Posted by: Patricia Salkin | July 20, 2009

Town Residents Who Were Not Adjacent Property Owners Lacked Standing to Challenge Public Boat Launching Site

Following a request by the Board of Selectmen to improve the Westport Island’s only public boat-launching site, the planning board approved the project.  The proposal included improvements to the boat ramp and access road as well as expansion of the parking area, and it was expected to increase daily trips to and from the site by 36 vehicles during peak season. Four residents, who lived on the Island but who were neither abutting property owners nor owners of property in close proximity to the site, attended the planning board hearings and expressed their opposition to the project.  The opponents asked the planning board to grant them party status because the frequently travel on the road where the boat launch is located and they were concerned about safety issues with increased traffic. Two of the residents appealed the planning board’s approval of the project to the zoning board of appeals, but the Board dismissed the appeals on the grounds that the residents lacked standing because they were not “aggrieved parties.” Although the residents alleged they were aggrieved because their personal property was threatened due to the increased risk of traffic accidents at the frequently traveled intersection, the board rejected this argument finding that they failed to prove any “potential injury different from that suffered by the general public traveling over [the] Route.”

The Supreme Court of Maine noted that just because the planning board granted the residents party status because they live on the Island and frequently travel by the site, and because they attended the planning board hearings, does not demonstrate that the residents are “aggrieved parties” for purposes of appeal to the zoning board within the meaning of the zoning ordinance. The Court said that in addition to demonstrating party status during the administrative proceeding, to be an “aggrieved party” they must also demonstrate that they suffered a particularized injury or harm. Relying only on their status as members of the driving public, is not enough to grant standing since they have no property affected directly or indirectly by the boat ramp permit and no other economic interest that could give them standing.   The Court also noted that their alleged harm was not particularized given the fact that 1,600 people drive by the site daily.

Lastly, the residents argued that the Town Attorney should be barred from representing the Town in this matter since he served as an advocate and legal advisor to the zoning board on the same matter.  The Court concluded that while the Maine Bar Rules do prohibit attorneys from serving certain dual roles, in this case the representation was not in conflict.  The Court explained that since the zoning board is a branch of the Town, the attorney was simply doing his job as the Town’s legal representative when he advised the zoning board on the standing issue. The Court said that the attorney did not act in a judicial or quasi-judicial capacity.  

Nergaard v. town of Wesport Island, 2009 WL 1522707 (Me. 6/2/2009).

The opinion can be accessed at: http://www.courts.state.me.us/court_info/opinions/2009%20documents/09me56Ane.pdf

For some good commentary on the decision visit the Maine Appeals Blog maintained by Pierce Atwood at: http://www.maineappeals.com/2009/06/index.html


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