MAINE SUPREME JUDICIAL COURT                                                       Reporter of Decisions
Decision: 2015 ME 12
Docket:   BCD-14-41
Argued:   September 4, 2014
Decided:  February 5, 2015

Panel:        SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, and HJELM, JJ.*



                  THE WITHAM FAMILY LIMITED PARTNERSHIP

                                                   v.

                               TOWN OF BAR HARBOR et al.

SAUFLEY, C.J.

         [¶1] The Witham Family Limited Partnership appeals from a judgment

entered in the Business and Consumer Docket (Nivison, J.) affirming two May

2010 decisions of the Bar Harbor Appeals Board that required the Bar Harbor

Planning Board to approve a site plan for construction of a hotel on land abutting

Witham’s land in Bar Harbor. Witham did not, however, appeal from a May 2010

decision of the Planning Board, on remand from the Appeals Board, that contained

new findings and resulted in site plan approval, or from the Planning Board’s May

2012 approval of an amended site plan. Because Witham did not appeal from the

Planning Board’s May 2010 or May 2012 site plan approvals that apparently




   *
      Silver, J., sat at oral argument and participated in the initial conference but retired before this
opinion was adopted.
2

resulted in the construction of the West Street Hotel, which has been operating

since 2012, we dismiss Witham’s appeal as moot.

                               I. BACKGROUND

      [¶2]   On March 17, 2010, the Bar Harbor Planning Board denied the

application of North South Corporation, LLC, for site plan approval to construct a

102-room hotel on property that abuts land owned by the Witham Family Limited

Partnership. See Witham Family Ltd. P’ship v. Town of Bar Harbor, 2011 ME

104, ¶¶ 1-2, 30 A.3d 811. The Planning Board denied the application, finding that

the hotel would exceed the Bar Harbor Land Use Ordinance’s height requirements.

North South appealed from the Planning Board’s denial to the Bar Harbor Appeals

Board. Separately, Witham appealed from the Planning Board’s findings that

North South’s proposed project did conform with parking and street-width

requirements. Id. ¶ 5.

      [¶3] On May 3, 2010, the Appeals Board concluded that the Planning Board

had misinterpreted the Ordinance’s height requirements.      The Appeals Board

vacated the Planning Board’s denial of the application and remanded the matter to

the Planning Board with instructions to correct the erroneous application of the

Ordinance and to issue North South’s requested site plan approval. After remand,

in a decision dated May 19, 2010, the Planning Board entered additional factual

findings and legal conclusions, issued specific conditions for the project, and
                                                                                                   3

approved the proposed site plan. No appeal was taken from this decision. On May

24, 2010, the Appeals Board, in ruling on Witham’s appeal from the original denial

of site plan approval, affirmed the Planning Board’s March 17, 2010, decision with

respect to parking and street-width requirements.1

       [¶4] Witham filed a complaint in the Superior Court challenging both the

May 3, 2010, and the May 24, 2010, decisions of the Appeals Board. See M.R.

Civ. P. 80B. The court (Hancock County, Cuddy, J.) dismissed the complaint on

the ground that Witham lacked standing. Witham Family Ltd. P’ship, 2011 ME

104, ¶¶ 1, 6, 30 A.3d 811. Witham appealed to us. We concluded that Witham, an

abutter, had standing, and we vacated the court’s judgment and remanded the

matter to the Superior Court on November 1, 2011. Id. ¶¶ 1, 14-18.

       [¶5] In the spring of 2012, while this matter remained pending in the

Superior Court, North South applied to the Planning Board to amend its approved

site plan by reducing the number of hotel rooms and parking spaces. In May 2012,

the Planning Board granted North South’s application with certain conditions.

Witham did not appeal from the May 2012 decision or the issuance of any building




   1
      The Appeals Board’s issuance of separate rulings on the parties’ appeals from the March 2010
decision, which is not explained in the record, may have added to the confusion regarding the need to
appeal from the Planning Board’s May 19, 2010, decision.
4

permits or other permits.2 North South built the modified version of the hotel and

opened for business in 2012.

        [¶6] On October 21, 2013, after almost two years of inaction in the Superior

Court following our remand, the case was transferred to the Business and

Consumer Docket.            The Business and Consumer Docket justice (Nivison, J.)

promptly entered a judgment on January 14, 2014, affirming the Planning Board’s

determinations that the hotel did not violate height restrictions and complied with

the parking requirements of the Ordinance. Witham timely appealed to us. See 14

M.R.S. § 1851 (2014); M.R. Civ. P. 80B(n); M.R. App. P. 2(b)(3).



    2
      The Ordinance, and the Planning Board’s May 19, 2010, and May 2012 decisions approving the site
plan, required the separate issuance of building permits, and possibly other permits, before construction
could begin. See Bar Harbor, Me., Land Use Ordinance §§ 125-61(H), 125-77(B) (Jan. 2009). Indeed,
the Planning Board imposed certain conditions that it explicitly stated had to be met before a building
permit could be issued. The record before us does not include any evidence that building permits or other
permits were issued either in 2010 or in 2012, and neither party challenges the Town of Bar Harbor’s
actions related to any required permits. Because neither party introduced any permits or made any
arguments in the administrative or judicial proceedings related to permitting, we do not address the effect
of any permitting decisions on Witham’s appeal to us.

