Hodsdon v. Town of Hermon

STATE OF MAINE SUPERIOR COURT

PENOBSCOT, SS. Docket No. AP-99-28

Tl he Pew 72 Re Qo!

Marilyn Hodsdon et al.,

Appellants

v. ORDER ON APPEAL

Town of Hermon, -

Appellees FILED AND ENTERED

SUPFRINR COUAT

and MAR O2 2001

. Walter J. Munn et al.,

Parties in Interest | PENOBSCOT COUNTY

Marilyn Hodsdon and twenty-six other individuals (collectively,

"Hodsdon") appeal directly from a decision of the Town of Hermon

Planning Board ("the Board”), approving an application of the parties in

interest, Walter Munn and Virginia Munn (collectively, "Munn"), for the

construction of a campground on property owned by the Munns. On this —

appeal, Hodsdon contends that the Board did not have authority to approve

Munn’s application because of changes in the Town's ordinance relating to

permitted uses. Hodsdon also argues that the Board's decision was not

supported by sufficient evidence.

Subsequent to the submissions of the parties’ briefs but prior to oral

argument on this appeal, the Law Court issued its decision in Hodsdon v.

Town. of Hermon, 2000 ME 181, 760 A.2d 221.! There, on the basis of the

Town's ordinances that also control the proceeding at bar, the Court

concluded that with three specific exceptions, the Superior Court does not

have jurisdiction over an appeal taken directly from the Town's Planning

Board. Id. J] 4-6, 760 A.2d at 222-23. At oral argument, the parties

agreed that the Court's holding in Hodsdon is applicable to this case.

Because the briefing schedule in this case did not allow the parties an

Opportunity to address the impact of the Law Court's decision in Hodsdon

on this case, the court gave the parties leave to file additional argument on

that issue if they wished to do so. None of the parties filed supplemental

argument.

At oral argument, Hodsdon acknowledged that the Law Court's

opinion in Hodsdon deprives the Superior Court of jurisdiction to consider

her argument that the Board's decision was without sufficient factual

support. Hodsdon contends, however, that her alternative argument is still

viable. In that alternative challenge, she contends that the Board erred in

considering Munn’s application. In 1998, Munn first filed his application

for construction of the campground, which was a permitted use under the

ordinance in effect at that time. The Board consisdered that application at

a meeting held in October 1998. Effective November 21, 1998, the Town

amended its zoning ordinance to remove campgrounds as a permitted use

in the district where Munn hoped to establish the campground. The Board

had not issued a decision on Munn's application prior to the effective date

1The Law Court case involved the same parties who participate in the case at

bar. That case, however, concerned Munn's application to build a restaurant, which

would be on a parcel adjacent to the proposed campground at issue here.

2

of the zoning ordinance amendment. In February 1999, Munn filed a site

plan review for the campground with the Board, which considered and

ultimately approved the application. Hodsdon argues that Munn’s

application was not pending as of November 21, 1998, that the amended

ordinance thus controlled Munn’s application filed in February 1999 and

that the Board was therefore without authority to approve the application

on the basis of the ordinance that was effective prior to November 21,

1999,

At oral argument, Hodsdon urged that this direct challenge to the

Board's decision is entirely a question of law and thus is cognizable under

Hodsdon. 2000 ME 181, ¥ 6, 760 A.2d at 223 (a petitioner is not required

to exhaust administrative remedies “where ‘(1) because of direct

involvement of the reviewing body in the initial decision, administrative

appeal would be futile, (2) only questions of law are involved, or (3) the

ur

reviewing body has no power to grant the requested relief. . (emphasis

added; citation omitted)). The second exception noted by the Law Court,

which is the one pertinent to this case, can be traced back to Churchill v.

S.A.D. 49 Teacher's Association, 380 A.2d 186 (Me. 1977).2. There, one of

the issues presented to the Court was whether a provision in a labor

contract violated a statute that governed the scope of binding arbitration.

The Court held that "[t]he issue of the legality of the . . . agreement in the

instant case is one solely of law, wherein the special expertise of the

2This lineage leading back to Churchill is based not only on the substantive

principle at issue, but also based on the specific authority cited by the Hodsdon Court:

Hodsdon expressly relies on Lakes Environmental Association v. Town of Naples. 486

A.2d 91, 96 (Me. 1984), which relies on’ Northeast Occupational Exchange, Inc.

Bureau of Rehabilitation, 473 A.2d 406, 410-11 (Me. 1984), which cites Churchill itself,

3

administrative agency would be of no significant benefit." Id. at 190.

Consequently, the appellate courts had jurisdiction over the issue even

though the administrative body had not passed on it. Id.

