Posted by: Patricia Salkin | July 18, 2008

Maine Courts Remand Matter to Zoning Board Where Town Failed to Provide Timely Notice of Public Hearing

Following the approval of a conditional use permit to operate a restaurant, it was discovered that the Town neglected to send the abutting property owners written notice of the public hearing, and they failed to send notice that the permit had been issued until four months after the fact.  The applicable law sets forth a 30-day statute of limitations after receiving notice to challenge the planning board’s decision, and the Town ordinance provides that notice of a decision is deemed to have been received three days after a final decision becomes a public record in the Town Clerk’s office.

 

Approximately two weeks after receiving the late written notice of the decision, two abutting neighbors appealed to the zoning board of appeals, arguing that the permit should be revoked and that matter should be remanded to the planning board since they were not given the required notice of the hearing.  The zoning board ruled that the appeals were untimely and that the zoning board of appeals lacked authority to waive compliance with the appeal period imposed by the ordinance. The abutting property owners then appealed to the Superior Court who remanded the matter to the zoning board of appeals after determining that the abutters had demonstrated good cause for the late filing of their appeals to the zoning board. The applicants who received the conditional use permit then appealed this order.

 

The Maine Supreme Court held that since the Superior Court remanded the matter to the zoning board for further proceedings, the board has not made a final decision, and that the order of remand does not constitute a final judgment. The Court concluded, “Because no exception to the final judgment rule applies…and because a decision…at this stage would be entirely premature,” it dismissed the interlocutory appeal and remanded the matter for execution of the Superior Court’s order of remand to the zoning board.   

 

 

Brickley v. Horton, 2008 WL 2611120 (Me. 7/3/2008 ).

 

The opinion can be accessed at: http://www.courts.state.me.us/court_info/opinions/2008%20documents/08me111br.pdf


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