Skip Maine state header navigation

Agencies | Online Services | Help
Town of Otis dissenting opinion.
WATHEN, C.J., with whom RUDMAN, J., joins, dissenting.

	[¶16]  I must respectfully dissent. In my judgment the Attorney
General has standing to seek judicial review.  In zoning matters, a
municipality acts solely as an agent of the State, see Burkett v. Youngs, 135
Me. 459, 465, 199 A. 619, 621-22 (1938), and thus the State is always a
party in a zoning proceeding.  We have previously 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."  Bell v. Town of
Wells, 510 A.2d 509, 519 (Me. 1986) (quoting In re Estate of Thompson,
414 A.2d 881, 890 (Me. 1980)).  Here, despite the Town's participation in
the proceeding, the Court treats the chief law officer of the State as though
he were a private party.  The concept of standing serves, in part, to prevent
others from asserting the authority entrusted to the Attorney General. 
Private parties have standing to appeal an administrative ruling only if they
participated in the hearing and demonstrate a particularized injury that is
different than that sustained by the public in general.  Pride's Corner
Concerned Citizens Ass'n v. Westbrook Bd. of Zoning Appeals, 398 A.2d 415,
417 (Me. 1979); see also Ricci v. Superintendent, Bureau of Banking, 485
A.2d 645, 647 (Me. 1984) (where complaint only alleges an injury suffered
by all of the citizens of the State, plaintiffs did not demonstrate
"particularized injury").  Today, the Court stands the judicially-crafted
doctrine of standing on its head and bars the Attorney General from
protecting public rights.
	[¶17]  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).  The Attorney General's duty to protect the State's
waters through shoreland zoning enforcement is derived not only from the
common law, but the shoreland zoning law specifically provides that "[t]he
Attorney General . . . may enforce ordinances adopted under this chapter
[Protection and Improvement of Waters]."  38 M.R.S.A. § 444 (1989 &
Pamph. 1997) (emphasis added).  That enforcement necessarily includes
seeking judicial review of an administrative decision in order to protect the
integrity of the shoreland zoning laws.  This is not to suggest that the
Attorney General has absolute authority to raise any issue at any time.  In the
present case, the Attorney General filed a timely appeal with the Superior
Court but had not participated directly in the ZBA hearing.  Issue preclusion
for issues not raised at the hearing is clearly called for, but I would not deny
the Attorney General the opportunity to demonstrate on behalf of the State
that the Board's decision is completely without evidentiary support.
	[18]  In this case, the evidentiary record simply does not support the
Board's decision to grant a variance.  The granting of a zoning variance is
controlled by statute.  The Board may grant a variance only if the applicant
can show that strict application of the ordinance would cause the applicant
undue hardship defined as follows:
A.  The land in question can not yield a reasonable return unless
a variance is granted;

B.  The need for a variance is due to the unique circumstances of
the property and not to the general conditions in the
neighborhood;

C.  The granting of a variance will not alter the essential
character of the locality; and

D.  The hardship is not the result of action taken by the
applicant or a prior owner.

30-A M.R.S.A.  4353(4) (Supp. 1997).

	[19]  The record does not support the Board's decision with respect
to the first requirement, i.e., that the property could not yield a reasonable
return without the variance.  Failure to yield a "reasonable return" means the
"practical loss of all beneficial use of the land."  Brooks v. Cumberland Farms,
Inc., 1997 ME 203,  14, 703 A.2d 844, 848 (citations omitted).  We have
consistently stated that "a zoning regulation imposes undue hardship within
the meaning of section 4353 only if the property subject to the regulation
cannot yield a reasonable return from any permitted use."  Id. (citations
omitted).  Moreover, we have stated that "reasonable return is not the
maximum return."  Perrin v. Town of Kittery, 591 A.2d 861, 863 (Me. 1991).	
	[20]  The reasons given for the property's inability to yield a
reasonable return were as follows: Having purchased the property from the
Town, Dunn  stated that he wanted "the most benefits that he could get out
of it"; and, without a marina, he could not get his money back or make a
profit, because the income from the rental unit was insufficient due to the
lack of privacy resulting from the public boat launch.  Such evidence falls far
short of demonstrating that Dunn has lost all beneficial use or that he cannot
yield a return from any permitted use.  Rather, the record shows that there
is a residential camp on the property, and, further, that it is being rented by
Dunn as residential property.  The fact that the camp is not as desirable as
other camps because it lacks privacy does not mean that he has lost all
beneficial use.  His understandable desire to maximize profits does not
support the conclusion that he is being denied a reasonable return.  
	[21]  The Court attaches far too much importance to the late arrival
of the Attorney General in this litigation.  Dunn would suffer no disadvantage
other than a testing of the sufficiency of the evidence he presented in
support of the variance.  Faced with a clear choice of either upholding the
zoning law or dismissing the timely appeal of Maine's chief law officer on
the basis of standing, I choose the former.

Attorneys for plaintiff: Andrew Ketterer, Attorney General Lucinda E. White, Asst. Atty Gen., (orally) 6 State House Station Augusta, ME 04333-0006 Attorneys for defendants: James E. Patterson, Esq., (orally) P O Box 712 Ellsworth, ME 04605 (for George Dunn) Bronson Platner, Esq. 20 Oak Street Ellsworth, ME 04605 (for Town of Otis)
FOOTNOTES******************************** {1} . Although the State of Maine was added as a plaintiff in this action, the proper plaintiffs are the Department of Environmental Protection and the Attorney General. See Bureau of Employee Relations v. Maine Labor Relations Bd., 655 A.2d 326, 326 (Me. 1995). {2} . The second count of the complaint alleges that the Town failed to administer and enforce its shoreland zoning ordinance by issuing the variance to Dunn. The third count alleged that the Town failed to administer and enforce its shoreland zoning ordinance by failing to prohibit Dunn's use of the cottage for multiple dwelling units. Following the DEP's appeal, we remanded these counts for a separate trial. Accordingly, only the first count, the 80B appeal, is before us. {3} . Because both prongs of the general rule must be met and we find there was no participation, we need not address whether the DEP suffered a particularized injury as a result of the challenged action. {4} . For example, the Attorney General may "appear before the Supreme Judicial Court by brief and oral argument as a friend of the court in any appeal in an action arising under [the Maine Tort Claims Act] where the Attorney General is not appearing representing a party to the action." 14 M.R.S.A. § 8106(2)(B) (1980). {5} . Prior to 1991, in order to allow timely participation by the DEP, section 438-A required municipalities to forward each request for a variance under an ordinance approved by the Board of Environmental Protection to the Commissioner of Environmental Protection. See 38 M.R.S.A. § 438-A(6) (1989), repealed by P.L. 1991, ch. 346, § 6. The Department recommended that this requirement be eliminated, because it was "not a cost effective mechanism toward reducing the number of inappropriate variances granted." Testimony of Richard P. Baker, Shoreland Zoning Coordinator for the Department of Environmental Protection speaking in support of L.D. 992 at hearing of the Energy and Natural Resources Committee dated April 12, 1991. Section 438-A(6) was repealed in 1991. See P.L. 1991, ch. 346, § 6. It is noteworthy that, having repealed the provision that would have assured the DEP of notice of the ZBA proceedings, the Legislature has not enacted a statute permitting the DEP or the Attorney General to appeal from a ZBA decision without participating in the hearing.

Back to majority opinion.

Back to Opinions page.