Your Homes, Inc. v. City of Portland Bd. of Zoning Appeals
Decision Date | 07 January 1972 |
Citation | 285 A.2d 372 |
Parties | YOUR HOMES, INC. v. CITY OF PORTLAND BOARD OF ZONING APPEALS. |
Court | Maine Supreme Court |
Charles A. Lane, Robert W. Donovan, Portland, for defendant.
Before DUFRESNE, C. J., and WEBBER, WEATHERBEE, POMEROY and ARCHIBALD, JJ.
On appeal.
The plaintiff, owner of certain real estate in the City of Portland, filed an application with the Building Inspector of the City of Portland requesting permission to use its property as a mobile home park. This application was denied and an appeal was taken to the Zoning Board of Appeals, which Board sustained the decision of the Building Inspector. The plaintiff seasonably appealed to the Superior Court pursuant to the provisions of 30 M.R.S.A., § 4954, subd. 2 par. B. The notice of the appeal was served by summons as provided in M.R.C.P., Rule 4.
On October 28, 1970, a Justice of the Superior Court dismissed the appeal because 'the Plaintiff failed to have Notice of the Appeal ordered by the Court as required by 30 M.R.S.A., § 4854 B (sic) and this Court is therefore without jurisdiction to entertain the appeal.' The plaintiff on October 30, 1970, filed a motion to amend the process which was denied.
The propriety of these rulings is the only issue before this Court.
30 M.R.S.A., § 4954, subd. 2 provides for an appeal from the decision of a zoning board of appeals to the Superior Court in this language:
'An appeal may be taken from any decision of the building inspector to the board of appeals, and from the board of appeal to the Superior Court.'
Such appeal must be taken within thirty days after the decision. The statute in force at the time, 30 M.R.S.A., § 4954, subd. 2, par. B, provided that '(n) otice of the appeal shall be ordered by the court . . .' The plaintiff did not obtain a special order of court for service of a notice of appeal and the Justice below based his dismissal of the complaint upon this failure.
4 M.R.S.A., § 8 vests the Supreme Judicial Court with rule making power:
This power was exercised and the Maine Rules of Civil Procedure became effective December 1, 1959.
By Chapter 317 of the Public Laws of 1959 the legislature by an omnibus act amended the procedural statutes to bring them into conformity with the new rules. Although the above quoted provision of § 4954, subd. 2, par. B was not altered by amendment, we view it as a legislative oversight. We note that this section was amended by the legislature in 1971 so that Paragraph B of Subsection 2 thereof reads as follows:
Service of process is prodedural. The plaintiff actually noted its appeal seasonably. M.R.C.P., Rule 80B provides the procedure by which the Superior Court on appeal may review the proceedings had before a governmental agency such as the zoning board of appeals. This rule contains the following provisions:
The record before us indicates a compliance with this...
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Your Home, Inc. v. City of Portland
...by the Superior Court on procedural grounds. An appeal was taken to this Court and we reversed. Your Homes, Inc. v. City of Portland Board of Zoning Appeals, Me., 285 A.2d 372 (1972). A motion to amend the complaint in 70-740 was denied in November 1973. Your Home filed another application ......
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...promulgating rules of civil procedure exercises its authority to enact measures that regulate court procedure. Your Homes, Inc. v. City of Portland, 285 A.2d 372, 374 (Me. 1972); 4 M.R.S.A. § 8 (1989). 3 If in the course of a proceeding to which the Rules of Civil Procedure are applicable a......
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...sub. 2, par. B. That this order of notice was unnecessary is a conclusion reached by this Court in Your Homes, Inc. v. City of Portland Board of Zoning Appeals, Me., 285 A.2d 372 (1972). See also 30 M.R.S.A. § 2411, sub. 3, par. 'Sterns Real Estate' applied for and received a permit from th......
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Your Home, Inc. v. City of Portland
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