ORDER ON PLAINTIFF'S 80S COMPLAINT AND MOTION TO
Murray, Justice Maine Superior Court
the court is plaintiff Elizabeth Mills' Rule 80B
complaint requesting review of governmental action. Ms. Mills
challenges the Town of Bar Harbor Board of Appeals'
(Board) decision dismissing her appeal to the Board, which
challenged the Town Planning Board's decision granting a
building permit to defendant BHAPTS, LLC. The Town of Bar
Harbor has taken no position on the legal issues raised in
this 80B action and is participating in this matter only to
monitor proceedings. For the following reasons, the Court
vacates the Board's decision and remands the case back to
the Board for further proceedings consistent with this
applied to the Bar Harbor Planning Board for permission to
make alterations to a rental properly located at 25 West
Street Extension, Bar Harbor. BHAPTS seeks to turn the
properly into an eighteen-unit housing project for its
seasonal workforce. The Town Planning Board held hearings on
this application on December 5, 2018 and January 16, 2019.
The Planning Board approved the application and then issued a
written decision on February 6, 2019. Ms. Mills owns a
historic property adjacent to the proposed housing project
and opposes the Planning Board's decision to allow the
housing project. Ms. Mills appealed die Planning Board's
decision to the Bar Harbor Board of Appeals (Board) on March
8, 2019 and submitted copies of her written statement and a
portion of the record of the Planning Board proceedings on
March 19, 2019. The Board then held a hearing on her appeal
on April 9, 2019.
Town's land use ordinance sets forth procedural rules for
the Town's Board of Appeals, including a requirement that
appellants provide certain materials to the Board. The
procedural rules at issue in this case are found in Bar
Harbor, Me. Land Use Ordinance §§
125-103B, 125-103C(1), and §
125-103D(1)(b)(1)-(3) (June 13, 2019).
April 9, 2019 healing mainly concerned whether Ms. Mills'
appeal application met the procedural requirements set forth
in § 125-103 of the Town's land use ordinance.
BHAPTS argued that Ms. Mills' appeal application failed
to meet these procedural requirements because: (1) she failed
to provide a timely filing fee; (2) she did not provide
complete transcripts of the Planning Board proceedings and
the transcripts she did provide were incomprehensible; and
(3) she did not provide the Board with all the documents
relied on by the Planning Board.
deliberations, the Board unanimously held that Ms. Mills did
not submit sufficient documents for the Board to review her
appeal and dismissed the appeal application. (Pl.'s Br.
Ex. C, at 32-38.) During the Board's deliberation, Board
members voiced concerns that the transcripts Ms. Mills
submitted had transcription errors and that because Ms. Mills
did not submit a complete transcript of the Planning
Board's proceedings, her transcripts were difficult to
follow and did not provide adequate information about what
the Planning Board based its decision upon. (Pl.'s Br.
Ex. C, at 32-34.) Board members also indicated that Ms. Mills
appeal application was incomplete because it was missing the
final site plan approved by the Planning Board as well as
other materials from the Planning Board proceedings.
(Pl.'s Br. Ex. C, at 34-38), Some Board members were
further concerned that Ms. Mills may not have submitted 12
copies of her written statement and the record she intended
to rely upon in her appeal; however, the Board never
determined explicitly or implicitly whether or not Ms. Mills
had submitted the necessary number of copies.
Board issued a written decision on April 12, 2019 making the
"Based on the evidence in the administrative record, and
after conducting their review, the Board of Appeals finds, on
1. The appellant fee was not paid within 30 days of the
decision of the Planning Board on February 6, 2019
2. Appeal application is incomplete.
3. Meaningful portions of the record are missing such as the
Planning Board-approved site plan and complete transcripts of
4. The transcripts provided ate incoherent and deficient.
5. The failure of the appellant to provide a meaningful
record would not allow the board to review fairly the actions
of the Planning Board.
6. Dismissal of the appeal is appropriate based on 125-103 B,
C, and D."
Board determined: (1) the plaintiffs failure to pay the
filing fee was waived, as the appropriate Town officials
apparently did not know the amount to be charged when Ms.
Mills, attorney attempted to pay; but that (2) the submitted
application was incomplete as it did not meet the
requirements of § 125-103 of the Town's land use
ordinance. The Board then concluded that "on a
procedural matter" the appeal should be dismissed. On
May 10, 2019, Ms. Mills filed a complaint pursuant to M. R.
Civ. P. 80B, challenging the Board's determination.
