RICHARD TOMINSKY v. TOWN OF OGUNQUIT et al.
Docket: Yor-22-206
MAINE SUPREME JUDICIAL COURT
May 23, 2023
2023 ME 30
CONNORS, J.
Reporter of Decisions; Argued: January 12, 2023; Panel: STANFILL, C.J., and MEAD, JABAR, HORTON, CONNORS, and LAWRENCE, JJ.
[¶1] This is an appeal brought by Richard Tominsky pursuant to
I. BACKGROUND
[¶2] The LLC owns a parcel of property located at 477 Shore Road in Ogunquit. Between December 2020 and January 2021, the CEO issued six building permits to the LLC for construction relating to six single-family dwelling units. The permits allowed for renovations and width and height changes to four existing units and the demolition and rebuild of a “barn” into two separate units.
[¶3] Tominsky owns property abutting the LLC‘s parcel. When the permits were issued, Tominsky was living in Florida; he only learned of the project when he returned to Ogunquit in May 2021. Tominsky‘s counsel contacted the CEO on May 27, 2021, requesting information about the project but did not receive a response.
[¶4] In June 2021, having not received a response from the CEO, Tominsky filed a complaint in the Superior Court requesting an injunction, a writ of mandamus, and a declaratory judgment against the Town, the CEO, and the LLC. That matter was dismissed in early August 2021 because of Tominsky‘s failure to exhaust his administrative remedies. On August 8, 2021—roughly seven months after the CEO‘s issuance of the final building permit and three months after Tominsky learned of the project—Tominsky filed an administrative appeal with the Board requesting that
[¶5] The Board held a hearing on Tominsky‘s appeal on September 9, 2021, and, as a threshold matter, debated whether it could hear Tominsky‘s appeal given its untimeliness. The Ordinance provides that once the CEO has “render[ed] a written decision to a party, any aggrieved party may file an administrative . . . appeal within 30 calendar days of the date of the official, written decision.”
[¶6] After debate, the Board unanimously agreed to apply the exception to hear Tominsky‘s appeal on the merits.1 Its decision “was based, in part, on [Tominsky‘s counsel‘s] assertion that he received no response from the [CEO] to his May 27, 2021 request for information; and by the delay caused by . . . Tominsky‘s case in [the] Superior Court which he asserted he was forced to do because of the Town‘s lack of response.”
[¶7] In the same hearing, the Board addressed the merits of Tominsky‘s appeal. Tominsky raised multiple arguments, focusing primarily on the manner in which the permits were issued and whether the sections in the Ordinance concerning nonconformities were applicable. The CEO responded to each of Tominsky‘s arguments. The LLC was also permitted to address the Board and asserted, inter alia, that the Board could still decline to grant the good cause exception. Ultimately, the Board voted 4-1 to deny Tominsky‘s appeal on the merits and issued its written decision shortly thereafter.
[¶8] Tominsky timely appealed to the Superior Court (Tominsky I). See
[¶9] While Tominsky I was pending, the CEO issued a certificate of occupancy for one of the dwelling units. Tominsky appealed the issuance of the certificate to the Board. At a hearing held in December 2021, the Board had a “lengthy discussion regarding whether it had jurisdiction to hear the appeal, in light of the fact that it recently heard an appeal by the same appellant of the same building permit.” Citing Salisbury v. Town of Bar Harbor, 2002 ME 13, ¶ 14, 788 A.2d 598, the Board unanimously voted not to hear the appeal.
[¶10] Tominsky then filed a second complaint containing multiple counts against the Town and the LLC (Tominsky II).
[¶11] In June 2022, the court denied Tominsky‘s appeal in Tominsky I and dismissed his appeal in Tominsky II. Tominsky timely appealed both decisions, and we consolidated the two appeals for our review.
II. DISCUSSION
A. Although the complaints in Tominsky I and Tominsky II contain multiple counts, they each assert only an appeal pursuant to Rule 80B.
[¶12] The complaints in both actions originally contained multiple counts.2 As noted above, the Superior Court granted a motion to dismiss various counts in Tominsky I and treated the remaining count as an appeal pursuant to Rule 80B. In Tominsky II, the Superior Court disposed of all four counts in one order.
