Advisory Note – June 2014 The amendment to subsection (b) is an attempt to provide a three-tier construct that directs the appellant to use the date of the original vote or decision unless a written decision is required by law or ordinance. This amendment was drafted after consultation with a subcommittee of land use and municipal attorneys in response to the Law Court decision of Gorham v. Androscoggin County, 2011 ME 63, 21 A.3d 115. The additional amendments separate the Superior Court and Law Court levels of review by replacing subdivision (m) and creating a new subsection (n). The amendments attempt to clarify the role of the Superior Court when there is a remand order to a municipal or other governmental decision-maker. The sentence stating that an order of remand for further action or proceedings is not a final judgment is added to codify the holding that has been repeated in several recent Law Court decisions. See, e.g., Town of Minot v. Starbird, 2012 ME 25, 39 A.3d 897; Aubry v. Town of Mount Desert, 2010 ME 111, 10 A.3d 662; Brickley v. Horton, 2008 ME 111, 951 A.2d 801. Advisory Committee’s Notes – 1981 Rule 80B(d) This amendment creates a new procedure for Rule 80B actions where a trial of the facts is appropriate. It requires that the party seeking to introduce new evidence justify his demand for a trial of the facts at a hearing before the court. This amendment requires that a party seeking to add facts to the existing record file a motion to do so. With the motion, the party shall be required to file an offer of proof. The court should then decide what evidence, if any, is appropriate to be heard in a trial on the facts. The court’s action would, of course, be subject to any requirements of the statute or law under which review is sought, e.g., 5 M.R.S.A. §11006 of the Administrative Procedure Act, which limits a court’s ability to go outside the record in state agency reviews. In fashioning an appropriate order for proceeding, a wide range of options would be available for the trial judge. These include (a) combining the factual matters with the matters in which the court is sitting as an appellate court; (b) severing the matters and sitting as an appellate court in a separate proceeding from the matters which the Superior Court is being asked to try on the facts, (c) treating the matter as any other Superior Court action and thereafter ordering it scheduled for pretrial conference; or (d) remanding to the agency to take further evidence. It should be noted that in some cases where facts outside the record below are required, the party may stipulate agreement to those facts. In such instances, the matter would be heard in accordance with normal Rule 80B procedures as amended herein. The Maine Administrative Procedure Act basically assures that nearly all state agency decisions subject to Rule 80B review will include findings of fact and be based upon a record. For municipalities, the Freedom of Access Law, 1 M.R.S.A. §401 et seq. requires public hearings, 1 M.R.S.A. §402, and written decisions articulating reasons for decisions on permit applications, 1 M.R.S.A. §407. Thus, it is far more likely today that there will be a formal record of municipal decisions for the Superior Court to review than has been true, even in the recent past. Rule 80B(d), (e), (f) , (g), (h) and (i). These amendments specify procedure for a Rule 80B matter which the Superior Court is hearing in its appellate capacity. The new subdivision (e) specifies that review will be on the record and makes the plaintiff responsible to prepare and submit the record except as 230 otherwise provided by statute or law. In effect, this generally places responsibility on the plaintiff for preparing the record for review of municipal decisions. Record preparation for most state actions reviewed under Rule 80B is governed by 5 M.R.S.A. §11005 requiring that the state agency prepare and file the record for review. Section 11005 also specifies the contents of the record to be filed and the time when the state agency record is to be filed. Because of the varying circumstances regarding a record which are likely to exist at the municipal level, the procedures for submission of the record are necessarily general. As under present case law, the plaintiff or party seeking review is held responsible to assure that an adequate record is filed. However, the parties are required to meet to prepare the record. Where the parties cannot agree what should and what should not be in the record, then the matters in disagreement should be submitted. Any party which believes he may be unduly burdened by the demands of another party for inclusion of materials in the record could, as presently, petition the court for relief. Further, a party unduly burdening the record could be assessed costs at the end of the proceeding. The record must include the application, notice of hearing or other document which initiated the agency proceeding and the decision and findings of fact of the agency. It may include any other