February 5, 2015
THE WITHAM FAMILY LIMITED PARTNERSHIP
TOWN OF BAR HARBOR et al
Argued September 4, 2014
On the briefs:
John C. Bannon, Esq., and John B. Shumadine, Esq., Murray, Plumb & Murray, Portland, for appellant The Witham Family Limited Partnership.
William B. Devoe, Esq., P. Andrew Hamilton, Esq., and Jonathan A. Pottle, Esq., Eaton Peabody, Bangor, for appellee North-South Corporation.
The Town of Bar Harbor did not file a brief.
At oral argument:
John C. Bannon, Esq., for appellant The Witham Family Limited Partnership.
P. Andrew Hamilton, Esq., for appellee North-South Corporation.
Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, and HJELM, JJ[*]
[¶1] The Witham Family Limited Partnership appeals from a judgment entered in the Business and Consumer Docket ( Nivison, J.) affirming two May 2010 decisions of the Bar Harbor Appeals Board that required the Bar Harbor Planning Board to approve a site plan for construction of a hotel on land abutting Witham's land in Bar Harbor. Witham did not, however, appeal from a May 2010 decision of the Planning Board, on remand from the Appeals Board, that contained new findings and resulted in site plan approval, or from the Planning Board's May 2012 approval of an amended site plan. Because Witham did not appeal from the Planning Board's May 2010 or May 2012 site plan approvals that apparently resulted in the construction of the West Street Hotel, which has been operating since 2012, we dismiss Witham's appeal as moot.
[¶2] On March 17, 2010, the Bar Harbor Planning Board denied the application of North South Corporation, LLC, for site plan approval to construct a 102-room hotel on property that abuts land owned by the Witham Family Limited Partnership. See Witham Family Ltd. P'ship v. Town of Bar Harbor, 2011 ME 104, ¶ ¶ 1-2, 30 A.3d 811. The Planning Board denied the application, finding that the hotel would exceed the Bar Harbor Land Use Ordinance's height requirements. North South appealed from the Planning Board's denial to the Bar Harbor Appeals Board. Separately, Witham appealed from the Planning Board's findings that North South's proposed project did conform with parking and street-width requirements. Id. ¶ 5.
[¶3] On May 3, 2010, the Appeals Board concluded that the Planning Board had misinterpreted the Ordinance's height requirements. The Appeals Board vacated the Planning Board's denial of the application and remanded the matter to the Planning Board with instructions to correct the erroneous application of the Ordinance and to issue North South's requested site plan approval. After remand, in a decision dated May 19, 2010, the Planning Board entered additional factual findings and legal conclusions, issued specific conditions for the project, and approved the proposed site plan. No appeal was taken from this decision. On May 24, 2010, the Appeals Board, in ruling on Witham's appeal from the original denial of site plan approval, affirmed the Planning Board's March 17, 2010, decision with respect to parking and street-width requirements.
[¶4] Witham filed a complaint in the Superior Court challenging both the May 3, 2010, and the May 24, 2010, decisions of the Appeals Board. See M.R. Civ. P. 80B. The court (Hancock County, Cuddy, J.) dismissed the complaint on the ground that Witham lacked standing. Witham Family Ltd. P'ship, 2011 ME 104, ¶ ¶ 1, 6, 30 A.3d 811. Witham appealed to us. We concluded that Witham, an abutter, had standing, and we vacated the court's judgment and remanded the matter to the Superior Court on November 1, 2011. Id. ¶ ¶ 1, 14-18.
[¶5] In the spring of 2012, while this matter remained pending in the Superior Court, North South applied to the Planning Board to amend its approved site plan by reducing the number of hotel rooms and parking spaces. In May 2012, the Planning Board granted North South's
application with certain conditions. Witham did not appeal from the May 2012 decision or the issuance of any building permits or other permits. North South built the modified version of the hotel and opened for business in 2012.
[¶6] On October 21, 2013, after almost two years of inaction in the Superior Court following our remand, the case was transferred to the Business and Consumer Docket. The Business and Consumer Docket justice ( Nivison, J.) promptly entered a judgment on January 14, 2014, affirming the Planning Board's determinations that the hotel did not violate height restrictions and complied with the parking requirements of the Ordinance. Witham timely appealed to us. See 14 M.R.S. § 1851 (2014); M.R. Civ. P. 80B(n); M.R. App. P. 2(b)(3).
[¶7] We conclude that the appeal before us is moot because Witham did not appeal from the Planning Board's May 19, 2010, decision approving the proposed site plan or from the Planning Board's May 2012 approval of an amended site plan. " Courts cannot issue opinions on questions of fact or law simply because the issues are disputed or interesting. Courts can only decide cases before them that involve justiciable controversies." Lewiston Daily Sun v. Sch. Admin. Dist. No. 43, 1999 ME 143, ¶ 12, 738 A.2d 1239. " Justiciability requires a real and substantial controversy, admitting of specific relief through a judgment of conclusive character . . . ." Id. (quotation marks omitted). " If a case does not involve a justiciable controversy, it is moot," id. ¶ 13, because there are insufficient " practical effects flowing from the resolution of the litigation to justify the application of limited judicial resources," Clark v. Hancock Cnty. Comm'rs, 2014 ME 33, ¶ 11, 87 A.3d 712 (quotation marks omitted). Witham's appeal is moot because a ruling on the superseded decision would not produce " sufficient practical effects . . . to justify the application of limited judicial resources." Id. (quotation marks omitted).
[¶8] Even if the Planning Board had correctly initially denied the application for site plan approval on March 17, 2010, the Planning Board's May 19, 2010, decision approving the site plan contained a new finding and imposed specific conditions. That approval remains in effect, as does the Planning Board's later approval of the amended site plan in May 2012. No appeal was taken from either of those decisions, and the hotel is now fully operational.
[¶9] Although there are exceptions to the mootness doctrine, see Lewiston Daily Sun, 1999 ME 143, ¶ 17, 738 A.2d 1239, none of them applies here because the collateral consequences that would flow from the decision are not " more than conjectural and insubstantial consequences," Sordyl v. Sordyl, 1997 ME 87, ¶ 6, 692 A.2d 1386 (quotation marks omitted); the appeal does not present an issue of great public concern, see Lewiston Daily Sun, 1999 ME 143, ¶ 17, 738 A.2d 1239; and the issues in this case are not so fleeting that, though capable of repetition, they evade review, see id. Because the controversy on appeal is moot and no exception to the mootness doctrine applies, we dismiss the appeal.
The entry is: