128 A.3d 648
Me.2015Background
- WWS Properties obtained Planning Board approval for a major site plan (car dealership) in June 2013; approval included a condition (Condition #11) requiring certain safety/liability issues be addressed before a certificate of occupancy.
- The site-plan approval allowed the City Planner to decide "minor" changes and to determine whether a change was major or minor.
- Shortly after approval, the City Planner (informally via email) approved a "minor" amendment permitting a retaining wall plus fence along the boundary with appellant Desfosses’s property; Desfosses received no notice of that amendment or the Planner’s approval.
- Desfosses appealed the Planner’s amendment approval to the Planning Board; the Planning Board declined jurisdiction. She then appealed to the Zoning Board of Appeals (ZBA); the ZBA also declined jurisdiction.
- The Code Enforcement Officer later issued a certificate of occupancy for the building. Desfosses appealed that issuance to the ZBA; the ZBA declined jurisdiction. Superior Court affirmed the board decisions under M.R. Civ. P. 80B. The Maine Supreme Judicial Court vacated and remanded both appeals for merits consideration.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a City Planner’s approval of a minor amendment to a major site plan may be appealed to the Planning Board by an abutter | Desfosses: the Ordinance should allow any party with standing to appeal a Planner decision on site-plan amendments to the Planning Board | City/WWS: ordinance language limits appeals to "applicant" or does not permit appeals of Planner approvals of minor amendments to major plans by nonapplicants | Court: interpret ordinance to allow any party with standing (applicant or nonapplicant) to appeal Planner decisions on site-plan amendments to the Planning Board; Planning Board erred in declining jurisdiction |
| Whether the Planning Board’s appeal provisions ("applicant" language) preclude nonapplicant appeals | Desfosses: "applicant" should be read to include nonapplicants to avoid absurd results and allow meaningful review | WWS: "applicant" means only the applicant; nonapplicants have no route to appeal | Court: reads "applicant" to include nonapplicants for purposes of appeal; avoids absurdity and accords with ordinance scheme |
| Whether the ZBA had appellate jurisdiction over a certificate of occupancy issued by the Code Enforcement Officer | Desfosses: ZBA may review CEO-issued certificates of occupancy where issuance depends on compliance with site-plan conditions | WWS: ZBA jurisdiction over certificates of occupancy is limited to "erroneous interpretation" by a Building Inspector and does not cover this dispute | Court: interprets ordinance to allow ZBA review of CEO-issued certificates of occupancy; the appeal challenging compliance with site-plan conditions is within ZBA jurisdiction |
| Whether Desfosses waived due process claims by not participating in initial site-plan proceedings | WWS: Desfosses waived rights by failing to object in the initial approval | Desfosses: challenge is to the amendment and to compliance, not to the original approval; she retains due-process protections | Court: rejects waiver; recognizes abutter’s protected property interest and entitlement to notice and opportunity to be heard |
Key Cases Cited
- Wister v. Town of Mt. Desert, 974 A.2d 903 (interpreting municipal board jurisdiction and ordinance construction)
- Mathews v. Eldridge, 424 U.S. 319 (establishing test for procedural due process)
- Salisbury v. Town of Bar Harbor, 788 A.2d 598 (certificate of occupancy is reviewable; limits on substituting certificate appeal for underlying permit appeal)