On Tuesday, the Maine Supreme Judicial Court (SJC) issued a decision addressing when someone can appeal to court a local board decision that is related to another local board decision, and concluded that the appeal can be filed only after both local boards make their final decisions. Bryant v. Town of Camden, 2016 ME 27. Whether the decision achieves the Court’s objectives of providing clarity and speeding up administrative appeals remains to be seen.
The owner of an inn in Camden wanted to increase the number of guest rooms and parking spaces, and decrease the number of seats in the inn’s restaurant. To achieve this objective, under Camden’s zoning ordinance, the inn needed to obtain a special exception permit from the Zoning Board of Appeals (ZBA) before seeking site plan approval from the Planning Board. The ZBA granted the permit subject to conditions and further consideration by the Planning Board. An abutter appealed the ZBA’s decision.
The SJC held that the appeal was premature, and therefore dismissed it, because before the “proposed use” was “finally approved,” the Planning Board had to conduct a site plan review, with any appeal of that decision taken to the ZBA. The SJC noted that in this instance, “although the ZBA has approved a special exception permit, it has conditioned its permit on the Planning Board additionally approving the use after full site plan review.”
The SJC reached this decision even though the Camden ordinance provides that an appeal of the ZBA’s special exception decision may be taken to court, and even though Maine statute (30-A M.R.S. § 3001) could be read as allowing that appeal, reasoning that the court’s rules on justiciability trumps state or local legislation.
The SJC repeated its plea that “Maine’s cities and towns, perhaps with the assistance of the Maine Municipal Association” should do something about the confusion concerning when an administrative decision is final and appealable.
The SJC’s holding can be read narrowly to mean that a ZBA decision granting a special exception is not final and appealable if the ZBA expressly conditions its approval on the Planning Board’s site plan review, with the ability under the ordinance framework to challenge the site plan review back before the ZBA. So read and limited, that may be workable.
But if the SJC meant its holding to be read more broadly, to mean that no appeal may be filed until the last municipal decision-maker has signed off on the last approval needed to allow the project to go forward, then things could get confusing.
Lots of projects require multiple approvals from various municipal bodies. Potential municipal permits and the body usually granting them include:
- Site plan approval (usually Planning Board);
- Subdivision approval (usually Planning Board, usually at the same time as site plan approval);
- Shoreland zoning permit (usually Planning Board, sometimes code officer; if Planning Board, usually at same time as site plan approval, if needed);
- Floodplain permit (usually Planning Board, sometimes code officer; if Planning Board, usually at same time as site plan approval, if needed);
- Sign permit (usually code officer, sometimes Planning Board; if Planning Board, usually at same time as site plan approval, if needed);
- Special exception or conditional use (usually ZBA, before site plan or subdivision approval);
- Variance (ZBA, before site plan or subdivision approval);
- Contract zoning approval (municipal legislative body, often in conjunction with or even dependent on site plan approval);
- Plumbing permit (code officer or local plumbing inspector, after issuance of all permits above);
- Building Permit (code officer, after issuance of all permits above); and
- Certificate of occupancy (code officer, after issuance of all permits above and typically after construction is complete).
So, after Bryant, when is a decision relating to these multiple approvals final and appealable?
If you are not certain, and you make a mistake and appeal too late, that decision is final and unappealable – case over. If you make a mistake and appeal too early, then the result is added cost and delay, because when it’s on appeal, jurisdiction may be lacking at the administrative level, bringing things at that level to a halt until the court rules. And the appeal could be thrown out because the decision is not yet “final” under Bryant. Under these circumstances, which choice do you make?
Perhaps future case law will provide clarity. Or, even better, maybe the Legislature and the Maine Municipal Association can work together and come up with a holistic approach to this and other procedural issues relating to appeals of both state and local administrative decisions.