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Wright v. Town of Kennebunkport, revised 8-11-98
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	1998 ME 184
Docket:	Yor-97-763
Argued:  	June 8, 1998
Decided:	July 23, 1998

Panel:  WATHEN, C.J., and ROBERTS, CLIFFORD, RUDMAN, DANA, and SAUFLEY, JJ.




RUTH B. WRIGHT et al.{1} v. TOWN OF KENNEBUNKPORT et al. JEFFREY N. COHEN{2} v. TOWN OF KENNEBUNKPORT et al.


ROBERTS, J.

	[¶1]  Jeffrey N. Cohen appeals from the judgment entered in the
Superior Court (York County, Perkins, A.R.J.) affirming the decision of the
Kennebunkport Zoning Board of Appeals in which the Board revoked a
building permit issued to Thomas Benenti by the code enforcement officer
(CEO) of the Town of Kennebunkport.  On appeal Cohen contends that the
Board lacked jurisdiction to hear the appeal because Charles and Ruth
Wright, the individuals who challenged the CEO's decision to issue the
permit to Benenti, failed to appeal the CEO's decision within the period
specified by the Kennebunkport Land Use Ordinance.  Because the Wrights'
appeal was too late to invoke the Board's authority, we vacate the judgment.
I.
	[¶2]  In April 1996 Charles Wright observed the Town's plumbing
inspector taking measurements for a septic system on a parcel of land
owned by Benenti and adjacent to the Wright property.  Wright had
previously been informed by one of Benenti's tenants that Benenti intended
to apply for a building permit.  Wright contacted the CEO, who confirmed
that Benenti had applied for a building permit and who agreed to provide
Wright with a copy of Benenti's application and other documents regarding
the project.  On May 1, 1996, the CEO issued a permit authorizing Benenti
to construct a single-family dwelling on his property.  The CEO notified the
Wrights of his decision within days after the permit was issued.  On June 14,
1996, the Wrights wrote to the CEO requesting that he revoke the permit
because it violated provisions of the Town's Land Use Ordinance and its
Floodplain Management Ordinance.  On July 25, 1996, the CEO informed
the Wrights that he would not revoke the permit because they had failed to
appeal to the Board within 30 days of the issuance of the permit pursuant to
section 9.3(A) of the Land Use Ordinance.  On July 31, 1996, the Wrights
appealed the CEO's decision to the Board and filed a complaint in the
Superior Court, seeking, inter alia, a review of the CEO's refusal to revoke
the permit and requesting an extension of time to file their appeal from the
CEO's decision.
	[¶3]  After a public hearing, the Board determined that it could hear
the Wright's appeal because they were challenging the CEO's decision of
July 25, 1996, in which he refused to revoke the permit.  The Board
concluded that the permit was issued in error and ordered that it be
revoked.  Benenti thereafter filed a complaint in the Superior Court seeking
direct judicial review of the Board's decision pursuant to 30-A M.R.S.A.
§ 2691 (1996).  The two actions were consolidated, and in November 1997
the court affirmed the decision of the Board.  In doing so, the court
determined that the Board had authority to hear the appeal and that if the
Wrights were not granted an extension of time to appeal, a flagrant
miscarriage of justice would occur.  This appeal followed.
II.
	[¶4]  Section 9.3(A) of the Kennebunkport Land Use Ordinance
provides that "[a]ny person aggrieved by a decision of the Code Enforcement
Officer may appeal that decision by filing an application on forms provided
for that purpose with the Town Clerk within thirty days of the decision." 
Kennebunkport, Me., Land Use Ordinance, § 9.3(A) (1991).  Neither the
Town nor the Wrights dispute that the Wrights failed to appeal the issuance
of the permit within the requisite 30-day period, or that the Wrights knew,
within days of its issuance, that the CEO had granted Benenti a permit. 
Rather, they contend that the CEO's letter refusing to revoke the permit
constituted a "decision" within the meaning of section 9.3(A) and that
because the Wrights appealed that "decision" within 30 days, their appeal is
timely.  We disagree.
	[¶5]  The meaning and construction of a statute is a question of law. 
