ORDER AFFIRMING THE DAMARISCOTTA BOARD OF
APPEALS' DECISION THAT PETITIONERS LACKED
I. Billings Justice
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.
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.
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.
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. 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.
BEFORE THE BOARD OF APPEALS
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.
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.
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.
ORDINANCE REGARDING APPEALS
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 ...