[¶13] It is unclear whether in the appeals to us Tominsky seeks to challenge the rejection of his complaints as containing anything but Rule 80B appeals. In any event, the exclusive avenue to challenge a municipality‘s adjudicative decision is a Rule 80B appeal unless that avenue is somehow inadequate or a statute provides otherwise. See Cayer v. Town of Madawaska, 2016 ME 143, ¶ 24, 148 A.3d 707; Fisher v. Dame, 433 A.2d 366, 372 (Me. 1981). Here, the only relief Tominsky seeks is that obtainable under Rule 80B. In addition, to the extent that Tominsky claims a violation of his procedural due process rights, the judicial review provided by Rule 80B bestows all the post-deprivation process that is due. Cf. Moreau v. Town of Turner, 661 A.2d 677, 680 (Me. 1995).
B. The appeal to the Board in Tominsky I was untimely.
1. If a municipal body grants the good cause exception and hears an untimely administrative appeal and subsequently rejects that appeal on the merits and the objecting party appeals the merits decision pursuant to Rule 80B, the party that has obtained municipal approval need not, and should not, file its own Rule 80B appeal or a cross-appeal pursuant to M.R. App. P. 2C(a) to challenge the application of the exception, but instead may argue in its briefs to the Superior Court and to this Court that the exception should not have been granted.
[¶14] The procedural posture of Tominsky I presents a question of first impression regarding what steps a party that has obtained municipal approval must take in a Rule 80B appeal of a municipal body‘s decision on the merits in order to preserve an argument that its opponent‘s administrative appeal was fatally tardy. Here, covering nearly all possibilities, the LLC raised the untimeliness argument in its
[¶15] We conclude that a party that has obtained municipal approval (e.g., the permittee) need not, and should not, file its own Rule 80B appeal to assert that the Board improperly granted a good cause exception. Rather, when an objecting party appeals a municipal body‘s ruling on the merits pursuant to Rule 80B, the permittee may raise the good cause issue in its brief. Similarly, if the Superior Court rejects the objecting party‘s appeal on the merits, the permittee need not file a cross-appeal should its opponent appeal to us. Rather, the permittee may, pursuant to
[¶16] A party lacks standing to appeal a judgment that grants the relief the party sought simply because the party would prefer to have the judgment rest on different reasoning.3 Hence, because the LLC prevailed on the merits before the Board, i.e., it obtained a determination that the building permits were valid, the LLC was not aggrieved and lacked standing to file an appeal. See Witham Fam. Ltd. P‘ship v. Town of Bar Harbor, 2011 ME 104, ¶¶ 7, 15-16, 30 A.3d 811; Brooks v. Town of N. Berwick, 1998 ME 146, ¶ 10, 712 A.2d 1050 (“Although [the abutter] might have preferred that the ZBA base its decision on the alternative rationale that the property was no longer grandfathered, he nonetheless received exactly what he asked for from the ZBA: an invalidation of the CEO‘s decision.“).
[¶17] The requirement that a party must have standing to appeal does not disappear when another party appeals first. A cross-appeal must meet the same justiciability requirements as an initial appeal. See Nat‘l Union Fire Ins. Co. v. West Lake Acad., 548 F.3d 8, 23 (1st Cir. 2008) (“A cross appeal is generally not proper to challenge a subsidiary finding or conclusion when the ultimate judgment is favorable to the party cross-appealing.“); Matter of Sims, 994 F.2d 210, 214 (5th Cir. 1993) (“A cross-appeal filed for the sole purpose of advancing additional arguments in support of a judgment is ‘worse than unnecessary‘, because it disrupts the briefing schedule, increases the number (and usually the length) of briefs, and tends to confuse the issues. Such arguments should, instead, be included in the appellee‘s answering brief.” (citation omitted)).
[¶18] This case is further complicated by the fact that whether a cross-appeal is necessary is normally determined by whether the argument that the cross-appellant seeks to advance would result in different relief than that granted by the judgment. See
[¶20] For these reasons, the LLC did not need to file a separate Rule 80B appeal.4 Nor did it need to file a cross-appeal to Tominsky‘s appeal. Raising the good cause issue as an alternative argument pursuant to
2. The meaning of the Ordinance‘s good cause exception is determined by the court de novo.
[¶21] There are two types of “good cause” exceptions to the deadline for filing an appeal to a municipal body. First, there is a judicially crafted exception: a deadline contained an ordinance or established by statute may be extended “when a court ‘finds special circumstances which would result in a flagrant miscarriage of justice.‘” Viles v. Town of Embden, 2006 ME 107, ¶ 8, 905 A.2d 298 (quoting Keating v. Zoning Bd. of Appeals, 325 A.2d 521, 524 (Me. 1974)). With respect to this judicially crafted exception, on appeal to us, we review the Superior Court‘s application and apply an abuse of discretion standard to the court‘s determination of the existence of good cause and a clearly erroneous standard to the court‘s factual findings. See id. ¶ 9.
