Agenda - Planning Commission - 07/11/2007

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Zoning Bulletin Sanborn appealed the ZBA's decision to court. The court dismissed the case, finding that the ZBA did not have jurisdiction to hear the ap- peal because the building ordinance authorized it to hear appeals only from denials-not grants-of building permits. Sanborn appealed the lower court's decision. Decision: Decision of the lower court vacated; case returned to the ZBA for further proceedings. The appeals court first addressed the issue of jurisdiction. When a municipality adopted a zaIling ordinance, it was required to establish a board oJ appeals, which would have jurisdiction over !vIro types of appeals. A board could exercise jurisdiction over "appeals from any action or failure to act of the official or board responsible for enforc- ing the zoning ordinante," and a board had jurisdiction over "any [other] matter" so long as "the municipality hard] by charter or ordi- nance speci:fied the precise subject matter that may be appealed." Here, although there was a question as to whether the building or shoreland ordinance controlled, the ZBA arguably had jurisdiction over both. However, the speci:fic allegations that Sanborn raised in court re- lated to the shoreland ordinance, which stated in relevant part that the ZBA had the authority "[t]o hear and decide appeals where it [was] alleged that there [was] an error in any order, requirement, decision, or determination made by, or failure to act by, the Code Enforcement Of- ficer ... in the enforcement or administration of this Ordinance." The appeals court noted further that: "Requiring parties to litigate in court without first gOD.'l.g through an administrative process [was] contrary to the policies that we have recognized in a number of cases in which we have held that people who are aggrieved by a decision of a CEO or a planning board must first take their case to the board of appeals." The principle of administrative exhaustion was practically universal in zoning cases; the lower court's decision was counter to this standard. Having determined jurisdiction, the appeals court examined the merits of Sanborn's appeal. Because there were some issues of mate- rial fact-most notably with regard to the setback issue-the case had to be returned to the ZBA. The ZBA had not made findings of fact as to the actual location of the road-from which it could be determined whether the setback requirement was being met-but merely stated that it was undetermined in dismissing that issue. The court noted that it lacked the ability for meaningful judicial review absent the ZBNs factual findings and returned the case to the ZBA for further proceedings. See also: Widewaters Stillwater Co., LLC v. Bangor Area Citizens 01-ganized for Responsible Development, 2002 ME 27, 790 A.2d 597 (Me. 2002). 10 106