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Thomas v. City of South Portland
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MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2001 ME 50
Docket: Cum-00-534
Argued:March 8, 2001
Decided: March 26, 2001
Panel: WATHEN, C.J., and CLIFFORD, RUDMAN, DANA, ALEXANDER and CALKINS,
JJ.
LESLIE E. THOMAS
v.
CITY OF SOUTH PORTLAND
and
CITY OF SOUTH PORTLAND PLANNING BOARD
RUDMAN, J.
[¶1] The City of South Portland, and its Planning Board, appeal from a
judgment entered in the Superior Court (Cumberland County, Mills J.)
concluding that Leslie E. Thomas had standing to appeal from the South
Portland Planning Board's approval of the Stop 'n Shoppe Fuel Mart, Inc.'s
site plan. We remand to the Superior Court with instructions to dismiss
Thomas's appeal.
[¶2] "Direct appeals from a decision of a planning board to the
Superior Court on issues of zoning are allowed only if the municipal
ordinance so provides." Hodsdon v. Town of Hermon, 2000 ME 181, ¶ 3,
760 A.2d 221, 222 (citing 30-A M.R.S.A. § 4353(1) (1996)).{1} The South
Portland zoning ordinance makes no provision for a direct appeal to the
Superior Court. Thomas failed to exhaust his administrative remedies before
appealing directly to the Superior Court from the Planning Board's decision.
We, therefore, vacate the judgment below.{2}
The entry is:
Judgment vacated. Remand to the
Superior Court with instructions to
dismiss Thomas's appeal for failure to
exhaust his administrative remedies.
Attorney for plaintiff:
Joseph R. Mazziotti, Esq., (orally)
P O Box 3589
Portland, ME 04104
Attorney for defendant:
Mary K. Kahl, Esq., (orally)
Corporation Counsel
P O Box 9422
South Portland, ME 04106
FOOTNOTES******************************** {1} . We note that the Superior
Court did not have the benefit of our holding in Hodsdon v. Town of Hermon
when it reached its decision in this case. {2} . We considered, sua sponte,
whether Thomas's direct appeal to the Superior Court was appropriate in
this case, as neither the appellee nor the appellant raised this issue on
appeal. See Walsh v. City of Brewer, 315 A.2d 200, 210-211 (Me. 1974).
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