[¶22] Second, as is the case here, a deadline may be extended pursuant to an applicable ordinance when a municipal entity finds good cause to hear an appeal that would otherwise be deemed late under the ordinance. In this context, the Superior Court acts in an intermediate appellate capacity, and we review directly the operative decision of the municipality. See Tomasino v. Town of Casco, 2020 ME 96, ¶ 5, 237 A.3d 175. As to the standard of review, language in Otis v. Town of Sebago, 645 A.2d 3, 5 (Me. 1994) suggests that we give deference to a board‘s determination whether the good cause exception has been met. More precisely, our standard of review for municipal adjudicative decisions is to give great deference to a board‘s findings of fact, i.e., to sustain the findings unless the evidence compels a contrary conclusion, see Tomasino, 2020 ME 96, ¶ 5, 237 A.3d 175, and to give no deference to a board‘s interpretation of an ordinance because such interpretation is a question of law that we review de novo, Jade Realty Corp. v. Town of Eliot, 2008 ME 80, ¶ 7, 946 A.2d 408; Gensheimer v. Town of Phippsburg, 2007 ME 85, ¶ 8, 926 A.2d 1168; Isis Dev., LLC v. Town of Wells, 2003 ME 149, ¶ 3, 836 A.2d 1285. As to mixed questions of law and fact, we afford
[¶23] Applying these principles here, we defer to the Board‘s fact finding regarding why the appeal was filed more than thirty days after the CEO‘s issuance of the permits. But whether those facts present “extraordinary circumstances . . . which would result in a flagrant miscarriage of justice unless the said 30-day time period is extended” is a question of law that we review de novo. See
3. Tominsky did not qualify for the Ordinance‘s good cause exception because a mistaken belief of law is not an “extraordinary circumstance” that would result in a “flagrant miscarriage of justice.”
[¶24] When interpreting a zoning ordinance, “we first evaluate the plain meaning of the Ordinance and, if the meaning is clear, we need not look beyond the words themselves. We construe the terms of an ordinance reasonably, considering its purposes and structure and to avoid absurd or illogical results.” Olson v. Town of Yarmouth, 2018 ME 27, ¶ 11, 179 A.3d 920 (alterations and quotation marks omitted). Here, we conclude that, given the purpose of the Ordinance provision and the choice of words mirroring our language in Keating, the Ordinance‘s good cause exception is intended to adopt the test we announced in Keating. It follows that our decisions interpreting the contours of the judicial test can be applied to the analogous Ordinance exception.
[¶25] “The need for a good cause exception primarily stems from the lack of notice of the issuance of the building permit to abutting landowners or other persons who may be aggrieved by its issuance.” Viles, 2006 ME 107, ¶ 12, 905 A.2d 298. “Therefore, when [a fact finder] examines whether the good cause exception is applicable to a situation, it starts with determining whether the appellant received notice of the issuance of the permit.” Id. ¶ 13. Importantly, “lack of notice is a key factor, but it is not a determinative factor. Another factor is the amount of time the appellant waited to file the appeal after obtaining actual knowledge of the permit.” Id. (citation omitted). Other factors may be relevant because “all the equities of the situation” should be considered in deciding whether to grant the exception. Id. ¶¶ 11, 13 (quotation marks omitted).
[¶26] The first question is whether Tominsky lacked notice. See id. ¶ 13. The building permits were issued between December 2020 and January 2021, but the Board found that Tominsky did not learn of the project until he returned to Ogunquit in May 2021 because he was living in
[¶27] After allowing for Tominsky‘s inaction owing to a lack of notice, there is no viable excuse for the eighty-one day delay that followed. The record reflects that Tominsky had actual knowledge of the project as early as May 19, 2021, yet he did not file his appeal with the Board until August 8. One of his stated reasons—that he did not receive a response to his counsel‘s May 27 letter to the CEO—is untethered to the lack of notice that can form a predicate to the application of the good cause exception. Indeed, regarding the CEO‘s lack of response, the letter sent to the CEO by Tominsky‘s counsel on May 27 states, “It seems to me that such a massive proposal should at least have gone to the ZBA . . . .” Although a municipal officer‘s failure to respond to a citizen inquiry is concerning, the CEO‘s lack of response did not prevent Tominsky from filing an administrative appeal with the Board. There is no prerequisite in the Ordinance that an appellant must speak with the CEO before filing an appeal.