documents before the agency and a transcript of all or portions of any hearing. In lieu of a transcript, it may include minutes or such other record of the agency hearing as is available. While this procedure may not be as precise a record preparation procedure as comports with ideal appellate practice, it would seem to be made necessary by the relative variety of municipal record keeping processes which will be encountered. In lieu of an actual record, parties are allowed to stipulate to a record. Subdivision (f) establishes the scope of review for Rule 80B appeals, again when not otherwise provided by statute such as 5 M.R.S.A. §11007. Basically, as with review of District Court decisions, the Superior Court would have authority for complete review of the law and limited review of the facts to determine if the facts found were clearly erroneous or unsupported by the evidence. Under subdivision (g) the time for filing of briefs is made identical to the time limit set for civil appeals to the Law Court and, by the simultaneous amendment of D.C.C.R. 75(a), for appeals from District Court. The court is allowed to increase or decrease the time for filing upon a showing of good cause. Subdivisions (h) and (i) track Rule 75(c) and (d) in the present civil appeals rules. However, the present rules do recognize that the parties may, by agreement, waive hearing and submit the matter to the court on the briefs, and the time in which the matter can be in order for hearing is reduced to 20 days. Advisory Committee’s Notes – 1983 Rule 80B(a) is being amended in two respects. First, the rule has been clarified to indicate that an agency is not made a party to an action merely by being served. Second, the rule is amended to reinsert a final sentence which was inadvertently omitted in the 1976 Maine Rules of Court Pamphlet. The omission was carried forward in the subsequent edition of the rules pamphlet and in the 1977 and 1980 supplements to Maine Civil Practice. Advisory Committee’s Notes – 1984 Rule 80B(1) is amended to make clear that, after the briefing of an administrative appeal to the Superior Court is completed, scheduling for oral argument is automatic and is initiated by the clerk. The new language replaces a sentence which implied that scheduling was at the discretion of the parties. The change parallels M.R. Civ. P. 75C(a). Advisory Committee’s Notes – 1990 Rule 80B(e) is amended to provide that a motion for trial of the facts in the Superior Court on an appeal under the rule must be accompanied by the record of the proceedings below. The purpose of the amendment is to insure that both the opposing party and the court have the opportunity to assess the need for a trial of the facts when the motion is presented. A similar amendment is simultaneously being made to M.R. Civ. P. 80C(e). Advisory Committee’s Notes June 2, 1997 Rule 80B(m) of the Maine Rules of Civil Procedure is amended to read as follows: (m) Review by the Law Court. Unless by statute or otherwise the decision of the Superior Court is final, review by the Law Court shall be by appeal or report in accordance with these Rules of Civil Procedure, and no other method of appellate review shall be permitted. If the Superior Court remands the case for further proceedings, all issues raised on the Superior Court review of the governmental action shall be preserved in a subsequent appeal taken from a final judgment entered on review of such governmental action. Rule 80B(m) is amended to clarify that an order of remand from the Superior Court to the governmental agency is not a final judgment from which an appeal lies, absent special circumstances. The amendment is not intended to change the law governing final judgments, moot issues or the preservation of issues for appeal. The amendment simply makes clear that in the ordinary case, an order of remand is not appealable and, to the extent that issues have been properly preserved throughout the course of the proceedings and are ripe for appeal when the remanded issues have been decided, the appeal from the final judgment preserves issues raised prior to the remand. Advisory Committee’s Notes May 1, – 2000 Subdivision (n), a transition provision governing actions filed before adoption of the revised rule in 1981 is eliminated as no longer necessary. Advisory Committee Note – July 1, 2010 Rule 80B(e) is slightly reorganized and some wording, such as the substitution of “filed” for “submitted,” is adjusted. The purpose of the substantive amendments to Rule 80B(e) is described in the Advisory Committee Note following the amendment to Rule 80C(f). Annotations: Rule 80B: Standing. Sahl v. Town of York, 2000 ME 180, 8-10. Rule 80B: Cross-appeal necessary to preserve appellee claim of error.Town of Mt. Desert v. Smith, 2000 ME 88, 7-8. Rule 80B: Remand if local agency factfinding inadequate to permit meaningful judicial review. Kurlanski v. Portland Yacht Club, 2001 ME 147, 14. Rule 80B(d): Baker’s Table, Inc. v. City of Portland -2000 ME 7, 8-12. Rule 80B(d): Adelman