The legal basis for Hodsdon's challenge is found in 1 M.R.S.A. § 302.

Under that law, ". . .proceedings pending at the time of the passage,

amendment or repeal of an Act are not affected thereby." The statute goes

on to provide:

an application for a license or permit required by law at the time of

its filing shall be considered to be a pending proceeding when the

reviewing authority has conducted. at least one substantive review of

the application and not before. For purposes of this section, a

substantive review of an application for a license or permit required

by law at the time of application shall consist of a review of that

application to determine whether it complies with the review criteria

and other applicable requirements of law.

Id. Hodsdon argues that Munn's 1998 application had not given rise to a

proceeding that was "pending" as of November 21, 1998, when the Town's

zoning ordinance was amended in a way that, if applicable, would have

foreclosed the proposed development. Under Hodsdon and Coolidge, this

court could consider that claim only if the determination of a "pending

proceeding” is a pure legal issue.

In McCarthy v. City of South Portland, 571 A.2d 833 (Me. 1990), the

Law Court reviewed the trial court's determination that a development

application was not pending on the date that a municipal ordinance was

amended in a way that affected the merits of the application. The Court

concluded that the trial court's determination “is supported by the record

and is not clearly erroneous." Id. at 835. The "clearly erroneous" standard

is one that is applied to factual findings. See, e.g., Tarbuck v. Jaekel, 2000

ME 105, { 18, 752 A.2d 176, 181. Issues of law, on the other hand, are

subjected to de novo appellate review. See, e.g. Bangs v. Town of Wells,

2000 ME 186, J 9, 760 A.2d 632, 635. Because the McCarthy Court

reviewed the issue of pendency for clear error, it treated the issue as one

of fact rather than of law.?

The circumstances of this case support a similar conclusion. At the

Board's hearing held on February 18, 1999, Hodsdon argued the November

1998 amendment to the Town's zoning ordinance deprived the Board of

any authority to grant Munn’s application. (R. 11, T. 13-18.) Despite this

challenge, the Board ultimately rejected it (R. 11, T. 24) and approved the

application (R. 17). The question of whether Munn's application had been

subject to “at least one substantive review" within the meaning of section

302 called for the Board to consider its prior actions on Munn's application

and the extent to which it had considered the merits of the proposal.

These issues are predicated on historical fact, the Board's own

understanding of its treatment of the application prior to November 21,

1998, and its assessment of the significance of the prior proceedings. In

these ways, the Board's rejection of Hodsdon's argument was based on its

fact-finding role and, in particular, on the "special expertise" that the Board

can bring to bear on its assessment of the status of its constderation of

Munn’'s application prior to November 21, 1998. See Churchill, 380 A.2d at

190.

For these reasons, the court concludes that Hodsdon's remaining

30n the other hand, as used in section 302, the meaning of the term

“proceeding” is a question of law. Larivee_v. Timmons, 549 A.2d 744, 746 (Me. 1988).

In the case at bar, however, the parties do not question that the municipal process

was a "proceeding" for purposes of the section 302 analysis.

5

challenge to the Board's decision is not a pure question of law and that, as

a result, this court is without jurisdiction to consider the merits of her

appeal. See Hodsdon, 2000 ME 81, 7 6, 760 A.2d at 223.

The entry shall be:

For the reasons set out in the order dated March 1, 2001, the appeal

is dismissed.

Dated: March 1, 2001 4}

WA

JUSTICE, SUPERIOR COURT

Date Filed 6/14/99

AP-99-28

PENOBSCOT Docket No.

80B APPEAL

County

Action

MARILYN HOOSDON, of Hermon,

Penobscot County, Maine

and

SUZETTE CONNOLLY, of Hermon,

Penobscot County, Maine

and

LORI SPENCER, of Hermon,

Assigned to Justice Jeffrey L. Hjelm

TOWN OF HERMON, Respondent and

WALTER J, MUNN & VIRGINIA MUNN,

Parties—in-Interest

Vs.

Penobscot County, Maine

and

ROSEMARY GILBERT, of Hermon,

Penobscot County, Maine

and

PI

and

LOREANNE ZELHS, of Hermon,

Penobscot County, Maine

and :

JCHN WORTHLEY, of Heraon,

Penobscot County, Maine

and

KAREN ECONOMY, of Hermon,

Penobscot County, Maine

and

WILLIAM MILLER, of Hermon,

Penobscot County, Maine

and

GECRSZ SMALL, of Hermon,

Fenobscot County, Maine

. and

PAULA SMALL, of Hermon,

Pancbhacot County, Maine

and

WENDALL LEONARD, of Hernon,

Panobscot County, Maine

and

Jo LESMARO, of Hermon,

Penobscot County, Maine

and

HA?IA COX, of Harmon,

Penobscot County, Maine

and

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8/13/99

Defendant's Attorney

RUDMAN & WINCHELL, LLC

JULIE BERRY, of Hermon, GAL

Penobscot County, Maina P.O. BOX 1401

CHERIL GALLANT, of Mernon, =) ET EEE BANGOR, ME 04402-1401

wazy L. patter, ef Herwon 5 BY: EDMOND J. BEAROR, ESQ.