[¶28] Even if the CEO‘s lack of a response could support a short delay after May 27, Tominsky did not file his appeal until August 8. See Wilgram v. Sedgwick, 592 A.2d 487, 488 (Me. 1991) (determining that the good cause exception could not save an abutter‘s untimely appeal that was filed seven months after the issuance of the building permit and seventy-six days after the abutter obtained actual notice of the project). The reason for Tominsky‘s further delay cited by the Board was Tominsky‘s decision to file a complaint in the Superior Court and waiting until that case was dismissed before appealing to the Board. But delay based on ignorance of the law cannot establish an extraordinary circumstance that would result in a flagrant miscarriage of justice. Cf. Alley v. Alley, 2004 ME 8, ¶¶ 1-2, 840 A.2d 107 (affirming the denial of relief under
[¶29] As we noted in Young, in determining whether excusable neglect exists, the standard is “strict,” and extensions of time “should be limited to extraordinary cases.” 441 A.2d at 321. The text of the Ordinance referencing the need for “extraordinary circumstances” underscores that the Ordinance exception does not excuse delay based on mistaken belief of the law.
[¶30] Nor was this even a mistaken belief as to a difficult issue of law. We have long required parties to exhaust their administrative remedies before turning to the courts for relief. See, e.g., Bryant v. Town of Camden, 2016 ME 27, ¶¶ 10, 12, 132 A.3d 1183; Town of Levant v. Seymour, 2004 ME 115, ¶ 13, 855 A.2d 1159; Ne. Occupational Exch., Inc. v. Bureau of Rehab., 473 A.2d 406, 408-09 (Me. 1984); Cushing v. Smith, 457 A.2d 816, 821 (Me. 1983); Levesque v. Town of Eliot, 448 A.2d 876, 878 (Me. 1982).
[¶31] In sum, the Board misapprehended the scope of the good cause exception, and the exception does not apply to the factual predicate reflected in the Board‘s findings as to the cause of Tominsky‘s delay in appealing.6
[¶32] Finally, Tominsky challenges the dismissal of his appeal in Tominsky II. But Salisbury, 2002 ME 13, 788 A.2d 598, is directly on point. There, we stated:
An appeal of a certificate of occupancy may not, however, substitute for an appeal of the underlying permit. If the permittee has complied with the terms of a valid permit, an abutter may not challenge the issuance of the certificate of occupancy based on a defect in the permit. If, however, the permittee has meaningfully exceeded the authority contained in the permit, or otherwise violated conditions of the permit, the issuance of the certificate of occupancy may be challenged.
Id. ¶ 14 (citation omitted).
[¶33] Tominsky does not allege that the LLC failed to comply with the permits; rather, he seeks to reassert arguments raised in Tominsky I that the permits should not have been issued. Thus,
III. CONCLUSION
[¶34] For the reasons given above, the appeal in Tominsky I before the Board was untimely, and the appeal in Tominsky II failed to allege a viable claim for relief.
The entry is:
The judgment in Tominsky I, AP-21-023, is vacated. The matter is remanded to the Superior Court for entry of a judgment vacating the Board‘s decision and remanding the matter to the Board with instructions to the Board to dismiss the matter for want of jurisdiction. The judgment in Tominsky II, AP-22-002, is affirmed.
William A. Hahn, Esq. (orally), Hahn & Matkov, Boston, for appellant Richard Tominsky
Mary E. Costigan, Esq., and Zachary B. Brandwein, Esq. (orally), Bernstein Shur, Portland, for appellee Town of Ogunquit
Matthew J. Williams, Esq. (orally), Hodson & Ayer, Kennebunk, for appellee 477 Shore Road LLC
York County Superior Court docket numbers AP-2021-023 & AP-2022-002
FOR CLERK REFERENCE ONLY