Hyler v. Town of Blue Hill

ROBERTS, Justice,

with whom WATHEN and GLASSMAN, JJ. join, dissenting.

Because I agree with the Superior Court that the December 16 vote was ineffective to change the Board’s October 28 approval of the proposed subdivision, I must respectfully dissent.

The Town argues that the October 28 vote did not become binding because 30 M.R.S.A. § 4956(3) requires the Board to “issue an order” and that implicitly requires a written order. Because the Board’s December 16 vote occurred before its approval had been reduced to writing, the Town argues, nothing prevented the Board from reconsidering its approval. Moreover, the Town contends that the Board’s action on November 11 would effectively extend the time for reconsideration. I disagree.

There is no reason to infer from the plain language of the statute that the action of the Board is ineffective unless and until it is reduced to writing. This is particularly true when, as here, an earlier version of the statute explicitly required a “written notice of [the Board’s] decision.” 30 M.R. S.A. § 4956(1)(E) (1964); repealed by P.L. 1971, ch. 454. Both the proponents and the opponents of a subdivision proposal are entitled to know with certainty when the time for seeking judicial review commences to run. To rely on the reduction of the minutes to writing or the signing of the mylar copy of the plan by Board members would create uncertainty when certainty is necessary. Cf. Vachon v. Town of Kennebunk, 499 A.2d 140 (Me.1985) (interpreting 30 M.R.S.A. § 2411(3)(F) that provides for judicial review “within thirty days after the decision is rendered”).

In the absence of any statute permitting reconsideration, the Board could rescind its approval, if at all, only by a proper vote taken within the period permitted for seeking judicial review. We have previously held that a vote not to reconsider does not extend that period. Cardinali v. Town of Berwick, 550 A.2d 921 (Me.1988). There is no reason why a vote to reconsider should have any different impact. The time periods provided in section 4956 are intended to ensure prompt municipal action, but they do not affect the time for seeking judicial review. That period is determined by M.R. Civ.P. 80B(b), which requires the complaint to be filed within 30 days after “notice of any action ... of which review is sought....” The Town or the Hylers could seek judicial review only within the 30 day period commencing on October 28.

I am not persuaded by the Town’s alternative argument that the Board’s vote on November 11 amounted to rescinding the October 28 vote. All the Board did on the 11th was to announce a public hearing on the question of the legality of the division in June of the Hylers’ real estate. The formal vote to rescind its October 28 approval was taken on December 16. Even if a decision to reconsider could extend the 30 day period, the Board’s action would not be valid because the only affirmative vote “to reconsider” occurred on December 2. The Board’s action on December 16 was ineffective to rescind its approval of October 28 because the action was not taken within the period permitted for seeking judicial review.

Today’s decision ignores legislative history and undermines legislative purpose. The Legislature has demonstrated with each revision of the subdivision statute over the past 25 years that municipal boards are not permitted to delay action on completed applications for subdivision approval. The Court’s decision permits the Board to reconsider a formal vote of approval beyond the time period within which the statute requires final action. The plain language of section 4956 required the Board to act finally on or before November 28, 1987. I would not permit the Board’s local custom of issuing written orders to create a separate procedure that frustrates the statutory scheme.