The Law Court recently decided a Rule 80B case and so, of course we must discuss. Cape Shore House Owners Association v. Town of Cape Elizabeth, https://www.courts.maine.gov/opinions_orders/supreme/lawcourt/2019/19me086.pdf.
The facts are simple, and I streamline them further to focus only on what matters for the purpose of my musings:
- X sought a permit;
- the ZBA granted it;
- the abutters filed a Rule 80B challenging the decision; and
- in addition to a straight 80B, the abutters appended a second count, seeking a declaratory judgment that the Ordinance that allowed the permit was preempted under state law.
The Law Court affirmed dismissal of the declaratory judgment count as redundant and didn’t address the merits of the preemption argument (which hadn’t been raised before the ZBA).
Was the second count truly redundant?
At first blush, this