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Rockland Plaza v. City & EBS, dissenting opinion

ALEXANDER, J., with whom SAUFLEY and CALKINS, JJ., join, dissenting.

	[¶19] I respectfully dissent.  This Court's opinion and the Superior
Court's opinion interpreting the Rockland Zoning Ordinance violate both the
final judgment rule and our constitutional separation of powers.  In each
instance, a court has provided what is, in essence, an advisory ruling
invading the primary jurisdiction of a local planning board before that board
has issued or denied any permit in a final administrative action.   
       [¶20] In this case, the Rockland Planning Commission has never issued
a final approval (or denial) of the Ellsworth Builders Supply site plan review
application.  Instead, the Commission tabled both further review and any
final approval of the application because Plaza Realty filed an interlocutory
appeal, allowed by the Rockland Zoning Ordinance, with the Rockland
Zoning Board of Appeals.  The Rockland Zoning Board of Appeals decided
against Plaza Realty's challenge to certain findings and conclusions made by
the Planning Commission during their consideration of the Ellsworth
Builders Supply application.  Plaza Realty then appealed to the Superior
Court the interpretations on their interlocutory appeal offered by the
Rockland Zoning Board of Appeals.{4} 
       [¶21] On appeal to the Superior Court, Ellsworth Builders Supply
objected that the case was not in an appropriate posture for decision on the
merits.  However, the Superior Court reached the merits, upheld the Zoning
Board's interpretations, and remanded for issuance of the permit, although
issuance of the permit would be a matter within the primary jurisdiction of
the Planning Commission which had not yet reached that issue. 
        [¶22]  We recently discussed why the final judgment rule is important
to: (i) prevent piecemeal litigation; (ii) curtail interruption, delay,
duplication and harassment; (iii) minimize interference with the
decision­p;maker below; (iv) serve the goal of judicial economy; and (v) save
the appellate court from deciding issues which may ultimately be mooted or
otherwise avoid appeal altogether.  See Millett v. Atl. Richfield Co., 2000 ME
178, ¶ 8, 760 A.2d 250, 253.
	[¶23]  The history of this case amply demonstrates the prudence of
the final judgment rule.  The interlocutory appeals, authorized by the
Rockland Ordinance, have already resulted in a year and a half delay in
consideration of the Ellsworth Builders Supply application, without any final
determination on that application having been issued by the Rockland
Planning Commission, the agency originally charged to hear and decide the
merits of the application.  
       [¶24]  Just four months ago in Herrle v. Town of Waterboro, 2001 ME
1, 763 A.2d 1159, we dismissed an appeal from a zoning board of appeal's
interpretation of a local ordinance offered to inform a local enforcement
decision.  Id. ¶ 12, 763 A.2d at 1162.  We reasoned that the decision to
enforce or not to enforce based on the zoning board's interpretation
remained a matter of discretion with the enforcement authorities.  Id.
¶¶ 9-11, 763 A.2d at 1161-62.  Although an appeal was authorized by the
local ordinance, we concluded that the Superior Court and this Court were
essentially being asked to render an advisory opinion, and we dismissed the
appeal.  Id. ¶ 12, 763 A.2d at 1162.  See also Pepperman v. Town of
Rangeley, 659 A.2d 280, 282-83 (Me. 1995).  
	[¶25]  We have long held that, absent special and narrow exceptions,
we only consider appeals from final decisions or judgments.  We have
defined a final judgment as a judicial or administrative action which "fully
decides and disposes of the whole cause leaving no further questions for the
future consideration and judgment of the Court . . . ."  Hazzard v. Westview
Golf Club, Inc., 217 A.2d 217, 222 (Me. 1966); accord Musson v. Godley,
1999 ME 193, ¶ 5, 742 A.2d 479, 481.  See also Digital Equip. Corp. v.
Desktop Direct, Inc., 511 U.S. 863, 868 (1994); Catlin v. United States, 324
U.S. 229, 233 (1945); Moore's Federal Practice § 202.2 (3d ed. 2000); Field,
McKusick & Wroth, Maine Civil Practice § 73.1 (1970).  The final judgment
rule is equally applicable to appeals from administrative decisions.  See
Herrle, 2001 ME 1, ¶ 9, 763 A.2d at 1161; Mechanic Falls Water Co. v. Pub.
