discussing whether an ordinance was "impermissibly vague, and thus represent[ed] an unconstitutional delegation of legislative authority"
How later courts described this case
- discussing whether an ordinance was "impermissibly vague, and thus represent[ed] an unconstitutional delegation of legislative authority"
Written by the judges who cited it.
The opinion
STATE OF MAINE SUPERIOR COURT
HANCOCK, ss: CIVIL ACTION
DOCKET NO. AP-09-11
Xl'r1 c-- t+ti JJ - ojld.!dOlO
EUGENE E. AUBRY and
JANET C. AUBRy l ,
Plaintiffs,
v. DECISION AND ORDER
TOWN OF MOUNT DESERT,
NANCY STANLEY BRICKLEY, and RECEIVED & FILED
SUSAN S. STANLEY,
iViAR 1 2 20'10
Defendants
fHA.NCOCKCOIUNTV
COU/RTS
This matter is before the Court on an appeal filed by
or on behalf of plaintiffs, Eugene and Janet Aubrey,
pursuant to M.R. Civ.P. 80B. Oral Argument was presented
on January 15, 2010, at which Plaintiffs advised the Court
that they were withdrawing the pending Motion for a Stay
dated July 6, 2009, and which was characterized at argument
as a Motion for a preliminary injunction.
BACKGROUND
This matter involves a restaurant in the Northeast
Harbor section of the Town of Mount Desert, which was
purchased in 2006 by Kim P. Horton on condition that she
gets a permit from the Town to upgrade and expand the
facility. The restaurant had a conditional use permit that
Horton sought to amend to expand and upgrade the
restaurant. The Mount Desert Planning Board approved the
amendment but added the condition that the last seating in
the new patio section of the restaurant will be at 8:30
p.m. The conditional use permit requirement having been
established as a condition of the purchase, Horton
purchased the restaurant and made the approved changes in
2006, 2007.
This case was originally captioned with Kim P. Horton as
plaintiff, but by Motion granted January 13, 2010, there
was a substitution of party plaintiffs with Eugene and
Janet Aubry for Kim P. Horton.
1
In March of 2007, two abutters appealed the Planning
Board decision because they had not been given the required
notice of the public hearing held in October of 2006, on
the requested Horton amendment to the Conditional Use
Permit. The Planning Board denied the appeal but the
Superior Court granted it. That decision was appealed to
the Law Court, which appeal was dismissed as not
representing a final judgment. The matter was remanded
back to the Planning Board and a new hearing was held on
March 24, 2009, after which a new amended Conditional Use
Permit was granted.
The new amended Conditional Use Permit voided the
amended Conditional Use Permit granted in 2006 and granted
the new amended Conditional Use Permit as of 2009, which
provided for the expanded use subject to the following
conditions:
1. No music permitted in the outside areas after 10
PM.
2. Live music to be limited to a single non-amplified
instrument.
3. Outside seating areas to be cleared of all patrons
by 10 PM
4. Clearing of plates, glasses and silverware from
outside seating areas to be completed no later than
10:30 PM.
5. Bottle removal/disposal to take place the next day
after 7 AM.
6. Restaurant and bar to be open to the public no
earlier than 11 AM and no later than 11 PM each day.
7. If in the judgment of the Board, these conditions
prove ineffective in preserving the Town's and
Neighborhood's character as stipulated in Section 6.9,
the Board reserves the right to alter an amend these
conditions; such alterations and conditions to be
enacted no later than January 15, 2010 2
Plaintiff(s) from the new amended decision of the
Planning Board filed a timely appeal to the Mount Desert
Zoning Board of Appeals and it was denied. This matter was
then appealed by the Plaintiffs to the Superior Court
pursuant to Rule 80B.
At oral argument counsel for the plaintiffs acknowledged
the ~ 7 was moot since the Planning Board took no action by
January 15, 2010.
2
Legal Standard
When reviewing governmental action under M.R. Civ.P.
80B, the Superior Court reviews the operative decision of
the municipality for "abuse of discretion, errors of law,
or findings not supported by the substantial evidence in
the record." Camp v. Town of Shapleigh, 2008 ME 53, ~ 9,
943 A.2d 595, 598 (quoting McGhie v. Town of Cutler, 2002
ME 62, ~ 5, 793 A.2d 504, 50S).
A Planning Board's decision is given deference and
"[w]e will not substitute our own judgment for that of the
Board." Forbes v. Town of Southwest Harbor, 2001 ME 9, ~ 6,
763 A.2d 1183, 1186. The interpretation of a local
ordinance, however, "is a question of law, and we review
that determination de novo." Gensheimer v. Town of
Phippsburg, 2005 ME 22, ~ 16, 868 A.2d 161, 166.
The Land Use Zoning Ordinance of the Town of Mount
Desert provides under Sec. 3.5 that a restaurant is a
permitted use in the area where it is located. Further,
Section 6 of the Ordinance, standard for uses and issuance
of permits, states as follows:
"Sec. 6.9: Preserving the Town's Character. The
proposed use shall be consistent with protecting the
general character of the Town, conserving the natural
beauty of the area and shall not tend to change the
historical or cultural character of the neighborhood.
