Agenda - Planning Commission - 02/02/2012

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Zoning Bulletin December 10, 2011 Volume 5 1 No. 23 North South appealed the Planning Board's denial to the Town's Board of Appeals (the "BOA"). The BOA concluded that the Planning Board had misinterpreted the ordinance provision relating to height requirements. It reversed the Plan- ning Board's denial, and remanded the matter to the Planning Board with instructions to issue North South's requested permit. The Planning Board issued the permit on May 19, 2010. The Witham Family Limited Partnership (the "Partnership ") owned land abutting the location of North South's proposed hotel. The Partner- ship's attorney had appeared at public hearings on North South's permit application. While North South's appeal to the BOA was pending, the Partnership filed its own appeal to the BOA. The Partnership challenged that portion of the Planning Board's decision that found that North South's proposed hotel did conform to other criteria for obtaining a per- mit—namely parking and street width requirements. The BOA affirmed the Planning Board's decision with regard to the Partnership's appeal. The Partnership then appealed the BOA's decisions in both North South's appeal and in the Partnership's appeal to superior court. North South argued that the Partnership lacked standing to bring the appeals. North South contended that the Partnership had not "appeared" before the Planning Board in relation to North South's permit application because the Partnership's attorney failed to specifically announce that he was speaking on behalf of the Partnership when he spoke at public hear- ings on the permit application. North South also argued that since the Partnership's own appeal was based on BOA findings that North South complied with certain permit criteria - rather than an appeal of the denial itself the Partnership did not have a particularized injury necessary for standing to seek review of the BOA's decision to issue the permit. The superior court agreed with North South and dismissed the Partner- ship's complaint. The court found that the Partnership lacked standing to seek review of either of the BOA's decisions. DECISION: Vacated, and matter remanded. The Supreme Judicial Court of Maine held that: (1) the Partnership had sufficiently opposed North South's appeal as a party through representa- tion by its attorney at related public hearings, such that it had standing to seek court review of the BOA's decision to issue the permit; and (2) the Partnership had a particularized injury from the findings that North South complied .with other criteria for the permit sufficient to provide standing to the Partnership to appeal the Planning Board's denial of North South's permit application. The court explained that for the Partnership to have standing to ap- peal the BOA's decision to court, it had to be a "parry," meaning: (1) one who had "appeared" before the BOA; and (2) one who was "able to dem- onstrate a particularized injury as a result of the [BOA]'s action." "Ap- pearance," further explained the court, meant: "`participation' formal © 2011 Thomson Reuters 7