The rest of the story


So once again the SJC has issued a couple of decisions in matters dear to my heart (80B and takings) that make perfect sense as to the issue before it, but raise questions in my mind.

1.  Bar Harbor Housing Authority v. Estate of Theodore Staples, 2010 ME 110 []. 

This is a condemnation case under 30-A M.R.S. ss. 4746 and 5108, in which the Authority initiated an eminent domain action to lift a deed restriction.  The issue before the SJC was procedural – the parties agreed that the trial court justice would be the referee, and then they appealed that referee decision directly.  Nope, you have to have the trial justice review the referee's conclusions before it can go up to the SJC, and it's got to be a different Justice than the referee  — which makes having a Justice as a referee in the first place a Bad Idea, except, presumably, it's free, with no need to pay the referee.  The solution, the SJC indicated is that the parties "having waived trial by jury, could likely have obtained a bench trial instead of adjudication by a referee," citing M.R.Civ.P. 39(b).

But of course my question has nothing to do with this procedural snafu and the SJC's resolution, which is logical enough.  No, what has me pondering is that the decision indicates that the Superior Court Justice, acting as referee, awarded no damages for the taking. 

How can this be?  Under Loretto v. Teleprompter CATV Corp., 458 U.S. 419 (1982) [], if the government condemns something, then even if there's no economic damage, the owner is at least entitled to nominal damages.  It may only be a dollar, but takings law is complicated enough without blurring what few clear lines we do have.  So a big hmmm on my part. 

2.  Aubry v. Town of Mount Desert, 2010 ME 111 []. 

This is an 80B that has beein bouncing up and down since 2006, because the order before the Superior Court is never final.  In the last go around, the Superior Court again ordered a remand and a party appealed to the SJC, and the SJC unsurprisingly says nope, it's not final, go away. 

Again, this is pretty blackletter and, however exasperating the requirement of having to ride the remand through may be from a practical perspective, is entirely consistent with the existing rules on interlocutory appeals.  Here's my question.

According to the decision, the Superior Court "concluded that two sections of the Town's land use ordinance were unconstitutionally vague and represented an unconstiutional delegation of legislative authority" and the Superior Court then "remanded the matter … to decide whether, and under what conditions, to issue a permit based on the remainder of the Ordinance." 

I am confused.  If you ask for a conditional use permit, and there are 10 criteria, doesn't the board initially review all those 10 criteria?  Here, the permit was granted with conditions – so how could the board not have reviewed all the criteria?  Then, when you appeal that decision and are denied or have a condition you don't like based on a criterion you successfully say is unconstitutionally vague, the relief is simply excising that criterion.  Kosalka v. Town of Georgetown, 2000 ME 106, ¶ 17, 752 A.2d 183, 187 (ordering issuance of permit where application was denied pursuant to unconstitutional standard).  So you win on your appeal before the Superior Court, the offending criteria go away and there's nothing left to remand.      

Here, the SJC states that it can't apply the judicial economy exception for interlocutory review because "[t]here are a number of ordinance sections that may apply to the permit application and could have an effect on the outcome of the permit application."  But why weren't those other sections a part of the initial board review?

So, to sum up, the SJC issued two decisions on procedural grounds that make eminent sense – it's the rest of these cases that has me scratching my head.