Such use shall be similar to a use specified as P, CEO
or C in Section 3.5
"Sec. 6.10: Nuisances: Notwithstanding any other
standard in this section, the Planning board shall not
issue any conditional use permit for any proposed use
which if established would be obnoxious or offensive
by reason of odors, dust, smoke, gas, fumes,
vibration, noise or other objectionable features, nor
for any use which would prove injurious to the safety
and welfare of the neighborhood."
The Plaintiffs challenge the Ordinance as reflecting
an error of law (Camp v. Town of Shapleigh, supra) and that
it is unconstitutionally vague and an unconstitutional
delegation of legislative authority. In dealing with these
issues the Law Court has most recently advised in Uliano v.
Board of Environmental Protection, 2009 ME 89, ~15, 977
A.2d 400, 408, that
3
"To a significant degree, both vagueness and unlawful
delegation challenges are concerned with the issue of
definiteness. Thus, a statute is vague "when its
language either forbids or requires the doing of an
act in terms so vague that people of common
intelligence must guess at its meaning, or if it
authorizes or encourages arbitrary and discriminatory
enforcement." Town of Baldwin v. Carter, 2002 ME 52, P
10, 794 A.2d 62, 67. Similarly, legislation
delegating discretionary authority to an
administrative agency is unconstitutional if it fails
to "contain standards sufficient to guide
administrative action." Lewis v. Dep't of Human
Servs., 433 A.2d 743, 747 (Me. 1981). Indeed,
vagueness and unlawful delegation are often raised
simultaneously and properly treated as a single
inquiry. See Secure Environments, Inc. v.
Norridgewock, 544 A.2d 319, 321-24 (Me. 1988)
(discussing whether an ordinance was "impermissibly
vague, and thus represent[ed] an unconstitutional
delegation of legislative authority"). Such is the
case here."
The Uliano case dealt with 'scenic and aesthetic uses'
as defined by statute or their plain meaning. The case of
Kosalka v Georgetown, 2000 ME 106, 752 A.2d 183,
(referenced in Uliano) involved a requirement of
'conserving natural beauty'. Here, the standard in §6.9 is
again to conserve the natural beauty and to not change the
historical or cultural character. §6.10 provides as a
standard of not issuing permits if the use would be
obnoxious or offensive in terms of odors, dust, smoke, gas,
fumes, vibration, noise or other objectionable features.
There is another line of cases which follows the
admonition that "objective quantification, mathematical
certainty, and absolute precision are not required by
either the United States constitution or Maine
Constitution. Davis v. Sec'y of State, 577 A.2d 338, 341
(Me. 1990)". Those cases are referenced in Town of Baldwin
v. Carter, 2002 ME 52, P7, 794 A.2d 62, 66 n.2. The Davis
case involved a claim that a criminal statute was void for
vagueness. In that case the Court affirmed that the
standard is llwhether a person of ordinary intelligence
could reasonably understand what conduct is prohibited by
the regulation." Davis, surpa at 341.
4
While it is true that there is a heavy burden in
overcoming the constitutionality of a statute, state v.
Cropley 544 A.2d 302, 304 (Me. 1988), the standard is still
ordinary intelligence and reasonable understanding.
If one were seeking a permit under Mount Desert
Ordinance before this Court, to whom does one look to
interpret or quantify what these standards mean? On whose
judgment is the citizen or the Town to rely in determining
whether what is heard, smelled or seen is obnoxious,
offensive or offends the natural beauty? While the
language is warm and reassuring, that language provides no
definiteness against which a citizen might weigh or balance
the proposed use with reasonable likelihood that the
Ordinance standard can or will be satisfied. The Court
finds that the standards set out in Sections 6.9 and 6.10
of the Land Use Zoning Ordinance of Mount Desert are
unconstitutionally vague such that it would not be possible
for a person of common intelligence to reasonably
understand what conduct is required. They are declared
void. The appeal is granted and it is Ordered that the
Conditional Use Permits issued in 2006 and 2009 to
plaintiffs or their predecessors are declared void and of
no lawful force and effect.
This matter is remanded to the Mount Desert Zoning
Board of Appeals, granting this appeal and Ordering that
the Conditional Use Permits granted to appellants or their
predecessors by the Planning Board in 2006 and 2009 for the
property in question be set aside as void and the matter be
remanded to the Mount Desert Planning Board to issue a
conditional use permit, as may be necessary and authorized
under the Land Use Zoning Ordinance of Mount Desert,
consistent with the remaining Ordinance and this opinion.
At the direction of the Court, this Order shall be
incorporated into the docket by reference. Rule 79(a)
M.R.Civ.p. /' ~"
y /}/I ~
March 12, 2010
co~
A TRUE~... ><. d:I....~
i\ttesc_~: ~ Clerk of Courts
5
, /\,LJ-t
.j vl.-
Date Filed 6-25-09 ~ _ Hancock Docket No. AP 09-11 '-'
County
Action 80B appeal
JUSTICE KEVIN M. CUDDY ASSIGNED
TOWN OF MOUNT DESERT,
KIM P. HORTON dba NANCY STANLEY BRICKLEY and
BASSA COCINA RESTAURANT vs. SUSAN S. STANLEY
Plaintiff s Attorney Defendant's Attorney
//"
Clifford H. Goodall, Esq. Durward W. Parkinson, Esq. '-.
