Plaintiff landowner sought review of decisions of both the Town of Kennebunk Planning Board and Zoning Board of Appeals (ZBA), which granted a land use permit and declared that a property abutting the land of the plaintiff was not a subdivision under state or local law. The Superior Court of York County, Maine affirmed and both parties appealed. The Supreme Judicial Court of Maine affirmed the Planning Board’s issuance of a dredge-and-fill permit to construct two culverts. Addressing whether the use of land was a subdivision, the Supreme Judicial Court reversed the Superior Court’s ruling and vacated the Planning Board’s and ZBA’s determination, as that question was not yet ripe for review by the local planning body.
The original owner of the subject property died and willed the property to her three children, who subsequently deeded the property to themselves as well as their respective children. A child of the decedent holding title to a portion of the subject property applied for and was granted permits to construct two culverts crossing a stream on the property. Dissatisfied by the grant of the permits and perceived land use violations, the plaintiff brought certain issues to the attention of the Town, and eventually filed suit seeking enforcement of the land use code and state law.
The court returned the matter to the Planning Board, finding the Planning Board did not make sufficient findings to permit review, and that the Planning Board should have addressed whether the division of the land by will created a subdivision. Upon second review, the Planning Board found the splitting of the land by will was exempt from being classified as a subdivision, and that the local land use code was satisfied when the permits were granted. The trial court then ordered the ZBA to review whether there was a subdivision. The ZBA concurred with the Planning Board, finding the land was not subdivided under Maine law.
First, the Superior Judicial Court found the trial court did not abuse its discretion in granting partial final judgment, as the matter fit within an exception to the final judgment rule. The court then addressed the issue of whether there was a subdivision of land. Under Maine law, for the legality of a subdivision of land to be an issue in litigation, the local government must first tacitly approve or acknowledge the creation of the subdivision. Since there was no such approval or acknowledgement, the Town was not required to determine whether there was a subdivision. Thus, the trial court’s order requiring review by the Town as to whether the permit complied with the subdivision law was reversed and the Town’s determination was vacated as the issue was premature and not ripe for review.
Lastly, the Superior Court affirmed the grant of the dredge-and-fill permits, as the record was sufficient to support the application for the permits.
Marquis v. Town of Kennebunk, 2011 WL 6225269 (ME 12/15/2011)
The opinion can be accessed at: http://www.leagle.com/xmlResult.aspx?xmldoc=In%20MECO%2020111215269.xml&docbase=CSLWAR3-2007-CURR.
