The opinion
STATE OF MAINE... SUPERIOR COURT
CIVIL ACTION
YORK, ss. DOCKET NO. AP-02-072
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ROBERT J. HUME, et al.,
Plaintiffs
. ORDER
Y AND DONALD L. GARBRECHT
DECISION LAW LIBRARY
TOWN OF LIMINGTON, etal, _ (JUNI 200
Defendants
The plaintiff Robert Hume owns, but does not reside on, real estate in Limington
near Littlefield Road near the land of the Hubbards in the Resource Conservation
District in what has been calied the Sawyer’s Mountain area. The plaintiffs Sherwood
Libby and J. Lorraine Libby own land in the area that is a substantial distance from the
proposed location of a new home to be built by Douglas Hubbard and Sheila Hubbard
and are also tenants on land that is closer to the Hubbards’ land but still a significant
‘distance away.
The Hubbards wish to construct a single family home in the Resource
Conservation District in Limington. That construction requires a conditional use
permit, which is issued by the Limington Planning Board. They submitted their
application and a hearing, after a two-week postponement, was held. At the hearing
the Libbys and Mr. Hume’s late wife appeared and raised their concerns. In time the
Planning Board granted the permit and the Libbys and Mr. Hume appealed to the
Limington Board of Appeals. After an extended interrogation the Board of Appeals
denied the appeal for lack of standing in a notice of decision of October 16, 2002. This
appeal followed.
The first issue is whether the appeal to the Superior Court is timely. If the
plaintiffs were required to go directly from the Planning Board to Superior Court then
they are too late. If their intermediate appeal to the Limington Board of Appeals was
permissible then the court appeal is within the time limits.
State law governs the jurisdiction of boards of appeal. They “. . . shall hear
appeals from any action or failure to act of the official or board responsible for enforcing
the zoning ordinance, unless only a direct appeal to Superior Court has been provided
by municipal ordinance.” 30-A M.R.S.A. §4353(1). In deciding any appeal the board
may “Approve the issuance of a. . . conditional use permit in strict compliance with the
ordinance except that, if the municipality has authorized the planning board ... to issue _
these permits, an appeal from the granting or denial of such a permit may be taken
directly to Superior Court if required by local ordinance.” 30-A M.R.S.A. §4353(2)(B).
The Zoning Ordinance of the Town of Limington has two relevant provisions.
Section 9.7.F.3 indicates that an appeal from a conditional use permit decision “. . . may
be taken within 30 days after a decision is rendered to Superior Court.” However,
Section 10.5.A.1 states that, “An appeal may be taken to the Board of Appeals by an
aggrieved person from any decision of the Code Enforcement Officer or Planning
Board.” Since the Limington ordinance permits an initial appeal to either the Board of
Appeals or the Superior Court the plaintiffs were free to go to the Board first. Their
appeal to Superior Court is timely.
The next issue involves the standing of the Libbys. On February 12, 2002 I issued
an order and decision in Libby v. Town of Limington, AP-01-042 where standing was the
“central issue”. While the Libbys in this case may be geographically closer as tenants to
the proposed house than they were in the last case as owners they still, regardless of
whether their status as tenants matters, lack standing. They are not abutters to the
Hubbards, and, if the Board of Appeals is correct, are 11/4 miles and 2 mountains
away. Their devotion to the area, persistence, and integrity are not in question. Under
existing standing laws they do not have standing. The case of Laverty v. Town of
Brunswick, 595 A.2d 444,5 (Me. 1991) does not change this result as the variance in that -
case “. .. was vigorously contested by Linda and William McCullough who owned
property abutting the proposed driving range.”
The final issues surround Mr. Hume. While he may not strictly be an abutter his
property is very close to the Hubbards and could be affected if the Hubbards’ septic
system was not designed and operated properly. A concern that his land might be
unusable because of septic runoff confers standing. He does not have to wait to see if
there will be a problem. He can raise his concerns early when problems can be avoided.
He has standing.
The last issue is what does he have standing to raise. It appears that his wife
expressed concern about a gate when she appeared before the planning board and that
he expressed concern about the septic system when he appeared before the board of
appeals. However, a letter to the Board of Appeals from Mr. Hume and the Libbys of
September 25, 2002 raised a larger number of issues. Those issues could not be
presented when the Board of Appeals directed its energies to the issue of standing
rather than a detailed examination of the merits of the appeal. Mr. Hume should be
permitted to present any or all of those issues to the Board of Appeals on remand.
The appeal was timely. Mr. Hume has standing while the Libbys do not. The
_entryis:
The decision of the Limington Board of Appeals of October 16, 2002 is
affirmed as to Sherwood Libby and Lorraine Libby but reversed as to
Robert Hume. Remanded to the Limington Board of Appeals for a
hearing on Mr. Hume’s appeal. Jurisdiction is retained in the Superior
Court.
Dated: June 3, 2003
PLAINTIFFS:
MAXINE PAUL POURAVELIS
120 EXCHANGE ST
PORTLAND ME 04101
DEFENDANT - TOWN OF LIMINGTON, et als.
JAMES B. HADDOW, ESQ.
PETRUCCELLI MARTIN & HADDOW
PO BOX 17555
PORTLAND ME 04112-8555
DEFENDANTS-DOUGLAS & SHETLA HUBBARD
WILLIAM H. DALE, ESQ.
JENSEN BAIRD GARDNER & HENRY
PO BOX 4510
PORTLAND ME 04112-4510
Paul A. Fritzsche
Justice, Superior Court,