A Study In Judicial Restraint – The Maine Law Court’s Decision In Hartwell v. Town of Ogunquit

It took a while, but a court finally gave me something to write about today. What struck my fancy is the Law Court’s decision yesterday in Hartwell v. Town of Ogunquit, 2015 ME 51, a case involving an appeal from the Ogunquit Planning Board’s site plan and design review approval of an application to convert a garage into a lobster pound. The Planning Board approved the application. As aggrieved neighbors are wont to do, some abutting landowners sought judicial review.

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.

Is It Time For The Law Court To Stop Treating The Untimely Filing Of An Appeal As A Jurisdictional Defect?

Last week, the Law Court issued its decision in Beckford v. Town of Clifton, 2014 ME 156, which involved a proposal under a local land use ordinance to build and operate a five-turbine commercial wind energy project.  Although the Clifton Zoning Board of Appeals (ZBA) affirmed the Planning Board’s grant of the permit, the Superior Court vacated, and an appeal by the developer to the Law Court followed.

The only matter addressed by the Law Court was whether the opponents of the project had timely appealed the ZBA’s decision to the Superior Court.  The controlling statute, 30-A M.R.S. § 2691(3)(G), provides:  “Any party may take an appeal within 45 days of the date of the vote on the original decision ….”  The question before the Court was whether the 45-day period began on January 25, 2012, when the ZBA voted to deny the opponents’ appeal, or on January 30, 2012, when the ZBA voted to adopt its written decision.  If the period began to run on January 30, the opponents’ appeal to the Superior Court was timely; if it began to run on January 25, their appeal was five days late.

The Court held that the appeal period began to run on January 25, and, therefore, the opponents’ appeal was late.  Citing its longstanding rule that the failure to timely file an appeal is a fatal jurisdictional defect, the Court vacated the Superior Court’s decision and remanded the case to the Superior Court for the entry of an order dismissing the case.  The majority opinion was written by Justice Hjelm, who was joined by Chief Justice Saufley and Justices Mead and Gorman; Justices Silver, Jabar, and Alexander dissented.

Given the language of Section 2691(3)(G), I believe the Court was correct in its conclusion that the opponents’ appeal was untimely.  “So,” you might ask, “if you think the Court got it right, why do you care enough to write about the case?”  My answer is simple – while I think the Court correctly determined that the appeal was untimely, I’m not so sure that the result is the “right” one.

Not to put too fine a point on it, but the current state of the law regarding the time limits applicable to administrative appeals in Maine is a mess.  In her concurrence, the Chief Justice does an excellent job detailing all of the differing time frames applicable to administrative appeals as well as the many variations in the language used to trigger them.  The result is considerable confusion and too many traps for the unwary to count.  Although the recent amendment to the M.R.Civ.P. 80B should help eliminate some of the confusion, it does not fix every problem and it wasn’t even applicable to the situation in Beckford.  The Chief Justice summed up the confusion thusly, “When even those jurists who regularly apply and interpret the time frames set by the Legislature or by local ordinances cannot agree on their meaning or applicability, it is undoubtedly also difficult for the public and the Bar to do so.”  I agree wholeheartedly, but my question is if the members of the Law Court can’t even agree on how to apply the deadlines in administrative appeals, why send appellants packing without any consideration of the merits of their appeals simply because they calculated the deadline incorrectly?

The Chief Justice ended her concurrence by noting that it would be a great benefit to the people of Maine if the Legislature were to undertake “a thorough review of the events that trigger the running of the time for appellate review for both state and municipal appeals to establish a single, consistent, and understandable triggering event and time frame for seeking appellate review.”  That would certainly be an ideal solution, but I have another idea for the Law Court to consider – stop treating the untimely filing of a notice of appeal as depriving the courts of the jurisdiction to hear the appeals.  The Indiana Supreme Court did just that only a couple of months ago in In re Adoption of O.R., 16 N.E.3d 965 (Ind. 2014), in which the court noted the unfortunate tendency of courts (including itself) to mischaracterize procedural errors as defects in subject matter jurisdiction.  

While I am mindful that the courts’ appellate jurisdiction is limited by statute, there is nothing in 4 M.R.S. § 105(3) (conferring limited appellate jurisdiction on the Superior Court) or in 4 M.R.S. § 57 (conferring jurisdiction on the Law Court) that says that appellate jurisdiction is conferred only to the extent that a party files its appeal on time.  In fact, 4 M.R.S. § 57, itself directs the Law Court to eschew over-reliance on procedural niceties by providing that when the issues of law can be “clearly understood, they must be decided, and a case may not be dismissed by the Law Court for technical errors in pleading alone or for want of proper procedure if the record of the case presents the merits of the controversy between the parties.”  Why treat the failure to file an appeal on time differently from other procedural errors?