“"" pencbscot County, Maine q- FOR: TOWN OF HERMON, RESPONDENT

WAYNE R FOOTE, ESQ.

P 0 BOX 1576, BANGOR ME 04402-1576

FOR: Walter & Virginia Munn

he Partadpe—-Tn=<lInrareat Walter T.

xeview of Governmental Action M.R. Civ.P. 80B filed.

iefing Schedule - 80B Appeal of Governmental Actions form

>laintiff's counsel and to Town of Hermon Town Clerk.

urn of Service as to Virginia Munn filed (s.d. 6/16/99)

turn of Service as to Walter J. Munn filed (s.d. 6/16/99)

arance filed by Edmond J. Bearor, Esq., on behalf of

wm of Hermon.

Service on behalf of Town of Hermon by Edmond J. Bearor,

.d. 6/22/99)

irance on behalf of Parties-in-Interest Walter J. Munn, Sr.

funn filed by Wayne R. Foote, Esq.

Motion for Extension fo Time filed.

E by 8/9/99)

Upon consideration of the Petitioners’ motion for

time, and based upon the materials submitted, that

NTED, and it is ORDERED that Petitioner's brief and

all be filed by August 9, 1999. (Marsano, J.) Copy

attorneys of record,

Brief filed.

eal Volume I and II filed by Petitioners' attorney.

Motion to Enlarge Deadline for Responding to Petitioner's Brief Filed

Munn. Sr. and Vireinia Mungo.

Date Filed 6/14/99 PENOBSCOT Docket No. AP-99-28

County

Action ROP “OPT “TL

Assigned to Justice Jeffrey L. Hjelm

TOWN OF HERMON, Respondent and

WALTER J. MUNN & VIRGINIA MUNN,

Parties-in-Interest

VS.

Plaintiff's Attorney Defendant's Attorney

RUDMAN & WINCHELL, LLC

GROSS MINSKY MOGUL & SINGAL P.O. BOX 1401

P O BOX 917 - 23 Water Street BANGOR, ME 04402-1401

BANGOR ME 04402-0917 BY: EDMOND J. BEAROR, ESQ.

BY: Daniel A. Pileggi, Esq.

FOR: TOWN OF HERMON, RESPONDENT

WAYNE R FOOTE, ESQ.

P 0 BOX 1576, BANGOR ME 04402-1576

FOR: Walter & Virginia Munn

Date of

Entry

6/14/99 Petition for Review of Governmental Action M.R. Civ.P. 80B filed.

6/15/99 Notice and Briefing Schedule - 80B Appeal of Governmental Actions form

forwarded to Plaintiff's counsel and to Town of Hermon Town Clerk.

6/22/99

Officer's Return of Service as to Virginia Munn filed (s.d. 6/16/99)

6/22/99 Officer's Return of Service as to Walter J. Mumn filed (s.d. 6/16/99)

6/24/99 Entry of Appearance filed by Edmond J. Bearor, Esq-, on behalf of

Respondent Town of Hermon.

6/25/99 Acceptance of Service on behalf of Town of Hermon by Edmond J. Bearor,

Esq. filed (s.d. 6/22/99)

7/6/99 Entry of Appearance on behalf of Parties-in-Interest Walter J. Munn, Sr.

and Virginia Munn filed by Wayne R. Foote, Esq.

7/22/99 Petitioners' Motion for Extension fo Time filed.

(to file brief by 8/9/99)

7/27/99 Order filed. Upon consideration of the Petitioners’ motion for

extension of time, and based upon the materials submitted, that

motion is GRANTED, and it is ORDERED that Petitioner's brief and

the record shall be filed by August 9, 1999. (Marsano, J.) Copy

forwarded to attorneys of record.

8/9/99 Petitioners’ Brief filed.

8/9/99 Record of Appeal Volume I and II filed by Petitioners’ attorney.

8/13/99 Motion to Enlarge Deadline for Responding to Petitioner's Brief Filed

hy PartiaceTn—Tronterect Walter J. Munn. Sr. and Vireinia Munn.