Opinion

R.A. Cummings, Inc. v. Town of Topsham

Court
Superior Court of Maine
Filed
Jul 1, 2004
Status
Unpublished
On the bench
S. Kirk Studstrup
Cited by
0 cases

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

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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