Posted by: Patricia Salkin | May 24, 2015

ME Supreme Judicial Court Holds Town Planning Board Lacked the Authority to Ignore the Plain Language of Zoning Ordinance by Waiving any Design Review Submission Standards

Wayne C. Perkins applied to the Ogunquit Planning Board seeking site plan review and design review approval to convert his garage, reached from Shore Road, into a lobster pound with the anticipation of cooking some of the lobsters prior to sale. Although the sale of live lobsters was a permitted use in the zone at issue, the cooking of lobsters presented a question of ordinance interpretation. After a public hearing, the Board approved Perkins’s site plan review and design review application without requiring Perkins to comply with certain mandatory provisions in the Ordinance. The Hartwells, abutting landowners, sought judicial review in the Superior Court. The review resulted in a remand to the Board based on the Board’s failure to apply the requirements of the Ordinance. On remand, Perkins supplemented his application with the necessary written requests to waive certain provisions for site plan review approval, but he did not submit the required elevations of the property to comply with the requirements for design review approval. The issue was again brought to the Superior Court, which adopted the Hartwells’ assertion that the lobster pound was properly classified as a prohibited restaurant, not a permissible retail establishment. Accordingly the Board’s approval of the site plan application was vacated.

Here, the record before the court was devoid of any factual findings by the Board at the time of its final approval regarding Perkins’s use of the property, including the scope of Perkins’s authorized use or any findings addressing the factual allegations of the abutters. Because the Board failed to make sufficient and clear findings of fact and such findings were necessary for judicial review, the court remanded the matter to the Board to make the findings. The court furthermore affirmed the judgment of the Superior Court with respect to design review approval, specifically with regard to the missing elevations mandated by the Ordinance since the Board did not have the power to waive this requirement.

Hartwell v Town of Ogunquit, 2015 WL 2038302 (ME 5/5/2015)

The opinion can be accessed at: http://www.courts.maine.gov/opinions_orders/supreme/lawcourt/2015/15me51ha.pdf


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