Appeals
(from MMA's Handbook for Local Appeals Boards: A Legal Perspective, August 1989)
prepared by Rebecca Warren Seel, Senior Staff Attorney

This Maine Municipal Association publication is presented for "Classroom Use Only."  Its intended use is to stimulate and aid in discussion and role playing within a classroom setting.

Chapters II through VII

Jurisdiction of the Appeals Board

In the absence of a State statute or local ordinance expressly stating that a decision may be appealed to a local board of appeals, the board of appeals has no "jurisdiction" (legal authority) to hear such an appeal. Fisher v. Dame, supra; Lakes Environmental Association v. Town of Naples, 486 A.2d 91, 95 (Me. 1984). Where no local appeal is authorized, a person's only appeal (if any) is to the Superior Court under Civil Rule of Procedure 80B. 30-A M.R.S.A. § 2691; Lyons v. Board of Directors of SAD No. 43, 503 A.2d 233 (Me.1986); Levesque v. Inhabitants of Town of Eliot, 448 A.2d 876 (Me. 1982).

There are three statutory provisions which automatically give jurisdiction to the appeals board over certain types of appeals. Title 30-A, section 4353 authorizes the appeals board to hear and decide administrative appeals, interpretation appeals, and requests for variances filed in connection with decisions made under a zoning or shoreland zoning ordinance. That section also authorizes the board to grant special exception or conditional use permits in strict compliance with the ordinance, except where the planning board has been authorized by ordinance to act; in that case, the board of appeals is authorized to hear appeals from such decisions unless the ordinance requires appeals to go directly to Superior Court.

Title 30-A, section 2691(4) grants automatic jurisdiction to appeals boards over appeals filed under the State law relating to special amusement permits (28-A M.R.S.A. § 1054). A special amusement permit is required from the municipal officers before any licensed liquor establishment can offer "entertainment" as defined in that law. Municipalities are required to have ordinances or regulations spelling out the conditions which an applicant must meet in order to obtain such a permit. (See Appendix A)

Title 7, section 44 automatically authorizes zoning boards of appeal to hear 1) appeals from decisions made under the Farmland Registration Law by local officials and 2) challenges to the eligibility of a parcel of land to be registered under that law.

Unless an appeal falls within one of these statutory categories, the appeals board must look for a local ordinance or charter provision providing the legal basis for any other type of appeal filed with the board before the board may legally act. Title 30-A section 2691 (4) specifically states that once a municipality has established an appeals board, it

may give the board the power to hear any appeal by any person, affected directly or indirectly, from any decision, order, regulation or failure to act of any officer, board, agency or other body when an appeal is necessary, proper or required. No board may assert jurisdiction over any matter unless the municipality has by charter or ordinance specified the precise subject matter that may be appealed to the board and the official or officials whose action or nonfiction may be appealed to the board. (emphasis added)

A number of State laws indicate subject areas in which the appeals board may be authorized to act, such as building codes (30 M.R.S.A. § 2151) and tax assessment appeals (30-A M.R.S.A. § 2426(6)). These laws do not automatically give the board jurisdiction. They require an ordinance or charter provision to implement them. Likewise, if a municipality wants to provide a local appeal under any type of "home rule" ordinance other than zoning (e.g., site plan review, subdivision, building code), it must be sure to include an express appeal provision giving authority to the appeals board which complies with 30-A M.R.S.A. § 2691(4). Sample ordinance provisions are contained in Appendix A of this handbook.

The Decision-Making Process

The discussion which follows should be used by the appeals board as a general guide in dealing with the applications which it must review. However, there may be provisions in a local ordinance which conflict with these general rules and which would control the board's decision in most cases. If the board is faced with such a conflict, it should consult with the board's attorney to resolve it. For decisions involving an appeal or variance, the board also should refer to the discussions in Chapter IV and V.

Forms

An important first step in establishing good decision-making procedures is the development of good application forms. The forms should let the applicant know exactly what information the board wants and should require the applicant to sign the form once completed. Sample forms are included in Appendix B. Others may be available from the regional planning agency serving the area or from neighboring communities who have developed good systems of their own. Before using sample or borrowed forms, the board must review them carefully to be sure that they will fit the board's needs and be consistent with the town's or city's ordinances.

Standing to Apply for a Permit

If the ordinance under which an application for a permit or other approval is being submitted does not state who has a sufficient legal interest in the property in question (i.e., "standing") to apply for approval to conduct a project, the Maine Supreme Court has ruled that the applicant must be a person who has some "right, title or interest" in the property. Walsh v. City of Brewer, 315 A.2d 200 (Me. 1974); Murray v. Inhabitants of the Town of Lincolnville, 462 A.2d 40 (Me. 1983). This would include a written option or contract to purchase the property or a leasehold interest. The board should reject an application if it determines that the applicant does not have standing to apply. The burden is on the applicant to present evidence sufficient to satisfy the board, such as a copy of the property deed, written lease, or written option agreement. If the person filing the application is acting as the authorized agent of the owner, that person should give the board a written letter of authorization signed by the owner. This "standing" test governs people who are seeking approval of an application for a permit, conditional use, or variance from whoever has the initial authority to grant such a request. The courts have established a different "standing" test for people who want to appeal such a decision. That test is discussed in Chapter IV.

Right to Know Law

General. Under the Right to Know Law (see Appendix A), the public has a right to be present any time the board or a subcommittee of the board meets, even if the meeting is just a "workshop" or a "strategy meeting." Any meeting of a majority of the board members at which the members will discuss official business or vote must be preceded by public notice. This law also gives the public the right to tape, film and take notes of the meeting, as long as it is done in a non-disruptive manner. It does not guarantee the public a right to speak. The right to speak is guaranteed only where a meeting has been advertised as a public hearing, absent a local ordinance or bylaw to the contrary.

If a majority of the board is going to visit the site of a proposed project or appeal, the board should be aware that such on-site meetings are meetings which must be preceded by public notice and at which the public has a right to be present under the Right to Know Law. Site visits conducted by individual board members or by a subcommittee comprised of only two members (where two represents less than a majority of the full board) would not be subject to the public notice requirements of the law.

Notice. The Right to Know Law itself does not require that an agenda be posted and does not specify the form or amount of the notice which must be used to publicize the meeting. The law does require notice of non-emergency meetings to be given in a manner reasonably calculated to reach most of the people in the community far enough in advance of the meeting to allow the public to make plans to attend. For most larger communities, this may mean newspaper notice of some sort about a week before the meeting. If the meeting is an emergency meeting, the Right to Know Law requires the board to notify the press. If the meeting in question is a regular board meeting and notice of the board's regular meeting schedule was given in the annual town report, such notice might be enough for the purposes of the Right to Know Law in some towns. However, it probably would be safer to post a notice in a public place, such as the town office, and leave it up indefinitely.

Executive Sessions. The only exception to the rule that meetings are open to the public is if the board wants to consult with its lawyer "concerning the legal rights and duties of the (board), pending or contemplated litigation, settlement offers, and matters where (the attorney/client privilege between the board and its lawyer would be jeopardized) or where premature public knowledge would clearly place the municipality at a substantial disadvantage." To fall within this exception, the board's attorney should be at the meeting. In that case, the Right to Know Law allows the board to conduct its discussion in an "executive session," provided that it takes the vote to go into executive session in a public meeting and follows the procedures in Section 405, and further provided that it does not make any final decisions in executive session.

Common Violations. Practices which violate the Right to Know Law include the following:

1) polling board members by telephone to vote on an application or to discuss it;

2) taking an application house-to-house to have it approved or leaving it at the town office for board members to approve and sign;

3) chance meetings of a majority of the board at the grocery store or a private party at which those members discuss an application.

4) making decisions in a "closed door" meeting or excluding the public when not authorized by law.

Conflict of Interest. A board member who has a direct or indirect pecuniary (financial) interest in any question on which he or she must decide in an official capacity must make full disclosure of that interest on the record and must abstain from voting or attempting to influence a decision in his or her capacity as a board member. This section discusses what is legally called a "conflict of interest." It is a different type of "conflict" from the "incompatibility of office" rule discussion, page 9.

There are two tests of what constitutes a conflict of interest. One is established by statute in Title 30-A, Section 2605. The statutory test applies only to a board member who 1) is an "officer, director, partner, associate, employee or stockholder of a private corporation, business or other economic entity" which is making the application to the board and 2) is "directly or indirectly the owner of at least 10% of the stock of the private corporation or owns at least a 10% interest in the business or other economic entity." If a board member falls into one of the relationships listed in category 1 but does not have the 10% interest covered by category 2, then that board member does not have a legal conflict of interest.

