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Hodsdon v. Town of Hermon
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	2000 ME 181
Docket:	Pen-00-45
on Briefs:	October 6, 2000
Decided:	October 26, 2000	




	[¶1]  Marilyn Hodsdon and other plaintiffs{1} appeal from a judgment
entered in the Superior Court (Penobscot County, Marden, J.) affirming the
Town of Hermon Planning Board decision approving Walter and Virginia
Munns' second site plan to build a restaurant. Hodsdon contends that the
Board lacked authority to hear the Munns' second application and that it
lacked sufficient evidence to support its decision.  Because we find that the
Superior Court lacked jurisdiction to hear the Rule 80B appeal, however, we
do not reach the merits of plaintiffs' contentions.
 	[¶2]  The procedural facts may be summarized as follows: The Munns
sought to construct a 40-seat restaurant on the Billings Road in Hermon. 
Because the total development area was in excess of 25,000 square feet, no
construction could commence until the Planning Board reviewed the plans
pursuant to section 8.16 of the Town of Hermon Zoning Ordinance. The
Munns filed an application with the Planning Board for site plan approval in
July 1998, and, after hearings, the Board denied the application. The Munns
subsequently filed a second site plan application. During the review process
on the second application, the Munns submitted additional information. 
With this new information, the Board approved the second site plan,
concluding that the proposed development met the conditions that it had
not met in the prior application. Hodsdon and other abutters filed a Rule
80B appeal in the Superior Court. The court affirmed and plaintiffs appeal to
this Court. 
	[¶3]  Although not raised by the parties or addressed by the Superior
Court, we must consider sua sponte whether the Superior Court had
jurisdiction to hear the appeal. Plaintiffs brought this appeal from a decision
of the Planning Board approving a site plan pursuant to section 8.16 of the
Town's zoning ordinance.  Direct appeals from a decision of a planning
board to the Superior Court on issues of zoning are allowed only if the
municipal ordinance so provides.  See 30-A M.R.S.A. § 4353(1) (1996);{2}
Perkins v. Town of Ogunquit, 1998 ME 42, ¶ 5 n.5, 709 A.2d 106, 107 n.5;
Freeman v. Town of Southport, 568 A.2d 826, 828 & n.3 (Me. 1990); see
also George D. Ballard, Builder, Inc. v. City of Westbrook, 502 A.2d 476, 479
n.3 (Me. 1985) (The Westbrook Ordinance provided: "'An appeal from any
order, relief, or denial of the planning board may be taken by any party to
superior court in accordance with the Maine Rules of Civil Procedure, Rule
	[¶4]  The zoning ordinance in this case is silent on appeal
procedures from a site plan review.  Section 8.16 establishes the procedure
for site plan review.  It provides that "[n]o development in excess of . . .
twenty five thousand (25,000) square feet of gross development area shall
commence until the Planning Board has reviewed the plans."  Hermon, Me.,
Zoning Ordinance § 8.16.1 (July 8, 1997).  It does not provide for any
appellate review -- to either the board of appeals or the Superior Court.
Article 9 establishes the administration of the ordinance.  It sets forth the
duties of the code enforcement officer, id. § 9.1.6, and of the board of
appeals, id. § 9.2, but not the duties of the planning board. Section 9.2.4 is
the only section concerning actions on appeal, and it provides for appeal to
the Board of Appeals on only three types of appeal: (1) administrative appeal
from a determination made by the code enforcement officer in enforcing the
ordinance; (2) variance appeal from a recommendation made by the code
enforcement officer; and (3) special exception use permit from an
application from the code enforcement officer.  The ordinance makes no
provision for an appeal from a planning board decision.  
	[¶5]   Nor can it be inferred that, because the board of appeals was
not given authority to hear the appeal of the planning board, the ordinance
intended that the appeal be directly to the Superior Court.  See Freeman v.
