Mason v. Town of New Gloucester

STATE OF MAINE SUPERIOR COURT
CUMBERLAND, ss. CIVIL ACTION
DOCKET NO. AP 21 002

JULIE MASON

V. ORDER

TOWN OF NEW GLOUCESTER

Before the court is Plaintiff's appeal of the Town of New Gloucester's (Town) approval of

a marijuana grow facility proposed by applicant Country Manor Properties LLC (Applicant). For

the reasons described below, the matter is remanded to the Town's Planning Board to hear and

decide the parties' arguments as to whether the Rural Residential Zone permits the proposed use.

FACTS

The Applicant sought to build a structure to be used to grow marijuana. The project is set

in the Rural Residential Zone (RRZ). Upon receipt of the application, the code enforcement

officer had to determine whether the proposed use was permitted in the Rural Residential Zone

and whether it required site plan review. The CEO determined the use was a "commercial

greenhouse." That use is permitted in the RRZ subject to site plan review by the Planning

Board. Accordingly, the CEO referred the application to the Planning Board.

At the Planning Board meeting, the Planning Board declined to hear the issue of whether

the characterization of the project as a "commercial greenhouse" was appropriate. The Planning

Board determined that the decision was the role of the CEO, not the Planning Board. The

Plaintiffs appealed the CEO's decision that the project was a "commercial greenhouse" to the

Zoning Board of Appeals. The ZBA determined that the appeal was untimely, as it was filed over

30 days after the CEO's decision.

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The Planning Board conducted its site plan review and approved the project subject to

conditions. The Planning Board did not consider or determine whether the property was a

commercial greenhouse. The Plaintiffs appealed both the ZBA and the Planning Board decisions

to the Superior Court where both matters were consolidated.

On appeal, the Plaintiff raises the following issues:

1. The CEO erred by determining that the proposed use was a "commercial greenhouse."

2. Having had no notice of the CEO's determination and there being no hearing, the

Plaintiffs were denied due process of law.

3. The Planning Board should have determined the use.

4. The Applicant's tenants were the proper parties to apply for approval.

5. The use would violate Maine law regarding cultivation of medical marijuana.

DISCUSSION

On appeal, the Court's review of administrative decision-making is deferential and

limited. The Superior Court reviews a local agency's decision for abuse of discretion, errors of

law, and findings not supported by the evidence. Beal v. Town ofStockton Springs, 2017 ME 6,

,i 13, 153 A3d 768. The Plaintiffs bear the burden of persuasion on appeal because they seek

to vacate the Planning Board's decision. Fitanides v. City ofSaco, 2015 ME 32, ,i 8, 113 A.3d

1088.

A court will review local interpretations of local ordinances de novo as a question of

law. Aydelott v. City ofPortland, 2010 ME 25, ,i 10, 990 A.2d 1024. The court interprets an

ordinance for its plain meaning and construes its terms reasonably in light of the purposes and

objectives of the ordinance and its general structure. Grant v. Town ofBelgrade, 2019 ME 160,

,i 14, 221 A3d 112. If an ordinance is clear on its face the court will look no further than its

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plain meaning. Local characterizations or fact-findings as to what meets ordinance standards are

accorded "substantial deference." Rudolph v. Golick, 2010 ME 106, ,r 8, 8 A.3d 684; Jordan v.

City ofEllsworth, 2003 ME 82, ,r 9, 828 A.2d 768.

Upon review of an agency's findings of fact, when the appellant did not have the burden

of proof before the agency, the court must examine "the entire record to determine whether, on the

basis of all the testimony and exhibits before it, the agency could fairly and reasonably find the

facts as it did." Friends of Lincoln Lakes v. Bd of Env'l Prat., 2010 ME 18, ,r 13, 989 A.2d

1128. "The court shall not substitute its judgment for that of the agency on questions of fact." 5

M.R.S. § 11007(3). The Law Court, or the Superior Court, will affirm findings of fact if they are

supported by "substantial evidence in the record", even if the record contains inconsistent evidence

or evidence contrary to the result reached by the agency. Passadumkeag Mountain Friends v. Bd.

ofEnvironmental Prof., 2014 ME 116, ,r,r 12, 14, 102 A.3d 1181. The municipal board's findings

of fact will be vacated only if there is no competent evidence in the record to support a

decision. Lakeside at Pleasant Mountain Condo. Ass'n v. Town ofBridgton, 2009 ME 64, ,r 11,

974 A.2d 893.

A. Determination of use.

1. Proper avenue ofappeal

The first, second and third issues raised on appeal all arise out of the CEO's

determination of use. The court first considers the proper avenue of appeal of the CEO' s

determination of use. The court concludes that the determination of use, whether it is made by

the CEO or the Planning Board, is not appealed to the ZBA. The ordinance provides that two

types of CEO decisions are appealed to the ZBA. They include "administrative appeals" and

"variance appeals." Ord.§§ 6.1, 6.3. With respect to an "administrative appeal," it is appealable

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to the ZBA when there is an error in the CEO's "review of and action on a pennit application

under this ordinance." Ord§ 6.3.2(A) (emphasis supplied). There is no appeal to the ZBA,

however, on a building permit after site plan review by the Planning Board, Id. Although the

ordinance could be clearer, the court concludes that the intent of the ordinance is to distinguish

between to types of permits. The appeal of a building permit approval after review by the

Planning Board is heard by the Superior Court. The ZBA is limited to review of those building

permits issued directly by the CEO without Planning Board review.

The alternative, to require an appeal of a CEO's determination of use in the middle of a

Planning Board site review, appears to be what the ordinance is trying to avoid. Therefore,

review of the determination of use is appealed with the Planning Board decision. 1 The appeal

from the ZBA is denied as moot.