DYER GOODALL & DENISON BERGEN & PARKINSON
61 Winthrop St. 62 Portland Rd, Suite 25
Augusta, ME 04330 Kennebunk, ME 04043
Date of
Entry
6-25-09 Petition for Review of Final Governmental Action Rule 80B M.R.Civ.P., dated
6-24-09, received and filed.
6-25-09 Notice and Briefing Schedule sent to Atty Goodall.
7-6-09 Pltf's Motion for Stay, dated 7-2-09, with attachments and proposed order,
received and filed.
7-13-09 (Cuddy, J.
Teleconference with counsel held. After hearing, np action taken on motion
for stay. Counsel to submit proposed briefing schedule and let court know.
7-13-09 Acceptance of service by Durward Parkinson, Esq. on behalf of Town of Mt.
Desert, dated 7-2-09, received and filed.
7-13-09 Acceptance of service by Peter R. Roy, Esq. on behalf of Susan S. Stanley
and Nancy Stanley Brickley, dated 6-26-09, received and filed.
7-24-09 Dft Mt. Desert's Motion to Enlarge, dated 7-23-09, received and filed.
7-28-09 Order on motion to enlarge, dated 7-28-09, entered. (Cuddy, J.
.•• Dfts to file their response to pltf's motion to stay simultaneously and
in conjunction with their brief in the underlying 80B matter.
8-3-09 Copies of order sent to attys of record.
8-12-09 Agreed to Request to Amend Briefing Schedule, dated 8-10-09, received and
filed.
8-12-09 Order, dated 8-12-09, entered. (Cuddy, J .
••• is granted and the pltf shall file its brief and the administrative
record within 85 days of 6-25-09.
8-12-09 Copies of order sent to attys of record.
9/18/09 Plaintiff's Rule 80B Brief filed.
9/18/09 Administrative Record filed by Plaintiff.
10-19-09 Rule 80B brief of Dft., Town of Mt.Desert, received and filed this date.
10-2S>-9 ~etter from Atty Peter R. Roy - indicating that Nancy Stanley Brickley &
ISusan S. Stanley join in the Rule 80B brief of Dft Town of Mr nQOQ~r
,
Date Filed _-----"6_-....
2.L5_-0"'-9"'---_ _ Hancock Docket No. -""AP"'-----=0-"--9-~1"'_1"'__ _
County
Action 80B appeal
JUSTICE KEVIN M. CunDY ASSIGNED
TOWN OF MOUNT DESERT,
KIM P. HORTON dba NANCY STANLEY BRICKLEY and
BASSA COCINA RESTAURANT vs. SUSAN S. STANLEY
Plaintiff's Attorney Defendant's Attorney
Clifford H. Goodall, Esq. Durward W. Parkinson, Esq.
DYER GOODALL & DENISON BERGEN & PARKINSON
61 Winthrop St. 62 Portland Rd, Suite 25
Augusta, ME 04330 Kennebunk, ME 04043
Date of
Entry
6-25-09 Petition for Review of Final Governmental Action Rule 80B M.R.Civ.P., dated
6-24-09, received and filed.
6-25-09 Notice and Briefing Schedule sent to Atty Goodall.
7-6-09 Pltf's Motion for Stay, dated 7-2-09, with attachments and proposed order,
received and filed.
7-13-09 (Cuddy, J.
Teleconference with counsel held. After hearing, no action taken on motion
for stay. Counsel to submit proposed briefing schedule and let court know.
7-13-09 Acceptance of service by Durward Parkinson, Esq. on behalf of Town of Mt.
Desert, dated 7-2-09, received and filed.
7-13-09 Acceptance of service by Peter R. Roy, Esq. on behalf of Susan S. Stanley
and Nancy Stanley Brickley, dated 6-26-09, received and filed.
7-24-09 Dft Mt. Desert's Motion to Enlarge, dated 7-23-09, received and filed.
7-28-09 Order on motion to enlarge, dated 7-28-09, entered. (Cuddy, J.
••• Dfts to file their response to pltf's motion to stay simultaneously and
in conjunction with their brief in the underlying 80B matter.
8-3-09 Copies of order sent to attys of record.
8-12-09 Agreed to Request to Amend Briefing Schedule, dated 8-10-09, received and
filed.
8-12-09 Order, dated 8-12-09, entered. (Cuddy, J.
••• is granted and the pltf shall file its brief and the administrative
record within 85 days of 6-25-09.
8-12-09 Copies of order sent to attys of record.
9/18/09 Plaintiff's Rule 80B Brief filed.
9/18/09 Administrative Record filed by Plaintiff.
10-19-09
10-2.$>-9 l Rule 80B brief of Dft., Town of Mt.Desert, received and filed this date.
etter from Atty Peter R. Roy - indicating that Nancy Stanley Brickley &
ISusan S. Stanley join in the Rule 80B brief of Dft Town of Mt. Desert