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Oyster Shell Inc. v. Town of Damariscotta
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MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2002 ME 23
Docket: Lin-01-507
Submitted
on Briefs: January 28, 2002
Decided: February 11, 2002
Panel: SAUFLEY, C.J., and CLIFFORD, RUDMAN, DANA, ALEXANDER, and CALKINS, JJ.
OYSTER SHELL, INC.
v.
TOWN OF DAMARISCOTTA
RUDMAN, J.
[¶1] Oyster Shell, Inc. appeals from the judgment entered in the
Superior Court (Lincoln County, Mills, C.J.), in its 80B action, affirming the
decision of the Damariscotta Board of Appeals. Because the Board of Appeals
lacks authority to hear Oyster Shell's appeal, we vacate the judgment.
[¶2] Oyster Shell applied to the Damariscotta Code Enforcement Officer
(CEO) for a conditional use permit to build an additional ten condominium
motel units. The CEO rejected the permit application on the ground that the
additional units would violate the Land Use Ordinance. Oyster Shell, at the
suggestion of the CEO, appealed to the Damariscotta Board of Appeals which
determined that the appeal should have been taken to the Planning Board and
remanded the appeal back to the CEO for remand to the Planning Board.
Oyster Shell then appealed to the Superior Court, which affirmed the Board of
Appeals. This appeal followed.
[¶3] We review questions of law de novo, and "[t]he jurisdiction of the
Board of Appeals is a question of law that must be ascertained from an
interpretation of municipal statutes and local ordinances." Salisbury v. Town of
Bar Harbor, 2002 ME 13, ¶ 8, --- A.2d. ---. The Damariscotta Land Use
Ordinance provides that "the Planning Board shall hear and approve, approve
with modifications or conditions, or deny an application for a Conditional Use
Permit." Damariscotta Land Use Ordinance 9(2)(b) (1998). The ordinance clearly
states that the issuance or denial of permits by the CEO shall be reviewed by
the Planning Board.
[¶4] The Board of Appeals lacked authority to hear Oyster Shell's
appeal. Therefore, we vacate the judgment of the Superior Court, and remand
for further proceedings.
The entry is:
Judgment vacated. Remanded to the
Superior Court to vacate the decision of
the Zoning Board of Appeals and remand
to the Damariscotta Planning Board for
further proceedings consistent with this
opinion.
Attorney for plaintiff:
Andrews B. Campbell, Esq.
45 Kaler's Corner Road
Waldoboro, ME 04572
Attorney for defendant:
Richard L. Hornbeck, Esq.
Moncure & Barnicle
P O Box 636
Brunswick, ME 04011
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