The opinion
STATE OF MAINE SUPERIOR COURT
CIVIL ACTION
SAGADAHOC ss. DOCKET NO. AP- 03- 006
SKS Ae
R.A. CUMMINGS, INC,,
d/b/a AUBURN CONCRETE,
Plaintiff / Apellant
v. ~" ORDER
TOWN OF TOPSHAM,
JUL 12 2004
Defendant/ Appellee
This matter came before the court on appeal from a decision of the Town of
Topsham Board of Appeals pursuant to M.R. Civ. P. 80B. The court has reviewed the
record in the case and considered the arguments of the parties. However, due to some
jurisdictional confusion, the appeal will be remanded for clarification.
Factual Background
R. A. Cummings filed an application in the Spring of 2003 with the Topsham
Planning Board to use a site located in the “Upper Village Zoning District” for a
concrete batch plant. The Planning Board met with representatives from Cummings
and began the process for site walks and public hearings. The public hearing was set
for July 15, 2003.
Prior to the public hearing, on June 16, 2003, the Superintendent of MSAD No. 75
wrote to the Town Planner expressing concern that the intended use would constitute
“manufacturing, heavy” and would not be an allowed use in the Upper Village Zone
under the Topsham Code. The Superintendent's letter was answered by the Topsham
Code Enforcement Officer (“CEO”) in which he stated, “In my opinion, the more
specific use category for the proposed concrete batch plant is “Cement Manufacturing.”
“Heavy Manufacturing” given in the Zoning Ordinances, one cannot ignore the precise
language stated in the use matrix (225-16) for exactly this use.” The CEO went on to
urge the Superintendent to attend the public hearing scheduled for July 15 to voice any
continuing concerns. The Superintendent apparently chose to interpret this letter from
the CEO as a final legal determination and filed an “Application for Variance” for the
purpose of “appeal of use determination.” This appeal was filed not with the Planning
Board — before whom the application was pending ~ but with the Topsham Board of
Appeals.
The Superintendent’s appeal was one of several considered by the Board of
Appeals at its meeting of August 4, 2003. Following the meeting, written findings of
fact were prepared in which the Board concluded ”. . . that a Concrete Batch Plant is
considered ‘Manufacturing Heavy’ and, therefore, not allowed in the Upper Village
Zoning District.” Cummings filed a timely appeal in the Superior Court pursuant to
section 225-73(F) of the Topsham Code.
Discussion
Cummings first argument is that the Board of Appeals had no jurisdiction to
consider the appeal in light of its pending application before the Planning Board.
The administrative structure of the Town of Topsham includes both the Planning
Board, created under Chapter 175 to review and approve proposed building and
development projects, and the Board of Appeals, created under Chapter 225 to hear and
decide appeals from decisions made by the Code Enforcement Officer. The Board of
Appeals is also charged with interpretations of Chapter 225 on zoning. The two boards
work in related areas and appear to have some overlapping jurisdiction, e.g. section
225-17 (F). However, the boards also appear to be somewhat autonomous, with appeals
the Board of Appeals leaves the court with the following questions:
(1) What board(s) or individual(s) within the Town of Topsham’s
administrative structure has the authority to make final interpretations of
zoning ordinances? Does the exercise of that authority depend on where
an application may be pending?
(2) What is the status of the present site plan review application pending
before the Planning Board?
(3) | Which board has jurisdiction to consider interpretation of zoning
ordinances when an application is pending before the Planning Board? Are there
Provisions for consultation between the boards?
(4) Has the appellant exhausted its administrative remedies in light of the
pending application?
4
The foregoing questions may ultimately have to be decided by the court.
However, it would be more appropriate for the municipal officials to have an
Opportunity to interpret their own ordinances to the extent necessary. Therefore, this
appeal will be remanded for clarification of what the court finds to be the confusing
procedural and jurisdictional status of the matter.
The entry will be:
Appeal REMANDED for further consideration consistent with this
order. The appeal may be resubmitted to the court without further
application once the status has been clarified,
Dated: July. | , 2004
S. Kirk Studstrup ,
Justice, Superior Court