Summary
The Maine Supreme Judicial Court reviewed a challenge to the Town of York Board of Appeals’ approval of a wireless communications facility. The court held that the neighbors waived their fencing-compliance argument but preserved their challenge to the facility’s setback compliance. Because the Board’s findings did not identify the point from which setbacks were measured or establish compliance with the sixty-five-foot requirement, the court vacated the judgment and remanded for further findings.
Topics
Practice areas
Questions Presented
- Whether the neighbors preserved their argument that the wireless communications facility failed to comply with the Ordinance's perimeter-fencing requirement.
- Whether the Board's findings were sufficient to permit appellate review of compliance with the Ordinance's sixty-five-foot setback requirement.
- What relief was required when the Board failed to make sufficient findings regarding the setback requirements.
Holdings
- The neighbors waived their argument that the project lacked the type of perimeter fencing required by the Ordinance because they did not raise that issue in their administrative appeal, at either public hearing, or in their written submission to the Board.
- The Board's findings were insufficient for appellate review because the Board did not identify the point or line from which the setback was measured or find whether neighboring residential structures were more than sixty-five feet from that point or line.
- When the Board's decision lacks findings sufficient for appellate review, the judgment must be vacated and the matter remanded to the Superior Court with instructions to remand to the Board for further findings.
Key quotations
“In order to preserve an issue for appellate review, a party must timely present that issue to the original tribunal; otherwise, the issue is deemed waived.” (¶ 7)
“It is black letter law that meaningful judicial review of a decision requires that the decision contain findings of fact sufficient to apprise the reviewing court of the decision’s basis . . . .” (¶ 13)
Factual background
The York Planning Board approved an application to install six wireless antennas on top of a York Water District water tower. Drew and Molda challenged the project under York's Wireless Communications Facilities Ordinance, asserting that it violated fencing and setback requirements for neighboring residential structures. After the neighbors raised the setback issue at the administrative hearing, the Board requested an updated survey, received a revised site plan, and denied the appeal. The Board's written decision stated only that it was satisfied with the updated information and did not identify the point from which setbacks were measured or find that the neighboring residences were at least sixty-five feet away.
Procedural history
The York Planning Board approved New Cingular Wireless PCS, LLC's application to install six antennas on a York Water District water tower. Janet Drew and Linda Molda appealed to the York Board of Appeals, which held a de novo hearing and denied the appeal. The York County Superior Court affirmed the Board's decision, and the neighbors appealed to the Maine Supreme Judicial Court. The Supreme Judicial Court vacated the judgment and remanded for further proceedings because the Board's setback findings were insufficient for appellate review, while holding that the fencing argument was waived.
Remand instructions
The Superior Court must remand the matter to the Town of York Board of Appeals. The Board must make factual findings regarding whether the project meets the Ordinance's setback requirements and explain the bases for those findings, including where setback measurements begin and whether any residential structures are within the Ordinance's setback distance.