tag: North Carolina Land Use Litigator: Maine Supreme Court Looks Past City Planner's "Unprofessional" Plea to Zoning Board of Appeals

Tuesday, April 7, 2015, 11:10 AM

Maine Supreme Court Looks Past City Planner's "Unprofessional" Plea to Zoning Board of Appeals

This March, the Maine Supreme Judicial Court considered a claim that an "unprofessional" email from a city planner to the city's zoning board of appeals, pleading for a specific outcome on a land use appeal, does not per se violate constitutional due process rights.

The case is Fitanides v. City of Saco, Maine, 2015 ME 32 (March 17, 2015).

The lawsuit involved the entitlement of a disc-golf course in the City of Saco, Maine, and a neighbor's efforts to prevent the entitlement.

Essentially, the City granted conditional use permits for the construction of the disc-golf course, which abutted a neighboring campground.  The owner of the campground appealed the permits to the City's zoning board of appeals.

Prior to the zoning board of appeals consideration of the appeal, the city planner for the City of Saco sent an email to the zoning board of appeals stating that: “[The appellant] has demonstrated numerous times in the past that litigation is little more than a hobby of his”.  The city planner then urged the zoning board of appeals not to “compound the injury inflicted on the applicant by [the appellant] by dragging this unfounded appeal on any longer.”

First, the Supreme Court made known its feelings about such behavior:  "Such comments from a municipal official have no place in municipal proceedings because they create a public perception of bias and may raise questions about a municipality’s willingness to consider the contentions of its citizens in a fair and responsible way."

Second, however, the Supreme Court noted that "prejudice" is the standard; the question is not "public perception".  The Supreme Court concluded:

A biased statement by a municipal officer who is not a member of the [zoning board of appeals] is not sufficient to impute bias to the [board], and [appellant] has not presented any evidence of bias harbored by any of the [board] members themselves. To the contrary, [appellant] was given ample opportunity to fully participate in the permit process and to present arguments during the [board] hearing. The [board] discussed all of the issues in [appellant's] appeal 'with a view toward making a sincere effort to fairly decide the issue before them,' and even after receiving the email, the [board] ruled in [appellant's] favor on the issue of delegation to the City Planner."

Mike Thelen practices in Womble, Carlyle's Real Estate Litigation and Land Use practice group. He regularly represents a wide variety of clients, from local governments to businesses, in land use and real estate development litigations and transactions in state and federal venues throughout North Carolina.

Follow the North Carolina Land Use Litigator on Twitter at @nclanduselaw here and on Instagram at NCLandUseLaw here.

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