Penobscot Area Housing Development Corp. v. City of Brewer

• Citation: 434 A.2d 14
• Parties: PENOBSCOT AREA HOUSING DEVELOPMENT CORPORATION et al. v. CITY OF BREWER et al.
• Decision Date: 14 August 1981
• Court: Supreme Judicial Court of Maine (US)

Page 14

434 A.2d 14

32 A.L.R.4th 1002

PENOBSCOT AREA HOUSING DEVELOPMENT CORPORATION et al. v. CITY OF BREWER et al.

Supreme Judicial Court of Maine.

Argued Jan. 16, 1981.

Decided Aug. 14, 1981.

William H. Laubenstein, III, Asst. Atty. Gen. (orally), Augusta, Theodore S. Curtis, Jr. (orally), Curtis & Griffin, Orono, for plaintiffs.

David D. Gregory, Special Master, University of Maine School of Law, Michael Feldman, Pine Tree Legal Services, Portland, Jane Bloom Yohalem, Mental Health Law Project, Washington, D.C., for amicus curiae.

Libhart, Ferris, Dearborn, Willey & Ferm, Joel A. Dearborn (orally), Brewer, for defendants.

Before McKUSICK, C. J., and WERNICK, GODFREY, NICHOLS, ROBERTS and CARTER, JJ.

NICHOLS, Justice.

This appeal presents several issues, novel in our jurisdiction, as to the applicability of local zoning ordinances to state-related projects.

The Penobscot Area Housing Development Corporation is a private, nonprofit Maine corporation, recently organized to provide housing for retarded citizens. For that purpose it has negotiated a purchase and sale agreement to acquire a house and lot in a district of the City of Brewer which is zoned for low density single family residential use under the City's zoning ordinance. The Corporation applied to the City's code enforcement officer for an occupancy certificate and described the proposed use as "group home for six adults or older minors, which group home would be licensed as a Boarding Home by the State." The Corporation intended to use the property as a group home for six retarded persons who would be supervised by "approximately two" full-time employees. The Brewer Code Enforcement Officer, William L. Wetherbee, denied the occupancy permit because he concluded the Corporation's proposed use did "not meet the terms of the City of Brewer's zoning ordinance as a single family." Wetherbee recommended that the Corporation comply with the ordinance by applying for a nursing home use rather than as a single family use, and by meeting the additional requirements of a nursing home prescribed by the ordinance. Declining to adopt Wetherbee's suggestions, the Corporation appealed to the City's Board of Appeals. See 30 M.R.S.A. § 2411 (1978). The Board of Appeals held a hearing and later issued a statement, which set forth findings of fact and affirmed Wetherbee's decision that the proposed use could not be classified as a single family use under the ordinance.

From the Board of Appeal's decision, the Corporation sought review of that decision by the Superior Court (Kennebec County) pursuant to 30 M.R.S.A. § 2411(3)(F) (1978) and M.R.Civ.P. 80B. Joining in seeking that review were the State of Maine and the State Bureau of Mental Retardation. The Defendant in the Rule 80B review was the City of Brewer.

Before a plenary hearing was held in Kennebec County the City moved to dismiss the action for improper venue, arguing that neither the State nor the Bureau was a proper party to the review and thus venue should have been laid in Penobscot County where both the Corporation's principal place of business and the City were located. See 14 M.R.S.A. § 505 (1978). After a nontestimonial hearing the court denied the City's motion to dismiss. The Plaintiffs then amended their complaint to allege that the Bureau was before the Superior Court on Rule 80B review both individually and as the legal guardian of three incompetent persons from the Brewer area who already had been selected to live in the proposed group home. In that posture, the court held a hearing to review the Board's decision on its merits and, by an order dated April 16, 1980, affirmed it.

On their appeal to this Court, the Corporation, State, and Bureau challenge the Superior Court's order and raise several important issues concerning the applicability of local zoning ordinances to state-related projects, the proper construction of the Brewer zoning ordinance, and the constitutionality of the Superior Court's construction of that ordinance. The City of Brewer cross appeals, contending that the Superior Court erred in denying its motion to dismiss for improper venue.

We deny both the appeal and the cross appeal.

Venue

The City contends that the Superior Court erred in denying its motion to dismiss for improper venue. This assertion requires our evaluation of the status of both the State and Bureau as participants at various stages in the proceedings. The right of appeal to the Superior Court from decisions rendered by municipal boards of appeal is statutorily governed by 30 M.R.S.A. § 2411(3) (F) (1978). That section provides:

An appeal may be taken, within 30 days after the decision is rendered, by any party to Superior Court from any order, relief or denial in accordance with the Maine Rules of Civil Procedure, Rule 80B.

