The opinion
STATE OF MAINE SUPERIOR COURT
CUMBERLAND, SS DOCKET NOS.
AP-05-054
HENRY W. SAUNDERS,
MARJORIE H. SAUNDERS,
LESLIE S. SAUNDERS and
KENNETH W. SAUNDERS
Plaintiffs
CONSOLIDATED ORDER
vs. ON DEFENDANTS'
MOTIONS TO DISMISS
80B APPEALS
TOWN OF STANDISH
Defendant
SYLVIA L. THOMPSON, TRUSTEE
Plaintiff
VS.
TOWN OF STANDISH
Defendant
Before the court are respondent Town of Standish's ("Town") motions to
dismiss plaintiffs Henry, Marjorie, Leslie and Kenneth Saunders' and plaintiff
Sylvia Thompson, Trustee's (collectively, "Plaintiffs") 80B appeals for lack of
jurisdiction. On December 21, 2005, the court granted the Town's unopposed
motion to consolidate these appeals for the limited purpose of deciding these
motions.
BACKGROUND
Plaintiffs challenge their April 1, 2004 tax assessment on residential
properties located on Sebago Lake in Standish. Following denial of their tax
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abatement applications, Plaintiffs appealed to the Board of Assessment Review,
("BAR) which conducted hearings on July 13, 2005. At the conclusion of the
hearings, the BAR voted to grant a partial tax abatement, reducing the
assessment on the Saunders property from $1,273,200 to $1,100,000 and on the
property held in trust by Thompson from $1,348,700 to $1,140,000. Plaintiffs
were present at these hearings and received actual notice of the BAR decisions on
July 13, 2005. The BAR issued written decisions on both appeals dated July 14,
2005, and mailed them to Plaintiffs. Plaintiffs filed appeals of the BAR decisions
on August 16,2005.
DISCUSSION
The Town claims that, because Plaintiffs filed their 80B appeals 34 days
after the July 13 hearings, this court lacks jurisdiction to hear their appeal. It is
well established that time limits to appeal are jurisdictional. See e.g. Persson v.
Dept. of Human Services, 2001 ME 124, ¶ 9, 775 A.2d 363, 365. 36 M.R.S.A. 5 843,
which governs appeals from property tax assessments, states:
[Elither party may appeal from the decision of the board of
assessment review directly to the Superior Court, in accordance
with Rule 80B of the Maine Rules of Civil Procedure. If the board
of assessment review fails to give written notice of their decision
within 60 days of the date the application is filed, unless the
applicant agrees in writing to further delay, the application shall be
deemed denied and the applicant may appeal to Superior Court as
if there had been a written denial.
M.R.Civ.P. 80B(b) states, "the time withn which review may be sought shall be
as provided by statute, except that if no time limit is specified by statute, the
complaint shall be filed within 30 days after notice of any action or refusal to act
of w h c h review is sought." The Town points out that Plaintiffs had actual notice
of the Town's action on July 13, 2005, and asserts that, accordingly, the 30-day
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appeals period began to run from that date. Loolung solely at the language of
Rule 80B, the appeals period would seem to commence on July 13, as the general
meaning of "notice" includes actual notice. See Rowe v. Hayden, 149 Me. 266,271
(Me. 1953); see also Garner, Bryan A., ed. Black's Law Dictionary, 1087 (7thed., 1999)
(stating, "A person has notice of a fact or condition if that person (1)has actual
knowledge of it...").
Plaintiffs maintain, however, that 5 843, from whch Rule 80B derives its
authority for sethng the appeals period, indicates that "notice" in the context of a
BAR decision is to be "written." They then point out that they received written
notice through the mail, dated July 14, 2005. They conclude that, pursuant to
M.R.Civ.P. 6(c), they have 33 days from the date of the written notice to initiate
their appeal.
M.R.Civ.P.6(c) states:
Whenever a party has the right or is required to do some act or take
some proceedings withn a prescribed period after the service of a
notice or other paper upon the party and the notice or paper is
served upon the party by mail, 3 days shall be added to the
prescribed period.
Plaintiffs' argument is compelling in light of the specific language of § 843. The
Law Court has stated that, in deciding when an appeals period begins to run, the
court must first take a close look at the language of the governing statute. See
Vachon v. Town of Kennebunk, 499 A.2d 140, 141 (Me. 1985); see also Woodward v.
Town of Newfield, 634 A.2d 1315, 1317 (Me. 1993). Vachon and Woodward
construed statutes that required any appeal to be taken "within 30 days after the
decision is rendered." See id. Vachon noted that the critical word in the
governing statute was "rendered" and stated, "a decision is 'rendered' when the
tribunal makes, gives, or delivers it." See Vachon, 499 A.2d at 141. It concluded,
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therefore, that the appeals period began to run as to the date the zoning board of
appeals had heard and voted on the plaintiff's appeal. Id. In support of this
interpretation, the court noted that, if the legislature had intended to delay the
start of the appeal period until the appellant had received notice of the zoning
board's decision, it could have stated, as it has in statutes governing appeals
from state administrative agencies, that the appealing party would have to
appeal "within 30 days after receipt of notice." See id.
The court also looked to the circumstances of a zoning appeal to explain
why the appeals period should run from the date of the hearing and oral
decision as opposed to the date of the written decision. In zoning cases, any
party to the proceeding, including abutters, may appeal the zoning board's
decision, however, only the petitioner and certain municipal agencies must be
given "notice" of the decision. See id. The court concluded from this that, "the
limitation on the notice required . .. negates by clear implication any suggestion
that receipt of notice of a zoning board's decision is a prerequisite for the start of
the appeal period." Id.
Both the statutory language and the circumstances of this appeal differ
from Vachon. Here, "notice" is the crucial statutory language, not the time at
which the decision is rendered. Although § 843 does not clearly state that an
appeal must be taken "within 30 days of receipt of notice," it does provide that,
in the absence of "written notice of their decision," the application will be
deemed denied 60 days after the application has been filed. Additionally, in the
context of a tax assessment appeal, the only parties with an interest in the action
are the applicant and the municipality. There are no third party appeal rights,
and there is, consequently, no need for the date of the public hearing and vote to
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serve as the date from which any interested party might appeal. Although
ordinarily, the meaning of "notice" under Rule 8ClB would include actual notice,
it is more consistent with the language of § 843, as well as the circumstances of a
tax abatement appeal, to here interpret the meaning of "notice" as "written
notice."
Written notice of the BAR's decision was sent via mail to Plaintiffs on July
14, 2005. Under 3 843, Plaintiffs have the right to appeal the BAR's decision after
written notice of the appeal. Written notice, in the form of "a notice" was served
by mail on Plaintiffs. Thus, under Rule 6(c) and 80B, Plaintiffs had 33 days from
July 14 to file their appeals. Plaintiffs' August 16 appeals are timely, therefore
the court has subject matter jurisdiction to hear them.
The entry is:
Defendant Town of Standish's motions to dismiss Plaintiffs 80B
appeals are DENIED. The consolidation of AP-05-054 and AP-05-
055 is terminated, and each case will hereafter be separately heard
and decided on the merits.
Dated at Portland, Maine this ~ L k d a ~ o f & ,2006.
Justice, Superior Court