For a board member whose conflict of interest is not governed by Title 30-A (because that board member does not fall within category 1 as discussed in the preceding paragraph), then there is a common law (caselaw) standard defining activity which may constitute a conflict of interest. That standard is "whether the town official by reason of his interest, is placed in a situation of temptation to serve his own personal pecuniary interest to the prejudice of the interests of those for whom the law authorized and required him to act..."Lesieur v. Inhabitants of Rumford, 113 Me. 317 (1915), as cited in Tuscan v. Smith, 130 Me. 36 (1931)

Under the statutory test, if a board member were an employee of a company which had an appeal application before the board, there would be no legal conflict of interest requiring that board member to abstain unless he or she also had a 10% stock or ownership interest in that company. An example of an indirect conflict of interest controlled by the statute is where a board member owned a company which owned 10% of the stock of a private corporation which was making an application to the board. Under the caselaw test, a board member who is also the applicant would have a conflict of interest. A court probably would find that a board member also had a conflict of interest under that test where the board member was a real estate agent trying to sell the property which was covered by the application and his or her commission on the sale hinged on whether the board granted approval of the appeal. Likewise, if the board member is a secured creditor of the applicant whose security interest will be affected by the board's decision on the application or an abutting property owner whose property value will be affected by the board's action, a court might find that the board member has a common law conflict of interest. If someone from a board member's family who lives with that board member and contributes to household expenses is employed by the person applying to the board for a permit, a court might find that a common law conflict of interest exists if approval or denial of the application will directly affect that family member's job. See Hughes v. Black, 156 Me. 69, 160 A.2d 113 (1960).

If a board member who has a legal conflict of interest fails to abstain from the discussion and from the vote and fails to note the nature of his or her interest in the record of the meeting, a court could declare the board's vote void if someone challenged it. (This record must be permanently recorded with the town or city clerk.) Even if no legal conflict of interest exists, a board member would be well advised to avoid even the appearance of a conflict in order to avoid the appearance of impropriety and maintain the public's confidence in the board's work. Aldom v. Roseland, 42 NJ Super. 495, 127 A.2d 190 (1956); 30-A M.R.S.A § 2605.

It should be noted here that a municipality may define what constitutes a conflict of interest by including such a provision in a local ordinance. Even without such an ordinance provision, a board of appeals has authority under 30-A M.R.S.A. § 2691 to decide whether one of its members has a legal conflict of interest. Such a decision can be made either at the request of the affected board member or on the initiative of the rest of the board.

Bias. Title 1, section 71(6) of the Maine statutes states that a board member must disqualify himself or herself if a situation requires that board member to be disinterested or indifferent and the board member must make a decision which involves a person to whom the board member is related by blood or marriage within the 6th degree (parents, grandparents, great-grandparents, great-great grandparents, brothers, sisters, children, grandchildren, great-grandchildren, aunts, uncles, great aunts/uncles, great-grand aunts/uncles, first cousins, first cousins once removed, first cousins twice removed, second cousins, nephews, nieces, grand-nephews/nieces, great grand nephews/nieces). Various court decisions also have established a rule requiring a board member to abstain from the discussion and the vote if that board member is so biased against the applicant or the project that he or she could not make an impartial decision, thereby depriving the applicant of his or her due process right to a fair and objective hearing. Gashgai v. The Board of Registration In Medicine, 390 A.2d 1080 (Me. 1978).

The burden of proving bias is on the applicant. In Re Maine Clean Fuels, Inc., 310 A.2d 736 (Me. 1973). If a board member reaches a conclusion based on the application and expresses that opinion to the press before the board has voted, a court probably would not find that the board member was biased against the project. However, if, for example, the applicant could show 1) that the board member had a personal grudge against him because they were involved in a lawsuit relating to another matter or 2) that the board member in question had repeatedly stated in public that he personally found all projects of that type to be offensive and had stated furthermore that there was no way that he (the board member) would ever vote to approve any project of that type, a court probably would view the board member as biased.

Sometimes board members want to collect information to help the board make its decision rather than relying on information presented by the applicant or other parties. Such a practice could be viewed as evidence of bias on the part of that board member, so probably should be avoided except where publicly authorized by a vote of the board. If a board member does engage in such conduct, he or she should be sure that it is done in an objective way and that any information collected is entered into the board's record. The board should provide an opportunity for the applicant or other members of the public to respond. 18 A.L.R.2d 562.

As with conflict of interest, a municipality may attempt to define what constitutes bias through a provision in a local ordinance. In the absence of an ordinance, the board arguably has the authority to decide.

Scheduling a Meeting. When the board receives an application, the board chairperson should set up a public meeting at which the applicant can present his or her application and discuss it with the board. If the board does not meet on a regular basis or if the board's next regular meeting will not fall within a specific decision-making deadline established in the board's bylaws or in the ordinance or statute which requires the board to review the application, then the chairperson should arrange a special meeting within a reasonable time. Notice of the meeting time and place should be given to the applicant and to any other people (such as abutters) whom the board may be required to notify by the relevant statute, ordinance or bylaws of the board. The board also should give reasonable notice to the public and press, as required by the Right to Know Law, or other relevant ordinance or State law.

Preliminary Business. The chairperson presides over all meetings of the board. He or she first calls the meeting to order and then determines whether a quorum is present to do business. Generally, a majority of the board constitutes a quorum, unless a local ordinance establishes a different quorum requirement. 1 MRSA § 71(3). A member who must abstain due to a conflict of interest may not be counted in determining whether a quorum is present. Corpus Juris Secundum, "Parliamentary Law," § 6. If a quorum exists, and the application involves an appeal, the chairperson then should indicate whether the appellant has filed the appeal within the required deadline. The chairperson also should indicate whether required notices of the meeting have been given. (See Chapter IV) If so, then the chairperson should summarize for those present the nature of the application and any documents submitted in support of or in opposition to the application. He or she also should indicate to the board which provisions of the applicable ordinance or statute give the board jurisdiction over the application. The chairperson should advise the board members that if any of them has a direct or indirect pecuniary interest in the subject matter of the application, that member must make his or her interest known in the minutes of the meeting and must abstain from participating in any discussion and the vote taken in relation to that application. Otherwise, if someone challenged the board's decision in court, the court could void the decision. 30-A M.R.S.A. § 2605.

If the board decides that it does have authority to review the application, it also must decide whether the applicant has "standing" to apply or to appeal (depending on the type of application) and whether the applicant has met other preliminary requirements, such as paying any necessary application fee. If the board decides that the applicant has met these kinds of requirements, then it can proceed with its review. Should the board determine that it does not have jurisdiction, that the application was not "timely," or that the applicant lacks standing, the board should deny the application, expressly stating the reasons. If the deficiency is of less critical nature, such as failure to pay the fee, the board can table action and give the applicant a reasonable time to comply.

Procedure. At this point the chairperson should explain the rules of procedure which the board must follow during its meeting and the extent to which public comments and questions will be allowed. The chairperson, using the procedures adopted by the board, regulates the conduct of the meeting— recognizing members of the board and audience who want to speak, entertaining motions, ruling on the relevance of questions asked, and otherwise keeping the meeting in order if tempers start to flare, even to the extent of having an unruly person removed by a law enforcement officer. The Maine Supreme Court has recognized that boards generally have the inherent authority to adopt their own rules of procedure. E.g., Jackson v. Town of Kennebunk, 530 A.2d 717 (Me.1987). Sample procedures and introductory remarks by the chairperson are included in Appendix A of this handbook, as well as a copy of 30-A M.R.S.A. §2691(3). One issue which the board should be sure to address in its rules of procedure is the effect of a tie vote.

Public Participation. If the meeting has not been advertised as a "public hearing," members of the general public may attend and listen but have no statutory right to ask questions or to comment verbally under the Right to Know Law. (The law also allows the public to take notes, tape record, film, or make similar records of the meeting as long as it is not disruptive of the proceedings.) However, the board may have bylaws which require that the public be given at least a limited opportunity to speak at any board meeting. If the bylaws contain no express provision requiring public comment, it still may be to the board's benefit to allow a reasonable amount of relevant comment and questions from the public, despite the fact that a particular meeting has not been advertised as a "public hearing," in order to maintain good public relations and ensure that the board has the information it needs to make a sound decision. Applications involving an appeal or variance must be the subject of a public hearing before a decision is made, either because of an express requirement in a local ordinance or by inference from the language of 30-A M.R.S.A. [2691. Where an application involves a request for a conditional use or special exception, many ordinances leave it to the board to decide whether to call a public hearing. Where a zoning appeal or variance is involved, 30-A M.R.S.A. § 4353 requires the board to give direct notice of the hearing date to the appellant, municipal officers, and planning board. Local ordinances often require special notice to abutters and sometimes indicate how notice to the general public must be given.

If the board's bylaws do not indicate the sequence in which the chairperson should recognize speakers, the chairperson could use the following as a "rule of thumb:"

· presentation by applicant and his/her attorney and witnesses, without interruption

· questions through the chairperson to the applicant by board members and people who will be directly affected by the project (ex., abutters) and requests for more detailed information on the evidence presented by the applicant

· questions by the board through the chairperson to the people directly affected and the experts who made presentations

· questions by the applicant or his/her attorney directly to the people who made presentations (See In Re: Maine Clean Fuels, /nc., 310 A.2d 736 (Me.1973)).

· rebuttal statements by any of people who testified previously

· comments by other interested people in the audience

Once everyone has had an opportunity to be heard to the extent allowed by the board's procedures, the chairperson should close the hearing. If more time is needed, the board may vote to continue the hearing to a later date.

