Stimson Chester Building Permit Court Decisions

There have been three phases of the appeal of the Chester Building permit;

Appeal to the Phippsburg Board of Appeals;

Appeal of the Phippsburg BOA to Superior Court;

Appeal of Superior Court to the Maine Supreme Court.

The Phippsburg Board of Appeals decision is discussed elsewhere in detail-click here. The two decisions of the Superior Court and of the Supreme court are available below. The Phippsburg BOA said there were no wetlands associated with Silver Lake, and so the shore land zone of restricted construction begins at the open water. We disagreed with this decision.

Sue Nusbaum, who brought the original appeal to Phippsburg filed an appeal of the BOA decision to Superior Court. The State DEP had finally inspected the area and said that the Phippsburg BOA was wrong in their assessment of the wetlands and their ordinance (see here). Sue Nusbaum dropped out of that suit in Superior Court and we were substituted as parties. The Chester's lawyer then argued that we did not have standing since we did not bring the original appeal. They also argued that the matter was, by ordinance, decided by the Phippsburg BOA and so the Superior court had no jurisdiction to consider the matter. Superior Court Judge Atwood agreed with them. His decision is contained below.

We appealed the matter to The Supreme Court of the State of Maine. The Supreme Court said we did have standing and that the matter could be considered on its merits within the Superior Court, saying that a town ordinance does not over-ride the State Court's ability to hear any matter put before it. Click here for the web site on which the State of Maine has posted the decision or look below for a page by page explanation and link to that decision. The matter has been remanded ( put back) to Superior Court.

Court Decisions in the Stimson/Chester Phippsburg Building Permit Appeal Norris Vs. Town of Phippsburg
Chester site in background, April 2005 (click on any image for larger view)
There have been three phases of the appeal of the Chester Building permit; Appeal to the Phippsburg Board of Appeals; Appeal of the Phippsburg BOA to Superior Court; Appeal of Superior Court to the Maine Supreme Court. The Phippsburg Board of Appeals decision is discussed elsewhere in detail-click here. The two decisions of the Superior Court and of the Supreme court are available below. The Phippsburg BOA said there were no wetlands associated with Silver Lake, and so the shore land zone of restricted construction begins at the open water. We disagreed with this decision. Sue Nusbaum, who brought the original appeal to Phippsburg filed an appeal of the BOA decision to Superior Court. The State DEP had finally inspected the area and said that the Phippsburg BOA was wrong in their assessment of the wetlands and their ordinance (see here). Sue Nusbaum dropped out of that suit in Superior Court and we were substituted as parties. The Chester's lawyer then argued that we did not have standing since we did not bring the original appeal. They also argued that the matter was, by ordinance, decided by the Phippsburg BOA and so the Superior court had no jurisdiction to consider the matter. Superior Court Judge Atwood agreed with them. His decision is contained below. We appealed the matter to The Supreme Court of the State of Maine. The Supreme Court said we did have standing and that the matter could be considered on its merits within the Superior Court, saying that a town ordinance does not over-ride the State Court's ability to hear any matter put before it. Click here for the web site on which the State of Maine has posted the decision or look below for a page by page explanation and link to that decision. The matter has been remanded ( put back) to Superior Court.	Chester Building Site March, 2005 Foreground is location of submerged leach field
	Chester Site April 2004

