BOA Appellant Beware!

Practice area:

The Maine SJC’s latest decision includes a ruling that could have fatal implications for some land use appeals.  Campbell v. City of South Portland, 2015 ME 125

There are two important land use issues discussed in Campbell.  The first goes to what happens if you don’t build quickly after you obtain a variance; the second to the required content in a notice of appeal.  The first issue is interesting too (oh, we could talk about land use issues all the live long day), but the second one is the potential mine field.

In Campbell, the building inspector issued a building permit, which Campbell appealed to the City’s Board of Appeals.  The SJC held that Campbell could not raise an issue before the court that she had not listed in the notice of appeal to the BOA, because the City ordinance provided that the notice of appeal to the BOA “shall be filed with the Department of Planning and Development on forms approved by the Board of Appeals, and the aggrieved person shall specifically set forth on said form the grounds for said appeal.”  It didn’t matter that Campbell made the argument orally before the Board, because these oral references “did not cure her initial failure to comply with the written notice requirement in section 27-154(a), which foreclosed her opportunity to pursue the issue before the Board.” 

In short, when someone files an appeal before a BOA, s/he had better read the ordinance carefully and if there is language like this, that appellant had better list all the specific grounds on appeal.  Unlike a regular notice of appeal in court, which only requires identification of the order or judgment being appealed, failure to list a ground of the appeal in the appeal form could be fatal.

In Campbell, the BOA did not address in its written decision the ground not listed in the form but argued orally.  The decision could be read as leaving open the question whether a BOA has the jurisdiction if it wants to address an issue not included in the notice of appeal, if BOA chooses to do so.  The word “jurisdiction” or “authority” was not used in the decision.  On the other hand, as noted, the Court said that the failure to list the issue “foreclosed her opportunity to pursue the issue before the Board” which sounds pretty black and white.  The SJC didn’t talk directly about whether there was any prejudice in not having the ground identified in the notice, except on an institutional basis, as to why it is reasonable for BOAs to have this type of requirement generally.  The SJC describes the issue not presented in the form as “not in order for decision by the Board” and therefore Campbell could not “raise the issue collaterally for judicial review,” citing Wells v. Portland Yacht Club, 2001 ME 20 P5.  Wells is a case that basically cites the waiver and exhaustion rules for administrative appeals, which the SJC has enforced pretty consistently.

In sum, while there theoretically could still be a question whether you can throw yourself on the mercy of the BOA and raise the issue in court if the BOA decides to entertain the argument, I wouldn’t bet on it.  READ THE ORDINANCE when you file a BOA appeal, and list every argument you’ve got if the language in the ordinance could be read as so requiring.