Friends of Lamoine v. Town of Lamoine

• Decision Date: 19 May 2020
• Docket Number: Docket: BCD-19-297
• Citation: 234 A.3d 214
• Parties: FRIENDS OF LAMOINE et al. v. TOWN OF LAMOINE et al.
• Court: Maine Supreme Court

234 A.3d 214

FRIENDS OF LAMOINE et al.

v.TOWN OF LAMOINE et al.

Docket: BCD-19-297

Supreme Judicial Court of Maine.

Argued: March 3, 2020

Decided: May 19, 2020

Edmond J. Bearor, Esq.(orally), Jonathan P. Hunter, Esq., and Katie R. Foster, Esq., Rudman Winchell, Bangor, for appellant Harold MacQuinn, Inc.

Maxwell G. Coolidge, Esq. (orally), Ellsworth, for appellees Friends of Lamoine and The Tweedy Trust

The Town of Lamoine did not file a brief

Panel: MEAD, GORMAN, JABAR, HUMPHREY, HORTON, and CONNORS, JJ.¹

MEAD, J.

[¶1] Harold MacQuinn, Inc., (MacQuinn) appeals from a judgment of the Business and Consumer Docket (Duddy, J. ), see M.R. Civ. P. 80B, vacating a Town of Lamoine Board of Appeals decision that reversed the Town Planning Board's denial of MacQuinn's application for a permit pursuant to the Town's Site Plan Review Ordinance, and affirming and reinstating the Planning Board's decision. MacQuinn contends that (1) the Rule 80B complaint filed by Friends of Lamoine and Jeffrey Dow as Trustee for the Tweedie Trust (collectively, Friends) should have been dismissed as untimely, (2) the Board of Appeals should have conducted a de novo rather than appellate review, (3) the Planning Board's findings in denying the permit were unsupported by substantial evidence, and (4) the Planning Board should have waived a criterion of the ordinance as duplicative or inapplicable. We affirm the judgment.

I. BACKGROUND

[¶2] We draw the following facts from the administrative record before the Planning Board, the municipal body that issued the operative decision. See M.R. Civ. P. 80B(f) ; Appletree Cottage, LLC v. Town of Cape Elizabeth , 2017 ME 177, ¶¶ 2, 11, 169 A.3d 396 ; Osprey Family Tr. v. Town of Owls Head , 2016 ME 89, ¶ 2, 141 A.3d 1114.

[¶3] In February 2017, MacQuinn filed two separate applications with the Planning Board, pursuant to the Town's Gravel Ordinance and Site Plan Review Ordinance, seeking permits to allow the expansion of its existing gravel extraction operation at Kittredge Pit from 65 acres to 108 acres.² See Lamoine, Me., Gravel Ordinance (March 16, 2011); Lamoine, Me., Site Plan Review Ordinance (March 16, 2011). On November 14, 2017, the Planning Board voted to deny the Gravel Ordinance permit, issuing written findings on November 21, 2017. On December 11, 2017, the Planning Board voted to deny the Site Plan Review Ordinance permit and issued written findings.

[¶4] MacQuinn appealed both denials to the Board of Appeals (BOA). Pursuant to the BOA's interpretation of the respective appeals provisions in the Gravel Ordinance and Site Plan Review Ordinance, the BOA conducted a de novo review of the Gravel Ordinance permit application and an appellate review of the Planning Board's Site Plan Review Ordinance denial. The BOA reversed the Planning Board's decision on both permit applications and remanded to the Planning Board with instructions to issue both permits. Following the BOA's directive, the Planning Board voted to approve both permits on July 9, 2018.

[¶5] On August 8, 2018, Friends filed a complaint in the Superior Court pursuant to M.R. Civ. P. 80B, and the case was transferred to the Business and Consumer Docket (BCD). Friends challenged only the BOA's decision to reverse the Planning Board's denial of the Site Plan Review Ordinance permit and not the BOA's decision concerning the Gravel Ordinance permit. On April 4, 2019, the BCD issued an order vacating the BOA's decision and affirming the Planning Board's December 2017 decision denying the Site Plan Review Ordinance permit. In response to MacQuinn's first of two motions to reconsider, the BCD amended its judgment in part in an order signed June 17, 2019, altering its basis for why the Planning Board's findings regarding the Site Plan Review Ordinance's section J.1 natural landscape criterion were supported by sufficient evidence; the BCD maintained its conclusion that the Planning Board's decision was the operative one for review and should be affirmed. Following that amended judgment, the BCD denied MacQuinn's motion for reconsideration of the amended judgment, and MacQuinn appealed.

II. DISCUSSION

A. Timeliness of Friends' Rule 80B Complaint

[¶6] MacQuinn argues that Friends' M.R. Civ. P. 80B complaint should have been dismissed as untimely. In particular, MacQuinn invokes 30-A M.R.S. § 2691 (2020), governing boards of appeal, to suggest that Friends' complaint was foreclosed. We disagree and hold that the applicable statute is 30-A M.R.S. § 4482-A (2020), which covers land use decisions of bodies other than boards of appeal and pursuant to which Friends' complaint was timely filed.

