Mariner Tower II, brought an action against both the Town of Topsham and the Topsham Planning Board seeking relief from the Planning Board’s rejection of their conditional use permit application. Mariner sought to build a radio frequency tower on a property within the Town of Topsham to accommodate cellular phone service. In furtherance of this project, they submitted a conditional use permit, as well as a site plan. When the application was filed, such towers were permitted as a conditional use (a later referendum prohibited towers in the zone district, and was retroactively applied to before the application filing date). The community objected to the construction of the tower, and after deliberation, the Planning Board denied the conditional use permit application without addressing the site plan. Thereafter the Plaintiff brought this court action.
Both the law of Maine, as well as the local law of Topsham governs the appropriate route of appeal for those aggrieved by local land use determinations. The plaintiff contended it had indeed followed the correct procedure, quoting a section of the local law providing that “A person aggrieved by a decision of the Planning Board may appeal in Superior Court.” However, the defendant pointed out, this authorization only applies to site plan review. Since no site plan review was done, because is became useless with the conditional use permit denial, this appellate procedure was not operable. The defendant also argued that the plaintiff is barred from bringing this action under 47 U.S.C. § 332(c)(7)(B)(v), which permits appeal of a decision to the courts, but only after a final determination has been made. They argued that since the section of the local code pertaining to conditional use permits does not contain a specific appellate procedure, it is inferred that the plaintiff would need to seek review from the Topsham Zoning Board of Appeals before any determination is deemed “final.” This is in line with Maine law which provides that unless otherwise noted in the local law (as was the case with the site plan review), “all decisions of planning boards must be first taken to the town’s zoning board of appeals.” Since the plaintiff did not provide any pleading to the contrary, the United States District Court, District of Maine agreed with the defendants and granted their motions for summary judgment.
Mariner Tower II, LLC v. Town of Topsham and Topsham Planning Board, No. 2L10-cv-314-JHR, 2011 WL 5191165 (U.S. Dist. Ct., Dist. Maine 10/31/2011)
The opinion can be accessed at: http://www.med.uscourts.gov/Opinions/Rich/2011/JHR_10312011_2-10cv314_Mariner_v_Topsham.pdf.