Community Telecomm. Corp. v. State Tax Assessor, 684 A.2d 424, 426 (Me.
1996).  An agency's interpretation of a statute or regulation it regularly
administers is to be granted "great deference" and must be upheld unless
the regulation "plainly compels a contrary result."  Berube v. Rust Eng'g,
668 A.2d 875, 877 (Me. 1995).  Although we afford an agency's
interpretation of a statute or regulation great deference, its construction is
not conclusive on the Court.  Id.  Moreover, we construe a statute to avoid
absurd, illogical, or inconsistent results.  Estate of Whittier, 681 A.2d 1, 2
(Me. 1996).
	[¶6]  If we were to adopt the Board's construction of section 9.3(A),
then the 30-day time limit would become a nullity.  An individual aggrieved
by a CEO's decision to issue a permit could bypass the 30-day appeal
deadline simply by requesting that the CEO revoke the permit.  "Only
petitions for rehearing filed pursuant to officially adopted procedures[,
however,] can be relied on to toll a limitations period."  Otis v. Town of
Sebago, 645 A.2d 3, 4 (Me. 1994).  Strict compliance with the appeal
procedure of an ordinance is necessary to ensure that once an individual
obtains a building permit, he can rely on that permit with confidence that it
will not be revoked after he has commenced construction.
	[¶7]   The Town's contention that because the permit was void ab
initio it could be revoked after the 30-day appeal period expired is also
unavailing.  The invalidity of the permit does not have any bearing on
whether the Board had the authority to hear the Wrights' appeal.  Moreover,
the Board's reliance on the Wrights' failure to discover the invalidity of the
permit until after the appeal period had expired is also misplaced.  The
alleged illegality of the permit existed at the time of its issuance, and by
using reasonable diligence the Wrights could have discovered its illegality.
	[¶8]  Finally, the court erred by finding that the principles enunciated
by our decision in Keating v. Zoning Bd. of Appeals of Saco, 325 A.2d 521
(Me. 1974), are applicable to the facts of the present case.  In Keating, the
applicable ordinance did not designate a time period in which an aggrieved
party could appeal.  We therefore fixed a period of 60 days as the length of
time within which an appeal must be taken in those situations in which the
applicable ordinance fails to designate a time limit.  Id. at 525.  We further
explained that an exception to the general appeal period is permitted "in
those special situations in which a court of competent jurisdiction finds
special circumstances which would result in a flagrant miscarriage of justice
unless, within a narrowly extended range, a time longer than the general
norm is held 'reasonable.'"  Id. at 524.  In this case the Kennebunkport
ordinance designated a 30-day appeal period.  The judicially created Keating
exception is therefore not applicable.{3}
	The entry is:
Judgment vacated.  Remanded with
				direction to enter a judgment reversing
				the decision of the Zoning Board of
				Appeals.

Attorneys for plaintiffs: F. Paul Frinsko, Esq., (orally) Joan M. Fortin, Esq. Ann L. Rudisill, Esq. Bernstein, Shur, Sawyer & Nelson, P.A. P O Box 9729 Portland, ME 04104-5029 (for Jeffrey Cohen) John C. Bannon, Esq., (orally) Murray, Plumb & Murray P O Box 9785 Portland, ME 04104-5085 (for Ruth & Charles Wright) Attorneys for defendants: William H. Dale, Esq., (orally) Natalie L. Burns, Esq. James Katsiaficas, Esq. Jensen, Baird, Gardner & Henry P O Box 4510 Portland, ME 04112
FOOTNOTES******************************** {1}. No issue has been raised and we express no opinion regarding the issues in Wright v. Shaw CV-96-398. {2}. Jeffrey N. Cohen, the trustee of the Cape Porpoise Realty Trust, was substituted as a party for Thomas Benenti. {3}. Because the facts of this case do not merit such a determination, we need not decide whether a court can grant an extension of time within which to appeal to an aggrieved party who does not have knowledge of the issuance of a permit until after the appeal period has expired in those situations in which the applicable ordinance designates an appeal period but does not provide for a waiver of the limitations period upon a showing of good cause.