Defective Notice Is Curable

Training for: Legal Notes

A recent Maine Supreme Court decision illustrates that even if required notice of a land use proceeding is not given, such procedural defects can be cured and the decision salvaged.

In Bryant v. Town of Wiscasset, 2017 ME 234, abutters appealed the planning board’s site plan approval of a fireworks storage building to the appeals board. The appeals board denied the appeal but remanded the case to the planning board for further findings. The planning board then held two hearings but failed to give the abutters personal notice of either. The abutters again appealed, claiming a violation of their right to procedural due process and demanding a reversal of the planning board’s approval.

Despite the pending appeal, the planning board held yet another hearing after giving the abutters personal notice. The board reaffirmed its approval after hearing the abutters’ objections for the second time. According to the Law Court, this remedial action by the planning board, and the resulting lack of prejudice to the abutters, cured the procedural defect. The Court accordingly upheld the board’s decision.

The Bryant decision is also noteworthy because it upholds the right of a board member to represent himself if he has a conflict of interest, provided he has declared his interest and recused himself from voting. (The applicant in this case was also a member of the planning board.) The Court wrote that any other reading of the conflict of interest law would deprive board members of the right to present their own applications and “would discourage capable people from serving as members of municipal boards.” (By R.P.F.) n

A recent Maine Supreme Court decision illustrates that even if required notice of a land use proceeding is not given, such procedural defects can be cured and the decision salvaged.

In Bryant v. Town of Wiscasset, 2017 ME 234, abutters appealed the planning board’s site plan approval of a fireworks storage building to the appeals board. The appeals board denied the appeal but remanded the case to the planning board for further findings. The planning board then held two hearings but failed to give the abutters personal notice of either. The abutters again appealed, claiming a violation of their right to procedural due process and demanding a reversal of the planning board’s approval.

Despite the pending appeal, the planning board held yet another hearing after giving the abutters personal notice. The board reaffirmed its approval after hearing the abutters’ objections for the second time. According to the Law Court, this remedial action by the planning board, and the resulting lack of prejudice to the abutters, cured the procedural defect. The Court accordingly upheld the board’s decision.

The Bryant decision is also noteworthy because it upholds the right of a board member to represent himself if he has a conflict of interest, provided he has declared his interest and recused himself from voting. (The applicant in this case was also a member of the planning board.) The Court wrote that any other reading of the conflict of interest law would deprive board members of the right to present their own applications and “would discourage capable people from serving as members of municipal boards.” (By R.P.F.) n