Posted by: Patricia Salkin | November 22, 2011

Maine Supreme Court Finds Standing to Challenge Planning Board Decision Where Attorney for Plaintiff Made an Appearance Before the Board and Where the Plaintiff had a Particularized Injury

North South Corporation applied for a permit to construct a hotel on land which abutted the property of the Witham Family Limited Partnership (“Partnership”).  The Planning Board denied North South’s application, asserting that the plans violated the town’s height limitations but noting that the plans conformed with the rest of the town’s zoning laws.  North South appealed to the Board of Appeals.  The Board of Appeals held two public hearings and the lawyer for the Partnership, Mr. Bearor, was present both times.  Although Bearor did not represent that his attendance at the meeting was on behalf of the partnership, he made a statement, like other members of the public in attendance.  

The Board of Appeals reversed the Planning Board’s decision and ordered the Board to issue the permit.  The Partnership appealed two issues to the superior court: first, the decision by the Board of Appeals to issue the permit and second, the assertion by the Planning Board that the building conformed with all other zoning laws (except for the height).  The court dismissed, holding that the Partnership lacked standing. 

The Supreme Judicial Court begins by articulating the rule that any party has standing to appeal a decision.  Further, a party is anyone who has appeared before the board of appeals and can show a particularized injury.  First, the court dealt with the Partnership’s standing to challenge the Board of Appeals issuance of a permit.  The issue was whether the Partnership “appeared” before the Board of Appeals.  The court found that the term “appeared” is broadly defined and is implicated anytime one participates or voices concerns.  Here, although attorney Bearor did not announce his affiliation with the Partnership, he was the lawyer of the Partnership throughout the proceedings and, thus, it can be inferred that he appeared on their behalf.  Therefore, since the Partnership appeared and suffered particularized injury, they have standing to appeal.                                              

Second, the court discussed the Partnership’s appeal regarding the assertions by the Planning Board.  The issue here was whether the Partnership has suffered a particularized injury.  Although the general rule is that “a party is not aggrieved by a judgment granting the relief requested in his pleadings,” an exception is where the judgment would have a collateral estoppel effect.  Here, collateral estoppel would have barred a future suit if the other issues were not brought up in appeal by the Partnership.  Thus, the Partnership did suffer a particularized injury. Therefore, the court found that the Partnership has standing for both of its appeals. 

Witham Family Ltd. P’ship v. Town of Bar Harbor, 2011 WL 5187954 (ME 11/01/11). 

The opinion can be accessed at: 


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