Utils. Comm'n, 381 A.2d 1080, 1087 (Me. 1977); Sawin v. Town of Winslow,
253 A.2d 694, 698 (Me. 1969).  
       [¶26]  In Mechanic Falls Water Co.,{5} we determined that findings of fact
and conclusions of law reached by the Public Utilities Commission, prior to
issuance of a final decision, were not final judgments because, although the
Commission's determinations may have indicated what the Commission
would do with respect to the pending proceeding, the rulings were not
sufficient to transform the factual and legal conclusions into a final
judgment.  Mechanic Falls Water Co., 381 A.2d at 1087.
	[¶27]  No local decision-making process can be considered over until
it is over.  Planning Boards, like other decision-making bodies, are subject to
change of mind and change of membership which can sometimes lead to
change of result between preliminary and final decision-making.  See Sawyer
Envtl. Recovery Facilities, Inc. v. Town of Hampden, 2000 ME 179, ¶¶ 8-11,
760 A.2d 257, 259-60 (noting a town's change of position in the course of
consideration of a land use application).
	[¶28]  Plaza Realty may not have liked the drift of the preliminary
determinations in the Planning Commission's review, but the drift of those
determinations is not ripe for our review.  Courts decline to intervene in the
actions of an administrative agency "unless the action has achieved, through
the administrative tribunal, the stage at which it is ripe for judicial
consideration." Levesque v. Town of Eliot, 448 A.2d 876, 878 (Me. 1982). 
Until there is final Planning Commission approval, Plaza Realty has not been
harmed "in a concrete way" necessary to create a case or controversy for
decision on the merits of an appeal.  Reno v. Catholic Soc. Servs. Inc., 509
U.S. 43, 57 (1993); Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 890-92
       [¶29]  The final judgment rule is intended to support our goal of
securing "the just, speedy and inexpensive determination of every action." 
M.R. Civ. P. 1.  It prevents piecemeal review that is prospective rather than
final with the unnecessary cost, delay, and disruption of administrative or
judicial proceedings inherent in such interlocutory or preliminary reviews. 
The City of Rockland can adopt a zoning ordinance allowing interlocutory
and piecemeal reviews of decisions and delays of a final result as a matter of
local policy, but a local ordinance cannot impose on the courts an obligation
to undertake interlocutory reviews of local agency decision-making.  
	[¶30]  As noted, the Planning Commission has never issued a final
decision on this application.  Now, a year and a half later, it may change its
opinion regarding some of the findings or conclusions it suggested in its
1999 proceedings.  Thus, any interpretation of law preceding its final order
is essentially advisory.  It could be issued by the city's corporate counsel and
with equal, preliminary effect.  
       [¶31]    An advisory opinion tells a local board, prospectively, what they
should do or how they should act.  Depending on many factors, it may or may
not be implicated in the final agency decision.  An opinion on a final
administrative action, by comparison, decides retrospectively whether the
board acted legally or not.  Retrospective review-the judicial function-is
very different from prospective advice.  Providing legal advice is an executive
function.  Laws or ordinances involving the judiciary in advising state or local
agencies what actions they should or might take would be violative of the
separation of powers language of Article III of the Maine Constitution.  
       [¶32] Courts can issue advisory opinions only where authorized by a
special constitutional process pursuant to Article VI, section 3 of the Maine
Constitution.{6}  Under that provision, on rare "solemn occasions," the
Governor or the Legislature may ask this Court for advisory opinions.  No
local ordinance or state statute can provide a similar authorization.  
       [¶33]  Two decades ago, the late Justice Harry Glassman, one of Maine's
most respected judges in the last half of the twentieth century, observed
that any statute authorizing the courts to issue advisory opinions "would
pose serious constitutional problems since it would purport to authorize the
Superior Court to render advisory rulings on hypothetical controversies." 
Bar Harbor Banking & Trust Co. v. Alexander, 411 A.2d 74, 78 (Me. 1980). 
In discussing the issue, Justice Glassman emphasized that:  "We repeat that
aside from opinions properly rendered on solemn occasions, see Me. Const.
Art. VI, § 3, the judiciary has no power to issue advisory rulings and the
legislature cannot authorize the judicial department to pass on hypothetical
questions."  Id. (citations omitted.)  See also Moore's Federal Practice
§ 205.02[1] (3d ed. 2000) (noting that the case or controversy rule is a
separation of powers issue intended to limit the judiciary's power of
adjudication to actual cases and controversies).
       [¶34]  Six years after Justice Glassman's carefully considered and
well-reasoned opinion, and without citing Bar Harbor Banking & Trust  or
discussing the separation of powers based prohibition on issuing advisory
opinions, this Court indicated that, on some occasions, we could issue
advisory opinions second guessing agency interpretations.  See Annable v.