Tabling Action on the Application. Although the board should avoid unreasonable delays in making a decision and should not "string the applicant along," the board should not feel pressured into making a decision at the first meeting, if not required to do so by a deadline in the applicable ordinance or statute or its bylaws, unless the matter involved is routine. This is especially true where the meeting has been very emotional because of a controversial proposal. The board should temporarily table further action on the application to allow the board to visit the site of the proposed project and double check the information presented by the applicant verbally or in writing, including the applicant's interest in the property. The board members should consider seeking technical advice from its regional planning commission or from a State agency and legal advice from the municipality's private lawyer or from Maine Municipal Association (if the municipality belongs to MMA), particularly if the applicant is represented by a lawyer. If the board anticipates that the application will be controversial and that the board's decision ultimately will be challenged in court, it should consider having its professional planning and legal advisers present at future meetings at which the application is discussed. If this is not possible, the board should remain in close contact with its advisers until it has made a decision.

Minutes and Record of the Meeting. It is very important that the board's secretary take reasonably complete and accurate minutes of when and where the meeting occurred, who was present, the subject of the application, what was said by whom, what votes were taken, and any agreements made regarding procedures or other issues at a board meeting. 30-A M.R.S.A. § 2691. The minutes, any documents submitted by the applicant or others (such as the application, a report from a professional engineer, a letter from an abutter plans, maps, photographs, or diagrams), and the board's findings of fact and conclusions regarding whether the applicant has complied with the statute or ordinance in question will comprise the "record" for that case. Any information in whatever form which is presented to the board as a basis for the board's decision must be entered into the official record. Tape recording the meeting is not legally required, but is strongly recommended. Most judges find a high quality tape to be indispensable in deciding an appeal. Judges also find it easier to determine the nature and order of documents entered into the board's record when the board has marked those documents (for example, Applicant's Exhibit #1).

Checklist for Reviewing Evidence. Before the board decides whether to approve or deny the application, it should ask itself the following questions:

· Does the board still believe that it has authority to make a decision on the application under the ordinance or statute?

· Has the applicant submitted adequate evidence of his standing to apply?

· Has the applicant met other preliminary requirements, such as fee payment or a deadline for appeal?

· What does the ordinance/statute require the applicant to prove?

· Does the ordinance/statute prohibit or limit the type of use being proposed?

· What factors must the board consider under the ordinance/statute in deciding whether to approve the application?

· Has the applicant met his or her burden of proof, i.e., has the applicant presented all the evidence which the board needs to determine whether the project will comply with every applicable requirement of the ordinance/statute? Is that evidence substantial? Is it outweighed by conflicting evidence?

· To what extent does the ordinance/statute authorize the board to impose conditions on its approval?

Basis for the Board's Decision. Once the board has determined the scope of its authority and the applicant's burden of proof, it must determine whether there is sufficient evidence to support a decision to approve the application by comparing the information in the record to the requirements of the ordinance/statute.

The board should not base its decision merely on the amount of public opposition or support displayed for the application or appeal. Nor should its decision be based on the members' general opinion that the proposal would be "good" or "bad" for the community. Its decision must be based solely on whether the applicant has met his or her burden of proof and complied with the provisions of the statute/ordinance. Bruk v. Town of Georgetown, 436 A.2d 894 (Me. 1981). For example, it cannot deny an application because the proposed use would violate a private deed restriction if the use otherwise would be in compliance with the applicable ordinance/statute. Whiting v. Seavey, 188 A.2d 276 (Me. 1963).

The board members should not allow themselves to be influenced by information provided to them outside an official board meeting (i.e., an "ex parse communication") unless the information (and its source) is included in the board's record and all parties to the proceeding and the public receive notice of the additional information and are given an opportunity to respond to it. This rule applies whether the "ex parse communication" is from the applicant, a member of the public, or a government employee or official.

If the board does not believe that the applicant's project meets the requirements of the ordinance/statute based on the evidence in the record, the board should deny the application. The board may base its decision on non-expert testimony in the record if it finds that testimony to be more credible than expert testimony presented on the same issue. Mack v. Municipal Officers of Town of Cape Elizabeth, 463 A.2d 717 (Me. 1983).

Nature of the Record. The nature of the "record" used by the board to determine whether the application or appeal complies with the requirements of the ordinance/statute will differ based on 1) whether the decision which the appeals board must make involves an application for approval submitted directly to the board (such as a variance or conditional use application) or an appeal from a decision by some other board or official and 2) whether the applicable local ordinance indicates whether the board creates its own record or relies on the record created by the board or official whose decision is being appealed.

According to 30-A M.R.S.A. § 2961, when an application which the board must decide comes before the board as an "appeal," section 2691 requires the board to conduct a "de nova" proceeding. This means that the appeals board creates its own record based on information provided directly to it at its hearing and then compares this record to the application (for example, a request for a variance or a conditional use, where the board is authorized to make conditional use/special exception decisions directly) or the appeal. Title 30-A, section 4353 generally characterizes administrative appeals, variances, interpretation appeals, and conditional uses/special exceptions as "appeals" when heard by the appeals board. However, it is possible that a local ordinance might not treat some of these as appeals, particularly conditional use/special exception applications which are filed directly with the board. Consequently, the board should check the exact language and format of the ordinance to determine how an application is categorized. Another reason to check the language of the ordinance is that it may state that, even if the board is being asked to review an "appeal," the board's decision is supposed to be based on the record created by the board or official whose decision is being appealed and that the board is not supposed to conduct a "de novo" proceeding. (See sample language in Appendix A).

Approval and Form of Decision. A majority vote of the entire board is needed to approve or deny an application, in the absence of an ordinance provision authorizing "a majority of those present and voting" to take action.1 M.R.S.A. §71(3). Warren v. Waterville Urban Renewal Authority, 161 Me. 160 (1965). If a motion results in a tie vote, the board has failed to act and another vote should be taken to try to get a definitive decision. Quinney v. Lambert, No. CV-84-435 (Me. Super. Ct., Yor. Cty., July 8, 1985). If the tie cannot be broken, it has the same effect as a vote to defeat the motion. See generally, Marchi v. Town of Scarborough, 411 A.2d 1071 (Me. 1986). As previously noted, the effect of a tie vote should be spelled out in the board's rules of procedures to avoid confusion.

When taking a final vote, the board should prepare a written statement of the "findings of fact" which appear in the written record and a written explanation of the "conclusions of law" which it has drawn about whether the facts show that the project is in compliance with the ordinance/statute.

"Findings of fact" are statements by the board summarizing all the basic facts involved in a particular application. Such a summary of facts would include the name of the applicant and his/her relationship to the property, location of the property, basic description of the project, key elements of the proposal (lot size, setback, frontage, and other items which relate directly to the dimensional requirements or performance standards in the ordinance), evidence submitted by the applicant beyond what is shown on the plan, evidence submitted by people other than the applicant either for or against the project, and evidence which the board enters into the record based on the personal knowledge of its members or experts which the board has retained on its own behalf.

"Conclusions of law" are statements linking the specific facts covered in the findings of fact to the specific list of criteria in an ordinance or statute which the applicant must meet in order to receive the board's approval. For example, a conclusion of law pertaining to the "undue hardship" test for a variance would be: "We conclude that the applicant will not be able to realize a reasonable return on his investment without a variance from the required side and front setbacks. Testimony from his appraiser and from a local realtor indicate that a house of only 10 feet x 20 feet could be built on the lot without a variance. Such a house would not sell in that neighborhood and would have a value of 1/5 of what the applicant paid for the land alone. Such a house also would not meet the requirements of section 206 of the town's Housing Code. Only single family residences are allowed in this district under section 105 of the Zoning Ordinance. "

The Maine "Right to Know" law requires findings to be prepared in cases where an application is being denied or approved on condition (1 M.R.S.A. §407). Rule 80B(e) of the Maine Rules of Civil Procedure, which governs appeals from a local board's decision which are filed in Superior Court, indicates that as part of the record which the court will be reviewing, the court wants to see the board summarize its findings of fact and conclusions of law. See P.H. Chadbourne & Co. v. Inhabitants of the Town of Bethel, 452 A.2d 400 (Me.1982); Harrington v. Town of Kennebunk, 459 A.2d 557 (Me. 1983). The practical purpose behind preparing findings and conclusions is that it helps the board ensure that it has considered all the review criteria and that sufficient evidence has been submitted to support a positive finding on each. Another purpose is to provide a written statement of the reason for the board's decision which is detailed enough to enable the applicant or anyone else who is interested 1) to judge whether they agree or disagree with the board and 2) to decide whether there are sufficient grounds on which to appeal the decision. Probably the most important purpose is to provide a clear statement for the Superior Court of the facts which were submitted for the board's consideration and the facts on which the board relied in concluding that the review standards were/were not met by the applicant. This is particularly important where the board must choose between conflicting evidence which has been introduced to prove that a particular standard has/has not been met. If the board's decision fails to summarize findings of fact and conclusions, it is possible that the court would order the case remanded to the board for the preparation of findings and conclusions before reaching a decision. Driscoll v. Gheewalla, 441 A.2d 1023 (Me.1982); Harrington v. Town of Kennebunk, 459 A.2d 557 (Me.1983). The "standard of review" which governs the Superior Court in deciding whether to uphold the board's decision is the "substantial evidence in the record" test, i.e., is there sufficient credible evidence in the record of the case to support the board's decision. The court also will determine whether the board applied the proper law and whether the board applied that law correctly or acted arbitrarily or capriciously. Curtis v. Main, 482 A.2d 1253 (Me. 1984).

