KHALSA V. KENNEBUNK (State Of Maine, York Superior Court, May 27, 2011).
The Village Marketplace is an existing commercial complex located in the Lower Village Business District in the Town of Kennebunk, Maine. A pre-existing, accessory use communications tower was mounted to one of Village Marketplace's buildings, approximately 60 feet above ground level. Prior to November 2009, The Village Marketplace, LLC, entered into a lease agreement with Navigator Properties, LLC (d/b/a Mariner Tower) to use a portion of the property to replace the pre-existing tower. The replacement tower would be a stronger, alternative-design structure capable of accommodating an antenna for a radio station, antennas for the Town of Kennebunk's communication needs, and antennas for three FCC licensed wireless service providers.
On November 5, 2009, Navigator Properties applied to the Town Code Enforcement Officer (CEO) for a building permit to replace and upgrade the existing tower with the new alternative tower not to exceed 125 feet in height. The Town CEO approved the application and issued Navigator Properties a building permit on November 30, 2009. The permit described the project as: "Replace existing accessory use tower/telecommunications facility with the new flagpole tower and telecommunications facility."
As directed by the Town Zoning Ordinance, the CEO mailed a notice of issuance to abutting property owners on December 3, 2009. The CEO's decision to issue a tower building permit to Navigator Properties was never appealed. Construction of the tower began in late May of 2010. On June 17, 2010, three wireless service providers each applied for a permit to construct an equipment shelter on a concrete pad accessory to the tower. The CEO issued all three permits on July 7, 2010.
On August 6, 2010, an abutting property-owner filed an administrative appeal of the CEO's July 7, 2010 action. On the form he submitted to the ZBA, the neighbor described his appeal as follows: “I would like to appeal the decision to grant a permit for the following reasons. At this time the tower is nonconforming and adding sheds to a nonconforming tower should not have been approved. The tower is nonconforming for the following reasons. . . .” Although the neighbor enumerated a number of objections to the tower, the neighbor did not list any objections to the equipment buildings themselves.
After an earlier decision to hear the appeal, the ZBA voted to reconsider its prior decision, and then voted unanimously to deny the neighbor’s appeal. In support of its decision the ZBA found: “[T]he tower itself was constructed by a permit issued on 11/30/09. There was no appeal made within 30 days as required by ordinance. . . . [N]otice was adequate, therefore, the board finds it cannot consider the legality or non-conformity of the tower as part of this appeal. There was no evidence presented that the sheds/pads violated the ordinance and the CEO's decision to issue permits for the sheds/pads is in accordance with the ordinance. The board finds that the permits were properly issued for the sheds and pads.”
On October 28, 2010, another individual, apparently not an abutting property owner, appealed to the Court arguing that the ZBA had good cause to review Navigator Properties' tower permit. After a discussion of Maine law regarding the applicable appeal period, the Court held that under the circumstances presented, there was no good cause to toll the appeals period and allow the ZBA to examine Navigator Properties' tower-building permit. The Court held that the ZBA was also correct when it found no evidence indicating that the sheds and pads violated the ordinance. All of the evidence and argument at the hearing concerned the flagpole tower under the theory that the sheds could not be built if the tower was illegal. Because the ZBA could not consider the legality of the tower and since it was not presented with any evidence that the sheds and pads themselves were illegal, it correctly affirmed the CEO's decision.
Anthony Dorland
DorlandA@moss-barnett.com
(612) 877-5258