Bd. of Envtl. Prot., 507 A.2d 592, 596 (Me. 1986).  That opinion may be
considered an aberration because it addressed neither the separation of
powers issue nor the constitutional limitation restricting advisory opinions
to those specially requested on "solemn" occasions.  However, in light of
those important constitutional doctrines limiting the judiciary's power to
advise the state or local governments, prospectively, on actions they may
take, Annable  should be distinguished or overruled.  
       [¶35]  The Court's rendering advice to local governments, by providing
interpretations of law before any permit has been issued from which an
appeal can be taken, is an inappropriate interference by the judiciary in the
affairs of local government prohibited by Article III of the Maine
Constitution.  Such advisory opinion­p;making wastes resources of the
judiciary and the litigants by promoting preliminary appeals that increase
cost and delay and by inviting rulings that may have no effect due to
alternatives for final resolution of the local administrative action that are not
controlled by whatever opinion the judiciary may issue.
        [¶36]   The Superior Court's order to issue the permit, although the
application had never been finally considered by the Planning Commission,
also violated the doctrine of primary jurisdiction.  The doctrine of primary
jurisdiction is a discretionary doctrine to avoid judicial interference with the
functions of an administrative agency by allowing the agency to make the
initial determination on a matter within its statutory authority, subject to
later judicial review.  See Cushing v. Smith, 457 A.2d 816, 821-22
(Me. 1983); Levesque, 448 A.2d at 878; Fletcher v. Feeney, 400 A.2d 1084,
1090 (Me. 1979); State ex rel. Brennan v. R. D. Realty Corp., 349 A.2d 201,
207 (Me. 1975). 
	[¶37]  Because the Superior Court ordered the Planning Commission
to issue the permit, even though Plaza Realty's interlocutory appeal
prevented the Planning Commission from ever reaching the point in their
decision-making process where they would consider issuing or denying the
permit, and because this is a matter within the primary jurisdiction of the
Rockland Planning Commission, not the Court, I would vacate the decision
of the Superior Court and remand to the Superior Court with direction to
dismiss the appeal.  There is no final administrative decision ripe for judicial
Attorneys for plaintiff: Catherine R. Connors, Esq., (orally) Matthew D. Manahan, Esq. Helen L. Edmonds, Esq. Ande A. Smith, Esq. Pierce Atwood One Monument Square Portland, ME 04101 Attorneys for defendants: William V. Ferdinand, Esq., (orally) Glen L. Porter, Esq. Eaton Peabody Bradford & Veague, P.A. 77 Sewell Street, suite 3000 Augusta, ME 04330-6332 (for Ellsworth Builders Supply) Gregg N. Dorr, Esq. City Attorney 270 Pleasant Street Rockland, ME 04841 (for City of Rockland)
FOOTNOTES******************************** {1} . Although the City of Rockland, the Rockland Planning Commission, and Ellsworth Builders Supply are all named defendants or parties in interest, and participated in the Superior Court proceedings, only Ellsworth Builders Supply filed an appellee's brief and participated at oral argument in this Court. {2} . The Site Plan Review Ordinance provides for the tabling of an application pending appeal as well as the Board's authority to hear appeals regarding the interpretation of Zoning Ordinance provisions in the absence of final approval of a plan: Nor shall the Zoning Board of Appeals schedule or hear any appeal in connection with such a project where the Planning Commission has not taken final action on the application unless the appeal is an appeal of the Commission's interpretation of the Zoning Ordinance or Site Plan Review Ordinance . . . . If an interpretation or variance appeal is filed with the Board prior to the granting of final approval of the application by the Commission, the Commission shall table final action on the application pending the Board's decision . . . . Rockland, Me., Site Plan Review Ordinance § 16-201 (Mar. 6, 2000) (emphasis added). {3} . At oral argument, Ellsworth Builders asserted that the Commission had already made all decisions on which final approval would be based, characterized the Commission's final approval of Ellsworth Builders' plan as a "ministerial act," and waived the issue of ripeness, seeking a final decision on the merits. {4} . The Superior Court characterized the action as an appeal from an "interpretation of the Rockland Zoning Ordinance and Site Plan Review Ordinance resulting in tentative approval of Ellsworth Builders Supply, Inc.'s expansion application." {5} . In Mechanic Falls, the finality issue was addressed in the context of determining when a time for appeal begins to run. {6} . Article VI, section 3 of the Maine Constitution states: "The Justices of the Supreme Judicial Court shall be obliged to give their opinion upon important questions of law, and upon solemn occasions, when required by the Governor, Senate or House of Representatives."

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