Several examples of findings and conclusions are included in Appendix B. Although the court generally wants to see a board prepare findings and conclusions, there are several Maine Supreme Court cases in which the court upheld a local board's decision even though it prepared only conclusions. Bruk v. Town of Georgetown, 436 A.2d 894 (Me. 1981); Mack v. Municipal Officers of Town of Cape Elizabeth, 463 A.2d 717 (Me. 1983). To avoid the possibility of a remand, it is advisable for the board to prepare both findings and conclusions. It is important for the board to address each standard of review in reaching its decision in case the decision is appealed and the court disagrees with some of the board's conclusions.

Recommended Procedure. A recommended procedure for preparing formal findings and conclusions is as follows: the board should use the ordinance (or statute) and the application form as a checklist. The board's chairperson should go down the list and summarize the basic facts which will comprise the. "findings of fact," inviting other board members to comment if he/she misses any facts. For example where a zoning ordinance treats a residential subdivision as a conditional use requiring appeals board approval: "The Board finds the following facts: 1) John Jones is the owner of 15 acres of land shown as Map 3, lot 5 on the Town Tax Maps. 2) He intends to divide the parcel into 3 lots of 5 acres each for development of single family homes. The town's minimum lot size is 1 acre. 3) The lots each will have 200 feet of frontage on County Road, a 50 foot wide town road with good visibility which was repaved in 1984. 4) The lots will be served by private wells. Information was submitted showing that other wells in the immediate area average 10 gallons per minute and that the lots are located on a mapped sand and gravel aquifer which covers 500 acres. 5) Soil tests have been done for each lot. The reports state that septic systems could be installed in compliance with the State Plumbing Code. 6)..."Then the chairperson should call for a formal vote to approve the summary of the basic facts. The person who takes minutes for the board should note these in the minutes. The board does not have to concern itself at this stage with developing a polished final draft. Then the chairperson, with additions or deletions as noted by the board, should go through the list of performance standards/review criteria which the applicant must meet in order to receive the board's approval:

Each standard must be addressed in the board's decision. For example: 1) "The Board concludes that the project will provide adequate sewage disposal based on the soil reports submitted by the applicant's site evaluator which indicate that a subsurface system which complies with the State Plumbing Code can be installed on each lot. 2) The Board concludes that the project will not cause an unreasonable burden on an existing water supply and there is sufficient water available for the reasonably foreseeable needs of the subdivision because it is located on a very large aquifer and because other wells in the area have an average flow of 10 gallons per minute. 3) The board concludes that the proposed 5 acre lots will comply with the town's minimum 1 acre lot size ordinance. 4) The Board concludes that the project will not cause unreasonable highway or public road congestion or unsafe conditions with respect to use of highway, because the 3 lots will not generate an excessive amount of new traffic if used for single family homes, because the lots each have sufficient frontage to avoid having driveways close together, and because the road is very wide, in good condition and very straight, which allows good visibility... "

Once these conclusions have been summarized, the board should take a formal vote to approve them. (Note: Some boards vote on each conclusion as they go through the list, rather than waiting until the end.) Again, the person taking minutes should record these. The exact wording does not have to be developed at this time, but the board must agree at least on the major elements of each conclusion.

Then the chairperson should call for a vote (essentially a formality) on whether to approve the application. If any conditions have been imposed on and agreed to by the applicant to enable the board to find that the proposal complies with all the requirements of the statute or ordinance, those conditions probably should be referenced again, at least in a general way (e.g., "subject to the conditions pertaining to buffer strips, setback from water, and driveway locations noted in the board's conclusions"). Unless the board has cited at least one negative conclusion of law, it must approve the application. If the board goes through its findings and conclusions without any dissenting opinions and then the board votes 2-3 (defeat) on the issue of approval, the board will have to go back to revise its findings and conclusions to be consistent with its decision. Before doing this, however, the board probably should formally vote to reconsider the action just taken, citing the inconsistency. This will help to avoid a procedural challenge in court later on. The chairperson must explain during the course of discussing and approving the findings and conclusions that if any board member thinks the applicant has not met his or her burden of proof and that some information is missing or not convincing, that board member should state those concerns during the conclusion phase. The final vote on whether to approve/reject the application is really a formality—the important, binding decisions are those regarding the findings and conclusions. If the board members do not cite problems with the evidence at that stage, the board will have no legal basis for denying the application.

If the board decides that it must attach conditions to its approval of an application, it must be sure that the conditions relate to the relevant review criteria of the ordinance. E.g., Kittery Water District v. Town of York, 489 A.2d 1091 (Me. 1985). The board also should be sure to write conditions which are sufficiently clear and detailed in order to ensure their enforceability. City of Portland v. Grace Baptist Church, 552 A.2d 533 (Me. 1988).

If the board feels overwhelmed on a particular application and wants to wait until another meeting to go through the list as outlined above, it may do so as long as the members bear in mind any deadline for issuing a decision which must be met. This may necessitate calling a special meeting to take a final vote in time to meet the deadline. In the meantime, the individual board members can be thinking about what facts and conclusions the board should vote to approve. Once the board has formulated its rough findings and conclusions and voted whether to approve, approve with conditions, or deny, it can then delegate to one member of the board, a paid secretary, the board's attorney or similar person the task of writing the findings and conclusions in a more polished form. This final form must be reviewed and approved by the board at a meeting held within any deadline which the board must meet regarding the submission of its written decision to the applicant.

Several problems can result if the board delegates the responsibility of developing a tentative draft of findings and conclusions before it has gone through the list of criteria and developed its own. The board runs the risk of "rubber-stamping" a decision that could have been formulated by less than a majority of the board or by a non-board member. Brown v. Inhabitants of the Town of Bar Harbor, Han. Co. Super. Ct. Dock. No CV-83-56 (Jan. 19, 1984). The other risk is that if a subcommittee of the board is asked to develop tentative findings and conclusions, the committee members may not realize that they must comply with the notice requirements of the Maine "Right to Know" Law (1 M.R.S.A. §406). Lewiston Daily Sun v. City of Auburn, 455 A.2d 335 (Me.1988). They also run the risk that someone may try to introduce new information which was not presented at the full board meeting and to which the applicant may not have had an opportunity to respond, thereby depriving the applicant of his or her right to due process under the Constitution. Mutton Hill Estates, Inc. v. Inhabitants of the Town of Oakland, 468 A.2d 989 (Me. 1983).

After Making the Decision. Once the board has made its decision, the secretary should incorporate the findings and legal conclusions and the number of votes for and against the application into the minutes. A copy of the decision should be sent to the applicant (and anyone else required by statute or ordinance) promptly after the decision is made. The board should check the statute/ordinance to see if it states a deadline. For example, 3-A M.R.S.A. §2691 requires the board to send or hand deliver a copy of its written decision to the applicant, the applicant's representative, the municipal officers, and the planning board within seven days of making the decision in the case of an appeal. The date on which this notice is sent should be included in the record. A copy of the record should be maintained at the municipal office building and in the personal files of the secretary or chairperson. The record is a public record under the Right to Know Law and can be inspected and copied by any member of the general public, whether or not a resident of the municipality.

In the case of a variance decision, the board is required to provide a recordable certificate to the applicant. This is discussed more fully in Chapter V and Appendix C.

Records prepared by the board are public. Their preservation and destruction are governed by regulations of the Municipal Records Board at the State Archives. (See Appendix A)

Reviewing Conditional Use/Special Exception Applications

If a general zoning or shoreland zoning ordinance authorizes the appeals board to decide whether to issue conditional use or special exception permits, the board should be guided by the standards of review which the ordinance provides. In passing the ordinance and designating certain uses as "conditional uses" or "special exceptions," the legislative body has made a decision that those uses are ordinarily not injurious to the public health, safety, and welfare or detrimental to the neighborhood, but that they may be detrimental under certain circumstances if restrictions are not placed on how those uses are conducted. Cope, infra. It is the board's job to review the application, to decide whether the ordinance allows the proposed use on a conditional basis in that zone, to determine whether the application complies with each of the standards of review and whether to approve or deny the application. If the board finds that the application could be approved if certain conditions were met, then it must determine what kinds of conditions are needed and what kinds the ordinance allows the board to impose. Cope v. Inhabitants of Town of Brunswick, 464 A.2d 223 (Me. 1983); Chandler v. Town of Pittsfield, 496 A.2d 1058 (Me. 1985). Before granting approval with certain conditions attached as a practical matter at least, the board should be very certain that the applicant has the financial and technical ability to meet those conditions. Otherwise, the board may find itself later on with a situation where the applicant has not met the conditions, forcing the municipality to go to court to convince a judge to enforce the conditions of approval. Unless the board and applicant can reach an agreement on reasonable conditions to impose which are both technically and financially feasible for the applicant and adequate to protect the public, the board should not approve the application. Denials of conditional use and special exception applications have been upheld by the Maine courts. American Legion, Field Allen Post #148 v. Town of Windham, 502 A.2d 484 (Me. 1985); Mack v. Municipal Officers of Town of Cape Elizabeth, 463 A.2d 717 (Me. 1983).

Even if the board finds that it can deny an application because it does not comply with one of the standards of review, the board should still complete its review to determine whether there are any other bases for denial. That way, if the denial is appealed, it is possible that a court could uphold it even if the court overturns some of the board's reasons.

