Two facts are noteworthy for our purposes: (1) not all of the information required by the Ogunquit Zoning Ordinance to be submitted for design review was provided by the applicant; and (2) the Ogunquit Zoning Ordinance does not authorize the Planning Board to waive any of the design review submission standards. The Superior Court, however, noted that Ogunquit had a longstanding practice of not enforcing every submission requirement listed in its Zoning Ordinance (and my experience is that this is by no means unique to Ogunquit). The Superior Court, however, vacated the Planning Board’s approval and was affirmed by the Law Court.
While cognizant of limited municipal resources and the difficulties often encountered by volunteer boards, the Law Court noted that the plain language of the Ordinance could not be ignored: “When a municipal ordinance requires an applicant to submit specific information, and the ordinance neither allows for the submission of written waiver requests nor includes a provision allowing a planning board to determine that certain requirements are not applicable, the planning board has no authority to disregard or waive the requirements of the ordinance.” Nor, it continued, do the courts have the authority to determine that the failure to submit required material is de minimis or harmless error. If towns do not wish to require strict compliance with every design review criterion in all cases, the Court noted that they should revisit their ordinances, and it provided a handful of examples of what could be done in that regard.
It is rather clear from Hartwell that the Law Court believes that there are some significant problems with our current system of administrative and judicial review of municipal land use decisions. It is equally clear that the Court is not about to rush into the breach, and is instead comfortable with leaving it to the political branches to work towards a solution.
