Thomas v. City of South Portland

768 A.2d 595 (2001)

2001 ME 50

Leslie E. THOMAS v. CITY OF SOUTH PORTLAND and City of South Portland Planning Board.

Supreme Judicial Court of Maine.

Argued: March 8, 2001.

Decided: March 26, 2001.

Joseph R. Mazziotti, Esq., (orally), Portland, for plaintiff.

Mary K. Kahl, Esq., (orally), Corporation Counsel, South Portland, for defendant.

Panel: WATHEN, C.J., and CLIFFORD, RUDMAN, DANA, ALEXANDER and CALKINS, JJ.

RUDMAN, J.

[¶ 1] The City of South Portland, and its Planning Board, appeal from a judgment entered in the Superior Court (Cumberland County, Mills J.) concluding that Leslie E. Thomas had standing to appeal from the South Portland Planning Board's approval of the Stop 'n Shoppe Fuel Mart, Inc.'s site plan. We remand to the Superior Court with instructions to dismiss Thomas's appeal.

[¶ 2] "Direct appeals from a decision of a planning board to the Superior Court on issues of zoning are allowed only if the municipal ordinance so provides." Hodsdon v. Town of Hermon, 2000 ME 181, ¶ 3, 760 A.2d 221, 222 (citing 30-A M.R.S.A. § 4353(1) (1996)).[1] The South Portland zoning ordinance makes no provision for a direct appeal to the Superior Court. Thomas failed to exhaust his administrative remedies before appealing directly to the Superior Court from the Planning Board's decision. We, therefore, vacate the judgment below.[2]

The entry is:

Judgment vacated. Remand to the Superior Court with instructions to dismiss Thomas's appeal for failure to exhaust his administrative remedies.

[1] We note that the Superior Court did not have the benefit of our holding in Hodsdon v. Town of Hermon when it reached its decision in this case.

[2] We considered, sua sponte, whether Thomas's direct appeal to the Superior Court was appropriate in this case, as neither the appellee nor the appellant raised this issue on appeal. See Walsh v. City of Brewer, 315 A.2d 200, 210-211 (Me.1974).