In my June 27, 2008 posting, I noted my confusion about an 80B decision, Silsby v. Belch, 2008 ME 104:
and asked to be edified.
A reader has done so (gee, I have readers!). The Ellsworth ordinance does in fact expressly provide that the Planning Board can look at the deed of the property under review to see if it imposes more restrictions than included in the general use provisions of the ordinance.
My understanding is that a motion to reconsider has been filed in that action on various grounds. Whatever the results of that motion, a little bitsy footnote added to the decision mentioning this ordinance language might be of more precedential weight than my blog explanation here (although, gee, I have readers!) Whatever the legislative merits of such explicit language in an ordinance, it’s helpful to me to know that there was direct and express language in the ordinance authorizing agency review of the restrictions.
As I noted in my previous posting, at least in theory, even in the absence of an explicit provision in an ordinance saying a board can look at a deed, someone with standing might argue deed restrictions prevent the use sought, based on the usual "right, title and interest" language contained in ordinances. If this argument prevailed, this could mean that the meaning of deed restrictions could be litigated as a general matter in the administrative arena, with the potential ramifications I noted earlier.