v. Town of Baldwin -2000 ME 91, 7. Rule 80B(f): Adequacy of agency findings for review. Christian Fellowship and Renewal Center v. Town of Limington, 2001 ME 16, 11-14. Rule 80B(i): Baker’s Table, Inc. v. City of Portland -2000 ME 7, 13-20. Rule 80B(m): Doggett v. Town of Gouldsboro, 2002 ME 175, 7. COMMENT §80B.1 Process Issues in Review of Local Decision-Making. Administrative due process issues are a frequent subject of Rule 80B appeals. For state agency decision-making, reviewed under Rule 80C, procedural requirements are generally stated in the adjudicatory proceedings section of the Administrative Procedures Act, 5 M.R.S.A. § §9051 – 9064. Procedural requirements for state administrative appeals are established in 5 M.R.S.A. § §11001 – 11008 and M.R. Civ. P. 80C. In most state agency actions, should there be an appeal, the state has responsibility for preparing an adequate record and filing that record with the court. 5 M.R.S.A. §11005, M.R. Civ. P. 80C(f). There is no comparable administrative procedure statute applicable to local adjudicatory decision-making. Procedural requirements are set by a combination of statutes and case law. Important statutes to consider include: (1) the Freedom of Access Law, 1 M.R.S.A. § §401 – 410, which contains requirements for public notice, public hearings and articulate decision-making applicable to all municipal adjudicatory decision-making; (2) the law governing boards of appeals, 30-A M.R.S.A. §2691, which very generally addresses board of appeals organizational notice, hearing, record keeping and decision-making requirements, and (3) other provisions of state law including, for example, 30-A M.R.S.A. §4353, addressing, again very generally, procedures for “hardship” and other variances. The key elements of proper and reviewable local adjudicatory decision-making are: 1. Objective Standards for Decision-Making: The standards for decision-making under any local ordinance establishing the facts that must be found for approval or disapproval must be sufficiently specific or quantitative that decision-making is based on factors that are articulable and measurable and not simply left to the personal preference of the decision-maker. This issue was addressed in detail in Town of Baldwin v. Carter, 2002 ME 52, 794 A.2d 62 and Kosalka v. Town of Georgetown, 2000 ME 106, 752 A.2d 183. In Carter, the Law Court addressed an ordinance that prohibited allowing dogs “to unnecessarily annoy or disturb any person by continued or repeated barking, howling, or other loud or unusual noises . . . .” Carter, 2002 ME 52, 2, 794 A.2d at 64. The Court found a reasonableness standard implicit in the ordinance and, with that standard applied, upheld the ordinance. Id. 12, 794 A.2d at 68. In Kosalka, the Law Court concluded that a local ordinance requirement that proposed developments “conserve natural beauty” was “an unmeasurable quality, totally lacking in cognizable quantitative standards” rendering the condition “an unconstitutional delegation of legislative authority and violative of the due process clause.” Kosalka, 2000 ME 106, 17, 752 A.2d at 187. The Kosalka opinion examined the specificity vagueness issue in detail, reviewing relevant Law Court decisions over the past thirty years. It provides much useful guidance when vagueness -due process questions arise. Id. 12-16, 752 A.2d 183 at 186-87. Articulable standards are a prerequisite for the remainder of the administrative due process requirements, because they are essential to provide (1) fair notice to applicants and opponents of standards that must be met, and (2) criteria for a decision-maker’s fact-finding to allow a court on appeal to determine if the fact-finding is supportable by that record and consistent with the standards articulated in the ordinance. 2. Clarity of the Decision-Maker’s Role: Where an administrative agency, for example a Board of Appeals, has acted in a purely appellate capacity, the Law Court will review directly the decision of the agency that was in a de novo or fact-finding capacity without deference to the intermediate appellate review. Yates v. Town of Southwest Harbor, 2001 ME 2, 10, 763 A.2d 1168, 1171. Local ordinances present a considerable diversity and sometimes confusion of roles for various local hearing agencies. Sometimes the Planning Board may appear to be the final decision-making agency, but not if a Board of Appeals is available. See Thomas v. City of S. Portland, 2001 ME 50, 768 A.2d 595. Sometimes an agency is characterized as acting on appeal but conducts a de novo hearing and becomes the fact-finding agency whose decision is reviewed. Griffin v. Town of Dedham, 2002 ME 105, 6, 799 A.2d 1239, 1241-42. Sometimes, a board of appeals must review an appeal de novo unless the local ordinance specifies that it is to hear the matter as an appeal. Stewart v. Town of Sedgwick, 2000 ME 157, 6-7, 15, 757 A.2d 773, 775-76, 778. Clarify the role of the hearing agency. Did the hearing agency review the appeal de novo or as an appeal? Did it take evidence or just hear argument? What is the status of evidence, if any, taken before another agency? Resolving these issues is important to establish the purpose of the hearing, what will be heard, and the deference that courts may accord to any resulting decision. 