The hearing before the Superior Court shall be without a jury.

Id. (emphasis supplied). This Court has liberally construed the term "any party" to accommodate the informal features of hearings before municipal bodies and to promote the Legislature's interest in providing a forum for aggrieved persons. Pride's Corner Concerned Citizens Association et al. v. Westbrook Board of Zoning Appeals et al., Me., 398 A.2d 415, 417 (1979). Thus, in contrast to the more rigid standards regulating party status under M.R.Civ.P. 17, we held in Pride's Corner that "party" under section 2411(3) (f) means no more than "a participant in the proceedings who is aggrieved by the action of the appeals board." Id. We went on to specify, however, that an aggrieved party is one that suffers a "particularized injury" and that this definitional component of party derives from the judicial requirement that a party have standing to bring an action. Id. See also Chabot v. Sanford Zoning Board of Appeals, Me., 408 A.2d 85 (1979); Cunningham v. Kittery Planning Board, Me., 400 A.2d 1070, 1078 (1979); Matter of Lappie, Me., 377 A.2d 441, 443 (1977); Walsh v. City of Brewer, Me., 315 A.2d 200, 205-07 (1974).

While we are satisfied that the State and Bureau participated in the proceeding before the appeals board, we agree with the City that the State and the Bureau did not suffer a particularized injury sufficient for purposes of standing and the status of party which standing confers. The State and Bureau argue that they have significant interests at stake and that these interests have been frustrated by the Brewer Code Enforcement Officer's refusal to grant the Corporation an occupancy permit for the proposed group home. Specifically, the State and Bureau contend that they must observe mandates of state ¹ and federal law ² to protect the rights of mentally retarded citizens and to promote their welfare. These mandates include placement of the retarded in home-like environments in the general community. In response to these mandates, the State and Bureau have sponsored a variety of programs designed to assist qualifying private organizations in financing and operating community group homes.

While persuaded that the State and Bureau have legitimate concerns with the statewide success of community group homes, we conclude that those concerns alone do not give rise to a particularized injury in this case. Nothing in the record generated before the Brewer Appeals Board indicates that the State or Bureau have more than a general policy interest in this particular Corporation's proposed group home. In fact, at the hearing before the Appeals Board, the Bureau's Regional Administrator frankly admitted he had not seen the site proposed for the group home, that the site had not been licensed or inspected by the State, and that the State would have to inspect the site before the group home could accommodate residents. Moreover, although the Corporation had negotiated a purchase and sale agreement with the seller, the State and Bureau were not parties to that contract and no contract for financing, grants, or services had ever been negotiated between the Corporation and the State or Bureau. All the record reveals is that the Bureau had provided the Corporation with general information no different from that available to any organization considering the prospects of establishing a group home in Maine. To hold that a "particularized injury" was suffered by the State or Bureau on such a record would debilitate that statutory requirement.

Under the unique circumstances of this case we need not review the decision of the Superior Court on the question of venue. M.R.Civ.P. 61. See Torrey v. Congress Square Hotel Co., 145 Me. 234, 75 A.2d 451 (1950). Less than one month after the Superior Court denied the City of Brewer's motion to dismiss and before the hearing on the merits, the Plaintiffs filed an affidavit of the Director of the Bureau of Mental Retardation with the Superior Court. This affidavit specifically identified three named individuals as incompetent wards of the state and members of the plaintiff class in Wuori v. Zitnay, No. 75-80-SD (D.Me. July 14, 1978) and averred that these individuals had been selected to reside in the proposed group home before the Appeals Board hearing was conducted on July 12, 1979. The Rule 80B complaint was then amended to make them parties to the action.

Under both state legislation ³ and the mandate of the federal court, ⁴ these three incompetent persons were entitled to living accommodations in an environment least restrictive of their liberty. Group homes located in the general community are clearly favored under state policy as best fulfilling the living accommodation needs of mentally retarded individuals. See Wuori v. Zitnay, supra at App. B, § A.2. (a), § C.3; 34 M.R.S.A. § 2147(2)(B) (1978). The specific designation of these three incompetent individuals as future residents of the proposed group home in Brewer thus established a sufficiently definite interest in the controversy to conclude fairly that these individuals suffered a particularized injury under the test...