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Our Town v. Town of Damariscotta

Superior Court of Maine, Lincoln

November 2, 2018

OUR TOWN, ANNA JANSEN, AND CATHERINE BLOUNT Petitioners,
v.
TOWN OF DAMARISCOTTA, THE DAMARISCOTTA PLANNING BOARD, THE DAMARISCOTTA BOARD OF APPEALS, AND DAMARISCOTTA MAIN STREET LLC Defendant.

          ORDER AFFIRMING THE DAMARISCOTTA BOARD OF APPEALS' DECISION THAT PETITIONERS LACKED STANDING

          Daniel I. Billings Justice

         This matter is before the Court on the issue of Petitioners' standing before the Damariscotta Board of Appeals. On April 21, 2018, the Petitioners filed a Rule 8OB appeal. On July 23/ 2018, all parties were ordered to brief the discrete issue of standing.

         FACTUAL BACKGROUND

         On July 24, 2017, Damariscotta Main Street LLC ("DMS") filed a preliminary site plan for development of 435 Main Street with the Damariscotta Planning Board ("Board"). Pet'rs' Br. 1. On August 7, 2017, a preliminary workshop meeting was held on the plan. Town of Damariscotta ("Damariscotta") Br. 2. Public hearings on the DMS site plan began on September 18, 2017, and continued through February 5, 2018, when the Planning Board made corrections to its Notice of Decision after it voted unanimously to approve the plan on December 4, 2017. Damariscotta Br. 2. At some point after December 4, the record was reopened "for certain corrections." DMS Br. 3. On January 8, 2018, Our Town submitted written comments in opposition to the plan. Town Br. 2. On March 2, 2018, Our Town and Anna Jansen ("Jansen") submitted an administrative appeal application to the Damariscotta Board of Appeals ("BOA"). Damariscotta Br. 2. A hearing on the appeal was held on March 27, 2018, and the BOA issued a written decision on March 30, 2018 denying the appeal because it determined that Our Town and Jansen lacked standing before the BOA. Petr'rs' Br. 2.

         Blount attended and spoke at the August 7, 2017 preliminary workshop meeting regarding the site application. Damariscotta Br. 2. Blount brought up concerns about parking and a buffer around the property. Record 193 ("R."). Jansen never attended a meeting regarding the site plan. DMS Br. 3. Petitioners assert that Our Town was represented by Peter Drum, who attended some of the meetings and submitted written statements on behalf of our town. Petr'rs' Br. 4. Jansen never attended a hearing.

         DISCUSSION

         A municipality's decision to deny standing before a board of appeals is reviewed for errors of law, abuse of discretion, or findings not supported by substantial evidence in the record." Friends of Lincoln Lakes v. Town of Lincoln, 2010 ME 78, ¶ 9, 2 A.3d 284 (quoting Nergaard v. Town of Westport Island, 2009 ME 56, ¶ 11, 973 A.2d 735, 739). The Superior Court reviews the decision of the body that conducted fact-finding on the standing issue. Friends of Lincoln Lakes, 2010 ME 78, ¶ 9, 2 A.3d 284 ("Friends"). In the case at bar, the BOA held a public hearing on the Petitioners' appeal. However, Damariscotta asserts that the BOA acted in a purely appellate capacity as it was "limited to consideration of the record when holding the public hearing," and it was not a de novo hearing.[1] Damariscotta's Br. 4. In Nergaard v. Town of Westport Island, the petitioners appealed the Board's decision, and a hearing was held before the BOA. 2009 ME 56, ¶ 7, 973 A.2d 735. There, the Law Court determined that the BOA "acted as the tribunal of original jurisdiction and conducted a de novo fact-finding process to decide the issue of standing, and reviewed the BOA decision "for errors of law, abuse of discretion, or findings not supported by substantial evidence in the record." Id. ¶ 11. Regardless of the role the BOA took here, the same standard of review is used when the BOA acts as both the fact finder and the decision maker. Peregrine Developers, LLC v. Town of Orono, 2004 ME 95, ¶ 9, 854 A.2d 216.

         STANDING BEFORE THE BOARD OF APPEALS

         "[W]hether a party has standing to bring an administrative appeal depends on the language of the governing ordinance." Friends of Lincoln Lakes v. Town of Lincoln, 2010 ME 78, ¶ 10, 2 A.3d 284. For an "aggrieved party" to establish standing, she must show that "she had party status at the administrative proceedings, [and] that [] she suffered a particularized injury or harm." Id. ¶ 11.

         Party status requires an aggrieved party to show that they have "participated throughout the process," although this is less than a formal appearance. Id. ¶ 12. When a group is asserting that it is an aggrieved party, the Law Court has not found standing where people connected to the group have attended the meetings, but "none of them stepped forward to state that they had participated in the Planning Board meeting as members of or on behalf of" the group. Id. ¶ 13. Party status is also not met for a group when it fails to show a "continuous participating member" and when the meeting minutes do not reflect group members participating. Id.

         Particularized injury occurs when a "judgment or order adversely and directly affects a party's property, pecuniary, or personal rights." Id. ¶14. This harm must be "distinct from that suffered by the public at large," but "there is a minimal threshold for an abutting landowner." Id. If the appealing party is an abutter, she "need only allege a potential for particularized injury to satisfy the standing requirement." Fryeburg Water Co. v. Town of Fryeburg, 2006 ME 31, ¶ 11, 893 A.2d 618.

         DAMARISCOTTA'S ORDINANCE REGARDING APPEALS

         An aggrieved party must file an appeal with the BOA within thirty (30) days of the date of the decision of the board. Damariscotta, Me. Site Plan Review Ordinance § 13.A (June 15, 2016). An aggrieved party is:

an owner of land whose property is directly or indirectly affected by the granting or denial of a permit.. .; a person whose land abuts land for which a permit or variance has been granted; or any other person or group of persons who have suffered particularized ...

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