3. Notice: The process must give fair notice of the time and place of any hearing to consider an application with fair notice including: a reasonable time to prepare. Christensen-Towne v. Dorey, 2002 ME 121, 9, 802 A.2d 1010, 1012-13. an indication of what will be decided and the scope of participation that will be allowed. See Secure Environments, Inc. v. Town of Norridgewock, 544 A.2d 319, 324-25 (Me. 1988); Concord Gen. Mut. Ins. Co. v. Labbe, 401 A.2d 1005, 1007 (Me. 1979). See also 1 M.R.S.A. §406(1989). Notice requirements include both (1) a general public notice requirement, 1 M.R.S.A. §406, and(2) due process or statute based requirements that specifically interested parties receive direct actual notice. Such actual notice must always be given to applicants or those whose application or permit will be discussed at a hearing. Cf. 30-A M.R.S.A. §4353(3) (1996). In many instances there may also be an obligation to notify others, such as abutters, of the pendency of an application or of the scheduling of a hearing. Cf. 30-A M.R.S.A. §4403(3)(A) (Supp. 2001). 4. Reasonable Opportunity to be Heard: Those with direct interest in an application or a permit must be given a reasonable opportunity to be heard and to state their position at any hearing. Pelkey v. City of Presque Isle, 577 A.2d 341, 343 (Me. 1990); Secure Environments, Inc., 544 A.2d at 325; Mutton Hill Estates v. Town of Oakland, 468 A.2d 989, 992 (Me. 1983). For those whose interest may be directly and substantially affected, the opportunity to be heard may include, not only the capacity to state a position, but also the right to present evidence on the issues being considered. Barber v. Town of Fairfield, 460 A.2d 1001, 1006 (Me. 1983). 5. The Right to Respond: Any party with a direct and substantial interest in a proceeding also must be given a reasonable opportunity to respond to evidence or statements adverse to their position. In re Maine Clean Fuels, Inc., 310 A.2d 736, 745-48 (Me. 1973). However, this right to respond need not include cross-examination of evidence if a party is given some other way to reasonably present their objections to opposing evidence and state their position regarding the evidence. Id.; Hale v. Petit, 438 A.2d 226, 231-32 (Me. 1981). Compare 5 M.R.S.A. §9056(2) (subject to qualifications, providing for oral cross-examination in State adjudicatory proceedings). 6. Decisionmaking Based on Evidence: An application for a permit or a variance is not enough to win approval. Any application must be supported by some evidence demonstrating that the requisite criteria for approval can be met. The necessary evidence may be contained within or attached to the application, or it may be provided separately, but it must be available in any record for review. The evidentiary standard is not high. The best articulation of the administrative evidence standard is 5 M.R.S.A. §9057(2): “Evidence shall be admitted if it is the kind of evidence upon which reasonable persons are accustomed to rely in the conduct of serious affairs.” But rumors, hopes and third party hearsay may not meet even this basic standard. See Heal v. Maine Employment Security Com’n, 447 A.2d 1223, 1226 (Me. 1982). Proper evidence, even in an administrative hearing, must have some “assurance of reliability.” Id. See also, State v. James, 2002 ME 86, 13-15, 797 A.2d 732, 736-37, (addressing evidence reliability in relation to due process requirements in a probation revocation case). Where evidence to support an application is lacking or insufficient, the administrative decision will be vacated. McGhie v. Town of Cutler, 2002 ME 62, 5-7, 793 A.2d 505-06. 7. An Impartial Fact-Finder: All parties have a right to a decision by a fact-finder who is objective and impartial. Sevigny v. City of Biddeford, 344 A.2d 34, 40 (Me. 1975). See also In re Kristy Y., 2000 ME 98, 7, 752 A.2d 166, 169. That decision and fact-finding must be undertaken by individuals who have heard the evidence. Pelkey, 577 A.2d at 343. In some instances, due process standards may be met when a decision-maker is familiar with a record, even if he or she has not heard or read all of the evidence. See New England Tel. & Tel. Co., v. Public Utilities Comm’n, 448 A.2d 272, 279 (Me. 1982). However, this exception does not appear to have been extended to local decision-making. 8. Written Findings of Fact: Decisions by local boards of appeal “must include a statement of findings and conclusions, as well as the reasons or basis for the findings and conclusions, upon all the material issues of fact, law or discretion presented . . . .” 