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Lucarelli v. City of South Portland
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MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 1998 ME 239
Docket: Cum-98-208
Argued: October 6, 1998
Decided: November 2, 1998
Panel: WATHEN, C.J., and CLIFFORD, RUDMAN, DANA, SAUFLEY, ALEXANDER, and
CALKINS, JJ.
QUIRINO LUCARELLI
v.
CITY OF SOUTH PORTLAND et al.
DANA, J.
[¶1] Hans Hackett appeals from the judgment entered in the Superior
Court (Cumberland County, Brennan, J.) vacating the City of South Portland
Planning Board's decision denying a special exception use permit. We
dismiss the appeal and affirm the trial court's decision because Hackett
lacks standing.
[¶2] Quirino Lucarelli applied to the Board for a special exception use
permit to erect a 150-foot communications tower in South Portland.
Following a hearing at which numerous members of the community voiced
their opposition to the proposed tower, the Board denied the application.
Lucarelli appealed the decision to the Superior Court pursuant to M.R. Civ. P.
80B, and the court vacated the Planning Board's decision. South Portland
did not appeal because the City had repealed the ordinance at issue and
enacted a new one. Hackett, a resident of South Portland, moved to
intervene pursuant to M.R. Civ. P. 24. The trial court granted the motion,
and Hackett appealed.
[¶3] To establish standing to appeal a decision of a zoning board a
party must have participated in the hearing and must demonstrate a
particularized injury caused by the zoning board's decision. Brooks v. Town
of North Berwick, 1998 ME 146, ¶ 8, 712 A.2d 1050, 1053. One does not
participate in a hearing by expressing opposition to an application prior to
the hearing, see Jaeger v. Sheehy, 551 A.2d 841, 842 (Me. 1988) (holding
pre-hearing conversations with a member of the board did not constitute
participation), nor by opposing the application at a related preliminary
hearing, Department of Envtl. Protection v. Town of Otis, 1998 ME 214,
¶ 8, 716 A.2d 1023, 1025 (holding that written comments by the DEP to a
Planning Board at a preliminary phase of an application for a permit did not
constitute participation). The requirement of participation is so well
established that we have recently held that even the Attorney General must
participate in the hearing to establish standing. Id. ¶¶ 9-15, 716 A.2d at
1025-27.
[¶4] Although Hackett alleges that he voiced his opposition to the
tower by attending Planning Board meetings and speaking with city council
members, there is no evidence in the record that he participated in the
hearing. Hackett has failed to establish standing to participate in the appeal.
The entry is:
Judgment affirmed.
Attorney for appellant:
Daniel R. Warren, Esq., (orally)
Jones & Warren, P.A.
243 U.S. Route 1
Scarborough, ME 04074
Attorney for plaintiff:
Christopher L. Vaniotis, Esq., (orally)
Bernstein, Shur, Sawyer & Nelson, P.A.
P O Box 9729
Portland, Me 04104-5029
Attorney for defendant:
Mary Kahl, Esq.
Corporation Counsel
P O Box 9422
South Portland, ME 04106-9422
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