STATE OF MAINE, SUPERIOR COURT
Civil Action, Docket No.
CV-91-19
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ORDER
THE INHABITANTS OF THE TOWN
OF _______________, Plaintiff
Vs.
ZONING BOARD OF THE TOWN
OF ______________, Defendant
By agreement of Counsel, the Court treats the Defendant's Motion to Dismiss as a Motion for Summary Judgment pursuant to Rule 12(c) Maine Rules of Civil Procedure and, for the reasons stated on the record, grants the motion.
The entry is:
Defendant's Motion for Summary Judgment GRANTED.
Dated: May 7, 1991
________________________
Justice, Superior Court
STATE OF MAINE, SUPERIOR COURT
CIVIL ACTION
DOCKET NO. ____
MEMORANDUM IN SUPPORT OF MOTION TO DISMISS
THE INHABITANTS OF THE
TOWN OF ______________,
Plaintiff *
Vs.
ZONING BOARD OF THE
TOWN OF_______________,
Defendant
I. THE NEED FOR PROMPT RESOLUTION OF THE ISSUES PRESENTED.
The principal conflict of interest issue presented in this case is whether the personal interest between husband and wife is sufficient to disqualify where one spouse is on the Planning Board and the other is on the Board of Appeals. The problem is exacerbated in the present instance by the fact that most of the appeals heard by the Town's Board of Appeals emanate from the Planning Board. Because of the uncertainty as to whether two of its members must be disqualified in such cases, the Board of Appeals has temporarily put all appeals on hold until this issue can be resolved. Because of the urgency of getting the conflict interest issue resolved, defendant has not raised certain other procedural issues concerning the manner in which this Rule 80B appeal has been presented.
II. A SPOUSAL RELATIONSHIP CONSTITUTES A PERSONAL INTEREST SUFFICIENT TO DISQUALIFY A BOARD MEMBER FROM PARTICIPATING IN AN APPEAL.
Article V, §C of the Town's Land Use Ordinance which is quoted in the complaint states that no Board member shall vote on a matter "in which he has direct or indirect financial or personal interest." (Emphasis added). It is difficult to imagine a more direct personal interest than that between husband and wife. Human nature being what it is, it would be unusual if one spouse were not inclined to defend the judgment of the other when the rationality of that decision is being challenged.* Moreover, it is easy for board members whose decision has been appealed to become ego-involved in the outcome. A board of appeals member who voted to overturn a decision in which his or her spouse had participated might expect to generate hard feelings at home.
This reading of the Town's ordinance regarding conflicts of interest is consistent with state law. 1 M.R.S.A. §71(6) provides that:
When a person is required to be disinterested or indifferent in a matter in which others are interested, a relationship by consanguinity or affinity within the 6th degree according to civil law, within the degree of 2nd cousins inclusive, except by written consent of the parties, will disqualify.
* It is therefore not surprising that Mrs. ________ frequently defended the decisions of the Planning Board of which her husband was Chairman when they came up for review by the Board of Appeals. See affidavit of ___________.[name not to be disclosed]
"Affinity" is defined as "relationship by marriage." Webster's New Collegiate Dictionary (1980). It is therefore clear that the legislature considered that the relationship of marriage be sufficient to cause a person to be "interested" and therefore disqualified from participating in a matter in which he or she is required to be disinterested.
The statutes also admonish the members of municipal boards such as boards of appeal to govern their affairs so as to avoid, where possible, even the appearance of a conflict of interest. 30-A M.R.S.A. §2605 (6) provides that:
Every municipal . . . official shall attempt to avoid the appearance of a conflict of interest by disclosure or by abstention.
The statutory sub-section which follows authorizes municipalities to adopt rules governing the conduct of elected and appointed officials. Article V, §C of the Town's Land Use Ordinance would seem to be just such a regulation. Surely nothing could weaken public confidence in the judgments of an appellate board more effectively than if members of the board were asked to second guess decisions in which their spouses had actively participated.
Finally the court should defer in the construction of an ordinance to the local authorities charged with its administration. It has been stated that:
In passing upon the meaning of a zoning ordinance, the courts will consider and give weight to the construction of the ordinances by those administering the ordinance. 82 Am. Jur.2d 495.
This reliance upon local authorities to interpret their own ordinances is consistent with state law. 30-A M.R.S.A. §2691(2)(C) states that:
Any question of whether a particular issue involves a conflict of interest sufficient to disqualify a member from voting on that issue shall be decided by a majority vote of the members, excluding the member who is being challenged.
There is no reason to question the judgment of the Town's Board of Appeals in exercising its statutory authority to interpret its own ordinance provisions regarding conflicts of interest or its conclusion that an interest arising out of a spousal relationship constitutes a "personal interest" within the meaning of the Town's Land Use Ordinance.
III. THE BOARD OF APPEALS FOLLOWED THE PROPER PROCEDURE FOR RESOLVING THE CONFLICT OF INTEREST QUESTIONS.
Under both §2691(2)(C) quoted above and the Town's ordinance, conflict of interest questions are to be resolved by majority vote of the Board of Appeals excluding the member whose participation is being questioned. In other words, the Board itself is given discretion to resolve who should participate in its proceedings in order to make them credible to the public and the affected parties. A court should be slow to find that a local board had abused its discretion in making judgments of this kind. In the case at bar, the Board correctly followed the procedure set forth by both the ordinance and the statute. This Court should therefore reject the challenge to its decision reversing the Planning Board's denial of the building permit.
DATED: March 27, 1991 Respectfully submitted,
Attorney for Defendant
[Newspaper accounts indicated a sexist analysis on the judge's part in deciding this case.]