The opinion
STATE OF MAINE SUPERIOR COURT
CIVIL ACTION
YORK, ss. DOCKET NO. AP-09-024
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JADD, LLC and
DIANE LEMENAGER,
Plaintiffs
v. JUDGMENT
THE INHABITANTS OF THE
TOWN OF OLD ORCHARD BEACH,
Defendant
This is a Rule 80B Appeal from a decision of the Old Orchard Beach Zoning
Board of Appeals. Following hearing and review of the administrative record, the
appeal is Denied.
The Plaintiffs own an unimproved parcel of land which is adjacent to other land
they own. They sought a permit to construct a seasonal dwelling on the unimproved
parcel. The town's code enforcement officer denied the request and referred the
Plaintiffs to the Z.B.A., where they sought a hardship variance. After a presentation to
the Z.B.A. in March 2009, the board voted to grant the variance. However, a neighbor,
who had submitted a written objection to the Z.B.A., which was considered at the
original hearing, filed a timely request for reconsideration.
The request for reconsideration was first considered at an April Z.B.A. meeting
and the motion failed on a tie vote of two to two, with one abstention. The abstention
was based on the fact that the abstaining board member had not participated in the
original hearing at which the variance was granted. There followed a prolonged
discussion about whether or how to proceed.
The Z.B.A. decided to table the motion to reconsider until the board member
who participated in the original hearing was available to hear and vote on the motion to
reconsider. This meeting occurred in May. The Z.B.A. then voted 3 to 2 to reconsider
the original grant of a variance and then conducted a new hearing on the request for a
variance. That request also failed on a 3 to 2 vote. This denial of the requested variance
is the subject of this appeal.
The Plaintiffs argue that the motion to reconsider was presented, heard and
failed on a tie vote and no further action on that motion was authorized or appropriate.
The town argues that the Z.B.A.'s actions did not violate any statute, ordinance or by
law of the board and should be viewed deferentially by the Court.
The parties agree that the town has no written procedure concerning requests for
reconsideration of administrative decisions. They also agree that the board's actions in
this case occurred within the time limits prescribed by 30-A M.R.S.A. §2677(3)(F).
While perhaps irregular, the procedure utilized by the Z.B.A. did not contradict
any local ordinance or state statute. All decisions were made at open meetings with the
Plaintiffs present and able to participate. Given the divided opinion on the Z.B.A. (the
challenged vote to grant the variance was 3-2), it was not unreasonable for the Board to
want the request to reconsider be heard by the same members who originally voted on
the variance. In such circumstances, the Law Court has indicated that administrative
boards should be accorded some latitude to fashion procedures as needed for their
efficient functioning, provided these are basically fair to all parties. See e.g. Town of
Wiscasset v. Board of Environmental Protection, et al., 471 A.2d 1045 (Me. 1984); Jackson v.
Town of Kennebunk, 530 A.2d 717 (Me. 1987). While no doubt frustrating to the Plaintiffs,
there has been no showing of a violation of state or local law and no showing of
fundamental unfairness.
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The entry will be as follows:
The Plaintiffs' Rule SOB appeal is Denied; the Z.B.A.'s decision is Affirmed.
The clerk may incorporate this order in the docket by reference.
Dated: April 14 , 2010
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Justice, Superior Court
PLAINTIFF"S ATTORNEY:
BRUCE M. READ, ESQ.
SHEPARD & READ
93 MAIN ST
KENNEBUNK ME 04043
DEFENDANT"S ATTORNEY:
SHANA COOK MUELLER, ESQ.
BERNSTEIN SHUR SAWYER & NELSON
PO BOX 9729
PORTLAND ME 04104-5029
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