Agenda - Planning Commission - 03/06/2014

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January 25, 2014 1 Volume 8 1 Issue 2 Zoning Bulletin consulting firm to conduct an independent review of both studies. Because Berwick Iron was required to pay the cost of the Town's inde- pendent review expert, before hiring its peer reviewer, the Board solic- itedestimates from three engineering firms and compared prices. The Town Planning Coordinator then e-mailed Berwick Iron's attorney, at- taching the three proposals. The e-mail asked Berwick Iron's attorney to "let me know if you agree that I should contact the [environmental consulting firm with the lowest bid] to proceed with the peer review." Neither the Planning Coordinator nor the board infoinied the public or the attorney for the abutting landowners about the e-mail exchange. Eventually, the Board voted to approve the conditional use permit. The abutters appealed. Among other things, they argued that when the Board sought approval of its choice of independent reviewers via e-mail from Berwick Iron, without notifying the public or abutters' counsel (the "ex parte e-mail"), it violated the abutters' due process rights under the Maine and United States Constitutions. The superior court agreed with the abutters and vacated the Board's judgment. It held that the ex parte e-mail violated the abutters' due pro- cess rights under the Maine and United States Constitutions. Berwick Iron appealed. DECISION: Judgment of superior court vacated, and matter remanded. The Supreme Judicial Court of Maine held that the Town Planning Coordinator's ex parte e-mail to Berwick Iron's attorney did not taint the Planning Board's decision to approve the conditional use permit and did not violate the abutting landowners' due process rights. In so holding, the court explained that "[b] oth an applicant and members of the public who oppose a project are `entitled under the [D]ue [P]rocess [C]lause of the United States and Maine [C]onstitutions to a fair and unbiased hearing.' " (See U.S. Const. amend. XIV § 1; Me. Const. art. I, § 6-A.). The Due Process Clause, said the court, "protects against the exercise of arbitrary governmental power and guarantees equal and impartial dispensation of law according to the settled course of judicial proceedings or in accordance with fundamental principles of distributive justice." Thus, further explained the court: When governmental agencies adjudicate or make binding determinations which directly affect the legal rights of individuals, it is imperative that those agencies use the procedures which have traditionally been associated with the judicial process. On the other hand, when governmental action does not partake of an adjudication, as for example, when a general fact-finding investigation is being con- ducted, it is not necessary that the full panoply of judicial procedures be used.... In the context of municipal planning boards, the court stated that due process entitles a party "to a fair and unbiased hearing." The court explained that communications between a decision -maker and only one party, without notifying the opposing party or providing that party with 8 © 2014 Thomson Reuters