Standards/Delegation of Legislative Authority. It is very important for an ordinance to contain fairly specific standards of review if it is an ordinance which requires the issuance of a permit or the approval of a plan. The standards must be something more than "as the Board deems to be in the best interest of the public" or "as the Board deems necessary to protect the public health, safety and welfare." It also is very important to have language in the ordinance instructing the board as to the action which the board must take. It is not enough merely to say that the board must "consider" or "evaluate" certain information.

If an ordinance gives the board basically unlimited discretion in approving or denying an application, it creates two constitutional problems. It violates the applicant's constitutional rights of equal protection and due process because (1) it does not give the applicant sufficient notice of what requirements he or she will have to meet and (2) it does not guarantee that every applicant will be subject to the same requirements. It amounts to substituting the board's determination of what are desirable land use regulations for that of the legislative body (town meeting or town or city council) where it legally belongs. The courts call this an "improper delegation of legislative authority." Legally, only the legislative body can adopt ordinances, unless a statute gives that authority to some other person or board. Cope v. Inhabitants of Town of Brunswick, 464 A.2d 223 (Me.1983); Chandler v. Town of Pittsfield, 496 A.2d 1058 (Me. 1985). See American Legion, Field Allen Post #148 v. Town of Windham, 502 A.2d 484 (Me.1985); Wakelin v. Town of Yarmouth, 523 A.2d 575 (Me. 1987). Compare, Secure Environments, Inc. v. Town of Norridgewock, 544 A.2d 319 (Me. 1988). (See Appendix G for copies of some of these cases)

If a court finds that an ordinance does not satisfy the tests outlined in the cases cited above, it generally will hold that a denial of an application by the board under the deficient portions of the ordinance is invalid. The result is that the applicant will be able to do what he or she applied to do in the first place, absent some other law or ordinance which controls the application and provides a separate basis for review and possible denial. Therefore, it is important to have local ordinances reviewed by an attorney or some other professional familiar with court decisions and State law to determine whether those local ordinances are enforceable.

Chapter IV

Administrative Appeals

In addition to reading the discussion below, appeals board members should also refer to the material in Chapter III in order to fully understand the process which they should follow when hearing and deciding an appeal. Where a person is also seeking a variance or ordinance interpretation, the board should also read the material in Chapters V and Vl.

Jurisdiction

The issue of jurisdiction to hear an appeal was discussed previously in Chapter II. If an ordinance or statute does not expressly authorize an appeal to the board of appeals, then the person wishing to challenge a planning board or code enforcement officer decision must appeal directly to the Superior Court under Civil Rule of Procedure 80B. (See copy of Rule 80B in Appendix A) 30-A M.R.S.A. § 2691; Lyons v. Board of Directors of SAD No. 43 503 A.2d 233 (Me. 1986); Levesque v. Inhabitants of Town of Eliot, 448 A.2d 876 (Me. 1982). Generally speaking, when an appeal involves an enforcement decision by a code enforcement officer rather than an administrative decision, the board of appeals will have no jurisdiction. See generally, Paterson v. Town of St. Albans, 552 A.2d 549 (Me. 1989).

Time Limit

If an ordinance or statute does not provide a time limit within which an appeal to the board of appeals must be filed, the court has held that a period of 60 days constitutes a reasonable appeal period. Keating v. Zoning Board of Appeals of City of Saco, 325 A.2d 521 (Me. 1974); Gagne v. Cianbro Corp., 431 A.2d 1313 (Me.1981). Effective October 9, 1991 an appeal to the Superior Court from a decision of the appeals board must be filed within 45 days of the date of the board's original decision on an application (not the date of a decision to reconsider an earlier decision, where there has been a request to consider). 30-A M.R.S.A. § 2691. This means within 45 days of the meeting at which the board actually voted on the application, even though the applicant may not have received written notice of the decision. Vachon v. Town of Kennebunk, 499 A.2d 140 (Me. 1985). It is possible that a court might allow these time periods to be extended under Rule 80B if the person filing the appeal can show good cause, but probably unlikely where a time period has been established by statute. Reed v. Halprin, 393 A.2d 160 (Me. 1978).

As a general rule, the court will dismiss an appeal which was not filed within these time limits. If a decision is not appealed, it cannot be challenged indirectly at a later date by way of another appeal on a related matter. Nor can one town official or board challenge a decision by another official or board by refusing to issue a permit or approval on the basis that the other board's or official's decision was wrong. (For example, if a board of appeals grants a setback variance which the planning board believes is illegal, the planning board cannot refuse to grant its approval for the structure which was the subject of the variance solely on the basis that the variance should not have been granted. The planning board must "live with" the decision of the appeals board unless the planning board, municipal officers, or other "aggrieved party" successfully challenges the variance in Superior Court.) Milos v. Northport Village Corporation, 453 A.2d 1178 (Me.1983); Fisher v. Dame, 433 A.2d 366 (Me.1981); Ocean Park Associates v. Town of Old Orchard Beach, No. CV-87-396 (Me. Super. Ct., Yor. Cty, Dec. 23, 1988). See also Town of North Berwick v. Jones, 534 A.2d 667 (Me. 1987) and Fitanides v. Perry, 537 A.2d 1139 (Me. 1988) and Crosby v. Town of Belgrade, 562 A.2d 1228 (Me. 1989) (dealing with collateral estoppel/res judicata).

Exhaustion of Remedies

If a statute or ordinance requires appeals to be heard first by the board of appeals, a court generally will refuse to decide an appeal which has been filed directly with the court. This is true even where the municipality has not appointed anyone to serve on a board of appeals which has previously been created. The concept involved here is called "exhaustion of administrative remedies." Fletcher v. Feeney, 400 A.2d 1084 (Me. 1979); Noyes v. City of Bangor, 540 A.2d 1110 (Me. 1988).

Standing

When a citizen can demonstrate that he or she has suffered, or will suffer, a "direct and personal injury" as a result of a decision by the planning board or CEO, that citizen has "standing" to file an appeal with the board of appeals if the board has jurisdiction. To meet the "direct and personal injury" test, the person must show how his or her actual use or enjoyment of property will be adversely affected by the proposed project or must be able to show some other personal interest which will be directly affected which is different from that suffered by the general public. Anderson v. Swanson, 534 A.2d 1286 (Me. 1987); New England Herald Development Group v. Town of Falmouth, 521 A.2d 693 (Me. 1987); Leadbetter v. Ferris, 485 A.2d 225 (Me. 1984); Lake Environmental Association v. Town of Naples, 486 A.2d 91 (Me. 1984); Harrington v. Town of Kennebunk, 459 A.2d 557 (Me. 1983). Anyone wishing to appeal from a local board's decision to Superior Court under Rule 80B must also be able to show actual participation in the local hearing process. Jaeger v. Sheehy, 551 A.2d 841 (Me. 1989). Under 30-A M.R.S.A. § 4353, the municipal officers and the planning board are automatically made "parties" to the appeals board proceedings, so they would not have to meet the test outlined above in order to file an appeal in Superior Court from an appeals board decision. Crosby v. Town of Belgrade, 562 A.2d 1228 (Me. 1989).

Standard of Review

Unless a local ordinance provides otherwise, when a planning board or code enforcement officer's decision is appealed, the board of appeals is not limited to the record prepared by the planning board or CEO in making its decision. (See Appendix A for sample language) Title 30-A, section 2691 indicates that the board of appeals conducts a "de novo" proceeding. But see Carson v. Town of Oakland, 442 A.2d 170 (Me. 1982). This means that it holds its own hearing, accepts any relevant evidence or testimony presented, and creates its own record. The board of appeals then uses its record to decide whether the planning board's or CEO's decision is "clearly contrary to the ordinance" and "unsupported by substantial evidence in the record." If the board of appeals' record could support a decision either way, then it should uphold the decision of the planning board or CEO. Because the board of appeals is not bound by the planning board's or CEO's record, it is important for a planning board representative or the CEO to attend the board of appeals hearing and to have the board's or CEO's record formally entered into the board of appeals' record.

As a general rule, the authority of the appeals board in deciding an appeal is limited to reversing or approving the decision being appealed. The board does not normally have the power to issue a permit which was denied by the CEO or planning board. Procedurally, the appeals board would reverse the CEO's or planning board's decision and then "remand" the case to the CEO or planning board (as appropriate) with an order to issue the permit. However, a different approach may be authorized or required by local ordinance.

Sometimes the CEO or planning board is unhappy with the decision of the appeals board and attempts to overturn it by refusing to comply with the appeals board's order. This has the effect of placing the burden on the applicant to ask a court to order the CEO or planning board to issue the permit. In such a case the court probably would approve an order directing the issuance of the permit, finding that the only legal way to reverse a decision by the appeals board is to file a Rule 80B appeal in Superior Court. Milos v. Town of Northport, 453 A.2d 1178 (Me. 1983).

If the board of appeals' decision is appealed to Superior Court, the Superior Court must review the board of appeals' record to determine whether the appeals board's analysis of the appealed decision was correct. The court must decide whether the board "abused its discretion, committed an error of a law, or made findings not supported by substantial evidence in the record." Shackford and Gooch, Inc. v. Town of Kennebunk, 486 A.2d 102,104 (Me.1984). If the board of appeals fails to make an adequate record with findings and conclusions, the court will probably "remand" the case to the board of appeals to create an adequate record. This is also true if an appeal is filed directly from the planning board's or CEO's decision to Superior Court (where no local appeal is available, resulting in direct review of the decision by the court). Brak v. Town of Georgetown, 436 A.2d 894 (Me. 1981); Sanborn v. Town of Eliot, 452 A.2d 629 (Me.1981); Harrington v. Town of Kennebunk, 459 A.2d 557 (Me. 1983).