Superior Court Decision	Notes: NFA is a reference to the Norris family Associates, an LLC formed by my brothers and I to manage our property. The page files will open as separate PDF pages. To return to this page simply close the page with the document in it.
Page 1	Intro; Explanation of three motions put before the Superior Court, Motion to determine record on appeal; Motion to dismiss; Motion for Leave to Amend Complaint. Beginning of discussion of motion to dismiss-Chester arguments to dismiss
Page 2	Arguments made by Chester for dismissal on grounds of Norris' not bringing original appeal to Phippsburg and so do not have standing.
Page 3	Judge states that we did not follow any of the Phippsburg ordinances in bringing a grievance before the BOA.
Page 4	Judge cites case law supporting notion that any party to Superior Court must follow local procedures first, including timeliness of appeal, and that we did not, though Sue Nusbaum did.
Page 5	More case law: Judge says that the record and scope of any appeal brought to Superior Court must be established on the local level, through the prescribed procedures and that we did none of this, though Sue Nusbaum did. Notion of "de novo" (new/first) hearing in which the matter is considered for essentially the first time, before the BOA, but that, again, we did not initiate this process.
Page 6	Judge cites our failure to establish ourselves as an "aggrieved party" before the BOA as required. He asks how Stimsons or BOA would know we considered ourselves an "aggrieved party" just because we were present and supporting the Nusbaum procedure?
Page 7	Judge decides to dismiss because we did not bring forward the appeal and so the court lacks "subject matter jurisdiction" to consider a matter not brought before any BOA. Goes on to consider other question of our standing as a participant at proceedings, in case he may be over-ruled by a higher court.
Page 8	Judges dismisses Jermain claims of "standing" since he didn't participate. Says I, Stephen Norris, do have standing since the threshold is only the "potential for particularized injury". I meet this threshold for standing as an abutting property owner.
Page 9	Judge discusses the possibility that flooding waters and the proximity of septic's to my property would constitute the potential for injury, and thus standing to proceed.
Page 10	Judge addresses issue of whether I and/or Jermain could be substituted as parties as Nusbaum walks away. Judge says I can be substituted, Jermain can't since he wasn't there at the Phippsburg BOA hearing and so did not establish standing.
Page 11	Judge states it doesn't matter who is arguing against the defendant and would allow us as a substitution of parties. Says a 'Motion to Amend " complaint isn't the right vehicle and wasn't the case here. Judge considers the matter of the determination of the record, or information that may be considered in the matter. We had sent in to the Board of Appeals additional information from an inspection of the building site by the Maine DEP's wetland and shore land zoning experts (see their letter here)and then asked, based on this information, that the BOA to reconsider their decision. Where they were having difficulty (the CEO admits this in his testimony before the Board - see here) making determination about wetlands, what they were and weren't and their scope, a State agency's experts on such things had found their conclusions to be in error. The BOA did not respond to our request to reconsider. The Judge here states that the information brought forward as part of our request to the board to reconsider would be relevant to the discussion, particularly since the BOA did not choose to respond to our request that they consider this informationone way or another. They did not therefore, seem to take it into consideration, and the judge says that they should have at least indicated why they would reject it; so he would allow the information to become part of the record, even though it came after the Board's deliberation on the matter initially. This all, of course, if he weren't throwing the case out but saying these things in case he might be (as he was) overturned by a higher court.
Page 12	Judge says he would include the above materials in his considerations and would order that material to be put in the record. Signs his orders.
Supreme Court Decision	Also contained in full on State web site here.
Page 1	Intro, nature of the matter before them and beginning of discussion of issues of jurisdiction of Superior Court to hear an appeal from us.
Page 2	Cites argument for lack of standing. Beginning of summary of background of case before the court.
Page 3	Summary continues outlining steps which brought the case to the Supreme Court.
Page 4	Discussion of case- outlining issues before the Superior court and how decision was achieved.
Page 5	Who can bring an appeal to Superior Court? Supreme court states that anybody can, as prescribed by law, and that a local ordinance cannot "delimit" the ability of the superior court to do so. Stimson argued that different ordinances at local level required different procedures and so we were not allowed access to Superior court for appeal since we had not followed those procedures. Decision states that our ''..right to obtain judicial review of the final decision of the Phippsburg Board of Appeals is prescribed statutorily, and that right cannot be restricted by additional requirements of the Phippsburg ordinance."
Page 6	Discussion of our standing before the court to bring an appeal of the BOA's decision.
Page 7	Arguments made for and against our having standing vis a vis how we represented ourselves or were represented at the BOA hearing. Everybody but the Stimsons lawyer seems to have known why we were there and who we are.
Page 8	Standing (or sitting?)
Page 9	Party Status: State that we are " parties" as that term is a broad one and will be interpreted as such. Grant party status to both the Norrises (NFA)and Jermain.
Page 10	Again, everybody else but the Stimsons seems to have accepted why we were at the hearing- to object to the permit- and who we were as well! Stimson attempt unsuccessfully to obscure the reason for the activity before the courts.
Page 11	Issue of "potential for particularized injury". Conclusions; Superior Court HAS "subject matter jurisdiction" and so can hear case; Jermain and Norris (NFA) do have standing as 'Parties" to the case, have demonstrated the potential for particularized injury and so can bring the matter before the courts.
Page 12	Finish statement of standing; sign order remanding matter to Superior Court.