Mills argues: (1) that the Board of Appeals erred by
misinterpreting the procedural rules in § 125-103 and
applying that misinterpretation of the law to her appeal
application; (2) that under the Town's land use
ordinance, the Board lacks the power to dismiss an appeal on
procedural grounds; (3) that she met the procedural
requirements in § 125-103; and (4) the Board should have
decided her appeal on the merits.
Standard of Review
the Superior Court reviews a municipal board of appeals
decision pursuant to 80B it directly reviews the record
developed before the board of appeals for abuse of
discretion, errors of law, and findings not supported by
substantial evidence. 21 Seabran, LLC v. Town of
Naples, 2017 ME 3, ¶¶ 9-10, 153 A.3d 113;
Duffy v. Town of Berwick, 2013 ME 105,
¶ 13, 82 A.3d 148; M. R. Civ. P. 80B.
Substantial evidence exists if there is any competent
evidence in the record upon which a reasonable mind would
rely as sufficient support for a conclusion. 21
Seabran, 2017 ME 3, ¶ 10, 153 A.3d 113; Osprey
Family Tr, v. Town of Owls Bead, 2016 ME 89, ¶ 9,
141 A.3d 1114. The fact that the record before the local
agency is inconsistent or could support a different outcome
does not render the decision wrong. Duffy, 2013 ME
105, ¶ 22, 82 A.3d 148. However, die court will neither
embark on an independent and original inquiry, nor review the
matter by implying die findings and grounds for the decision
from the available record, Appletree Cottage, LLC
p. Town of Cape Elizabeth, 2017 ME 177, ¶ 9,
169. A.3d 396; Fissmer v. Town of Cape Elizabeth,
2017 ME 195, ¶ 17, 170 A.3d 797 (court will not imply
findings or create an analytical construct to attribute to a
municipal agency's decision, because that judicial
intervention would prevent the court from properly
determining whether the municipal action is supported by the
evidence and invite judicial usurpation of administrative
interpretation of a local ordinance is a question of law and
is reviewed de novo. Duffy, 2013 ME 105, ¶ 13,
82 A.3d 148. The party seeking to overturn the municipal
agency's decision bears the burden of persuasion to
demonstrate error. Beal v. Town of Stockton Springs,
2017 ME 6, ¶ 13, 153 A.3d 768; Duffy, 2013 ME
105, ¶ 13, 82 A.3d 148.
Procedural Requirements for Appeal Applications to the Bar
Harbor Board of Appeals
Mills argues that she was only requited to meet the
requirements of § 125-103B and § 125-103C, i.e. she
was requited to submit: (1) a completed application for
appeal on the Town planning department's form; (2) an
administrative fee; (3) a notice of the applicable parts of
the record to be transcribed at her expense; (4) 12 copies of
the parts of the record on appeal upon which she planned to
rely; and (5) 12 copies of a written statement setting forth
the basis of her appeal and the relief she requested. Ms.
Mills asserts that while § 125-103D(1)(b) establishes
the scope of the permissible record on appeal, it does not
require applicants to provide all of the documents described
in the subsection.
argues that § 125-103D(1)(b) requires appeal applicants
to provide all of the documents described in the subsection,
meaning: (1) all transcripts of the hearings held below; (2)
all exhibits and documentary evidence submitted to or
considered by the decision maker below; and (3) the decision
being appealed, and any other rulings or decisions made below
that ate relevant to the issues on appeal. According to
BHAPTS, § 125-103D(1)(b) creates a floor that obligates
applicants to provide the Board with a complete record of the
proceedings below, not just the portions of the record upon
which they intend to rely upon in their argument to the
Board. BHAPTS contends that § 125-103B and §
125-103C create additional requirements on top of §
of a local ordinance is a question of law and is reviewed de
novo. 21 Seabran,2017 ME 3, ¶ 12, 153 A.3d 113Aydelott v. City of Portland,2010 ME 25, ¶ 10,
990 A.2d 1024. The court looks first to the plain meaning of
the ordinance's language, and construes its terms
reasonably in light of the purposes and objectives of the
ordinance and its general structure as a whole.
Fissmer,2017 ME 195, ¶ 15, 170 A.3d 797;
Stewart v. Town of Sedgwick,2002 ME 81, ¶ 6,
797 A.2d 27. If the meaning of the ordinance is clear, the
court will look no further than its plain meaning. 21
Seabran,2017 ME 3, ¶ 12, 153 A.3d 113; Rudolph
v. Golick,2010 ME 106, ¶ 9, 8 A.3d 684. In
reviewing the local agency's application of an ordinance,
the court accords substantial deference to the agency's
characterizations and fact-findings as to what meets the
ordinance's standards. Fissmer,2017 ME 195,