80B’s and deed language


Here’s a recent decision about which I would welcome edification:


It rejects a Rule 80B appeal of a minor subdivision approval to make a one-family residence into a three-family apartment house.

Here’s where I’m confused. The decision doesn’t cite language in the ordinance listing the requirements for approval.  Instead, it talks about language in the deed of the applicants.

I can understand how someone with standing could file a separate suit for breach of a deed covenant – some sort of declaratory judgment or breach action. But the relationship between such a breach and the agency approval is not clear to me.  Usually ordinances require an applicant to have "right, title and interest" in the property, so maybe the deed issue relates to that.  Usually "right, title and interest" cases focus on whether an interest such as option, showing the applicant’s relationship with the property, is sufficient, and not the specific terms of a deed.  But a read of the term "right" that investigates deed issues would make perfect sense, because logically, there’s no point in giving someone an administrative approval to do something if their deed says they can’t. To read "right" as meaning a right to go forward and act on the approval if granted is very rational, and if the deed prohibits such an ability, then that’s a relevant consideration for a board under an ordinance with that type of language. It just would have been more helpful to me if the Court could have spelled out that was in fact what it was doing. Was it sub silentio interpreting language in the ordinance requiring a "right"? Or is this a broader ruling regarding standing in general, not dependent upon ordinance language?  Again, that’s a logical ruling – that anyone, whatever the ordinance language, must show an ability to go forward with the project if approved  — although that leads to other questions, such as what kind of showing is required e.g., is financial wherewithal a general standing requirement, too?   

If I were more energetic, I suppose I’d go look at the actual Ellsworth land use ordinance and see if that lifts the scales from my eyes. In the meantime, this is a case that seems to stand for the proposition that deed language is or can be litigated in the context of an administrative appeal whenever those with interests relating to the deed seek an administrative approval.  It doesn’t seem dependent on ordinance language. Rather, if someone objects to an approval sought by someone else, they can argue, as a general matter (and assuming standing) that the applicant’s deed would preclude the applicant from legally acting upon the approval.

Again, although it would have been helpful to me to have had the dots connected more, this is a logical result.  It does, however, lead to some interesting musings about forum shopping.

Here, for example, someone could have filed a declaratory judgment action first, before any subdivision approval proceeding, and, assuming a case or controversy, could have had the deed language interpreted first by a court, not a board.

On the one hand, it doesn’t seem to make much of a difference in terms of standard of review whether deed language is reviewed in an administrative appeal or a declaratory judgment action, because the language is reviewed de novo by the court anyway in a Rule 80B appeal. On the other hand, it might make a difference in a Rule 80C case, because there the Court generally defers to the state agency’s interpretation. That deference is probably limited to only the language of the governing statute and not a deed, but if the statute talks about "right, title and interest," does that trigger deference in terms of deed interpretation in light of that statutory requirement?  It would seem odd to defer in an 80C but not in a declaratory judgment action, allowing the applicant to choose its forum and by doing so obtain a different standard of review.  But the general rule about deferring in Rule 80Cs and not 80Bs presents an initial differential in any event.

Whether deed language is first interpreted by a board or the court could also make a difference in terms of evidence.  Note the discussion in this decision about the motion for a trial. The motion was rejected, properly under 80B, because the evidence that was sought to be admitted for the first time before the Court on appeal could have been presented to the planning board in the initial administrative proceedings.  Also, if deed language is unambiguous, the decision-maker shouldn’t be looking at extrinsic language anyway.

If, however, deed language is ambiguous, who do you want interpreting it in the first instance, a local board or a court?  Also, administrative rules of evidence can be a lot more loosey-goosey than the Maine Rules of Evidence, so there could be a difference in what’s admissible. Finally, I haven’t checked this, but if a deed is like a contract, is there could be a right to a jury for that kind of fact question?  Also, if it is ambiguous so there is some fact-finding required at the administrative level, is there deference on that board determination?

In sum, I am probably once again making this decision much more complicated than what it is intended — but isn’t that one of the purposes of a blog, to muse upon such implications?