JONATHAN R. DAY, Plaintiff,
TOWN OF PHIPPSBURG et al, Defendants.
ORDER ON 80B APPEAL
before the court is the Plaintiffs 80B appeal of the
Phippsburg Board of Appeals' ("BOA") October 7,
2015 decision denying his appeals of permits issued to
Defendant Carol Reece in 2014 and of the decision of the
Phippsburg Code Enforcement Officer ("CEO") to
allow Defendant Reece to maintain a portable toilet on her
property. For the reasons stated below, the BOA's October
7, 2015 decision is VACATED and this matter is REMANDED to
the Phippsburg Board of Appeals. The Phippsburg Board of
Appeals is ORDERED to hold a hearing on the Plaintiff's
appeals in a manner not inconsistent with this order.
the Superior Court acts as an appellate court under
M.R.Civ.P. 80B, it must review directly the operative
decision of the municipality, Stewart v. Town of
Sedgwick, 2000 ME 157, ¶ 4, 757 A.2d 773, 775, for
"error of law, abuse of discretion or findings not
supported by substantial evidence in the record, "
Sproul v. Town of Boothbay Harbor, 2000 ME 30,
¶ 8, 746 A.2d 368, 372 (internal quotations omitted).
One seeking to overturn a decision such as the one at issue
here has the burden of establishing that the evidence compels
a contrary conclusion. Id. The court "may
not... substitute [its own] judgment for that of the
Board." Tompkins v. City of Presque Isle, 571
A.2d 235, 236 (Me. 1990). "If there is relevant evidence
in the record to reasonably support the Board's
conclusion, the fact that the record contains inconsistent
evidence or inconsistent conclusions could be drawn from the
evidence does not invalidate the Board's holding."
Boivin, 588 A.2d at 1199. "Substantial evidence
exists when a reasonable mind would rely on that evidence as
sufficient support for a conclusion." Camp vs. Town
of Shapleigh, 2008 ME 53, ¶ 9, 943 A.2d 595, 598.
first issue raised in this appeal is whether the BOA was
correct in finding "that the time had expired for an
appeal." Record of Appeal ("ROA") - Volume I,
R203. This decision was based on the conclusion that the BOA
had stayed the Plaintiff's appeal of the 2014 permits at
his request and the BOA's vote that "the stay is
legal." ROA - Volume I, R 201. The discussion leading to
the two votes of the BOA suggests that a majority of the BOA
believed that the alleged stay was to end 60 days after the
Law Court's final decision in a related appeal involving
the same parties and that a hearing had to be requested
during the 60 days following the Law Court's decision.
ROA -Volume I, R 203.
evidence in the record compels a conclusion that the BOA
never issued a stay of the Plaintiff's appeal. Any action
of the BOA is a public proceeding. 1 M.R.S. §402(2)(C).
All public proceedings must be open to the public, 1 M.R.S.
§402(2)(C), and public notice must be given for all
public proceedings, 1 M.R.S. §406. Any actions of the
BOA must be taken openly and deliberations conducted openly.
1 M.R.S. §401. Clandestine meetings, conferences or
meetings held on private property without proper notice and
ample opportunity for attendance by the public are not
allowed by Maine law. 1 M.R.S. §401. The Board of
Appeals Ordinance, which creates the Phippsburg BOA and
governs its proceedings, requires that all matters be decided
by a roll call vote. Town of Phippsburg Board of Appeals
Ordinance V(C), ROA - Volume II at 18.
record establishes that the Chairman of the BOA acted
unilaterally in postponing the scheduled hearing on the
Plaintiff's appeal of the 2014 permits because he
believed all parties were in agreement with a stay. ROA -
Volume I, R 201. Nothing in the Board of Appeals Ordinance
grants such authority to the Chairman. See Town of
Phippsburg Board of Appeals Ordinance, ROA - Volume II at 18.
In addition, nothing in the ordinance allows the BOA to grant
a stay of proceedings, even if a roll call vote of the BOA is
held as part of a public proceeding conducted in accordance
with the requirements of the Ordinance and Maine law.
the requirements imposed on a person filing an appeal to the
BOA are described in Section VI of the Ordinance entitled
"Appeal Procedure." Town of Phippsburg Board of
Appeals Ordinance VI, ROA - Volume II at 18. The record
establishes that the Plaintiff met the 30-day deadline to
file an appeal and complied with the other requirements of
Section VI of the Ordinance. No party argues otherwise.
VII(A) of the Ordinance requires the BOA to "schedule a
public hearing on all appeal applications within sixty (60)
days of the filing of a completed appeal application."
Town of Phippsburg Board of Appeals Ordinance VI, ROA -
Volume II at 18. The record reflects that a public hearing
was scheduled and then postponed by the BOA Chairman, as
discussed above. ROA - Volume I, R 201.
Plaintiff argues that the 60-day hearing requirement
contained in Section VII(A) of the Ordinance unambiguously
imposes a requirement solely on the BOA and failure to meet
that requirement is directory, and not jurisdictional,
because the ordinance does not manifest a clear intent to the
contrary. In support of this conclusion the Plaintiff cites
four Law Court cases involving appeals of state agency
Defendants argue that the 60-day hearing requirement is
jurisdictional and go to great length to try to distinguish
the cases cited by the Plaintiff. The only cases cited by a
defendant in support of their position are cases where an
appeal of a municipal decision was filed late, which did not
court finds that, as a matter of law, Section VII(A) of the
Ordinance is not jurisdictional and nothing in the ordinance
prevents the BOA from conducting a hearing on the
Plaintiff's appeal. In addition, as a matter of law,
Section VII(A) of the Ordinance requires the BOA to conduct
such a hearing, despite the BOA's failure to meet the
60-day deadline for scheduling a public hearing. The BOA
abused its discretion by refusing to consider the merits of
the Plaintiff's appeal of the 2014 permits.
the BOA acted in good faith in attempting to comply with the
parties' wishes in delaying consideration of the
Plaintiff's appeal, the manner in which it did so was not
compliance with the Ordinance or Maine law. Though the BOA
was acting in good faith, it is ultimately the responsibility
of the BOA to ensure that proper procedures are followed and
the Plaintiff should not lose his opportunity for full
consideration of the merits of his appeal as a result of the
flawed procedures of the BOA.
Plaintiff asks this court to make certain rulings he
describes as questions of law before remanding his appeal of
the 2014 permits. The court declines to do so. The court is
agreement with the Defendants that the doctrines of primary
jurisdiction, exhaustion of administrative remedies, and
ripeness require that the BOA consider the merits of the