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Stewart v. Town of Sedgwick et al
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	2000 ME 157
Docket:	Han-99-728
on Briefs:	May 25, 2000
Decided:	August 11, 2000




	[¶1]  Gordon Stewart appeals from a judgment of the Superior Court
(Hancock County, Mead, C.J.), affirming a decision of the Sedgwick Zoning
Board of Appeals granting to Stewart's neighbors a permit to build a dock. 
Because of confusion regarding the Board's role in the permitting process,
we vacate the judgment.
	[¶2]  In 1998, Gardner and Leslie Schneider applied to the Sedgwick
Planning Board for a permit to construct a dock on their property.  At public
hearings on September 24 and October 13, 1998, the Planning Board heard
testimony from the Schneiders, Gordon Stewart, and other neighboring
landowners about the need for and the effect of the proposed dock.  The
Planning Board granted the Schneiders' permit application on October 27,
	[¶3]  Stewart appealed the Planning Board's decision to the Sedgwick
Zoning Board of Appeals.  Stewart's appeal represented the first time the
Board had met in over a decade.  The Board held a hearing and denied
Stewart's appeal.{1}  Stewart appealed the Board's decision to the Superior
Court, pursuant to 30-A M.R.S.A. § 2691(3)(G) (1996) and M.R. Civ. P. 80B. 
The Superior Court affirmed the decision of the Board, and this appeal
A.  Standard of Review.
	[¶4]  When the Superior Court acts as an appellate court, we review
directly the operative decision of the municipality.  See Herrick v. Town of
Mechanic Falls, 673 A.2d 1348, 1349 (Me. 1996).  If the Board of Appeals
acted as a tribunal of original jurisdiction, that is, as factfinder and decision
maker, we review its decision directly.  See id.; Sanford Properties, Inc. v.
Town of Sanford, 609 A.2d 287, 288 (Me. 1992); Goldman v. Town of Lovell,
592 A.2d 165, 168 (Me. 1991); Waltman v. Town of Yarmouth, 592 A.2d
1079, 1080 (Me. 1991).  If, however, the Board acted only in an appellate
capacity, we review directly the decision of the Planning Board, or other
previous tribunal, not the Board of Appeals.  See Adelman v. Town of
Baldwin, 2000 ME 91, ¶ 8, 750 A.2d 577, 581-82; Sproul v. Town of
Boothbay Harbor, 2000 ME 30, ¶ 8, 746 A.2d 368, 372; Veilleux v. City of
Augusta, 684 A.2d 413, 415 (Me. 1996). 
	[¶5]  Therefore, in order to determine what decision is under review
here, we must begin with a determination of the nature of the Board's role
in the matter at hand.  Here, the Board undertook the hearing as if it were
engaged in a hearing de novo.  It reached conclusions, however, as if it were
an appellate body, not a tribunal of original jurisdiction.  This
misapprehension of roles is not unusual in board matters, and we take this
opportunity to clarify the varying roles of Boards of Appeal.
B.  Statute
	[¶6]  In order to determine the proper role of the Board in any
particular proceeding, we look both to the statute authorizing municipalities
to establish Boards of Appeals and to the municipality's own ordinances.  We
begin with the statute, which provides that municipal Boards of Appeals
may receive any oral or documentary evidence but shall provide
as a matter of policy for the exclusion of irrelevant, immaterial
or unduly repetitious evidence.  Every party has the right to
present the party's case or defense by oral or documentary
evidence, to submit rebuttal evidence and to conduct any cross-
examination that is required for a full and true disclosure of the
30-A M.R.S.A. § 2691(3)(D) (1996) (emphasis added).