   We note, however, that this case stands as an example of the confusion that may arise when a party
must determine the proper administrative decision or decisions from which to appeal, a determination that
may—as with timeframes for filing appeals—depend “on the nature of the local government action and
whether the appeal is taken from a planning board decision [or] board of appeals decision.” Beckford v.
Town of Clifton, 2014 ME 156, ¶ 27, --- A.3d --- (Saufley, C.J., concurring). The Ordinance in the matter
before us is not instructive on this question. See Bar Harbor, Me., Land Use Ordinance § 125-103 (Jan.
2009) (authorizing an appeal “within 30 days of any [written] decision or enforcement action by a
municipal body or official who or which interprets” the Land Use Ordinance); see also Bar Harbor, Me.,
Land Use Ordinance §§ 125-77 to -80 (Jan. 2009) (providing, as part of the Land Use Ordinance, for a
permitting process that may result in the issuance of a certificate of occupancy). Parties affected by
municipal decision-making would benefit from efforts by the Legislature, or individual municipalities, to
specify how and when to appeal from municipal decisions. See Beckford, 2014 ME 156, ¶ 29, --- A.3d ---
(Saufley, C.J., concurring).
                                                                                     5

                                 II. DISCUSSION

      [¶7] We conclude that the appeal before us is moot because Witham did not

appeal from the Planning Board’s May 19, 2010, decision approving the proposed

site plan or from the Planning Board’s May 2012 approval of an amended site plan.

“Courts cannot issue opinions on questions of fact or law simply because the issues

are disputed or interesting. Courts can only decide cases before them that involve

justiciable controversies.” Lewiston Daily Sun v. Sch. Admin. Dist. No. 43, 1999

ME 143, ¶ 12, 738 A.2d 1239.         “Justiciability requires a real and substantial

controversy, admitting of specific relief through a judgment of conclusive

character . . . .” Id. (quotation marks omitted). “If a case does not involve a

justiciable controversy, it is moot,” id. ¶ 13, because there are insufficient

“practical effects flowing from the resolution of the litigation to justify the

application of limited judicial resources,” Clark v. Hancock Cnty. Comm’rs, 2014

ME 33, ¶ 11, 87 A.3d 712 (quotation marks omitted). Witham’s appeal is moot

because a ruling on the superseded decision would not produce “sufficient practical

effects . . . to justify the application of limited judicial resources.” Id. (quotation

marks omitted).

      [¶8]    Even if the Planning Board had correctly initially denied the

application for site plan approval on March 17, 2010, the Planning Board’s

May 19, 2010, decision approving the site plan contained a new finding and
6

imposed specific conditions. That approval remains in effect, as does the Planning

Board’s later approval of the amended site plan in May 2012. No appeal was taken

from either of those decisions, and the hotel is now fully operational.

        [¶9] Although there are exceptions to the mootness doctrine, see Lewiston

Daily Sun, 1999 ME 143, ¶ 17, 738 A.2d 1239, none of them applies here because

the collateral consequences that would flow from the decision are not “more than

conjectural and insubstantial consequences,” Sordyl v. Sordyl, 1997 ME 87, ¶ 6,

692 A.2d 1386 (quotation marks omitted); the appeal does not present an issue of

great public concern, see Lewiston Daily Sun, 1999 ME 143, ¶ 17, 738 A.2d 1239;

and the issues in this case are not so fleeting that, though capable of repetition, they

evade review, see id. Because the controversy on appeal is moot and no exception

to the mootness doctrine applies, we dismiss the appeal.3

        The entry is:

                        Appeal dismissed.




    3
      Even if we decided, given the unusual procedural posture of this case, that we should reach the
substantive issues raised on appeal, we agree with the court that (1) the proposed building does not violate
the height restrictions of the Ordinance because a rooftop pool with a deck does not constitute an
additional story of habitable space, see Bar Harbor, Me., Land Use Ordinance §§ 125-21(G)(2),
125-108(A) (Jan. 2009); Merriam-Webster’s Collegiate Dictionary (2012) (defining “story” as “the space
in a building between two adjacent floor levels or between a floor and the roof” and “habitable” to mean
“capable of being lived in: suitable for habitation”), and (2) the proposed parking plan did not violate the
parking requirements of the ordinance, see Bar Harbor, Me., Land Use Ordinance §§ 125-67(B)(4)(b),
(D)(3)(b)(2), 125-109(TRANSIENT ACCOMMODATIONS)(H) (Jan. 2009).
                                                                                    7

On the briefs:

        John C. Bannon, Esq., and John B. Shumadine, Esq., Murray, Plumb &
        Murray, Portland, for appellant The Witham Family Limited Partnership

        William B. Devoe, Esq., P. Andrew Hamilton, Esq., and Jonathan A. Pottle,
        Esq., Eaton Peabody, Bangor, for appellee North-South Corporation

        The Town of Bar Harbor did not file a brief


At oral argument:

        John C. Bannon, Esq., for appellant The Witham Family Limited Partnership

        P. Andrew Hamilton, Esq., for appellee North-South Corporation



Business and Consumer Docket docket number AP-13-06
FOR CLERK REFERENCE ONLY