30-A M.R.S.A. §2691(3)(E) (1996). The Freedom of Access Law specifies that, when any local agency conditionally approves or denies any permit, the agency “shall set forth in the record the reason or reasons for its decision and make finding of the fact [sic], in writing, sufficient to apprise the applicant and any interested member of the public of the basis for the decision.” 1 M.R.S.A. §407(1) (1989). The same requirement applies, as a matter of due process, where any application for a permit is unconditionally approved after a hearing process where issuance of the permit was opposed by a party with an interest in the proceedings. Findings may be in a written order or stated orally if the oral statement is a statement of the decision-maker’s findings, not the views of an individual board member. Any orally stated decision must be reviewable in the published written record of the proceedings. Despite these long standing requirements of law, adequacy of administrative fact-finding remains a continuing concern and has recently resulted in several local administrative decisions being vacated. In Widewaters Stillwater Co., LLC, v. Bangor Area Citizens Organized For Responsible Development, 2002 ME 27, 9, 790 A.2d 597, 600, an application for a significant shopping center development was rejected without any written findings and with the only reasons appearing in the record being statements of individual board members reflecting their individual opinions, not any collective judgment or fact-findings regarding the application. Id., 11-12, 790 A.2d at 601. Because of the inadequate fact-finding, the local decision was vacated. Where state or local administrative agencies are required by law to make findings of fact to support a decision, and the findings are inadequate to indicate the basis for the decision and allow meaningful judicial review, the Law Court will not reach the merits of the appeal but will remand for further fact-finding. In Chapel Road Assocs. v. Town of Wells, 2001 ME 178, 10, 787 A.2d 137, 140, the Law Court discussed the issue as follows: Meaningful judicial review of an agency decision is not possible without findings of fact sufficient to apprise the court of the decision’s basis. Christian Fellowship & Renewal Ctr. v. Town of Limington, 2001 ME 16, 10-15, 769 A.2d 834, 837-39. In the absence of such findings, a reviewing court cannot effectively determine if an agency’s decision is supported by the evidence, and there is a danger of “judicial usurpation of administrative functions.” Id. 15, 769 A.2d at 839 (quoting Gashgai v. Bd. of Registration in Med., 390 A.2d 1080, 1085 (Me. 1978)). Adequate findings also “assure more careful administrative considerations, help parties plan cases for rehearing or judicial review and . . . keep agencies within their jurisdiction.” Id. (quoting Maine AFL-CIO v. Superintendent of Ins., 595 A.2d 424, 428 (Me. 1991)); see also Harrington v. Inhabitants of Town of Kennebunk, 459 A.2d 557, 561-62 (Me. 1983) (remanding matter to agency in zoning context where findings were insufficient to allow judicial review). 9. An Adequate Record for Review: Any administrative decision-making process must also provide an adequate record against which any decision may be judged. While M.R. Civ. P. 80B(e) specifies that it is the plaintiff challenger’s responsibility to provide the court with an adequate record, the Law Court decisions establish that the municipality must assure that a sufficient record is made to permit judicial review of the local agency’s decision and any procedural issues alleged to have arisen in the hearing. Sanborn v. Town of Eliot, 425 A.2d 629, 630-31 (Me. 1981). An inadequate record may result in a remand for a new hearing to develop a record suitable for judicial review. Id. In some instances, if the record is inadequate, but it is apparent that evidence was not submitted to support findings essential for an approval, the Law Court may even vacate and remand with direction that an approval be denied. See McGhie v. Town of Cutler, 2002 ME 62, 5-7, 793 A.2d 505-06 (vacating variance granted without findings or evidence required by 30-A M.R.S.A. §4353(4) (Supp. 2001) to support undue hardship finding). A Cautionary Note: Issues of adequacy of the record upon which a decision is based are separate from the question of developing evidence in the reviewing court that is not contained in the decisionmaking record. Any party to an administrative appeal who wishes to present additional evidence to the reviewing court must file a motion for “a trial of the facts.” M.R. Civ. P. 80B(d) or to “take additional evidence.” M.R. Civ. P. 80C(e). The motion must be filed within 30 days after the complaint under Rule 80B(d) or 10 days after filing of the administrative record under Rule 80C(e). If the evidence sought to be presented relates to an independent claim, such as equitable estoppel or a civil rights violation, a party must also file a motion to specify the future course of proceedings. M.R. Civ. P. 80B(i), 80C(i). That motion must be filed within 10 days after the complaint or petition for review is filed. That deadline is earlier than the deadline for motions to take additional evidence. .