Philip J. Malonson v. Town of Berwick
Case Date: 12/19/2003
Court: Supreme Court
Docket No: 2003 ME 148
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MAINE SUPREME JUDICIAL COURT Reporter of Decisions Decision: 2003 ME 148 Docket: Yor-03-329 Submitted On Briefs: November 25, 2003 Decided: December 19, 2003
Panel: SAUFLEY, C.J., and CLIFFORD, RUDMAN, DANA, CALKINS, and LEVY, JJ.
PHILIP J. MALONSON
v.
TOWN OF BERWICK
DANA, J. [¶1] The Town of Berwick appeals from a judgment of the Superior Court (York County, Fritzsche, J.) vacating the Berwick Planning Board's determination that Philip J. Malonson's proposal to convert a nursing care facility into a home for recovering alcoholics would not be a "boardinghouse" as that term is defined in the Berwick Land Use Ordinance. The court concluded that the proposal would be a "boardinghouse" and remanded the case to the Board to determine whether "the other requirements for a [conditional] use permit" were met.[1] Because there is no final judgment before us, we dismiss the appeal. [¶2] We have long held that "appeals from court orders remanding a matter to [an] . . . administrative agency for further action are interlocutory appeals that we will not address on the merits until the action on the remand has been completed." Doggett v. Town of Gouldsboro, 2002 ME 175, ¶ 8, 812 A.2d 256, 259. On rare occasions we have taken direct appeals of remand orders when the remaining action is essentially ministerial, such as the formal issuance of a permit. E.g., Rockland Plaza Realty Corp., v. City of Rockland, 2001 ME 81, ¶ 6, 772 A.2d 256, 259. We also recognize several narrow exceptions to the final judgment rule, but "have limited their application to extraordinary situations." Musson v. Godley, 1999 ME 193, ¶ 5, 742 A.2d 479, 481 (citing State v. Maine State Employees Ass'n, 482 A.2d 461, 464 (Me. 1984)). None of these exceptions apply here. The entry is: Appeal dismissed. Remanded to the Superior Court for remand to the Town of Berwick Planning Board for further proceedings consistent with this opinion.
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Attorneys for plaintiff:
Durward W. Parkinson, Esq. Leah B. Rachin, Esq. Bergen & Parkinson, LLC 62 Portland Road Kennebunk, ME 04043
Attorney for defendant:
Alan E. Shepard, Esq. Shepard & Read 93 Main Street Kennebunk, ME 04043 [1] The court also observed: "[i]f on remand the Planning Board finds that the other requirements for a use permit are met and the facility comes to be, then the neighbors and Town officials would be justified in holding the applicant to his promises of a safe and well run program." |