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Mills v. Town of Bar Harbor

Superior Court of Maine, Penobscot

November 27, 2019

Elizabeth Mills Plaintiff,
Town of Bar Harbor and BHAPTS, LLC Defendants.


          Ann M. Murray, Justice Maine Superior Court

         Before 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.[1] 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 opinion.

         I. Background

         BHAPTS 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.

         The 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[2], 125-103C(1)[3], and § 125-103D(1)(b)(1)-(3)[4] (June 13, 2019).

         The 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.

         After 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.[5]

          The Board issued a written decision on April 12, 2019 making the following findings:

"Based on the evidence in the administrative record, and after conducting their review, the Board of Appeals finds, on procedural matters:
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 the hearings.
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."

         The 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.

         Ms. 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.

         I. Standard of Review

         When 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 functions.)

         The 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.

         II. Analysis

         1. Procedural Requirements for Appeal Applications to the Bar Harbor Board of Appeals

         Ms. 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.

         BHAPTS 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 § 125-103D(1)(b).

         Interpretation 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, ...

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