Is your 80B clock ticking?

Happy New Year!  How better to ring in 2015 than talking about an 80B decision the Maine SJC issued on Dec. 31, Beckford v. Town of Clifton?

http://www.courts.maine.gov/opinions_orders/supreme/lawcourt/2014/14me156be.pdf. 

This decision is of general import, and one everyone who practices in this area should study, because it addresses when you need to your appeal under 80B(b) and 30-A M.R.S. s. 2691.  The majority opinion was written by Justice Hjelm, joined by CJ Saufley, Justice Mead and Justice Gorman.  Justices Alexander, Silver (his last day as a Justice) and Jabar dissented.  CJ Saufley also filed a separate concurrence.

The bottom line is that the clock for filing an 80B appeal under Section 2691 is the date of the vote on the application, denying it or granting it, and not the subsequent date of a vote approving the written decision reflecting the action taken on the application.  The majority said that this interpretation was required by the language of Section 2691(3)(G), which provides that any party may take an appeal within 45 days "of the date of the vote on the original decision."

Whether reasonable minds could differ on this point - it was a 4:3 decision - close only counts in H-bombs and horseshoes, as they say.  CJ Saufley's separate concurrence basically entreats the Legislature to fix the current complexity of deadlines for 80B and 80C appeals (and it's a nice little primer to keep on your desk, because it lists many of these complexities).  But cloture has occurred, so it doesn't look like anything is going to change statutorily this session.  So this is the law and will remain so at least for the near future.

Which leads to some interesting questions.  Here are just a few:

1. What happens if someone appeals (perhaps because they must, because the 45-day deadline is approaching) before the written decision issues?  (As Justice Alexander notes, by statute there has to be a written decision, and the court in any event needs a writing with adequate findings and conclusions to review.)  Does the board lose its ability to issue the required written decision because jurisdiction goes from the board to the court upon the filing of the notice?  Logically one would hope the answer is no, the board retains jurisdiction to finish the job, but there is no Law Court opinion that I’m aware of on point, and the general rule is that an appeal wrests jurisdiction from that tribunal.  So what do you do?  If you just go forward with the appeal assuming that the board did have jurisdiction to issue its post-appeal written decision, then you might be faced with the Superior Court or SJC ultimately saying nope, no jurisdiction -- so there goes a year or two of litigating.  At least in theory, the court can't just say no harm no foul, we can see good reasons for the vote ourselves, because this is an administrative appeal - the court isn't supposed to substitute its judgment for for the board. 
2. How does someone know whether they have a viable appeal before the written decision issues?  Say the board votes to deny an application.  Assume there is substantive evidence both ways in the record, so if the denial is based on that reasoning, there’s no basis to appeal.  After 45 days, however, the board issues its written decision, saying that it’s denying the application because the applicant is black, or Catholic, or some other actionable basis.  Shouldn’t the applicant be allowed to appeal then?  It seems wrong that the applicant would be out of luck -- but the vote date is jurisdictional.  
3. What happens if the vote occurs, so the clock is ticking, the town lawyer then drafts the written decision, which under FOAA shouldn’t be discussed before the public meeting, and at the next meeting, all the board members differ on the reason why they voted the way they did?  Take situation #2, and some board members say, “hey, no, I didn’t vote this way because the applicant was black.”  Can they change their vote?  What happens if they vote again and do change the outcome?  Assuming they had the jurisdiction to do it, I guess that would moot the appeal, but I’m not sure they have to ability to change the vote itself once its appealed -- see question #1.    
4. Does this mean that the board doesn’t vote to endorse the written decision?  After the approval/denial vote, then, what happens?  The Chair just tells town counsel to draft whatever those two want and just issue it, since the challengeable action has already occurred?  That sounds a little hinky if there's an oral vote with no explanation, followed by a detailed written basis that comes out of nowhere.

In short, starting the clock with the first vote works if you can presume that the written decision is a simple a clerical act that will happen quickly after the vote. As a practical matter, however, that's not always the case.

Given this situation, here are some of my preliminary thoughts of what to do: 

• wait as long as you can before the appeal time runs to file the appeal, hoping the written decision gets issued within that time;
• if the decision hasn't issued by that time, file a protective appeal whenever there is any possibility that the basis for vote could be legally objectionable;
• if the written decision hasn't issued by the time someone appeals, if you don't want to risk having a court negate all the litigating in that appeal, move the Superior Court to remand the matter to the board to issue its written decision, ensuring that the board has jurisdiction to issue its decision;
• at the board level, do whatever you can to get the written decision issued contemporaneously with the vote, e.g. by submitting a draft decision.  You could try to ensure that the initial vote includes enough (legitimate) reasoning to support the vote and to make the written decision basically as ministerial a drafting exercise as possible, but one problem with that approach  is that there is a school of thought that whatever the board says in deliberations doesn't count - only the written decision basis matters (the "deliberative privilege"). 

Some municipalities allow for reconsiderations, which raises its own set of appeal issues that this blog entry has gotten too long to talk about now.

In sum, as CJ Saufley's concurrence underscores, the world of administrative appeals can be very tricky.  Beware! 

  

 

 

Comments

[Peter Beckford]

Suppose the ZBA intends the vote on the draft decision/written findings to be the operative date of "decision", and makes their intention obvious, as they did in Beckford ? Seems like it doesn't matter, the Law Court will go with the date of the meeting when a vote on denial happened. So a town can really set-up a resident for failure.