	[¶7]  Accordingly, unless the municipal ordinance explicitly directs
otherwise, a Board must conduct a hearing de novo.{2}  When a Board holds a
hearing de novo, it does not examine evidence presented to the decision
maker or tribunal below,{3} nor does it review the procedure below except to
assure that the matter is properly before it.  Instead, it looks at the
substantive issues afresh, undertakes its own credibility determinations,
evaluates the evidence presented, and draws its own conclusions.  Thus, in
the absence of an explicit ordinance creating a purely appellate review by
the Board, the function of the Board is to take evidence, make factual
findings, and apply the laws and ordinances to the petition or application at
issue, and to do so independently of the decision, if any, of a lower tribunal.
C.  Municipal Ordinances
	[¶8]  A municipality may, however, by ordinance, provide that its
Board of Appeals hear appeals in a solely appellate capacity in certain
instances.{4}  See, e.g., Adelman, 2000 ME 91, ¶ 8, 750 A.2d at 581-82;
Sproul, 2000 ME 30, ¶ 8, 746 A.2d at 372; Sanford Properties, Inc., 609
A.2d at 288; Veilleux, 684 A.2d at 415.  If the ordinance prescribes an
appellate function, the Board will review the record of the proceedings
before the previous tribunal, review the evidence presented to that body,
review the tribunal's written or recorded findings, hear oral or written
argument of the parties, and determine whether the lower tribunal erred in
reaching its decision.
D.  Hybrid Proceedings
	[¶9]  In certain types of proceedings, the Legislature has provided for
a combination of appellate review and de novo hearing.  For example, in the
context of a tax abatement appeal, the taxpayer has the burden of persuading
the appellate body that the assessor's valuation was "manifestly wrong."  See
Chase v. Town of Machiasport, 1998 ME 260, ¶ 13, 721 A.2d 636, 640; 36
M.R.S.A. § 843(1) (1990 & Supp. 1999).  There, the appellate body
undertakes its task from a starting point at which the assessor's evaluation is
presumed valid.  See Chase, 1998 ME 260, ¶ 13, 721 A.2d at 640.  If the
appellant presents evidence to overcome that presumption, the appellate
tribunal must undertake an independent evaluation of fair market value
based on all relevant evidence presented.  In this unusual procedure, the
appellate tribunal reviews the decision of a prior decision maker, but does
so on an independent review of evidence, including evidence newly
presented at the appellate hearing.
	[¶10]  This type of amalgamated procedure is, however, the exception
rather than the rule.  Unless the ordinance or statute specifically calls for
the Board to act as both factfinder and appellate review tribunal, the Board
will act in only one capacity, either as a tribunal of original jurisdiction,
holding a hearing de novo, or as an appellate tribunal, reaching its decision
on the basis of the record below.
E.  Role of the Sedgwick Zoning Board of Appeals
	[¶11]  Here, the Town of Sedgwick had not enacted an ordinance
specifically providing for purely appellate hearings in particular instances. 
Although the Sedgwick Shoreland Zoning Ordinance implies that the Board
may act as an appellate body,{5} it also suggests that a hearing de novo will
occur.{6}  Because the Ordinance fails to provide explicit guidance, 30-A
M.R.S.A. § 2691 applies to require that the Board undertake a de novo
review of the application.
	[¶12]  The Board initially appeared to undertake a hearing de novo,
and it notified the parties that the hearing would be evidentiary and "de
novo."  The members of the Board appropriately undertook a site review,
heard testimony from several witnesses, and accepted documents into
evidence.  Those actions were consistent with the conduct of a hearing de
novo.  As the hearing progressed, members of the Board repeated several
times that they were conducting a hearing de novo. 
	[¶13]  Contradicting that indication, however, was the Board's
expressed belief that its task was to determine whether the Planning
Board's decision was supported by the record before the Planning Board. 
Transcripts of the proceeding reveal several occasions when the parties and
Board members expressed confusion regarding the nature of the hearing
and the burden of proof.{7}  As a result, neither the parties nor the Board
focused their attention on the substantive issue of whether the proposed
dock satisfied the Ordinance.  Instead, Stewart argued that the Planning
Board erred because the Schneiders failed to produce evidence before the
Planning Board that could satisfy their burden of proof, and the Schneiders
rested on the Planning Board's decision, contending that Stewart now bore
the burden of proving that the Planning Board erred.  
