that action, the Superior Court (Kravchuk, C.J.) declared the
location of the boundary line between the properties to be closer to MCA's
building than the line from which the CEO took the measurements.{3}
	[¶6]  The Board affirmed the CEO's decision, and Lewis again filed an
appeal pursuant to M.R. Civ. P. 80B against MCA and the Town.  The
Superior Court (Knox County, Atwood, J.) concluded that, following our
decision in Lewis I, MCA did not have a valid building permit to authorize
any expansion because, based on res judicata, MCA was precluded from
relying on the first permit as a justification for the modification to its
building, and because MCA waived and abandoned its rights under the first
permit.{4}  MCA filed this appeal following the decision of the Superior Court.
	[¶7]  The Superior Court acted in its appellate capacity to determine
that the Board abused its discretion or committed an error of law when the
Board concluded that MCA was entitled to rely on MCA's first permit in
defending its building expansion.  We review the decision of the Board
directly.  See Kosalka v. Town of Georgetown, 2000 ME 106, ¶ 10, 752 A.2d
183, 186; DeSomma v. Town of Casco, 2000 ME 113, ¶ 7, 755 A.2d 485,

A.  Res Judicata

	[¶8]  MCA contends that in determining the extent of any violation by
MCA of the Town's zoning ordinances, the CEO correctly measured based on
the expansion that was authorized by the first permit.  MCA contends that it
is not precluded by res judicata from relying on the first permit.
	[¶9]  Claim preclusion prevents relitigation of a claim if:  (1) the same
parties or their privies are involved in both actions; (2) there is a valid final
judgment entered in the prior action; and (3) the matters presented for
decision in the second action were, or might have been, litigated in the first. 
Machias Sav. Bank v. Ramsdell, 1997 ME 20, ¶ 11, 689 A.2d 595, 599. 
What was or could have been considered in the first action cannot be the
basis of a subsequent action.  Beegan v. Schmidt, 451 A.2d 642, 644 (Me.
1982).  The doctrine of res judicata is grounded on concerns for "judicial
economy and efficiency, the stability of final judgments, and fairness to
litigants."  Id. at 646.  Use of the transactional test to determine whether
the matters presented for decision were or might have been litigated in a
prior action best serves those concerns.  See Brown v. Osier, 628 A.2d 125,
127 (Me. 1993).
	[¶10]  In applying the transaction test, the claims are the same if they
are part of the same transaction. i.e., they are "founded upon the same
transaction, [arise] out of the same nucleus of operative facts, and [seek]
redress for essentially the same basic wrong."  Id. at 127.  To determine
whether facts arise out of the same transaction, we consider whether the
facts are related in time, space, origin, or motivation.  Draus v. Town of
Houlton, 1999 ME 51, ¶ 8, 726 A.2d 1257, 1260 (quoting Beegan, 451 A.2d
at 645).
	[¶11]  Here, the first and second permits were issued at different
times and are not identical.  The first permit, which was not challenged, is
independent of the second permit.  The later permit allowed a greater
expansion of the building than the first.  In Lewis I, Lewis challenged the
validity of the second permit and the Board's interpretation of the
ordinance, but the first permit was not addressed.  Lewis I, 1998 ME 144,
¶ 7, 712 A.2d at 1049.
	[¶12]  The central issue before the Board, and now us, involves the
extent that the first permit authorizes the construction undertaken by
MCA.{5}  MCA's contention that the expansion of its building is authorized by
the first permit does not grow "out of the same aggregate of operative facts." 
See Conn. Nat'l Bank v. Kendall, 617 A.2d 544, 547 (Me. 1992).  The issue
before us in Lewis I was "whether the zoning board erred by interpreting
[the land use ordinance] . . . ." and in issuing the later permit.  Lewis I, 1998
ME 144, ¶ 11, 712 A.2d at 1049.  We concluded that MCA's authority to
build pursuant to the second plan and permit was void because it resulted in
an impermissably nonconforming building, and that "the zoning board
misinterpreted the land use ordinance to allow, by special exception, any
modification of or addition to the existing MCA building that would result in
an increase in the square footage of nonconforming space."  Id. ¶ 13, 712
A.2d at 1050.
	[¶13]  The first permit was not the authority for the plans and designs
being challenged in Lewis I, and, therefore, the authority granted by the first
permit is not a defense that was required to be raised in Lewis I. 
Accordingly, res judicata does not bar MCA from relying on the initial permit
in this action.

