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DEP v. Town of Otis
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Decision:	1998 ME 214
Docket:	Han-97-574
Argued:	April 9, 1998
Decided:	September 4, 1998

Dissenting:  WATHEN, C.J., and RUDMAN, J.



	[¶1]  This appeal requires us to determine whether the Attorney
General may appeal from the grant of a variance by a zoning board of appeals
when neither the Attorney General nor any of his client agencies have
participated in the proceedings before the board.  Because we conclude that
he may not, we vacate the judgment of the Superior Court (Hancock County,
Mead J.) and remand the matter for entry of an order dismissing the appeal.
	[¶2]  The relevant facts may be summarized as follows.  The Town of
Otis sold George Dunn a parcel of land, located on Beech Hill Pond,
containing a cottage and a garage.  The parcel is subject to an easement for a
public boat launch on the property.  The Town had used the cottage as a
rental property and Dunn continued to use it for that purpose.  Dunn also
wanted to add a marina, a use requiring a permit issued by the planning
board and compliance with all applicable land use standards in the Otis
Shoreland Zoning Ordinance.  The ordinance requires, inter alia, a
minimum shore frontage of 300 feet and a minimum lot area of 60,000
square feet for a commercial structure.
	[¶3]  Dunn applied to the Otis Planning Board for a permit for the
marina project.  A DEP representative filed a letter with the Planning Board
pointing out the parcel's limited shore frontage.  The Planning Board
declined to issue the permit, in part because the parcel included only 215
feet of shore frontage.  Dunn applied to the Otis Zoning Board of Appeals for
a variance to allow him to use the property as a marina.  Although the ZBA
held two hearings on the application, the DEP did not file any documents or
appear at or participate in either hearing.  At the close of the second
hearing, the ZBA granted a variance with respect to shore frontage and lot
area.  The ZBA denied the Planning Board's and the DEP's requests for
	[¶4]  The DEP then filed a complaint in the Superior Court against the
Town and Dunn.  The complaint included an appeal pursuant to M.R. Civ. P.
80B challenging the lawfulness of the Board's decision, and two separate 
counts against the Town seeking injunctive relief and civil penalties
pursuant to 38 M.R.S.A. § 443-A (3) (1989).{2}  After denying the Town's and
Dunn's motions to dismiss the 80B appeal for lack of standing, the court
reviewed the administrative decision of the Board and vacated the variance. 
The Town and Dunn filed this timely appeal. 
	[¶5]  On appeal, the Town and Dunn first assert that the court erred in
finding that the DEP and the Attorney General have standing to appeal when
they did not participate in the hearing before the Board.  They also argue
that the court erred in vacating the Board's grant of a variance.  We do not
reach this later contention, since neither the DEP nor the Attorney General
had standing to bring this appeal.
	[¶6]  We first address whether the DEP had standing to appeal the
Board's decision in this matter.  The Department did not appear, personally
or through filings, at the ZBA hearings.  Despite this failure, the trial court
found that "liberally construed . . . the Department was a participant in the
proceedings," because a DEP employee had participated before the Planning
Board and the DEP had sought reconsideration of the ZBA's decision.  
Because of the DEP's failure to participate in the variance proceedings
before the ZBA in any way, we disagree with the trial court's conclusion.
	[¶7]  Absent a specific statutory authorization, a failure to participate
in the proceeding from which the appeal is taken is fatal to the claimed
right to maintain the appeal.  "Any party may take an appeal . . . to Superior
Court from any order, relief or denial in accordance with the Maine Rules of
Civil Procedure, Rule 80B."  30-A M.R.S.A. § 2691(3)(G)(1996) (emphasis
added).  "Party" status for purposes of section 2691 is defined by a
conjunctive two-pronged test:  first, the person must have participated
before the board; and, second, the person must have made a showing of a
particularized injury.{3}  See Brooks v. Cumberland Farms, Inc., 1997 ME 203,
¶ 8, 703 A.2d 844, 847; Pride's Corner Concerned Citizens Ass'n v.
Westbrook Bd. of Zoning Appeals, 398 A.2d 415, 417 (Me. 1979).  
	[¶8]  The DEP's actions in this case did not constitute "participation"
in the ZBA hearings.  Although the DEP provided written comments to the
Planning Board at a preliminary phase of the request for permission to build
a marina, those comments were related to matters before the Planning
Board and not to Dunn's subsequent request for a variance from the ZBA. 
The DEP's 80B count challenged the legality of the ZBA's grant of a variance
­p;­p;not the Planning Board's denial of a use permit.  The written comments to
the Planning Board, not made during the proceedings from which the
appeal has been taken, are insufficient to constitute participation by the DEP
for purposes of conferring party status.  Cf. Jaeger v. Sheehy, 551 A.2d 841,
842 (Me. 1988) (prehearing conversations by an abutting landowner to a
member of the board were insufficient to qualify as participation).  Contrary
to the DEP's arguments, the statutory framework of the shoreland zoning
law does not provide DEP with the status of an "essential party," thereby
conferring standing despite a failure to participate before the ZBA. 
2. Attorney General
	[¶9]  We next address the Attorney General's assertion that he enjoys a
separate status and has standing to appeal as a result of his statutorily-
granted enforcement authority.  In Bell v. Town of Wells, 510 A.2d 509 (Me.
1986), we recognized that "'the Attorney General, as the chief law officer of
the State, has the power and duty to institute, conduct and maintain such
actions and proceedings as he deems necessary for the protection of public
