Agenda - Planning Commission - 04/07/2016

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Zoning Bulletin February 25, 2016 ( Volume 10 ( Issue 4 such a board is in place. Thus, under Maine law, the Town, here in its Ordinance, made review by the Board of Appeals a prerequisite to judicial review of the Planning Board's denial. The court found that "by opting for this two -stage decision making process in its Ordi- nance, initial administrative decisions concerning applications to build telecommunications facilities [in the Town] (such as the Plan- ning Board's denial of the application here) are not the final adminis- trative determinations that state law deems to be subject to judicial review." The court then concluded that, "just as a federal agency's initial denial of a permit is not final under the APA when an agency rule or a statute requires further administrative review, so, too, the Planning Board's action [here] is not `final' under the TCA, given the administrative review that the Board of Appeals must undertake in consequence of the Ordinance and Maine law." Finding that the Planning Board's decision denying the Applicants a permit to build a wireless telecommunications tower did not mark the end of the administrative process and thus was not a "final action" for TCA purposes, the court thus affirmed the District Court's dis- missal of the Applicants' TCA claims. See also: Omnipoint Holdings, Inc. v. City of Cranston, 586 F.3d 38 (1st Cir. 2009). See also: Darby v. Cisneros, 509 U.S. 137, 113 S. Ct. 2539, 125 L. Ed. 2d 113 (1993). Case Note: The Applicants had further alleged that the Planning Board's procedures denied them their procedural and substantive due process rights. The district court had also dismissed the Applicants' due process claims, finding they "did not rise to the level of a federal constitutional violation. "As to the Applicants' procedural due process claim, the appellate court found that the Applicants failed to address on appeal the fact that state law provided them a process for seeking relief from the action of the Planning Board through appeal to the Board of Appeals, and in state court thereafter. Thus, the court found that the Applicants' due process challenge failed "on the merits," as the court had "no basis for concluding that the [A]pplicants lacked an adequate state law remedy for any of the procedural defects that they' allege." As to the Applicants' substantive due process claim (which was premised on a purported conflict of interest that some members of the Planning Board had), the appellate court saw "nothing in the present case to distinguish it sufficiently from the usual land developer's claim under state law [and nothing to shock the conscience] to warrant recognition of a © 2016 Thomson Reuters 5