The opinion
STATE OF MAINE SUPERIOR COURT
CIVIL ACTION
WALDO, ss. DOCKET NO. AP-03-04
Sc veo AL fom ha AE “002
JOHN FAULKINGHAM and
PAMELA FAULKINGHAM,
Plaintiffs DONALD L. Gaeanscut
W LIB [AINE
wie ec BARR OEM
APR 29 2003 SUPERIOR COURT
OCEANS EAST, LLC, et al., APR 22 2003
“ee RECEIVED AND FILED
Joyce M. Page, Clerk
This matter comes before the court on defendants’ motion to dismiss this M.R.
Civ. P. 80B appeal and the plaintiffs’ reciprocal motion for extension of time within
which to file an appeal. The motions concern the timing of the plaintiffs’ notice of
appeal following a decision by the Belfast Zoning Board of Appeals (”“ZBA”).
Background
The corporate defendants in this matter are attempting to develop a 38-unit
development on property adjacent to the Faulkinghams. The developers had been
successful at the Planning Board and on appeal to the ZBA. The ZBA conducted its
deliberations and voted on its decision on December 19, 2002. However, the detailed
written “Finding of Fact and Decision of Belfast Zoning Board of Appeals” was not
signed and distributed until January 15, 2003. Counsel for the plaintiffs representsthat
this written decision was received in his office on January 23, 2003. The plaintiffs’ Rule
80B appeal was filed with the court February 24, 2003, or 67 days after the initial ZBA
decision on December 19".
Discussion
The parties agree that the controlling authority on the length of time to appeal in
this case is found in 30-A M.R.S.A. § 2691. That statute provides, in pertinent parts:
(E) ... all decisions become a part of the record and must include a
statement of findings and conclusions, as well as the reasons for the basis
for the findings and conclusions, upon all the material issues of fact, law
or discretion presented and the appropriate order, relief or denial of relief.
Notice of any decision must be mailed or hand delivered to the petitioner,
the petitioner’s representative or agent, the planning board, agency or
office and the municipal officers within 7 days of the board’s decision.
(G) Any party may take an appeal, within 45 days of the date of the
vote on the original decision, to the Superior Court from any order, relief
or denial in accordance with the Maine Rules of Civil Procedure, Rule 80B.
This time period may be extended by the court upon motion for good
cause shown.
Since the “date of the vote on the original decision” was December 19, 2002, the
plaintiffs clearly missed the 45-day appeal period unless the court grants their motion to
extend the time period for good cause. Unlike the statutes considered by the Law Court
in Vachon v. Town of Kennebunk, 499 A.2d 140 (Me. 1995) and Lewiston v. Maine State
Employees Ass'n, 636 A.2d 739 (Me. 1994), section 2691 specifically authorizes the court
to extend the appeal period depending upon the circumstances. Also, unlike M.R. Civ.
P. 6(b), the statute does not require that the motion for extension must be filed within
the period originally prescribed. The remaining question is whether the plaintiffs have
demonstrated “good cause for their request.”
“Good cause” proves to be a somewhat flexible and illusive concept. In the
present case the court finds “good cause” in the failure of the ZBA to issue its written
notice of decision with findings and conclusions within the 7-day period required by
the statute. Although the plaintiffs knew on December 19, 2002, that they had lost their
appeal to the ZBA, the notice of decision of January 16, 2003, set forth in black and
white the specific findings and rationale of the ZBA on each of the nine issues presented
2
by the plaintiffs. The failure by the ZBA to timely produce its written decision does not
invalidate that decision or automatically extend the appeal period. However, in the
limited facts of this case the court finds that the failure does constitute good cause and
will grant the plaintiffs’ motion to extend the time.
The entry will be:
Defendants’ motion to dismiss is DENIED; the plaintiffs’ motion to
extend the time within which to file an appeal is GRANTED and it is
ORDERED that the plaintiffs have filed a timely appeal.
Dated: April IB 2003 —Thibtouge
S. Kirk Studstrup
Justice, Superior Court
Date Filed Feb. 24, 2003
Waldo
AP-03-001
Docket No.
Action _80(B) Appeal
County
JOHN FAULKINGHAM and
PAMELA FAULKINGHAM
vs.
OCEAN EAST, L.L.C., REALTY RESOURCES,
L.L.C. and CITY OF BELFAST
Plaintiff’s Attorney
Kevin M. Cuddy, Esq.
470 Evergreen Woods
Bangor, Maine 04401
Defendant’s Attorney
William S. Kelly, Esq. for City
96 High St.
Belfast, ME 04915
942-2898
Tel: 338-2702
Paul L. Gibbons, Esq. for Ocean East &
P.O. Box 616 Realty Resources
Camden, Maine 04843-0616
236-3325
Date of
Entry
02/24/03 Complaint under rule 80 B (a) dtd. Feb. 21, 2003, filed.
Summary Sheet, filed.
02/24/03 | Notice and Briefing Schedule to atty. Cuddy.
03/03/03 Answer of City of Belfast to Complaint dtd. Feb. 27, 2003, filed.
03/03/03 Copy of Briefing schedule to atty. Kelly.
03/07/03 Answer to Complaint and Objection to Order of Stay by Defts. Ocean East,
L.L.C. and Realty Resources, L.L.C., filed.
03/07/03 Motion to Dismiss by Defts. Ocean East L.L.C. and Realty Resources, L.L.C.
dtd. March 7, 2003, filed.
Memorandum of Law in Support of Motion to Dismiss, filed.
Proposed Order, filed.
03/07/03 Copy Briefing Schedule to atty. Gibbons.
03/11/03 Summons dtd. Feb. 24, 2003 showing service on Ocean East, LLC on March
5, 2003, filed.
Summons dtd. Feb. 24, 2003 showing service on Realty Resources, LLL on
Feb. 27, 2003, filed.
Summons dtd. Feb. 24, 2003 showing service on City of Belfast on Feb.
28, 2003, filed.
03/18/03 | Motion to Stay 80B Time Requirements and Incorporated Memo of Law dtd.
March 17, 2003, filed. Request for Hearing, filed.
03/19/03 Objection to Request for Stay and Concurrence with Motion to Dismiss of
Defendants Ocean East, LLC and Realty Resources, LLC, filed by Defendant,
City of Belfast.
03/31/03 Defts., Ocean East, LLC and Realty Resources, LLC , Response to Motion
to Stay dtd. March 28, 2003, filed.
03/31/03 Plffs' Memo in Opposition to Motion to Dismiss, filed.
Plffs' Motion for Extension of Time within which to File an Appeal, filed.
Memorandum in Support of Motion for Extension of Time, filed.