Norris Family Associates v. Town of Phippsburg

• Decision Date: 25 August 2005
• Citation: 879 A.2d 1007,2005 ME 102
• Parties: NORRIS FAMILY ASSOCIATES, LLC et al. v. TOWN OF PHIPPSBURG et al.
• Court: Maine Supreme Court

2005 ME 102

879 A.2d 1007

NORRIS FAMILY ASSOCIATES, LLC et al. v. TOWN OF PHIPPSBURG et al.

Docket: Sag-05-11.

Supreme Judicial Court of Maine.

Submitted On Briefs: June 2, 2005.

Decided: August 25, 2005.

Judith A.S. Metcalf, Esq., Eaton & Peabody, Brunswick, ME, Attroney for plaintiff.

Christopher Neagle, Esq., Troubh Heisler Piampiano, Portland, ME, Attroney for defendant.

Richard L. Hornbeck, Esq. Moncure & Barnicle Brunswick, ME.

Panel: SAUFLEY, C.J., and CLIFFORD, DANA, ALEXANDER, CALKINS, and LEVY, JJ.¹

LEVY, J.

[¶1] Norris Family Associates, LLC (hereinafter NFA) and Philip Jermain appeal from an order of the Superior Court (Sagadahoc County, Atwood, J.) dismissing their M.R. Civ. P. 80B appeal from a decision of the Town of Phippsburg Board of Appeals. The court concluded that it lacked subject matter jurisdiction to hear the appeal in part because NFA and Jermain were not the named appellants in the underlying administrative appeal before the Board. Nancy Stimson Chester² (Stimson) cross-appeals, arguing that even if the Superior Court has subject matter jurisdiction, neither NFA nor Jermain have standing to appeal to the Superior Court. Because we conclude that the Superior Court has subject matter jurisdiction and NFA and Jermain have standing to appeal, we vacate the judgment and remand for the court to consider the merits of their appeal.³

I. BACKGROUND

[¶2] In December 2003, Stimson applied to the Town of Phippsburg's code enforcement officer (CEO) for a permit to build a home on property she owns between Silver Lake and Popham Beach in Phippsburg. The CEO granted the permit. Suzanne Nusbaum, the owner of nearby property, filed an appeal with the Phippsburg Board of Appeals within thirty days of the CEO's decision as required by the Town's Land Use and Shoreland Zoning Ordinances. Her application to the Board listed the owners of abutting lots, including several lots in which Stephen Norris, Charles Norris, Richard Norris, and Philip Jermain have ownership interests along with other individuals. The application indicates that Tax Map 14, lot 56—referred to in Stimson's site plan as "n/f Norris"—is owned by Philip Jermain, Roderick Jermain, Mary Elena Rogers, Charles Norris, Stephen Norris, and Richard Norris. The application also states that Stephen Norris, Charles Norris, Richard Norris, and Philip Jermain together own three other lots that abut the Stimson property. In an affidavit filed with the Superior Court, Stephen Norris described NFA as being a Maine limited liability company to which he and his brothers, Charles and Richard, have transferred their ownership interests.

[¶3] Stephen Norris appeared at the hearing before the Board and testified in support of Nusbaum's appeal. Attorney William Ferdinand also appeared before the Board and stated that he represented the Norrises. Ferdinand was present and argued before the Board on both days of the two-day hearing. Philip Jermain did not appear before the Board, but Ferdinand's law firm's address is listed in the application as the mailing address for all of the owners of Tax Map 14, lot 56, including Jermain. After its hearing, the Board denied Nusbaum's appeal, and it did not respond to NFA and Jermain's subsequent request for reconsideration.

[¶4] Pursuant to M.R. Civ. P. 80B, Nusbaum, Jermain, and NFA filed a complaint in the Superior Court appealing the Board's decision. Later, on her own motion, Nusbaum sought and obtained permission to withdraw as a party. Stimson subsequently filed a motion to dismiss the claims of the remaining plaintiffs—NFA and Jermain—for lack of standing.

[¶5] Because neither NFA nor Jermain actually filed the appeal of the CEO's decision with the Board, the court found that it lacked subject matter jurisdiction and dismissed the appeal. The Superior Court based its jurisdiction decision on the appeals provisions in Phippsburg's Shoreland Zoning Ordinance.⁴ The ordinance provides that "[a]n . . . appeal may be taken to the Board of Appeals by an aggrieved party from any decision of the Code Enforcement Officer or the Planning Board. . . . Such appeal shall be made by filing with the Board of Appeals a written notice of appeal." Phippsburg, Me., Shoreland Zoning Ordinance § 16(G)(3) (June 5, 1993). The ordinance also provides that "[a]ny aggrieved party who participated as a party during the proceedings before the Board of Appeals may take an appeal to Superior Court in accordance with State laws." Id. § 16(G)(4). The court noted that "not only must one adhere to local procedures in order to prosecute an appeal [before a local board], the failure to do so will not permit that appeal to be entertained [in the Superior Court] or in the Law Court." Because neither NFA nor Jermain appealed the CEO's decision to the Board, the court concluded that it lacked subject matter jurisdiction and dismissed the appeal.