A board of appeals is without authority to decide whether an ordinance has constitutional problems. See Anderson, American Law of Zoning (3rd ed.), §22.02. Such issues must be raised as part of an appeal to Superior Court. Compare, New England Whitewater Center, Inc. v. Department of Inland Fisheries and Wildlife, 550 A.2d 56 (Me.1988) (DIFW could have addressed the constitutional issue raised because it was performing a legislative function—something a local appeals board can never do).

The board cannot deny an application because the proposed use would violate a private deed restriction if the use otherwise would be in compliance with the applicable ordinance/statute. Whiting v. Seavey,188 A.2d 276 (Me.1963). The board also has no legal authority to resolve title disputes as part of its decision on an application. Rockland Plaza Realty Corp. v. LaVerdiere's Enterprises, 531 A.2d 1272 (Me.1987). It should not table action or deny approval simply because an abutter or other individual is contesting the applicant's "right, title or interest" as long as the applicant has provided "prima facie" evidence of a legal interest in the property. The fact that the property involved is already the subject of other code violations also would not constitute a basis for denial, absent language in the ordinance to that effect.

Authority of Municipal Officers

The municipal officers do not have the authority to hear appeals and override a decision of the board of appeals unless an ordinance provision expressly gives them that authority.

Second Appeal of Same Decision/
Reconsideration by the Board of Appeals

Unless an ordinance provides otherwise, the Maine Supreme Court has held that an applicant whose appeal or request for a variance was denied has no legal right to request another hearing on the same appeal or variance unless he or she can show a substantial change in the circumstances which provided the basis for the first appeal or variance. Driscoll v. Gheewalla, 441 A.2d 1023 (Me.1982). Silsby v. Allen's Blueberry Freezer, Inc., 501 A.2d 1290 (Me.1985).

Title 30-A, section 2691 authorizes a board of appeals to reconsider a decision within 30 days. The entire process should be completed within that time frame. In doing so, the board is authorized to hold additional hearings and receive additional evidence. Before doing this, however, the board must give direct notice to the original appellant and/or applicant and to anyone else required by the ordinance or State law to receive special notice of the original proceedings. Notice also must be given to the public in the manner required for the original proceedings. If specific individuals actively participated in the original hearing, the board should also notify them directly of the reconsideration hearing. (See Chapter III for additional information.) However, if the applicant has already filed a Rule 80B appeal from the board's decision, the board should not attempt to reconsider its original decision.

Authority of the Board to Modify/
Revise an Appeal Application

If a person submits an application to the planning board or code enforcement officer for a permit and is denied, there may be several bases on which that person can or should appeal to the board of appeals (where a local appeal is authorized). If the person files an administrative appeal seeking to challenge the way the ordinance was administered or interpreted by the planning board or CEO and the board of appeals determines that the person should also be requesting a variance from some of the ordinance requirements, the Maine Supreme Court has held that the board of appeals has the authority to deal with the variance without making the person file a separate application. Cushing v. Smith, 457 A.2d 816, 823 (Me. 1983). According to the court, the BOA has the authority to "address all issues raised and to correct plain error."

Role of Code Enforcement Officer or Planning Board at Appeals Board Meeting.

Some ordinances actually require the code enforcement officer or planning board members to attend board of appeals hearings. Whether or not it is a local requirement, it is a recommended practice and should not be viewed by the appeals board as a threat to its authority. In most cases the appeals board members will find it helpful to have the CEO or a planning board member present to answer questions relating to a particular decision being appealed or about the town's ordinances generally. Such a practice is also a good way to improve communications among various boards and officials. Each will gain a better understanding of what the other does under the town's ordinances and relevant State laws and will learn what the legal limits are in their respective areas of authority.

Chapter V

Variances and Waivers

Variance vs. Special Exception/Conditional Use

When the board of appeals grants a zoning variance, or other authorized waiver, it is essentially waiving or reducing some requirement of the ordinance which would otherwise prevent a proposed structure or project from being built. Depending on the wording of the local ordinance, variances are sometimes authorized for dimensional requirements (such as lot size, setback, and frontage) as well as to allow uses which are otherwise prohibited by the ordinance.

Special exception and conditional use provisions in a zoning ordinance deal with uses which the legislative body generally has decided to permit in a particular area of town. The purpose of the special exception or conditional use review procedure is to allow the board to determine whether conditions should be imposed on the way the use is conducted or constructed. (See discussion of procedure and required ordinance language in Chapter III)

Criteria/Types of Variances. Title 30-A, section 4353(4) (formerly 30 M.R.S.A. § 4963) authorizes the board of appeals to grant zoning variances (which includes shoreland zoning variances) "only when strict application of the ordinance to (the person seeking the variance and his or her) property would cause undue hardship." The statute defines "undue hardship" as meaning that:

A. The land in question cannot yield a reasonable return unless a variance is granted;

B. The need for a variance is due to the unique circumstances of the property and not to the general conditions in the neighborhood;

C. The granting of a variance will not alter the essential character of the locality; and

D. The hardship is not the result of action taken by the applicant or a prior owner.

The municipality also may adopt ordinance language which imposes additional limits on the granting of a variance, such as prohibiting variances to allow a use which is otherwise prohibited. Typical zoning provisions limit the granting of a variance to dimensional requirements, such as lot size, frontage or setbacks. Shoreland zoning ordinances generally imposes standards which an applicant must meet in addition to the four statutory criteria cited above, relating to things such as preservation of vegetation, erosion control, protection of fish and wildlife habitat and effect on water quality. The board of appeals must look carefully at the section of the ordinance relating to variances to know for sure what type of variances it may grant and what requirements the applicant must satisfy. Each of the statutory standards must be met as well as any additional requirements imposed locally.

Strictly Construed. The Maine Supreme Court has stated in numerous cases that variances are supposed to be granted sparingly—they are the exception rather than the rule. The test for "undue hardship" is a very strict one and very difficult to meet. No matter how harmless the variance request may seem and regardless of whether there is no opposition from neighbors, the board must remember that its decision is governed by the legal requirements for "undue hardship" and only those requirements. If the board is presented with repeated requests for the same type of variance, particularly in the same neighborhood, this may indicate a need for an amendment to the ordinance to loosen some of the requirements. The appeals board should refer this problem to the planning board for further study and a recommendation to the municipal officers. Generally, the landowner also will have the option of petitioning for an ordinance amendment, especially in towns which still have town meeting and operate under the general laws of the State.

Personal Hardship. Historically, the court in Maine has made it clear that "undue hardship" relates to a problem created by some feature of the property itself. E.g., Lippoth v. ZBA of City of South Portland, 331 A.2d 552 (Me.1973). The fact that the landowner had a personal problem which prompted the request for the variance was not legally relevant, no matter how sympathetic the board may have felt.

Effective October 9, 1991, 30-A M.R.S.A. § 4353 (4-A) authorizes the board to grant a variance based on an applicant's physical or mental disability only where necessary for the installation of equipment (e.g., an elevator) or the construction of structures (e.g., a ramp or an addition to a bedroom or bathroom to allow access by wheelchair) necessary for access to or egress from the property by the person with the disability (See Appendix C for text of this law).

"Reasonable Return" Standard. Most court cases in Maine pertaining to variances have focused on whether the applicant can realize a "reasonable economic return" on his or her investment in the property without the variance. The court has made it clear that "reasonable return" does not equal "maximum return." Barnard v. Town of Yarmouth, 313 A.2d 741 (Me. 1974); Grand Beach Assoc., Inc. v. Town of Old Orchard Beach, 516 A.2d 551 (Me. 1986). It is extremely difficult for an applicant to prove that he or she cannot realize a reasonable return and that no other permitted use could be conducted to realize such a return. E.g., Leadbetter v. Ferris, 485 A.2d 225 (Me. 1984); Curtis v. Main, 482 A.2d 1253 (Me. 1984); Anderson v. Swanson, 534 A.2d 1286 (Me.1987); Marchi v. Town of Scarborough, 511 A.2d 1071 (Me.1986). A landowner cannot be forced to sell his land to an abutter as a way to realize a "reasonable return." Marchi, supra. One zoning treatise states that evidence of lack of a reasonable return might include: 1) that the owner has been deprived of all beneficial use of his property; 2) that the ordinance restricts land to non-productive uses; or 3) that the uses for which the land was originally zoned are no longer feasible because of the enormous expense associated with development for such purposes. 5 Rohan, Zoning and Law Use Controls, §43.02(2). Consequently, the typical request for a setback variance to allow a deck, porch, garage, storage building or addition to an existing structure will have to be denied on the basis of this economic return standard, absent proof that the person has tried to sell that property "as is" and no one will buy it unless the proposed construction can occur. This is true even where the variance is being requested to allow a wheelchair ramp which will not conform to the required setback. When the board of appeals is presented with numerous requests for the same type of variance in the same neighborhood or in similar situations around town, or where the board feels that certain structures, such as a wheelchair ramp, should be totally exempt from the ordinance requirements, it should make the planning board aware of this so that the planning board may consider whether the ordinance needs to be amended to loosen or eliminate whatever restrictions have prompted the variance applications.

