Cope v. Inhabitants of the Town of Brunswick

Supreme Judicial Court of Maine · Property

PropertyZoningDelegation of authoritySpecial exceptionszoningspecial exceptionuse by exceptiondelegation

Facts

The plaintiffs applied for an exception under the Brunswick zoning ordinance to build eight six-unit apartment buildings on a twenty-one acre parcel in a suburban A residential zone. Under section 402, multi-unit apartment buildings were permitted in that zone only as an exception granted by the Board of Appeals. Section 1107 required the applicant to prove, among other things, that the use would not adversely affect the health, safety, or general welfare of the public and would not alter the essential characteristics of the surrounding property. After a public hearing, the Board found the project complied with the ordinance except for those two standards and denied the application.

Issue

Whether the Brunswick zoning ordinance is facially unconstitutional because it authorizes the Board of Appeals to deny a use by exception based on broad standards that the proposed use not adversely affect public health, safety, or general welfare and not alter the essential characteristics of surrounding property. Relatedly, whether those standards validly guide the Board's discretion in deciding whether to allow apartment buildings already generally permitted by exception in the zone.

Rule

A municipality may delegate to a zoning board discretion to determine whether legislatively specified conditions for a use have been met, but it may not delegate legislative authority without sufficiently detailed standards that guide the administrator and allow affected persons reasonably to determine their rights. For a use by exception, general standards that merely restate broad legislative judgments about health, safety, welfare, or neighborhood character are insufficient unless the ordinance provides specific guidelines identifying the particular characteristics that make an otherwise permitted use detrimental or injurious in a specific location.

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In Portland, Maine, a zoning ordinance allows assisted-living facilities in a low-density residential district only by special exception. The ordinance requires the board to approve the application if the project meets setback, parking, and lot-coverage rules, and if the board also finds the use will promote the public welfare and preserve the area's essential residential character. Nora Kim's proposal satisfies all measurable requirements, but the board denies it solely because neighbors say the facility would change the feel of the neighborhood.

If Nora challenges the ordinance on its face as an unlawful delegation of legislative authority, what is the strongest argument?

Explanation. For a use by exception, the municipality may delegate to a board the task of deciding whether specified conditions are met, but not the power to redecide the broad legislative question whether the use is generally compatible with the zone. General references to public welfare and neighborhood character, without more specific criteria, are insufficient because they leave rights to arbitrary administrative discretion. (Derived from Cope v. Inhabitants of the Town of Brunswick (n.d.).)