Appeals
(from MMA's Handbook for Local Planning Boards: A Legal Perspective, August 1982)
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.

Sections IV through VII

Section IV

Jurisdiction

Generally speaking, if a decision by the planning board is made under a local ordinance, the ordinance will provide for an appeal of the board's decision to the local board of appeals. If an ordinance or statute does not expressly authorize an appeal to the board of appeals, then the person wishing to challenge the planning board's decision must appeal directly to the Superior Court under Civil Rule of Procedure 80B. 30 MRSA § 2411; 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). One exception to this rule is when the appeal is from a decision made under a zoning ordinance. By statute (30-A MRSA § 4353) the board of appeals is authorized to hear and decide certain types of zoning appeals, unless otherwise provided in the ordinance. This includes appeals brought under a shoreland zoning ordinance as well as a general zoning ordinance. It should be noted that 30 MRSA § 2691 states that when an ordinance grants jurisdiction to the board of appeals, it must specify "the precise subject matter that may be appealed to the board and the official(s) whose action or nonaction may be appealed to the board."

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 reconsider). 30-A MRSA § 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 town 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), 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 and will "remand" the case (send it back) to the board of appeals to create a record, prepare findings and conclusions, and make a decision. This is true even where the municipality has not appointed anyone to serve on the board of appeals. 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); Freeman v. Town of Southport 568 A.2d 826 (Me. 1990).

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 planning board's decision to the board of appeals or from the board of appeals to Superior Court under Rule 80 B 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 MRSA § 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. 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 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 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). Bruk 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). As was noted in Section III, to overturn a local decision, the court must find that it was unsupported by substantial evidence in the record and that the record compels contrary findings. Grant's Farm, supra.

Authority of Municipal Officers

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

Role of Planning Board at Board of Appeals Hearing

If a decision made by the planning board is appealed to the board of appeals, the planning board should attend the BOA meetings at which the appeal is heard and decided, either as a whole board or by designating one or two board members to speak on the board's behalf. The planning board should be prepared to defend its decision, answer questions about its decision, and provide other information as required by the board of appeals to help ensure that the board of appeals does not overturn the planning board's decision without substantial justification. Members of the two boards should not discuss the case outside of the appeals board meeting in order to ensure that the applicant's due process rights are not violated.

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 proccedings. 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. However, if the applicant has already filed a Rule 80B appeal from the board's decision, the board probably should not attempt to reconsider its original decision.

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," with certain exceptions discussed below.

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. Minster v. Town of Gray, 584 A.2d 646 (Me. 1990). 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).

Nor can the appeals board legally resolve title disputes or other disputes relating to a person's legal interest in a piece of property, such as the location of a boundary line. Rockland Plaza Realty Corporation v. LaVerdiere's Enterprises, Inc., 531 A.2d 1272 (Me. 1987). An appeals board also has no authority to force an individual to comply with a privately-imposed deed restriction or to determine its validity. Whiting v. Seavey, 188 A.2d 276 (Me. 1963).

Enforcement Decisions

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).

Section V

Variances and Waivers

Authority to Grant Variances

The planning board has no authority to grant a zoning "variance" as that word is defined in 30-A MRSA § 4353. 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 MRSA § 3001 has been preempted by 30-A MRSA § 4353 in this regard. Op. Me. Att'y Gen. (April 23, 1984).

Appeal of Variance Decision by Planning Board

If the planning board believes 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, the planning board may have standing to challenge the board of appeals decision in Superior Court. (See discussion in Section IV regarding "Standing.") However, the municipality may not necessarily vote to pay for such an appeal, so the board members should consult with the municipal officers before retaining a lawyer to avoid having to pay from their own pockets.

Waivers

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 the planning 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 MRSA § 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 (except where a plan will be recorded, in the case of the planning board, in which case, the required information must be noted on the plan). To be valid, these certificates or plans must be recorded within 90 days of the decision.

Variance vs. Special Exception/Conditional Use

When the board of appeals grants a zoning variance, or other authorized variance, 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 Sections II and III).

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; it is only one element of the total permit approval process. Generally, once a variance is granted, the applicant must return to the planning board or some other local official for a permit authorizing the project as a whole. A variance "runs with the land," meaning that the variance is transferred automatically to a new owner if the property subsequently changes hands. 3 Anderson, American Law of Zoning 3d, § 20.02.

Shoreland Zoning Variances

Title 38, section 438-A(6) previously 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. This was to be done at least 20 days prior to action by the board on the application. Any comments submitted by the DEP were to be entered into the record and considered by the board.

During the 1991 legislative session, the shoreland zoning laws were amended and this requirement was repealed, effective October 9, 1991. The board of appeals is no longer required to send variance applications to DEP for review and comment, but it may.

Situations may arise in which a property owner obtained approval from the planning 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, 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, most courts have held that even where an ordinance does not expressly authorize revocation, the board may revoke its approval without a court order upon discovering that the board granted its approval without authority or that the applicant made false statements on the application which were material to the decision to approve the application, provided the land owner has not acquired a vested right to 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); McQuillan, 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:

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.

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 ///, 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. Brown v. Town of Kennebunkport, 565 A.2d 324 (Me. 1989). 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" usually does not constitute a substantive review. The fact that an application was delivered to the town office or received and receipted by the board's secretary does not make an application "pending," absent a local ordinance to the contrary. P.W. Associates v. Town of Kennebunkport, No. CV-88-716 and CV-89-29 (Me. Super Ct., Yor.Cty, Nov. 20, 1989).

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 with 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 whether the facts show that the permit holder has acquired "vested rights." 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. In deciding whether "substantial" sums have been expended, preliminary expenditures involved in preparing and supporting the original application are not included-architect's fees, surveying costs, engineering studies, etc. 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.

The Maine Supreme Court has made it clear that where several ordinances, each with their own application and review process, govern a project, the fact that a person has a "pending application" under one of those ordinances does not make his application "pending" for all purposes. Any ordinance amendments to other ordinances or other totally new ordinances adopted in the meantime would apply to the project. Larrivee v. Timmons, supra.

Section VII

Enforcement

If the planning board has been named as the board responsible for enforcing a particular ordinance or statute, the board members should obtain a copy of Handbook for Code Enforcement Officers, prepared by Maine Municipal Association, for a general discussion of code enforcement procedures, issues, and forms. To determine whether the board has authority to enforce a particular ordinance or statute, the members must look at the ordinance or statute in question to see who is authorized to send notices to people in violation of the law or take similar preliminary enforcement steps. If no one is specifically authorized to give notice of a violation, the person or board authorized to approve projects or issue permits under the ordinance or statute probably has implicit preliminary enforcement powers.

Title 30A section 4452 creates authority for a certified code enforcement officer or board to prosecute land use violations in District Court without an attorney. That law also establishes a range of fines governing violations of locally enforced land use laws and outlines factors for the court to consider in deciding what remedies to order to correct a violation. A handbook discussing this law and the procedures for prosecuting a case in District Court under Rule 80K is available from the Health Engineering Division of the Department of Human Services.