2. Deciding "determination ofuse. "

The court then addresses whether the "determination of use" should be the Planning

Board's decision or the CEO's decision. The authority to make a zoning determination must be

expressly granted by statute or ordinance. Oeste v. Town ofCamden, 534 A.2d 683,684 (Me.

1987). A planning board cannot make a zoning determination when the ordinance vests that

authority in the CEO. Noyes v. Bangor, 540 A.2d 1110, 1111-12 (Me. 1988); see also,

Ciccomancini v. City ofPortland & Casco Bay Ventures, 2009 Me. Super. LEXIS 40, *10-11.

The Town invites the court to avoid the procedural issues presented and review the

determination of use as though the CEO's decision was only an informal conversation. The

Town asks the court to review the determination of use regardless of whether the Planning Board

or the CEO made that determination. The Planning Board's decision, however, specifically did

1 Therefore, the court need not reach the decision of whether the appeal to the ZBA was untimely.

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not consider the Plaintiffs' arguments with respect to the determination of use on the grounds it

was the CEO' s decision. Although the court prefers to get to the merits, the procedural status of

this case does not allow it.

The Applicant argues that the ordinance allocates the determination of use to the CEO.

The CEO "administers" the zoning ordinance. The CEO refers applications for site plan review

to the Planning Board. Ord. § 6.1. In order to make that referral, the CEO must make a decision

whether an application requires a site plan review. That requires a "determination of use." The

Planning Board, they argue, is authorized only to apply the criteria in Article VII and the

performance standards in Articles IV and V. Ord § 7 .2.1. The Applicant argues there is no

express authorization allowing the Planning Board to determine whether a use is appropriate in a

particular zone.

The Plaintiffs argue that because the ordinance refers a matter requiring site plan review

to the Planning Board, the determination of use becomes the Planning Board's decision. Any

other approach deprives the Plaintiffs from a meaningful opportunity to be heard, depriving them

of their rights to due process of law.

The court agrees that the Town's ordinances, as currently drafted and as applied to this

application, deny the Plaintiffs a right to due process. "The fundamental requirement

of due process is the opportunity to be heard at a meaningful time and in a meaningful manner.

It is a flexible concept that calls for such procedural protections as the paiiicular situation

demands." In re A.M., 2012 ME 118, ,r15 (quotations and citations omitted). The CEO's

decision was made without notice to and without any input from any party. In a case where there

is no Planning Board review, a party aggrieved by a CEO's decision would have a right to de

nova review by the ZBA. That would be the meaningful right to be heard. Here, the ordinance

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does not provide the opportunity to appeal the CEO' s decision to the ZBA. The Plaintiffs also

had no opportunity to make their arguments to the Planning Board.

Instead, the Plaintiffs' first opportunity to make an argument that the proposed project is

an appropriate use in the RRZ is before this court. The court, however, must be deferential to the

Town's decisions. The court is not permitted to weigh competing arguments. The court would

not be reviewing a decision where a factfinder has first considered all of the arguments. Because

the court's review is limited, this Rule 80B appeal does not provide the Plaintiffs with a full right

to be heard. 2 The Town must afford the parties an opportunity to be heard before some

factfinding authority in a position to hear the parties, to weigh the competing interests, and

decide the facts. That is not the role of the court and the court takes no position on the issue.

The court must interpret the ordinances to avoid an unconstitutional result. Desfosses v.

City ofSaco, 2015 ME 151, ~ 8. The court must also review the entire ordinance to achieve a

harmonious result. Id Reading the ordinance as a whole, the ordinance's distinction between

building permits that are appealed to the ZBA and building permits that are subject to Planning

Board review reflects the intent that building permits take one of two tracks. They are either

decided by the CEO with a right to de novo review by the ZBA or they are subject to site review

and decided by the Planning Board. Nothing in the ordinance grants the CEO the final say on a

determination of use in a matter to be reviewed by the Planning Board. Nothing in the ordinance

treats the referral to the Planning Board as a final decision. Therefore, the court concludes that,

as the ordinance is currently written, the Planning Board may review the determination of use in

2The applicant cites Moreau v. Town ofTurner, 661 A.2d 677, 6890 (Me. 1995) for the proposition that a Rule 80B
appeal is a sufficient right to be heard. Moreau is distinguishable. In that case, the Court specifically relied on the
Board of Selectman's offer to allow plaintiff to make his arguments before them. Id

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cases properly before it. Of course, the Applicant could also make arguments at that hearing that

the project constitutes other uses permitted by the ordinance.

For these reasons, the court remands the case to the Planning Board. The comi

anticipates that the Planning Board will provide sufficient findings of fact and conclusions of law

for the court's review in the event of an appeal.

B. Requirement that tenants be identified and participate in the appeal.

Plaintiffs do not cite any ordinance, statute or case law supporting an argument that any

prospective tenants must be part of the application or approval process. Therefore, the court

does not see any basis to overturn the Planning Board's decision on those grounds.

C. Violation of medical marijuana laws.

The court finds that it was within the Planning Board's discretion not to consider the

possibility of future violations of medical marijuana laws when determining whether to approve

the facility. Therefore, the court does not see any basis to overturn the Planning Board's decision

on those grounds.

CONCLUSION

The entry is:

The appeal of the decision by the ZBA is DENIED as moot.

The comi REMANDS the matter back to the Planning Board to allow for a hearing on the
determination of use. Otherwise, the decision of the J'llnning Board is AFFIRMED.

This Order is incorporated on the docket by reference pursuant to M.R.Civ.P. 79(a).

Thomas R. McKean
Justice, Maine Superior Court

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