On Tuesday, the Maine SJC issued another decision on the issue of finality before filing an 80B appeal. Bryant v. Town of Camden, 2016 ME 27. Whether the decision achieves the Court’s objectives providing clarity and speeding up administrative appeals remains to be seen.
The owner of an inn in Camden wanted to increase the number of guest rooms and parking spaces, and decrease the number of seats in the inn’s restaurant. To do so, under Camden’s zoning ordinance, the inn needed to obtain a special exception permit from the ZBA before seeking site plan approval from the Planning Board. The ZBA granted the permit subject to conditions and further consideration by the Planning Board. An abutter appealed the ZBA’s decision to Superior Court under M.R. Civ. P. 80B.
The SJC (opinion by CJ Saufley) held that the appeal was premature and ordered it dismissed because before the “proposed use” was “finally approved,” the Planning Board had to conduct a site plan review, with any appeal of that decision taken to the ZBA. The Court noted that “although the ZBA has approved a special exception permit, it has conditioned its permit on the Planning Board additionally approving the use after full site plan review.”
The SJC repeated its plea that “Maine’s cities and towns, perhaps with the assistance of the Maine Municipal Association” do something about the incoherent swamp (I’m paraphrasing) that is the current state of affairs as to when an administrative decision is final and appealable. The Court stressed that a process should not be complicated or take forever.
Finally, the Camden ordinance could be read as specifically saying that an appeal could be taken of the ZBA decision before the Planning Board review, and Maine statute (30-A M.R.S. § 3001) could be read as allowing that appeal. Too bad, the Court said, we, the folks in the black robes, get to decide when something is final for judicial reviewability, and we say this isn’t. (Hence if the MMA or Legislature do try to fix this problem, the drafters had better color within the lines that the Court’s case law has announced as to justiciability.)
That last aspect of the decision is an interesting one from a constitutional point of view. But let’s focus on the practical here. The Court’s goals of making the finality rule clear, avoiding intermediate appeals, and speeding things up are all laudable. It noted that the inn’s request to make these changes had been pending for two full years.
But will this decision achieve these goals?
The holding can be read narrowly, to mean that a ZBA decision granting a special exception is not final and appealable if the ZBA expressly conditions its approval on the Planning Board’s site plan review, with the ability under the ordinance framework to challenge the site plan review back before the ZBA. So read and limited, that may be workable.
But if the SJC meant its holding to be read more broadly, to mean no appeal until the last town agency has signed off on the last approval needed to allow the project to go forward (here the added rooms and parking spaces and smaller restaurant), then things could get confusing.
Lots of projects require multiple approvals from various municipal bodies. Potential municipal permits and the body granting them include:
Site Plan approval (usually Planning Board);
Subdivision approval (usually Planning Board, usually at the same time as site plan approval);
Shoreland Zoning permit (usually Planning Board, sometimes Code Officer; if PB, usually at same time as site plan approval, if needed);
Floodplain permit (usually Planning Board, sometimes Code Officer; if PB, usually at same time as site plan approval, if needed);
Sign Permit (usually Code Officer, sometimes PB; if PB, usually at same time as site plan approval, if needed);
Special Exception or Conditional Use (usually ZBA, before site plan or subdivision approval);
Variance (ZBA, before site plan or subdivision approval);
Contract zoning approval (municipal legislative body, often in conjunction with or dependent on site plan approval);
Plumbing Permit (Code officer, after issuance of all permits noted above);
Building Permit (Code officer, after issuance of all permits noted above) and
Certificate of Occupancy (Code officer, after issuance of all permits noted above and typically after construction is complete).
So, after Bryant, when is a decision relating to these multiple approvals final and appealable?
If you aren’t certain, and you make a mistake and appeal too late, then you are dead. Case over. If you make a mistake and appeal too early, then the result is delay, because when it’s on appeal, jurisdiction may be lacking at the administrative level, bringing things at that level to a screeching halt. Under these circumstances, which choice do you make?
Perhaps future case law will provide further clarity. Or, even better, maybe the Legislature/MMA can work together and come up with a holistic approach to this and other procedural issues relating to appeals of both state and local administrative decisions.