"Unique Circumstances" Standard. The court has also addressed "undue hardship" as it relates to the unique circumstances of the property and general conditions in the neighborhood. A landowner seeking a variance from a required lot size in a case where the other lots in the neighborhood are all substandard generally cannot meet the "uniqueness" test. The same is true where all the lots in the neighborhood are subject to deed restrictions limiting the size of the structure which can be built on the lot. Compare Sibley v. Town of Wells, 462 A.2d 27 (Me.1983) with Driscoll v. Gheewalla, 441 A.2d 1023 (Me.1982). Likewise, if all of the lots in the area are swampy or steeply sloped, or if they all have rock outcropping, or if they all have utility easements running through them, an application for a variance related to any of these problems probably would have to be denied. Such common neighborhood problems must be addressed through the town's comprehensive plan and appropriate ordinance provisions, not case by case through the granting of a variance.

"Essential Character of the Locality" Standard. The third "undue hardship" criterion focuses on the "essential character of the locality" and generally appears to be almost the flip-side of the coin from criterion number two (discussed above). For example, if a landowner requests a setback variance to build an addition bringing his home closer than the required road setback, but no closer than all of the neighboring homes, the requested variance would not alter the "character of the locality." Driscoll v. Gheewalla, supra. However, it would not meet the "uniqueness" test in the second criterion.

"Self-Created Hardship" Standard. The question of whether the applicant for a variance or a prior owner of the land created the hardship which justifies a variance is not as simple to answer as it may appear. If a person seeking a variance was the owner of the lot when the ordinance requirement in question took effect, that person generally would not have a "self-created" hardship and could satisfy criterion number four. However, if the applicant is a person who bought the lot after the ordinance took effect, he or she is presumed to have had knowledge of the restrictions on use of the lot which the ordinance imposes. Consequently, the courts consider such a person as having a self-created hardship. Bishop v. Town of Eliot, 529 A.2d 798 (Me.1987); Anderson, American Law of Zoning (2nd ed.), § 18.56. If a person commits a violation of an ordinance requirement, such as a zoning setback, and seeks a variance after-the-fact, such a person has a self-created hardship. An ordinance violation must be resolved through normal code enforcement channels, not by the board of appeals. Where an applicant for a variance owns adjoining land which he or she could use to avoid the need for a variance, the court has held that a variance should not be granted. Sibley, supra.

A more detailed summary of these and other zoning variance cases appears in Appendix C. That same appendix also contains some sample variance applications and decisions.

Planning Board Authority. The planning board has no authority to grant a zoning "variance" as that word is defined in Title 30-A, Section 4353(4). A zoning ordinance provision which attempts to give the planning board that authority would be in violation of the statute, since the statute gives the board of appeals the sole authority to grant a variance. A municipality's home rule authority under 30-A M.R.S.A. § 3001 has been preempted by 30-A M.R.S.A. § 4353(4) in this regard. Op. Me. Att'y Gen. (April 23, 1984).

Effect of Variance Decision

When the board of appeals grants a zoning variance, the effect is to waive or modify some requirement(s) of the ordinance which the applicant was unable to meet. Without the variance from the board of appeals waiving or modifying the ordinance requirement, the planning board or CEO would have had no legal authority under the ordinance to approve the application. The variance itself does not constitute a "permit," however. Once granted, a variance "runs with the land," meaning that the variance is transferred automatically to a new owner if the property subsequently changes hands.

Appeal of Variance Decision by Other Municipal Officials

If the municipal officers or the planning board believe that the board of appeals has wrongfully granted a zoning variance where the applicant has not met all of the criteria for "undue hardship" set out in section 4353 (a copy of which is included in Appendix C), that board has "standing" to challenge the board of appeals decision in Superior Court pursuant to 30-A M.R.S.A. §4353(4). Crosby v. Town of Belgrade, 562 A.2d 1228 (Me.1989) (Decis. No. 5182) (August 10, 1989). However, in the case of an appeal by the planning board, the municipal officers may not necessarily vote to pay for such an appeal, so the planning board should consult with the municipal officers before retaining a lawyer to avoid having to pay from their own pockets. (See earlier discussion of "standing" in Chapter IV.)

Variances vs. Waivers/Zoning vs. Non-Zoning

Oftentimes a subdivision or site plan review ordinance gives the planning board the authority to "waive" certain requirements of the ordinance if they would cause "hardship" to the applicant. The definition of "hardship" in that context is not necessarily the same as the definition of "undue hardship" in section 4353, unless the ordinance expressly refers to the statutory definition. Although the municipality may give the authority to grant these waivers to the board of appeals, there is no conflict with section 4353 if the ordinance empowers the planning board to grant waivers. In any case, a non-zoning ordinance which authorizes either board to waive certain requirements should set out standards for the board to use in determining whether an applicant will suffer a hardship without a waiver.

Recording Variances

State law (30-A M.R.S.A. § 4353 and § 4406) now requires the board of appeals and the planning board to prepare a certificate which can be recorded in the Registry of Deeds and provide it to the applicant for recording whenever they grant a zoning variance or a subdivision variance or waiver. Sample forms and copies of the laws are included in the Appendix of this handbook. To be valid, zoning variance certificates must be recorded within 90 days of the decision. Subdivision variances or waivers must be recorded within 90 days of final approval of the plan. If these certificates are not recorded within the stated deadlines, the only way to "reactivate" the variance or wavier is for the person wishing to rely on the variance to submit a new application on which the board may act.

Second Request for Same Variance

This issue was previously discussed in Chapter IV.

Shoreland Zoning Variances

Previously, 38 M.R.S.A. § 438-A(6) required the board of appeals to send copies of all shoreland zoning variance applications (and any supporting material) to the Department of Environmental Protection for review and comment at least 20 days prior to action on the application by the board. Effective October 9, 1991, this requirement was repealed by the Maine Legislature.

Revocation of Approval/Vested Rights Test

Situations may arise in which a property owner obtained approval from the appeals board before doing work, but the board believes that it should revoke its approval. Generally, the board may not revoke its approval on the grounds that the property owner is violating certain conditions of the approval without a court order, unless the ordinance specifically grants that power to the board and also provides a right to appeal the decision to revoke to a separate local appeals board. Cf., Howe Realty Co. v. City of Nashville, 141 SW 2d 904 (1940). However, the board may revoke its approval without a court order upon discovering that the board granted approval without authority or that the applicant made false statements on the application which were material to the decision, provided the land owner has not acquired a "vested right" in the approval. Howe, supra; Wasserman v. O'Brien 230 NW 59 (1930); Arroyo v. Moss, 56 NYS 2d 29, aff'd 56 NYS 2d 17 (1945); McQuillin Municipal Corporations, §§ 26.212a, 26.213, 26.214. Once work has actually begun after the board has approved the project, a court probably will use a test similar to the one set out in Department of Environmental Resources v. Flynn, 344 A.2d 720, 725 (Pa. Cmwlth, 1975) in determining whether the landowner has acquired vested rights and can complete the project as authorized by the board, even though it may have been approved erroneously. The basic elements of that test are:

1) The applicant exercised due diligence in attempting to comply with the law;

2) The applicant demonstrated good faith throughout the proceedings;

3) The applicant expended substantial unrecoverable funds in reliance on the board's approval;

4) The period during which an appeal could have been taken from the approval of the application has expired; and

5) There is insufficient evidence to prove that individual property rights or the public health, safety or welfare would be adversely affected by the project as approved.

Applicability of New Laws

Sometimes a municipality amends an applicable ordinance provision either while an application is being reviewed by the board or after the board has granted its approval but before the landowner has begun any of the work authorized by the board. If an application is "pending" when the ordinance is amended, Title 1, section 302 of the Maine statutes requires the board to complete its review under the original ordinance, unless the new ordinance contains a retroactivity clause. (Such clauses have been upheld by the Maine Supreme Court. City of Portland v. Fisherman's Wharf Associates III, 541 A.2d 160 (Me. 1988).) The courts have found that an application is "pending" if the board has conducted at least one substantive review of the application. Section 302 (as amended in 1988) defines "substantive review" as a "review of that application to determine whether it complies with the review criteria and other applicable requirements of law." Review of an application for completeness generally does not constitute a substantive review.

Generally, once the board has granted project approval, a property owner has an unlimited amount of time within which to complete the work covered by the approval. However, the board should check the applicable ordinance to be sure. Some ordinances provide that a decision granting project approval expires if work is not begun or completed to a certain degree within a certain period of time. This type of provision has been upheld by the court in Maine. George D. Ballard, Builder v. City of Westbrook, 502 A.2d 476 (Me. 1985).

In the absence of such an expiration clause, it still may be possible to apply new ordinances to previously approved projects in certain cases, depending on the facts. For example, where a subdivision plan has been recorded for a number of years and the landowner has not sold the lots or made any substantial expenditures to develop the plan, it may be possible to require the owner to merge some of the lots shown on the plan to bring them into compliance with new lot size and frontage requirements which were adopted after the approval of the plan. This is an issue which has not been directly addressed by the Maine courts, so it is advisable for the board to consult with an attorney before deciding what to do in such situations. See, Thomas v. Zoning Board of Appeals of the City of Bangor, 381 A.2d 643, 647 (Me. 1978), Fisherman's Wharf, supra, and Larrivee v. Timmons, 549 A.2d 744 (Me. 1988).

