Agenda - Planning Commission - 06/04/2015

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Zoning Bulletin May 10, 2015 1 Volume 9 1 Issue 9 DECISION: Judgment of superior court affirmed. The Supreme Judicial Court of Maine held that the condition delegating authority for approval of minor changes to the City Planner was consistent with the City's Zoning Ordinance, and that therefore the Planning Board did not err in including it in the permit issued to the McClellan. In so holding, the court found that the state statute giving municipalities zoning authority (Title 30-A M.R.S. § 4352) did "not directly control delegation of zoning decisions among municipal boards, departments, or officers, leaving those matters to individual town ordinances." Thus, the court said that the Planning Board's condition that allowed the City Plan- ner to approve minor changes to project plans would only be an improper delegation of legislative authority and in error if it violated the City's Zon- ing Ordinance. The court concluded that the condition did not violate the City's Zoning Ordinance. The court found that the City's Zoning Ordinance did. not contain any provision that prohibited the Planning Board from delegating some tasks to the City Planner. Rather, the court found that the plain language of the City's Zoning Ordinance allowed "[t]he Planning Board [to] attach such conditions, in addition to those required elsewhere in this Ordinance, that it finds necessary to further the purposes of this Ordinance." Also, the court found that "[t]he condition delegating decision-making to the City Planner further[ed] the purposes of the Ordinance by ensuring that even minor deviations from the approved plans [would] be subject to mu- nicipal review for compliance with zoning and building laws, without un- duly burdening the Planning Board." The court found further support for its interpretation in that other provisions of the Zoning Ordinance delegated similar tasks to the City Planner, including: responsibility for approving "minor conditional uses," as well as "minor site plan[s]," and minor changes to site plans during construction. Case Note: Fitanides had also argued that he was denied due process when the City Planner sent an e-mail to the ZBA, which noted that Fitanides had demonstrated that litiga- tion was a "hobby of his" and which urged the ZBA to affirm the Planning Board's Decision. The court found that, although the e-mail was "wholly inappropriate," it did not influence or affect the ZBA 's decision and it was not sent by a member of the ZBA and therefore was not sufficient to impute bias to the ZBA. © 2015 Thomson Reuters 7