294 A.3d 142
Me.2023Background
- 477 Shore Road LLC obtained six building permits (Dec 2020–Jan 2021) for work on six dwelling units on a parcel abutting Richard Tominsky’s property.
- Tominsky was living in Florida and first learned of the project in May 2021; his counsel sent a May 27 inquiry to the CEO and received no response.
- Tominsky filed a Superior Court complaint in June 2021 (dismissed for failure to exhaust administrative remedies), then filed an administrative appeal to the Town Board of Appeals on August 8, 2021—more than 30 days after the permits and ~81 days after he had actual knowledge.
- The Board invoked the Ordinance’s “good cause” exception to hear the untimely appeal, then denied Tominsky’s appeal on the merits; Tominsky appealed to Superior Court (Tominsky I).
- While Tominsky I was pending, a certificate of occupancy issued; Tominsky’s separate appeal of that CO was declined by the Board (citing Salisbury), he filed Tominsky II in Superior Court, and both Superior Court determinations were appealed and consolidated here.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a permittee must file a separate Rule 80B appeal or a cross-appeal to preserve a challenge to a municipal board’s grant of a local “good cause” exception | Tominsky: the permittee should have filed its own appeal/cross-appeal to contest the Board’s jurisdictional grant | LLC/Town: permittee may preserve the challenge by raising it as an alternative in its briefs (no separate Rule 80B or cross-appeal needed) | Held: Permittee need not and should not file a separate Rule 80B or cross-appeal; it may argue the untimeliness issue in its appellee brief and under M.R. App. P. 2C(a)(1) |
| Standard of review for a municipal board’s invocation of an ordinance-based “good cause” exception | Tominsky: Board’s grant should be evaluated strictly under judicial standards | Town/Board: Board’s factual findings deserve deference; legal interpretation is for the courts | Held: Defer to the Board’s factual findings; review de novo whether those facts satisfy the Ordinance’s legal standard (Keating-style “flagrant miscarriage of justice”) |
| Whether Tominsky met the Ordinance’s “good cause” exception (i.e., whether his delay was excused) | Tominsky: lack of notice while living out-of-state, CEO’s nonresponse, and awaiting Superior Court process justified delay | Town/Board: Tominsky had actual knowledge in May 2021 and unreasonably delayed; ignorance/mistake of law is not extraordinary | Held: Exception did not apply—Board misapplied the standard; 81-day delay after actual notice and delay based on mistaken belief of law are not “extraordinary circumstances” warranting extension |
| Whether a certificate of occupancy appeal can substitute for an appeal of the underlying permit | Tominsky: CO issuance is an appealable event to challenge permit validity | Town/LLC: CO appeal cannot be used to relitigate a valid permit; only noncompliance/exceeding permit terms is reviewable via CO challenge | Held: Tominsky II dismissal affirmed—CO cannot be used to challenge a valid permit’s issuance absent allegations that permit conditions were violated or the permit was exceeded |
Key Cases Cited
- Keating v. Zoning Bd. of Appeals, 325 A.2d 521 (establishes miscarriage-of-justice good-cause test)
- Viles v. Town of Embden, 905 A.2d 298 (lack of notice and delay after notice are key good-cause factors)
- Salisbury v. Town of Bar Harbor, 788 A.2d 598 (certificate-of-occupancy appeals cannot substitute for permit appeals absent overage or noncompliance)
- Witham Fam. Ltd. P’ship v. Town of Bar Harbor, 30 A.3d 811 (standing limits on who may appeal favorable municipal rulings)
- Wilgram v. Sedgwick, 592 A.2d 487 (untimely appeal precedent sustaining denial where long delay followed actual notice)
- Matter of Sims, 994 F.2d 210 (cross-appeal practice—unnecessary cross-appeals are discouraged)
- Tomasino v. Town of Casco, 237 A.3d 175 (Superior Court as intermediate appellate body; review of municipal decisions)