Posted by: Patricia Salkin | December 13, 2015

ME Supreme Court Holds Zoning Board of Appeals had Jurisdiction to Consider Abutting Landowner’s Appeal of Issuance of a Certificate of Occupancy to Dealership

Theresa Desfosses appeals from a decision of the Superior Court affirming the decisions of the City of Saco Planning Board and Zoning Board of Appeals on Desfosses’s challenged to three City decisions issued in connection with the construction of a car dealership by WWS Properties, LLC. On June 25, 2013, WWS obtained site plan approval from the Planning Board to construct a large building and accompanying parking lots on a parcel of property adjacent to Desfosses on Route One in Saco, where WWS planned to operate a car dealership. One of the conditions of the approval was: “No deviations from the approved plans are permitted without prior approval from the Planning Board for major changes, and from the City Planner for minor changes. The determination of major or minor shall be made by the City Planner.” Less than three months after receiving its site plan approval, WWS requested and obtained approval from the City Planner for a “minor change” to its site plan, providing for the installation of a four-foot-tall freestanding retaining wall with an embedded eight-foot-tall fence atop it along its and Desfosses’s common boundary. A month after the ZBA’s decision, the City’s Code Enforcement Officer (CEO) issued WWS a certificate of occupancy. Desfosses appealed the grant of the certificate of occupancy to the ZBA, which determined that it lacked jurisdiction to hear that appeal.

Desfosses challenged the Planning Board’s and the ZBA’s determinations that they lacked jurisdiction over her appeals of the City Planner’s approval of the site plan amendment, as well as the ZBA’s determination that it lacked jurisdiction over her appeal of the CEO’s issuance of a certificate of occupancy. While section 1103(7) discussed the City Planner’s authority to approve minor site plans, and allows appeals of City Planner decisions on minor site plans made by the applicants for those site plans to go to the Planning Board, it made no mention of site plan amendments or appeals of site plan amendments. Furthermore, section 1103(7) mentioned only those appeals brought by the applicant, and did not discuss appeals brought by any party other than the applicant. The court found that to interpret section 1103(8) to provide an applicant a right of appeal of a City Planner’s determination on a site plan amendment to the Planning Board, but to provide no such appeal to a non-applicant challenging the same decision would result in “absurd, illogical, unreasonable, inconsistent, or anomalous results”. Moreover, the Ordinance’s provision that all Planning Board decisions may be appealed directly to the Superior Court demonstrated that the ZBA was not intended to have any role in the site plan approval or amendment process.

The court next addressed Desfosses’s challenge to the certificate of occupancy based on whether the construction of the retaining wall and fence complies with the terms of the site plan. WWS argued that this challenge technically does not regard “an erroneous interpretation of the Ordinance,” as is required for appeals of certificates of occupancy pursuant to section 1003–1, and therefore that section 1003–1 provided no authority for Desfosses’s appeal. However, a certificate of occupancy cannot be issued unless the new structure conforms to the Zoning Ordinance. The court therefore found that the plain language of section 1003–1 to provided that the ZBA had jurisdiction to consider Desfosses’s appeal of the issuance of a certificate of occupancy. Because the ZBA declined to exercise this jurisdiction, the decision of the Superior Court was vacated and remanded.

Desfosses v City of Saco, 2015 WL 7444365 (ME 11/24/2015)

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