Town of Southport, 568 A.2d 826, 828 (Me. 1990).  In Freeman, an abutting
landowner appealed a planning board's decision to expand a nonconforming
structure without first appealing to the Town's zoning board of appeals. See
id. at 827.  We affirmed the Superior Court's dismissal of the appeal for
failure of the plaintiff to exhaust administrative remedies. The plaintiff in
that case argued that, although the Town established a zoning board of
appeals under the then applicable statutes,{3} it did not vest the board of
appeals with authority to hear the case. See id. at 828.  We noted that we
had previously interpreted prior statutes{4} to require appeal through the
zoning board of appeals even though the ordinance did not provide such a
route of appeal and allowed the plaintiffs on remand to be heard by the
board of appeals. See id. & n.3 (citing Cushing v. Smith, 457 A.2d 816, 819-
20 (Me. 1983)). We pointed out, however, that subsequent to Cushing, the
legislature amended the statute to allow direct appeal "provided the
municipality enacted an ordinance providing for such a direct appeal" and
noted that no such ordinance was enacted by the Town of Southport. Id. 
Thus, we affirmed the dismissal for failure to exhaust administrative
remedies.  See id. at 828-29.
	[¶6]  Although we had previously recognized exceptions to the rule
requiring exhaustion of administrative remedies for those circumstances
where  "(1) because of direct involvement of the reviewing body in the
initial decision, administrative appeal would be futile, (2) only questions of
law are involved, or (3) the reviewing body has no power to grant the
requested relief,"  Lakes Envtl. Ass'n v. Town of Naples, 486 A.2d 91, 96
(Me. 1984) (citation omitted), we did not address these exceptions in
Freeman.  Likewise, in this case, we find none of the exceptions are
applicable.  There was no direct involvement of the board of appeals in the
planning board's decision, issues of fact were involved, and the Town could
have provided the board of appeals with the power to grant the requested
relief in its zoning ordinance. See 30-A M.R.S.A. § 4353(1) (1996); see also,
e.g., Kelly & Picerne, Inc. v. WalMart Stores, Inc., 658 A.2d 1077 (Me.
1995); Rockland Plaza Realty Corp. v. LaVerdiere's Enter., Inc., 531 A.2d
1272 (Me. 1987). Therefore, plaintiffs failed to exhaust their administrative
	The entry is:
Judgment vacated.  Remanded to the
Superior Court with instructions to
dismiss plaintiffs' appeal for failure to
exhaust administrative remedies.

Attorney for plaintiffs: Paul J. Morrow, Esq. Law Offices of Carl D. McCue P O Box 655 Hampden, ME 04444-0655 Attorneys for defendants: Edmond J. Bearor, Esq. Rudman & Winchell, LLC P O Box 1401 Bangor, ME 04402-1401 (for Town of Hermon) Wayne R. Foote, Esq. Foote & Temple P O Box 1576 Bangor, ME 04402-1576 (for Walter & Virginia Munn)
FOOTNOTES******************************** {1} . Suzette Connolly, Lori Spencer, Rosemary Gilbert, Julie Berry, Cheryl Gallant, Mary L. Danforth, Loreanne Zelko, John Worthley, Karen Economy, William Miller, George Small, Paula Small, Wendall Leonard, Jo Leonard, Maria Cox, Richard Cox, John Benge, Stacey Benge, Bronislaw Zawojda, Elzbieta Zawojda, Larry Charloux, Candace Charloux, Chris Reynolds, Michelle Reynolds, Walter Gurschick, and Leona Gurschick are the other plaintiffs. {2} . The statute provides in part as follows: "The board of appeals shall hear appeals from any action or failure to act of the official or board responsible for enforcing the zoning ordinance, unless only a direct appeal to Superior Court has been provided by municipal ordinance." 30-A M.R.S.A. § 4353(1) (1996). {3} . The statutes in effect at the time were 30 M.R.S.A. §§ 2411 and 4963, which we noted were respectively re-codified at 30-A M.R.S.A. §§ 2691 and 4353, effective February 28, 1989. See Freeman, 568 A.2d at 827 nn. 1 & 2. {4} . The statute at the time of Cushing required that all appeals from the planning board go to the board of appeals before review could be sought in Superior Court. See Cushing v. Smith, 457 A.2d 816, 819-20 & n.7 (Me. 1983).