By not treating an untimely appeal as depriving the court of subject matter jurisdiction, there would be room for Maine courts to address the merits of untimely appeals in certain cases.  Clearly, given the interests of finality and the courts’ own institutional and other interests, limitations would have to be placed on the courts’ discretion in this regard – but that is something that could be handled through the promulgation of a new rule or two, possibly along the lines of the good cause and excusable neglect standards contained in M.R.Civ.P. 55(c) and 60(b).  This would provide Maine courts with some needed flexibility and is consistent with both 4 M.R.S. § 57 and the Law Court’s oft-stated preference for cases to be decided on the merits.

No Section Is An Island: The Law Court Illustrates The Application Of The Construction Of The Whole Statutory Scheme Maxim

No man is an island, entire of itself; every man is a piece of the continent, a part of the main.

                                     - John Donne, Meditation XVII

Donne’s seventeenth century wisdom is encapsulated in one of the fundamental principles of statutory construction – the maxim that statutory language is not to be interpreted in isolation, but in the context to the statutory scheme as a whole.  I’ve been looking for a nice illustration of the application of this principle in practice, and the Law Court filled the void yesterday with its decision in Beaudry v. Harding, 2014 ME 126.

The central issue in Beaudry was whether an administratively dissolved LLC – one dissolved by the Secretary of State for failure to comply with certain statutory requirements, such as filing annual reports – has the legal capacity to prosecute a lawsuit.  The Plaintiff pointed to 31 M.R.S. § 1596(2)(B), as supporting his claim that Maine law has answered that question in the affirmative.  That section, entitled “Effect of dissolution,” expressly provides that dissolution does not
“[p]revent the commencement of a proceeding by or against the limited liability company in its limited liability name.” (Emphasis added).

The Law Court, though, pointed out that the Legislature had also included within the Limited Liability Company Act provisions dealing specifically with the effects of administrative dissolution.   In this regard, the Court noted that 31 M.R.S. § 1592(4)(C) provides that the administrative dissolution of an LLC “does not impair … [t]he right of the limited liability company to defend any action, suit, or proceeding in any court of this State.”  The Court reasoned that Section 1592(4)(C), which deals specifically with administrative dissolution, not Section 1596(2)(B), which deals with dissolution generally, controls (another canon of construction – the specific prevails over the general – as a bonus). 

The fact that Section 1592(4)(C) was found to control, however, did not end the matter.  Standing alone, that section does not ambiguously resolve the issue in question because it does not necessarily follow from the fact that administrative dissolution does not impair an LLC’s right to defend a suit brought against it that administrative dissolution does impair an LLC’s right to prosecute a suit against someone else.  At best, there is only a negative implication to that effect.  Ultimately, it was the guidance gleaned from its contrast with Section 1596(2)(B)’s language expressly permitting post-dissolution actions by LLCs that led to the Court to conclude that Section 1592(4)(C)’s silence on the matter means that administratively dissolved LLCs lack the capacity to bring suit. 

The Court actually appears to have provided a “two-fer” in Beaudry.  Not only did it provide the illustration of the maxim in practice that I had been looking for, it actually employed that maxim twice – once to look beyond the text of a statutory section that would, in isolation, appear to be controlling, and again to use the contrast provided by that very same section to resolve the ambiguity inherent in what it found to be the controlling section.

Recent Amendments To Rule 80B Should Provide Needed Clarity

In case you missed it over the summer, the Supreme Judicial Court approved a couple of amendments to M.R.Civ.P. 80B effective September 1, 2014, that are of interest to those handling appeals from decisions of municipal agencies.  The first amendment clarifies when the clock begins to run on the deadline for filing a petition for review in the Superior Court.  The new amendment establishes that the general rule is that the time for filing a petition for review begins to run on the date of the public vote or announcement of a final decision by the municipal agency.  There are, however, two exceptions – when a statute, ordinance, or rule requires the action at issue to be made or evidenced by a written decision, the clock starts when the written decision is adopted; when a written decision is required by a statute, ordinance, or rule to be delivered to a person or persons, the clock starts upon delivery.  The new amendment should go a long way toward eliminating the uncertainty caused when, for example, a planning board votes to deny an application on September 5, but issues a written decision on September 19.

The second amendment makes clear in a re-written subsection (m) that when the Superior Court remands a case to a municipal agency for further action or proceedings, the Superior Court’s decision is not a final judgment – so, if you want to get to the Law Court immediately, you’d better be able to bring the case within one of the exceptions to the final judgment rule.   Although this amendment simply codifies the holdings of several recent Law Court decisions, it is helpful to have this rule set forth in the text of Rule 80B, particularly for those who may not practice extensively in this area.