	[¶14]  In addition, the Board listened to an audio tape recording of
one of the Planning Board's meetings, and questioned several members of
the Planning Board to determine their thought processes in reaching their
decision.{8}  The Board voted 3-2 to "uphold the planning board's decision."{9} 
In the Board's "factual findings," the two dissenting members noted that
they "felt that the [P]lanning [B]oard had not paid adequate attention to the
letters submitted."  The majority noted that "the [P]lanning [B]oard acted
properly and that reversing its decision would be a grave error."  
	[¶15]  Thus, notwithstanding the full evidentiary hearing embarked
upon by the Board, it saw itself as reviewing the decision of, and the
evidence presented to, the Planning Board, rather than examining the
substantive merits of the permit application.  As a result of this confusion,
the Board accepted evidence, but nevertheless reached its decision as if it
were an appellate body.  Because this amalgamated process met neither the
statutory nor ordinance requirements, and had the effect of depriving the
applicant and interested parties of the opportunity to have the Board
undertake its own analysis of the evidence, the decision of the Board cannot
	The entry is: 
Judgment vacated.  Remand to Superior Court
with instructions to remand to the Sedgwick
Zoning Board of Appeals for proceedings
consistent with this opinion.

For the appellant: Gordon W. Stewart, pro se 1201 Market St. Suite 1700 Wilmington, Delaware 19801 For the appellees: James E. Patterson, Esq. 77 State St. P.O. Box 712 Ellsworth, Maine 04605 (for Town of Sedgwick) Gardiner L. & Leslie S. Schneider, pro se P.O. Box 127 Reach Rd. Sedgwick, Maine 04676
FOOTNOTES******************************** {1} . To avoid confusion herein, references to Boards of Appeals, including Sedgwick's Zoning Board of Appeal, are to the "Board." Reference to any other Board will include the full name of that Board. {2} . For clarity, we note that a hearing de novo means a new presentation of facts for consideration by a tribunal independent of any prior decision. "On hearing 'de novo' court hears matter as court of original and not appellate jurisdiction." Black's Law Dictionary 721 (6th ed. 1990). {3} . This does not preclude the parties from agreeing to submit transcripts of testimony presented to the Planning Board as evidence to be considered by the Board in order to conserve expenses. The Board, however, will undertake its own independent analysis of that evidence. {4} . Any process must comport with basic concepts of due process. See generally Mathews v. Eldridge, 424 U.S. 319 (1976). Accordingly, a Board of Appeals will ordinarily act in a purely appellate fashion only when the applicant or petitioner has had an opportunity for hearing before another tribunal. {5} . The ordinance provides that the Board "may reverse the decision . . . of the Code Enforcement Officer or Planning Board only upon a finding that the decision . . . was clearly contrary to specific provisions of this Ordinance." Sedgwick Shoreland Zoning Ordinance § 16(I)(3)(b)(2) (hereinafter Ordinance § __). {6} . "The person filing the appeal shall have the burden of proof." Ordinance § 16(I)(3)(b)(3) (emphasis added). "All decisions shall . . . include a statement of findings and conclusions . . . ." Ordinance § 16(I)(3)(b)(5) (emphasis added). {7} . The Superior Court noted that the "Board of Appeals' handling of this matter was somewhat disorganized due to the members' unfamiliarity with the process." {8} . Inquiry into the thought process of a decision maker is improper, even when the Board is acting as a purely appellate body. The reviewing body must rest its analysis on the expressed findings and conclusions of the lower tribunal. {9} . The terms used by a Board to announce a final decision do not necessarily disclose whether the hearing was appellate or de novo. Frequently, a Board that has held a de novo hearing will announce that it is "affirming" the decision below. We understand that language simply to convey the Board's conclusion that it has reached the same decision, independently, that the previous decision maker reached.