Back to looking at some recent decisions, and what better start but one in which we prevailed? Bizier v. Turner, 2011 ME 116 [http://www.courts.state.me.us/opinions_orders/opinions/2011%20documents/11me116bi.pdf]. This was a Rule 80B appeal involving site plan review for a grocery store and pharmacy. The bulk of the decision relates to language in the town's ordinance that probably doesn't have a lot of application outside this specific context. There was, however, one interesting procedural issue that came up, which may be of wider interest.
At the time the Planning Board made its decision to grant the permit, the next step for an appeal was through the Board of Appeals, and only after that to the Superior Court. A town warrant was issued to amend this ordinance to skip the ZBA step, which towns can do by statute, and to enact that change retroactively to before the date of the Planning Board's decision. The town approved the change after 30-day period to appeal was over.
Within the 30-day window to appeal, the appellants filed both a direct appeal in Superior Court and an appeal before the ZBA. The parties then agreed to proceed directly through the Superior Court. The SJC addressed whether this was ok.
The Court ruled yes, because retroactive rulemaking is fine under 1 M.R.S. s. 302, as long as it does not disturb vested rights, as we all know from City of Portland v. Fisherman's Wharf Assocs. II, 541 A.2d 160, 164 (Me.1988). The Court said: "Although there are grounds to object to the application of a retroactive ordinance amendment, none of the parties have done so in this case," citing the cases that discuss vested rights.
So, for example, the Town could not have changed its ordinance in a way that eliminated the right to appeal. But that was not the effect here; instead, everyone was just skipping a step in the appeal that statute allows, with no harm to any party.
This result is logical and straightforward, and the takeaway is that procedural provisions in ordinances can be retroactive just like other provisions.
The only point that I would add, which the court did not discuss, is that previous case law makes clear that administrative exhaustion — the need to progress through the ZBA step — is prudential, not jurisdictional. Cushing v. Smith, 457 A.2d 816, 821 (Me.1983) [http://188.8.131.52/leagle/xmlResult.aspx?xmldoc=19831273457A2d816_11265.xml&docbase=CSLWAR1-1950-1985]. This fact raises some interesting questions.
Because exhaustion is not jurisdictional, I think this means anyone can try skipping the ZBA step even if the ordinance requires it — IF they can explain to the Court why the prudential rule should not apply. That is one whopping big if. But if the sky will fall down absent immediate judicial review, and/or you truly have a whizbang futility argument, then, at least as an abstract matter, I think this means that you can go directly to the Court and give it a shot.
Because the requirement is not jurisdictional, one might then ask, can parties waive or be estopped? If, for example, the parties all agree that it makes sense to skip the ZBA step, can that alone be enough to get you past this hurdle? If it's official enough, you can have estoppel against a town (but it has to be pretty darn official). This is an interesting question. My visceral response is that a court might say that such an agreement is not dispositive, because it's the court's prudential rule, so the court gets to apply it however they want, whatever the parties say. On the other hand, if the town has emphatically agreed, then it's their ordinance requiring the intermediate step, not the court, in the first place, so why can't waiver or estoppel principles apply? Obviously, the court doesn't want everyone going straight to court willy nilly, but if the town (and all the other parties) conclude that it's a huge waste of time to proceed through the ZBA step, then why can't the town waive its own requirement?