Jadd v. The Inh. of the Town of Old Orchard Beach

• Court: Superior Court of Maine
• Decided: April 14, 2010
• Docket: YORap-09-024
• Status: Unpublished

Opinion

STATE OF MAINE SUPERIOR COURT CIVIL ACTION YORK, ss. DOCKET NO. AP-09-024 , ..' '('-.' ~~ I I ' Ii'

JADD, LLC and DIANE LEMENAGER,

Plaintiffs

v. JUDGMENT

THE INHABITANTS OF THE TOWN OF OLD ORCHARD BEACH,

Defendant

This is a Rule 80B Appeal from a decision of the Old Orchard Beach Zoning

Board of Appeals. Following hearing and review of the administrative record, the

appeal is Denied.

The Plaintiffs own an unimproved parcel of land which is adjacent to other land

they own. They sought a permit to construct a seasonal dwelling on the unimproved

parcel. The town's code enforcement officer denied the request and referred the

Plaintiffs to the Z.B.A., where they sought a hardship variance. After a presentation to

the Z.B.A. in March 2009, the board voted to grant the variance. However, a neighbor,

who had submitted a written objection to the Z.B.A., which was considered at the

original hearing, filed a timely request for reconsideration.

The request for reconsideration was first considered at an April Z.B.A. meeting

and the motion failed on a tie vote of two to two, with one abstention. The abstention

was based on the fact that the abstaining board member had not participated in the

original hearing at which the variance was granted. There followed a prolonged

discussion about whether or how to proceed. The Z.B.A. decided to table the motion to reconsider until the board member

who participated in the original hearing was available to hear and vote on the motion to

reconsider. This meeting occurred in May. The Z.B.A. then voted 3 to 2 to reconsider

the original grant of a variance and then conducted a new hearing on the request for a

variance. That request also failed on a 3 to 2 vote. This denial of the requested variance

is the subject of this appeal.

The Plaintiffs argue that the motion to reconsider was presented, heard and

failed on a tie vote and no further action on that motion was authorized or appropriate.

The town argues that the Z.B.A.'s actions did not violate any statute, ordinance or by­

law of the board and should be viewed deferentially by the Court.

The parties agree that the town has no written procedure concerning requests for

reconsideration of administrative decisions. They also agree that the board's actions in

this case occurred within the time limits prescribed by 30-A M.R.S.A. §2677(3)(F).

While perhaps irregular, the procedure utilized by the Z.B.A. did not contradict

any local ordinance or state statute. All decisions were made at open meetings with the

Plaintiffs present and able to participate. Given the divided opinion on the Z.B.A. (the

challenged vote to grant the variance was 3-2), it was not unreasonable for the Board to

want the request to reconsider be heard by the same members who originally voted on

the variance. In such circumstances, the Law Court has indicated that administrative

boards should be accorded some latitude to fashion procedures as needed for their

efficient functioning, provided these are basically fair to all parties. See e.g. Town of

Wiscasset v. Board of Environmental Protection, et al., 471 A.2d 1045 (Me. 1984); Jackson v.

Town of Kennebunk, 530 A.2d 717 (Me. 1987). While no doubt frustrating to the Plaintiffs,

there has been no showing of a violation of state or local law and no showing of

fundamental unfairness.

2 The entry will be as follows:

The Plaintiffs' Rule SOB appeal is Denied; the Z.B.A.'s decision is Affirmed.

The clerk may incorporate this order in the docket by reference.

Dated: April 14 , 2010 4. /Jrr;; /G.~l- Justice, Superior Court

PLAINTIFF"S ATTORNEY: BRUCE M. READ, ESQ. SHEPARD & READ 93 MAIN ST KENNEBUNK ME 04043

DEFENDANT"S ATTORNEY: SHANA COOK MUELLER, ESQ. BERNSTEIN SHUR SAWYER & NELSON PO BOX 9729 PORTLAND ME 04104-5029