A ruling this month by the Maine Supreme Judicial Court (SJC) in Campbell v. City of South Portland, 2015 ME 125, could have fatal implications for some land use appeals.
In Campbell, the building inspector issued a building permit, which Campbell appealed to the City’s BOA. Campbell’s written appeal did not include an argument Campbell later made orally to the BOA, and the BOA did not address in its written decision the argument not listed in the appeal form but argued orally. The SJC held that Campbell could not raise the argument before the court that she had not listed in her notice of appeal to the BOA because the City ordinance provided that the notice of appeal to the BOA “shall be filed with the Department of Planning and Development on forms approved by the Board of Appeals, and the aggrieved person shall specifically set forth on said form the grounds for said appeal.” It didn’t matter that Campbell made the argument orally before the Board, because those oral references “did not cure her initial failure to comply with the written notice requirement in section 27-154(a), which foreclosed her opportunity to pursue the issue before the Board.”
The decision could be read as leaving open the question of whether a BOA has jurisdiction if it wants to address an issue not included in the notice of appeal, if the BOA chooses to do so. The word “jurisdiction” or “authority” was not used in the Campbell decision. On the other hand, the Court said that Campbell’s failure to list the issue in the written notice of appeal “foreclosed her opportunity to pursue the issue before the Board,” which sounds pretty black and white. The SJC didn’t talk directly about whether there was any prejudice in not having the argument identified in the written notice of appeal, except on an institutional basis, discussing why it is reasonable for BOAs to have this type of requirement generally. The SJC described the argument not presented in the form as “not in order for decision by the Board” and, therefore, Campbell could not “raise the issue collaterally for judicial review,” citing Wells v. Portland Yacht Club, 2001 ME 20. Wells is a case that cites the waiver and exhaustion rules for administrative appeals, which the SJC has enforced pretty consistently.
In sum, before filing an appeal before a BOA, read the ordinance carefully to check for language requiring the notice of appeal to include the appeal arguments. Unlike a regular notice of appeal in court, which only requires identification of the order or judgment being appealed, failure to list all specific grounds for the appeal on a BOA notice of appeal form could be fatal to the appeal.