Agenda - Planning Commission - 04/07/2016

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February 25, 2016 I Volume 10 I Issue 4 Zoning Bulletin leged that the Planning Board had unreasonably delayed taking ac- tion on the application and thus violated the TCA by failing "to is- sue a written decision within the mutually agreed upon review period." The. District Court dismissed the TCA claims. The court found that the Applicants had not appealed to the Town's Board of Appeals before filing the TCA claim in district court. Accordingly, the court held that the Planning Board's denial of the application was not a "final action" that the Applicants were entitled to challenge under the TCA. The Applicants appealed. The Applicants argued that the op- portunity to bring an administrative appeal -such as the fact that they could appeal the Planning Board's decision here to the Town's Board of Appeals should not prevent their TCA challenge from go- ing forward. On the other hand, the Town and the Planning Board had argued that the Planning Board's decision did not mark the end of the administrative process since that decision could be appealed to the Town's Board of Appeals. Thus, they argued that the Planning Board's decision was not a "final action" for TCA purposes and that the Applicants' TCA claims were thus properly dismissed by the District Court. DECISION: Judgment of district court affirmed. The United States Court of Appeals, First Circuit, agreed with the Town and Planning Board. It held that, here, the Planning Board's denial of the permit to construct the wireless communications tower was not a "final action" and, thus, was not subject to review under the TCA. The court explained that the TCA "provides relief to those who are denied permission to build telecommunications facilities at the state or local level. . .if state or local land use authorities have denied. such permission through 'final action.' " The court noted that the TCA does not define "final action." Thus, the court looked to the sim- ilar finality requirement of the Administrative Procedure Act ("APA") for guidance. The court found no reason that the TCA's "final action requirement" should be construed to diverge from the APA's. The court noted that the APA's "final action" requirement had been construed as an action that "mark[s] the `consummation' of the agency's decision making process' " as opposed to an action that is "of a merely tentative or interlocutory nature." Looking at the facts here, the court noted that, as a general matter, Maine state courts may review a local land use decision like the one at issue here only after it has been reviewed by a board of appeals, if 4 ©2016 Thomson Reuters