The opinion
STATE OF MAINE SUPERIOR COURT
CIVIL ACTION
KENNEBEC, ss. DOCKET NO Ar-06-25
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GEORGE EZZY and
SHIRLEY EZZY,
Petitioners
v. DECISION O N APPEAL
CITY OF AUGUSTA,
Respondent
T h s matter comes before the court on appeal pursuant to M.R. Civ. P. 80B from a
decision of the City of Augusta Board of Zoning Appeals ("BZA"). Finding that the
gloss given to the City ordinance on appeals would result in an unfair and unjust result
in the unique facts of h s case, the appeal will be granted.
Background
On April 12, 2005, the petitioners attended a City of Augusta Planning Board
("PB") hearing concerning an application by Concord Trailways ("Concord") for a new
bus terminal to be built within 1,000 feet of the petitioners' home. The petitioners
testified at the hearing concerning the impact that such construction would have upon
their land and home, but ultimately the PB voted in favor of the application and to
grant a conditional use permit. On April 18, 2005, the petitioners sent a letter to the
Director of Augusta Planning requesting a copy of the written PB decision. The
petitioners never received a response. On April 29, 2005, the petitioners called the
Director and left a message on lus voicemail aslung for information concerning the
status of the decision, and again received no response. On May 3, 2005, the petitioners
called and spoke directly with the Director, who informed them that there was no
written decision yet available, nor were there any minutes of the meeting available. On
May 20, 2005, the Director sent a letter to Concord confirming the PBrs approval of the
bus terminal application. Despite their earlier requests, no copy was sent to the
petitioners.
On November 30, 2005, the petitioners again called the Director, who promised
to send a written copy of the decision if one existed. On December 2, 2005, the
petitioners received a faxed copy of the May 20, 2005 letter sent to Concord. The
petitioners filed their appeal of the PB decision with the BZA on December 30, 2005,
within 30 days of having received the copy of the May 2othletter. On February 14,2006,
the BZA denied the petitioners' appeal as untimely, leading to the present appeal of that
decision.
Discussion
The Land Use Ordinance of the City of Augusta sets forth at section 6.2.6 the
standard for filing appeals: "In all cases, a person aggrieved by any decision of the . . .
Planning Board shall commence his or her appeal within thirty (30) days after receipt of
a written decision of the . . . Planning Board." (Emphasis provided). Despite the clear
language of this ordinance, where receipt of the decision triggers the appeal period, the
City and Concord argue that the BZA was correct in its decision because to hold
otherwise would result in an absurd and unfair result. The absurdity is that to interpret
the time period otherwise would leave an open-ended appeal period since it would not
begin until any interested party with standing to appeal may have obtained a copy of
the written decision. Furthermore, Concord argues that there must be finality in the
Board's decisions to allow applicants to proceed with their projects and that, in fact,
Concord executed some options with regard to the property in reliance upon the PB
decision.
The respondent's arguments would be more persuasive if the petitioners had
shown no great interest, and had sat back and relied only on the "receipt" language of
the ordinance. But here, to the contrary, the petitioners actively pursued information
concerning the decision, both earlier in the year and ultimately in December 2005. In
fact, had the petitioners not requested a copy of the written decision in December, they
could still be awaiting receipt of the written decision which they had requested in May.
It is not clear why the City Planner and h s staff did not respond to the initial request for
a copy of the decision, so criticism of h s failure may seem harsh. Nevertheless and for
whatever reason, the petitioners did everything they could to get the information they
needed at an appropriate time, and the planning office simply "dropped the ball". The
petitioners should not be required to continuously pursue what was an apparent
fruitless effort simply to protect their appeal rights. The result may seem unfair to
Concord, but the opposite result is even more unfair to the petitioners, and would be
contrary to the plain language of the ordinance.
Therefore, based on the narrow facts of this particular case, the court finds that
the BZA's denial of the appeal was contrary to the ordinance and an abuse of discretion.
If the ordinance language should be clarified, that is a job for the city council, not the
BZA or this court.
The entry will be: The decision of the Board of Zoning Appeals is REVERSED
and REMANDED for further proceedings consistent with this order.
Dated: January /b,2007
w
S. Kirk Studstrup
Justice, Superior Court
Date Filed 3 6 , - K ~ n n ~ h ~ r Docket No. APO6-25
County
Action P e t i t b n fnr Review
!%kEX 80B J, ~ T U D ~
VS.
YUP
" & S h i r l PV W.V Citv of U l ~ s t a
Plaintiff's Attorney Defendant's Attorney
Clifford H. Goodall, Esq. Stephen Langsdorf, Esq.
61 Winthrop Street 45 Memorial Circle
Augusta, Maine 04330 PO Box 1058
Augusta, Maine 04332-1058
- Laurel A. Van Buskirk, Esq. Concord Coach
214 North Main Street
P.O. Box 1415
Concord, NH 03302-1415
Date of
Entry
- Ari Pollack, Esq. (Concord Coach)
3/16/06 Petition for Review, filed. s/~oodall,Esq.
03-17-06 Received and filed on behalf of City of Augusta by Attorney Stephen
Langsdorf, Esq. an Entry of Appearance and an Answer for Defendant.
3/20/06 Notice of briefing schedule mailed to attys of record.
03-27-06 Received and filed by Clifford Goodall, Esq. on behalf of Petitioner,
an original Summons served upon Barbara Wardwell, Clerk for the City of
Augusta, by Kennebec County Sheriff on March 16, 2006.
4/21/06 Plaintiff 's Brief, filed. s/Goodall, Esq.
Administrative Record, filed.
4/28/06 Entry of Appearance, filed. s/Van Buskirk, Esq.
Assented-to Motion to Intervene filed. s/Van Buskirk, Esq.
Certificate of Service, filed. s/Vab Buskirk, Esq.
Motion for Pro Hac Vice Admission, filed. s/Van Buskirk, Esq.(attached Exh.A:
5/22/06 ASSENTED-TO MOTION TO INTERVENE, Studstrup, J. (5117106)
Motion granted and moving parties granted leave to interven.
Copies mailed to attys. of record
------ MOTION FOR PRO HAC VICE ADMISSION, Studstrup, J. (5117106)
Motion granted.
Copies mailed to attys. of record.
5/22/06 ~efendant'sMotion to Extend Time to File Brief, filed. s/langsdorf, Esq.
Proposed Order, filed.
5/23/06 ~ntervenor's Brief, filed. s/~uskirk,Esq.
------ ORDER, Studstrup, J.
By agreement of the parties, the deadline for filing the City of Augusta and
Concord Trailways' Biref is extended until June 1, 2006.
Copies mailed to attys. of record.
6/1/06 Defendant's Rule 80(b) Brief, filed. sllangsdorf, Esq.
6/15/06 plaintiffs' Reply Brief, filed. s/~oodall,Esq.