Last Thursday the Maine SJC decided our appeal in Nestle Waters North America, Inc. v. Town of Freyburg, 2009 ME 30, http://www.courts.state.me.us/court_info/opinions/2009%20documents/09me30ne.pdf.
This was a Rule 80B appeal, and it has multiple points of interest for practice in this area.
First and foremost, the SJC made clear that, absent explicit incorporation by an ordinance, a comprehensive plan does not impose standards for land use approval. A comprehensive plan is a vision, a blueprint. What matters in the adjudication stage for a specific permit is what the legislature (i.e., the people of the town enacting an ordinance) says in the ordinance itself – how it translates the vision into concrete, applicable standards within the ordinance. Only those concrete ordinance standards count. The comprehensive plan can help to interpret ambiguous ordinance standards. Municipalities also have a duty to harmonize their ordinances with comprehensive plans. But within the context of a property owner seeking a permit, only the substantive standards contained within the ordinance apply.
The SJC has articulated pieces of this principle previously, but this decision stitches it all together very clearly. And this is not Cathy smarming up to the Law Court, either. While we made the general point and much of the specific arguments that are incorporated in the decision, Justice Mead went into greater detail about the state statutes on comprehensive plans than we did in our briefs, thus presenting another “teachable moment” (you can learn from your victories as well as defeats how to do better, and it’s more pleasant to do so in the former).
If you are a land use practitioner, you know how a comprehensive plan cannot impose specific standards as a practical matter. It would be utterly unworkable. There are hundreds of pages in a plan – you couldn’t divine what the standards were. But while the SJC applies the principle that absurd and unconstitutional constructions should be avoided, its laser-like, first step focus is always what did the legislature mean? So its drill concentrates in the first instance on the statutory scheme. My take-away here is to spend even more time parsing the language of the documents at hand – statutes and ordinances. That is always the starting point, but the lesson is to plumb these textual depths exhaustively before moving on to the other arguments.
There are other nuggets in this decision, to be discussed in the fullness of time.