It is also arguable that a new ordinance can be made applicable to an approved but uncompleted project by incorporating appropriate language in a retroactivity clause. Fisherman's Wharf, supra.

Chapter VII

Ordinance Interpretation

General Ordinance Interpretation Rules

If the board is confronted with an ambiguous provision in a zoning ordinance and is unsure about how to apply the provision to a particular project, it should keep the following court-made rules of ordinance interpretation in mind. The board also will find it necessary to seek advice from an attorney in many instances in order to determine how these general rules apply to the ordinance involved.

Consistency. To determine the purpose of the ordinance provision, interpret each section to be in harmony with the overall scheme envisioned by the municipality when it enacted the ordinance. The assumption is that the drafter would not have included a provision that clearly was inconsistent with the rest of the ordinance. Natale v. Kennebunkport Board of Zoning Appeals, 363 A.2d 1372 (Me. 1976).

Object/Context. A zoning ordinance must be construed reasonably with regard to the objects sought to be attained and to the general structure of the ordinance as a whole. All parts of the ordinance must be taken into consideration to determine legislative intent. Moyer v. Board of Zoning Appeals, 233 A.2d 311 (Me. 1967);George D. Ballard, Builder v. City of Westbrook, 502 A.2d 476 (Me. 1985).

Ambiguity Construed in Favor of Landowner. The restrictions of a zoning ordinance run counter to the common law, which allowed a person to do virtually whatever he or she wanted with his or her land. The ordinance must be strictly interpreted. Where exemptions appear to be in favor of a property owner, the board should interpret them in the owner's favor. Forest City, Inc. v. Payson, 239 A.2d 167 (Me. 1968).

Natural Meaning of Undefined Terms. Zoning laws must be given a strict interpretation and the provision of those laws may not be extended by implication. However, they should be read according to the natural and most obvious meaning of the language used when there is no express legislative intent to the contrary and where the ordinance does not define the words in question. Moyer v. Board of Zoning Appeals, supra; George D. Ballard, Builder, Inc. v. City of Westbrook, 502 A.2d 476 (Me. 1985); Putnam v. Town of Hampden, 495 A.2d 785 (Me. 1985); Camplin v. Town of York, 471 A.2d 1035 (Me. 1984).

Similar Uses. Even in the absence of a provision in a zoning ordinance authorizing "uses similar to permitted uses" or words to that effect, the court has held that a zoning appeals board has the inherent authority under 30-A M.R.S.A. § 4353 to interpret whether a proposed use which is not expressly authorized is "similar to" a use which is expressly addressed in the ordinance. In doing so, the board must act reasonably and base its decision on the facts in the record and the provisions of the ordinance. Your Home, Inc. v. City of Portland, 432 A.2d 1250 (Me. 1981).

Nonconforming ("grandfathered") Uses and Lots

Provisions dealing with nonconforming lots and uses legally must be included in a zoning ordinance in order to avoid constitutional problems with the ordinance. Such provisions commonly are called "grandfather clauses." They typically define a "nonconforming use or structure" as a use or structure which was legally in existence when the ordinance took effect but which does not conform to one or more requirements of the new ordinance. Such uses and structures generally are allowed to continue and be maintained, repaired and improved. However, the ordinance usually contains language limiting expansion or replacement. "Nonconforming lots" generally are defined in an ordinance to mean lots which were legal when the ordinance took effect and for which a deed or plan was on record in the Registry of Deeds. Such lots generally don't meet the lot size or frontage requirements or both of the new ordinance. However, the new ordinance generally allows them to be used for certain purposes as long as other requirements can be met.

The court in Maine has established the following rules relating to nonconforming uses, structures, and lots. These court-made rules must be read in light of the specific language of the nonconforming use provision of a given ordinance in order to determine whether the court decisions cited below have any bearing on a nonconforming use in your municipality.

Gradual Elimination. "The spirit of zoning ordinances is to restrict rather than to increase any non-conforming uses and to secure their gradual elimination. Accordingly, provisions of a zoning regulation for the continuation of such uses should be strictly construed and provisions limiting nonconforming uses should be liberally construed. The right to continue a nonconforming use is not a perpetual easement to make a use of one's property detrimental to his neighbors and forbidden to them, and nonconforming uses will not be permitted to multiply when they are harmful or improper." Lovely v. Zoning Board of Appeals of City of Presque Isle, 259 A.2d 666 (Me. 1969); Shackford and Gooch, Inc. v. Town of Kennebunk, 486 A.2d 102 (Me. 1984).

Phased Out Within Legislative Standards. "Nonconforming uses are a thorn in the side of proper zoning and should not be perpetuated any longer than necessary. Nevertheless, the rights of the parties necessitate that this policy be carried out within legislative standards and municipal regulations." Lovely, supra; Frost v. Lucey, 231 A.2d 441 (Me. 1967).

Expansion. "Where the original nature and purpose of an existing nonconforming use remain the same, and the nonconforming use is not changed in character, mere increase in the amount or intensity of the nonconforming use within the same area does not constitute an improper expansion or enlargement of a nonconforming use," where the language of the ordinance prohibits the extension or enlargement of a nonconforming use or the change of that use to a dissimilar use. Frost, supra. "Any significant alteration of a nonconforming structure is an extension or expansion. When an ordinance prohibits enlargement of a nonconforming building, a landowner cannot as a matter of right alter the structure, even if the alteration does not increase the nonconformity." Shackford.

Replacement. There is no inherent right on the part of a landowner to replace an existing nonconforming structure with a newer one of the same or larger dimensions. That right hinges on whether the ordinance expressly allows it. This is true even where the original building was destroyed by fire or natural disaster. Inhabitants of Town of Windham v. Sprague, 219 A.2d 548 (Me. 1966).

Discontinuance/Abandonment. Zoning ordinances generally attempt to prohibit a person from reactivating a nonconforming use if it has been "abandoned" or "discontinued" for a certain period of time. Absent language in an ordinance to the contrary, the word "abandonment" generally is interpreted by the courts on the basis of whether the intent of the landowner was to give up his or her legal right to continue the existing nonconforming use. The owner's intent is generally judged on the basis of "some overt act, or some failure to act, which carries the implication that (the) owner neither claims nor retains any interest in the subject matter of the abandonment." Anderson, American Law of Zoning, 3d, § 6.65. Although "discontinuance" or cessation of the use for the period stated in the ordinance does not automatically constitute abandonment, it may be evidence of an intent to abandon if accompanied by other circumstances relating to the use or non-use of the property, such as the removal of advertising signs or allowing the building formerly occupied by the use to become dilapidated.

If the ordinance regulates the reactivation of a "discontinued" nonconforming use rather than an "abandonment" of such a use, an analysis of the owner's intent is not necessary. Cessation of the use for the period of time stated in the ordinance is enough.

Constitutionality. Nonconforming use provisions are included in zoning ordinances "because of hardship and the doubtful constitutionality of compelling immediate cessation" of a nonconforming use. Inhabitants of the Town of Windham v. Sprague, 219 A.2d 548 (Me. 1966).

Merger of Lots. Where two or more pre-recorded, unimproved nonconforming lots are adjacent and owned by the same person, the State Minimum Lot Size Law (12 M.R.S.A. § 4801) and many zoning ordinances require that those lots be merged and considered as one for the purposes of development to the extent necessary to eliminate the non-conformity. In order to require the merger of a developed and undeveloped lot of record which are contiguous and in the same ownership, the Maine courts have said that the ordinance must expressly require such a merger. Moody v. Town of Wells, 490 A.2d 1196 (Me. 1985). (For other nonconforming lot cases, see Farley v. Town of Lyman, 557 A.2d 197 (Me. 1989) and Robertson v. Town of York, 553 A.2d 1259 (Me. 1989).) If a zoning ordinance establishes a local minimum lot size which is different from and more restrictive than the State's, then the question of merger will be controlled by the ordinance. Where an ordinance requires the merger of lots in the same ownership which have "contiguous frontage" with each other, the court in Maine has held that such a provision does not apply to corner lots. Lapointe v. City of Saco, 419 A.2d 1013 (Me. 1980). (For a discussion of the meaning of "lot of record," see Camplin v. Town of York, 471 A.2d 1035 (Me. 1984).

Where a single parcel of land had been developed with a number of buildings prior to the effective date of the ordinance and the buildings had all been used for distinct and separate uses prior to that date, the Maine court has held that the buildings could be sold separately on nonconforming lots, finding that the land had already been functionally divided. Keith v. Saco River Corridor Commission, 464 A.2d 150 (Me. 1983). To prevent such a result, a local ordinance must expressly prohibit such conveyances unless they conform to current lot size requirements.

When the issue of merger arises, it is advisable for the board to seek the opinion of an attorney regarding the specific language in the town's ordinance and how a court would interpret it.

Split Lots

In some cases, one lot is divided between two or more zones. Absent a provision in a zoning ordinance to the contrary, the requirements of the ordinance for a particular zone apply only to that part of the lot which is located in that zone. Town of Kittery v. White, 435 A.2d 405 (Me. 1981).