faulty towers?


Last week the SJC gave me a lovely gift in the form of a nice juicy 80B decision – Davis v. SBA Towers II, LLC, 2009 ME 82. http://www.courts.state.me.us/court_info/opinions/supreme/index.shtml#mostrecent  This decision is unusual in that the appellant with the burden of proof won a substantial evidence claim — the SJC granted an appeal from the developer on the ground that the board was compelled to find that the evidence supported the application. 

The developer wanted to build a 190 foot telecommunications tower.  The Planning Board kept denying the application; the board of appeals finally ordered approval; the Superior Court reversed the board of appeals; and the SJC reversed the Superior Court (phew).   

The relevant standard was that the tower must not "have an unreasonably adverse impact upon scenic view," using seven factors listed in the Ordinance.  In the course of its denials, the planning board changed its interpretation of two of the seven factors, regarding "tree line" and "vegetative screening."  

Useful nugget #1 from the case - the appellant raised a facial constitutionality argument against the ordinance, which the SJC rejected because, among other reasons, the applicant had not raised the objection below.  There are two potentially conflicting lines of authority in Maine law regarding this kind of argument.  On the one hand, you must preserve by raising every argument at the administrative level.  On the other hand, some case law says you don't have to raise futile claims, and technically speaking, a facial claim against an ordinance would be futile raised before a planning board, because a board can't re-write the ordinance.  I'm not sure that this decision completely puts to bet that line of authority because in this instance the claim really didn't sound like a facial argument, but more as-applied, which a board can fix (interpreting a Scenic View map).  In any event, better safe than sorry:  raise everything before the board.

The applicant asserted another clearly as-applied vagueness-arbitrariness argument, based on the squishiness of the board's interpretations of some of the seven factors, as evidenced, among other things, by the board's changes in those interpretations. The SJC avoided a constitutional problem by interpreting the factors in a way that gave them substance.  The ordinance allows towers up to 195 feet.  Since this isn't giant redwood territory, the treeline is considerably below that height.  The SJC interpreted "tree line" as the board did the first time around, to mean where the trees meet the horizon, instead of above the tree canopy, to allow towers of that height.  The SJC gave a similar narrowing interpretation to the other factor in place.    

The SJC then said basically that the board's reasoning as to why the tower failed two of the seven factors was wrong, because again that reasoning would preclude any 195 foot tower.  

Now I suppose you could say hmm, just because an ordinance says a tower can be up to 195 feet doesn't mean you have to allow it, and you can camouflage towers in steeples and things like that, and shouldn't the board get yet another chance to review based on the SJC's articulated interpretation etc. etc.  From just reading the decision and not knowing anything else about the case, it seems to me that two factors might have been influencing the court to cut to the chase.  First, the board's actions in changing its interpretations and continually denying the application strongly suggests a flat NIMBY blockade; second, had this denial stood, you can bet there would have been a suit under the telecommunications act, which doesn't allow outright tower bans.  

In any case, it's a good thing, I think, to have a decision from the SJC indicating that carte blanche is not given to a board to reject an application, and that stands for the proposition that there are situations in which a board must grant an approval.  At some point the court needs to say no mas and prevent opponents from exhausting the resources of a developer through the delay and expense of an endless loop of administrative proceedings.   If you meet the ordinance criteria, you cshould get your permit, and it shouldn't take a gazillion years and dollars to get there.  So good for the SJC.

One final observation – the slip opinion lists the town as an "amicus curiae."  This is one of those situations in which one town board said one thing, then the appellate board flipped it, and then there was an appeal – what position should the town take?  Typically, the town stays neutral or supports the last decision with varying degrees of vigor, but obviously this can raise some interesting local politics questions.  In any event, technically, I think the town is an indispensable party — you can't enforce the decision without it at the table – so I don't think it was an amicus, but rather a party-in-interest.