[¶6] Although the court granted Stimson's motion to dismiss on jurisdiction grounds, it went on to address her remaining arguments for dismissal. The court found that even if it did have jurisdiction to hear the appeal, only NFA, and not Jermain, would have standing because Stephen Norris appeared before the Board on behalf of NFA and Jermain did not appear at all. NFA and Jermain appeal from the court's judgment asserting that the court erred in concluding that it lacked subject matter jurisdiction and that if it had subject matter jurisdiction, only NFA would have had standing to appeal. Stimson cross-appeals asserting that the court erred in concluding that NFA would have had standing.

II. DISCUSSION

[¶7] NFA and Jermain contend that the Superior Court erred in concluding that (A) it does not have subject matter jurisdiction to hear their Rule 80B appeal, and (B) that even if it has subject matter jurisdiction, Jermain lacks standing to appeal. Stimson contends that the court erred in concluding that if it has subject matter jurisdiction, NFA has standing to appeal. We address both issues, in turn.

A. Subject Matter Jurisdiction

[¶8] The court concluded that it did not have subject matter jurisdiction in this case because NFA and Jermain had failed to file an administrative appeal from the decision of the CEO to the Zoning Board of Appeals as required by the ordinance. Whether subject matter jurisdiction exists is a question of law that we review de novo. State v. Dhuy, 2003 ME 75, ¶ 8, 825 A.2d 336, 341.

[¶9] Jurisdiction to hear administrative appeals brought pursuant to Rule 80B rests in the Superior Court. 4 M.R.S.A. § 105(3)(A) (Supp. 2004).⁵ With respect to appeals taken from the decisions of municipal boards of appeals "[a]ny party may take an appeal . . . to Superior Court from any order, relief or denial in accordance with . . . Rule 80B." 30-A M.R.S.A. § 2691(3)(G) (1996). Thus, the Superior Court's subject matter jurisdiction to conduct appellate review pursuant to Rule 80B is firmly established in statute. Although a town's ordinances may define the authority of the town's various officials and boards, see 30-A M.R.S.A. § 2691(4), they do not delimit the Superior Court's jurisdiction over 80B appeals.

[¶10] Accordingly, NFA and Jermain's right to obtain judicial review of the final decision of the Phippsburg Board of Appeals is prescribed exclusively by statute, and that right cannot be restricted by additional requirements of the Phippsburg ordinance. See Singal v. City of Bangor, 440 A.2d 1048, 1050 (Me. 1982) (stating that "[r]ights of appeal from decisions of administrative tribunals are statutory"). Because the Superior Court's subject matter jurisdiction in this proceeding is not impaired by the provisions of the Phippsburg ordinance, we also address the separate question of NFA and Jermain's standing to appeal.

B. Standing

[¶11] It is well established that in order to have standing to file an 80B appeal in the Superior Court, the appellant must prove (1) that it was a party at the administrative proceeding, and (2) that it suffered a particularized injury as a result of the agency's decision. Lewis v. Town of Rockport, 2005 ME 44, ¶ 8, 870 A.2d 107, 110. We review the issue of a party's standing to bring a Rule 80B appeal de novo. See Lowry v. KTI Specialty Waste Servs., Inc., 2002 ME 58, ¶ 4, 794 A.2d 80, 81.

[¶12] The court analyzed NFA and Jermain's standing to appeal as an issue separate from its subject matter jurisdiction to entertain the appeal. Although the parties have not questioned this approach, it is inconsistent with our prior decision in Singal in which we treated a party's standing to appeal an administrative decision as being an element of the court's subject matter jurisdiction. See Singal, 440 A.2d at 1050. We recognize today, however, as did the court, that the two issues are separate.

[¶13] The Superior Court's subject matter jurisdiction in Rule 80B proceedings is a function of statute and is, therefore, a question of law. Standing to appeal is a separate jurisprudential principle that focuses on the capacity of a party to bring an appeal. A party's standing to bring a Rule 80B appeal is a function of whether the party participated in the administrative process and whether the party will suffer a particularized injury, and is, therefore, a mixed question of law and fact. See Lewis, 2005 ME 44, ¶ 8, 870 A.2d at 110. Because subject matter jurisdiction and standing to appeal are separate issues, they should be analyzed as such. We therefore overrule the contrary approach taken in Singal.

[¶14] NFA and Jermain argue that they both have standing to appeal to the Superior Court based on the facts that Stephen Norris testified and presented argument before the Board; Attorney Ferdinand appeared before the Board and stated that he was representing the Norrises—a collective name they contend includes all of the owners of Tax Map 14, lot 56, described in Stimson's site plan as "n/f Norris"; and Ferdinand's law firm is listed as the mailing address on...