rights and to defend against any action that might invidiously interfere with
the same.'"  Id. at 519 (quoting In re Estate of Thompson, 414 A.2d 881,
890 (Me. 1980)).  Shoreland zoning controls are declared to be in the public
interest "[t]o aid in the fulfillment of the State's role as trustee of its waters
and to promote public health, safety and the general welfare . . . ."  38
M.R.S.A. § 435 (Pamph. 1997).  
	[¶10]  The Attorney General's role in protecting this public interest in
this area is explicitly delineated by several statutes.  For example, the
Attorney General's duty to protect the State's waters through shoreland
zoning enforcement is set out explicitly in the shoreland zoning laws:  "[t]he
Attorney General . . . may enforce ordinances adopted under [chapter 3 of
Title 38, entitled Protection and Improvement of Waters]."  38 M.R.S.A.
§ 444 (1989 & Pamph. 1997) (emphasis added).  The Attorney General may,
inter alia, represent the DEP in shoreland related proceedings, see 5
M.R.S.A. § 191 (Pamph. 1997); participate in municipal proceedings
involving shoreland zoning issues, see 38 M.R.S.A. § 444; and seek to
recover civil penalties from any person who violates shoreland zoning
ordinances, see 30-A M.R.S.A. § 4452 (1989 & Supp. 1997).  Additionally,
the Attorney General must be joined as a party to any action challenging the
validity or legality of a shoreland zoning ordinance.  See 38 M.R.S.A. § 443-A
(2) (1989 & Pamph. 1997).  
	[¶11]  There is, however, no statutory authorization for an appeal by
the Attorney General from a decision of a local board when neither the
Attorney General nor the DEP has participated at the municipal level.  As we
recognized in Matter of Lappie, 377 A.2d 441 (Me. 1979), "[l]egislative
bodies could, and frequently do, empower and direct the attorney general or
some other public officer to seek judicial review of an administrative order
in an appropriate case in order to protect the public rights."{4}  Id. at 443.  
Unless that authorization exists in statute, however, no standing to appeal
exists unless the Attorney General or state agency participated in that
administrative proceeding.  See, e.g., Superintendent of Insurance v.
Attorney General, 558 A.2d 1197 (Me. 1989), (the controlling provision in
the Insurance Code conferred standing upon the Attorney General to pursue
an 80C appeal of the Superintendent's rate decision). 
	[¶12]  Significantly, no such authorization or direction appears in the
Attorney General's enabling statute or in Title 30-A or Title 38.  Although
the Legislature could authorize such appeals, it has not done so.  Further, we
detect no justification for equating the Attorney General's statutory authority
to enforce shoreland zoning ordinances with an ability to appeal the
lawfulness of the Board's grant of a variance.  The authority provided by 38
M.R.S.A. § 444 to enforce ordinances for the protection and improvement of
waters allows the Attorney General to take any actions specified by 30-A
M.R.S.A. § 4452, but does not include the authority to appeal municipal
decisions in the absence of participation.  
	[¶13]  Finally, the Attorney General contends that denying it standing
to pursue an 80B appeal would create an "absurdity," given its statutory
mandate to oversee shoreland zoning ordinances.  This contention ignores
the plain fact that the Attorney General and the DEP could have participated
in the proceedings before the ZBA and taken appropriate action to raise the
issues important to the enforcement of the Town's ordinances.{5}  Indeed, if
the Attorney General had participated in the proceedings, but failed to
persuade the ZBA or the reviewing court of his position, he would similarly
have been precluded from collaterally challenging the legality of the variance
through a statutory enforcement action.  This result is neither unusual nor
	[¶14]  Although we recognize the significant limitations on the
resources of the DEP and the Attorney General's office, these limitations do
not justify a judicial determination that the Attorney General may appeal
from a fact-intensive determination made in a proceeding in which the State
did not participate.  This is not a proceeding in which the legality or
constitutionality of an ordinance is at issue.  Rather, the Attorney General
challenges the factual basis for the ZBA's grant of the variance.  Neither the
ZBA nor the applicant had the benefit of the Attorney General's specific
disagreement or objections during the variance hearing.  Without a challenge
from the Attorney General (or an appropriate state agency) during the
presentation of evidence, an applicant cannot know what additional
evidence can or should be presented, and the ZBA will not have an
opportunity to consider the issues that should have been raised during its
hearing.  Allowing a late entry by the Attorney General may impair the
meaningful adjudication of controversies in the first instance before the
tribunal most appropriately suited to hear the controversies and result in a
waste of time and resources in local administrative proceedings.  
	[¶15]  In short, neither the Town's interest in enforcing its
ordinances, the State's interest in protecting public rights, nor the
applicant's interest in receiving fair treatment are necessarily well served by
a process in which the Attorney General is not required to address the
deficiencies in an application being presented to the ZBA in order to appeal
from the ZBA's decision.  Accordingly, all of the competing interests should
be weighed before such authority is established.  The Legislature has not yet
engaged in that exercise.  Because neither the DEP nor the Attorney General
had standing to appeal the ZBA's action, the 80B count must be dismissed by
the Superior Court. 
	The entry is:
Judgment of the Superior Court vacated. 
Remanded for entry of dismissal of the 80B
count and for further proceedings consistent
with this opinion.

On to the dissent.

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