B. Abandonment

	[¶14]  Although the Board found otherwise, the Superior Court
concluded that MCA had abandoned or waived its rights under the first
permit.  We review the action taken by the Board for clear error, and we are
limited to determining whether the record contains evidence to justify the
Board's determination.  Driscoll v. Gheewalla, 441 A.2d 1023, 1026 (Me.
1982); see also Standish Tel. Co. v. Saco River Telegraph & Tel. Co., 555
A.2d 478, 480 (Me. 1989).  The Board expressly found that the earlier
permit remained in effect after Lewis I because it had never been appealed,
abandoned or withdrawn.  The Board also concluded that MCA applied for a
site review of both plans to preserve the earlier exception and permit.
	[¶15]  Abandonment is a voluntary, affirmative act indicating a clear
intent to repudiate ownership.  Duryea v. Elkhorn Coal & Coke Corp.,
123 Me. 482, 486, 124 A. 206, 208 (1924).  To prove abandonment, one
must demonstrate "some clear and unmistakable act" to indicate an intent
or purpose to relinquish a right.  Pleasant View Mobile Home Park, Inc. v.
Town of Mechanic Falls, 538 A.2d 273, 274-75 (Me. 1988).  "Non-use, even
for lengthy periods of time, is, of itself, insufficient to show an abandonment
of a right" especially where the acts manifest an "intent contrary to
abandonment."  Id. at 275.  Lewis bears the burden to prove MCA's intent to
abandon and MCA's actual abandonment.  See id.
	[¶16]  Although permits should generally be acted upon diligently to
avoid the risk that they lose their validity, Lewis never appealed the first
permit.  See George D. Ballard, Builder, Inc. v. City of Westbrook, 502 A.2d
476, 480 (Me. 1985).  MCA hired a contractor to begin construction
pursuant to the first special exception and first permit, and demolition
began in reliance on the first permit before MCA requested a second special
exception.  MCA spent almost $50,000 pursuant to the first permit.  The
Board's finding that the first permit was not abandoned is not clear error.
	[¶17]  The Board also considered MCA's later request as a new
application for a special exception even though the application itself says it
is an amendment.  Lewis I, 1998 ME 144, ¶ 3, 712 A.2d at 1048.  In its
brief to the Superior Court in Lewis I, the Town acknowledged that the
Board reviewed the second application as "a completely new one" and not
"merely a review of the amendments to the original plan."  The ordinance
does not require that the second permit must replace the first.  It is
possible, under these circumstances, to hold two permits for the same
project, when one is more inclusive than the other.  Here, the second
permit allowed MCA to expand its building further than did the first
permit.{6}  The Board found that MCA intended to preserve its rights under
the first permit when it submitted the first permit for site plan review, and
used the first permit to begin construction and demolition.  MCA's
expansion beyond the scope of the first permit results in the illegality of that
expansion, but it does not follow that the first permit itself is invalid.
C.  Expiration
	[¶18]  Lewis contends that the first permit expired once MCA began
its construction after receipt of the second permit.{7}  We disagree.  MCA
began demolition and foundation fill under the authority of the first permit
in November of 1996, less than six months after the permit was issued. 
Although MCA admitted that after December 2, 1996, all construction was
completed pursuant to the later permit, the initial demolition relied on the
authorization granted in the first permit.  All construction thereafter was
carried out with both the original and the second building permits present
at the site.  Contrary to Lewis's contention, MCA did use its permit within
one year of the date of the permit, as required by the Shoreland Zoning
	[¶19]  The Board also concluded that the Building Code enacted on
June 12, 1996, was not retroactive, and that section 108.2 of the Code does
not apply to the first permit because the first permit was granted before the
new ordinance was in effect.{8}  Consequently, pursuant to the older
ordinance, the first permit would not expire simply because MCA did not
rely exclusively on the first permit for over six months.  In accordance with
section 108.3 of the newer Code, MCA requested a new site plan review in
November of 1996 because it did not begin construction within ninety days
of receiving the first permit and it made some changes to its plans.  Even if
the first permit was subjected to the new ordinance, it does not
automatically follow that the first permit becomes invalid for failure to begin
construction within ninety days pursuant to section 108.3 of the Building
Code.  That section may limit the authority of MCA to make other changes,
but MCA still has the authority to build what was already approved.
	[¶20]  The possession of two permits, both authorizing changes to a
building, does not by that fact itself invalidate the permit authorizing the
narrower changes.  MCA's first permit did not expire even though MCA
made changes to its building relying on the second permit.  Both permits
were available at MCA's construction site.  MCA began construction pursuant
to the first permit, and the Board's decision that the first permit remains
valid is not error.
	[¶21]  Lewis also contends that the actual measurements taken by the
CEO were invalid.{9}  MCA's building is a nonconforming structure.  It was
acquired prior to the effective date of the Town's Land Use Ordinance and
the grandfather clause authorizes the structure as it existed at that time. 
See Turbat Creek Pres., LLC v. Town of Kennebunkport, 2000 ME 109,
¶ 13, 753 A.2d 489, 492.  Unauthorized expansions of nonconforming
structures are prohibited, and we concluded in Lewis I that the
modifications made by MCA pursuant to the second permit were invalid.  We
stated that any "modifications of or additions to a building that would
increase the square footage of nonconforming space within the building,
even if it would not increase the linear extent of nonconformance, does
make the building more nonconforming."  Lewis I, 1998 ME 144, ¶ 13, 712
A.2d at 1050.
	[¶22]  The first permit, however, was not challenged and its issuance
not appealed.  Accordingly, modifications to the building made pursuant to
the first permit that may increase the nonconformity cannot be contested. 
It is important on remand, therefore, that the Board carefully and correctly
determine the extent to which the modifications to the building made by
MCA conform to or exceed the changes authorized by the first permit.