[¶7] We interpret statutes de novo, looking first to the plain language and delving beyond the plain meaning only if the language is ambiguous. See Wister v. Town of Mount Desert , 2009 ME 66, ¶ 17, 974 A.2d 903. Rule 80B provides that "[t]he time within which review may be sought shall be as provided by statute" and establishes a default time period if one is not provided by statute. M.R. Civ. P. 80B(b). Here, the time for appeal is provided by statute. We have not yet construed 30-A M.R.S. §§ 2691(3)(H), 4482-A, or 4482-B (2020), each of which was enacted in 2017, and we take the opportunity to do so now. See P.L. 2017, ch. 241, §§ 3, 5, 6 (effective Nov. 1, 2017).

[¶8] Title 30-A M.R.S. § 2691(3)(G) establishes a 45-day period for appeals following a vote of a board of appeals. Section 2691(3)(H) provides that

a decision of the board is a final decision when the project for which the approval of the board is requested has received all required municipal administrative approvals by the board, the planning board or municipal reviewing authority, a site plan or design review board, a historic preservation review board and any other review board created by municipal charter or ordinance. If the final municipal administrative review of the project is by a municipal administrative review board other than a board of appeals, the time for appeal is governed by section 4482-A . Any denial of the request for approval by the board of appeals is considered a final decision even if other municipal administrative approvals are required for the project and remain pending. A denial of the request for approval by the board of appeals must be appealed within 45 days of the date of the board's vote to deny or within 15 days of final action by the board on a reconsideration that results in a denial of the request.

30-A M.R.S. § 2691(3)(H) (emphasis added). Here, when the BOA determined that the Planning Board erred in its interpretation of the Site Plan Review Ordinance, it reversed and remanded the matter to the Planning Board to approve the permits as the last and final step in the permitting process. Pursuant to the plain language of section 2691(3)(H), the final decision was that of the Planning Board, not the Board of Appeals, and the time for appeal is therefore governed by 30-A M.R.S. § 4482-A. See 30-A M.R.S. § 2691(3)(H).

[¶9] Section 4482-A, entitled "Review of other municipal land use decisions," permits a party to file an appeal in the Superior Court of "a final decision within 30 days of the date of the vote on the final decision." 30-A M.R.S. § 4482-A(1). Section 4482-A(2) instructs that section 4482-B defines what is meant by a "final decision." 30-A M.R.S. § 4482-A(2). Section 4482-B mirrors the language found in section 2691(3)(H) and dictates that "a municipal land use decision is a final decision when an application for a project ... has received all required municipal administrative approvals," including those by the "planning board," before a party can appeal. 30-A M.R.S. § 4482-B.

[¶10] Contrary to MacQuinn's contention that Friends should have filed its Rule 80B complaint immediately following the BOA's decision, Friends could not have appealed the granting of the Site Plan Review Ordinance permit until, on remand from the BOA, the Planning Board voted to approve the permit. See 30-A M.R.S. § 4482-B ("An appeal may not be filed under this section prior to the review and final approval of a project by each applicable municipal administrative review board ....").³ Because Friends filed its Rule 80B complaint on August 8, 2018, within 30 days after the Planning Board's July 9, 2018, final vote, the complaint was timely. See 30-A M.R.S. § 4482-A(1).

B. The Operative Decision

[¶11] In order to determine which municipal decision is the operative decision for our review on the merits, we must first determine whether the BOA's review pursuant to the Site Plan Review Ordinance is de novo or appellate. See Gensheimer v. Town of Phippsburg , 2005 ME 22, ¶¶ 5, 7, 868 A.2d 161. When the BOA conducts a de novo review, acting as "factfinder and decision maker," the BOA's decision is the operative decision. Id. ¶ 7 (quoting Stewart v. Town of Sedgwick , 2000 ME 157, ¶ 4, 757 A.2d 773 ). However, when the BOA conducts an appellate review, the decision of the Planning Board, or other previous tribunal, is operative. Id.

[¶12] In determining the nature of the BOA's review, "we look to state statutes and to the municipality's own ordinances." Yates v. Town of Southwest Harbor , 2001 ME 2, ¶ 11, 763 A.2d 1168. Pursuant to 30-A M.R.S. § 2691(3)(C), the default review for a board of appeals is de novo, but a town's ordinance may establish an appellate standard instead. Under a de novo review, the BOA can receive evidence, see 30-A M.R.S. § 2691(3)(C)-(D), but in an appellate review, the BOA "limit[s] its review on appeal to the record established by the [planning] board" and "may not accept new evidence," 30-A M.R.S. § 2691(3)(C).

[¶13] Turning to the Ordinance's language, we examine section M of the Site Plan Review Ordinance, which governs appeals and provides:

1. If the [Planning] [B]oard disapproves an application or grants approval with conditions that are objectionable to the applicant or to any abutting landowner or any aggrieved party, ... or when it is claimed that the

...