A.  Land Measurement

	[¶23]  In the action for adverse possession brought by Lewis against
MCA, the Superior Court declared the common boundary between MCA and
Lewis to be closer to MCA's building than MCA previously believed.  The
court's decision was based on Lewis's adverse possession of what was a
portion of MCA's land for a period of twenty years or more.  In measuring
the extent of MCA's nonconformity to the setback requirements, the CEO
measured the setback from the boundary as it existed prior to Lewis's
acquisition of title by adverse possession.  That measurement was improper.
	[¶24]  Title vests in the adverse possessor by operation of law at the
end of the adverse possession period.  Colquhoun v. Webber, 684 A.2d 405,
410 (Me. 1996).  Even though the final judgment determining the location
of the new boundary is issued by the court at a later time, as it was in early
1998, the twenty-year period entitling Lewis to the property was reached in
1992.  See id.  Accordingly, Lewis was the true owner of the land up to the
newly declared boundary at the time the first permit was issued, and any
measurements to determine setbacks, pursuant to the zoning ordinance,
must be made from that newly declared boundary.{10}

B.  Building Expansion

	[¶25]  Lewis challenges the accuracy of the CEO's measurements of
the violations of the newly reconstructed building.  Lewis acknowledges that
portions of the MCA building that encroach upon the minimum six-foot
setback existed in the pre-construction building and are exempt under the
grandfather clause.{11}  She contends, however, that portions of the newly
reconstructed building extend into the setback area beyond existing
exempted encroachments, and beyond encroachments authorized by the
first permit.
	[¶26]  The underlying policy of zoning is to gradually eliminate
nonconforming structures and uses.  Schackford & Gooch, Inc. v. Town of
Kennebunk, 486 A.2d 100, 105 (Me. 1984).  Any significant alteration of a
nonconforming structure is an extension or expansion.  Id.  "[T]he accepted
legal standard has been to strictly construe zoning provisions relating to the
extension, expansion or enlargement of nonconforming buildings . . . ." 
Keith v. Saco River Corridor Comm'n, 464 A.2d 150, 155 (Me. 1983). 
"When an ordinance prohibits enlargement of a nonconforming building, a
landowner cannot as a matter of right alter the structure, even if the
alteration does not increase the nonconformity."  Shackford & Gooch, 486
A.2d at 105.
	[¶27]  In Lewis I, we concluded that the modification of or addition to
MCA's existing building that resulted in an increase in square footage of a
nonconforming space is in violation of Rockport's ordinance that provides
that a building may not be expanded to become more nonconforming. 
Lewis I, 1998 ME 144, ¶¶ 12, 13, 712 A.2d at 1049-50.  The Land Use
Ordinance in effect when the first permit was granted does not differ greatly
from the current Land Use Ordinance that was at issue in Lewis I.{12}  The
first permit, however, did authorize some nonconformities, and was not
appealed.  Measurements must be carefully taken to determine the extent to
which MCA's building exceeds what was permitted pursuant to the first
permit.{13}  Such careful measurements must be applied to determine
whether MCA's building conforms to authorized height limits as well.
	The entry is:
Judgment vacated.  Remanded to the Superior
Court for remand to the Rockport Zoning
Board of Appeals for further proceedings
consistent with this opinion.

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