Citation. 464 A.2d 223, 1983 Me.
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The Plaintiffs, Mitchell and David Cope (Plaintiffs), appealed from a decision that denied a zoning exception to build eight (8) multi-unit apartment buildings in Brunswick, Maine. Under the zoning ordinance, such an exception could only be granted upon determination by the Brunswick Board of Zoning Appeals (the Board) of certain factors concerning health, safety and welfare and the adverse affect on the characteristics of surrounding property.
Synopsis of Rule of Law.
An ordinance requiring a Board of Zoning Appeals to make determinations of health, safety, welfare requirements of community and to assess the characteristics of the surrounding property when making decisions to grant zoning exceptions was an unconstitutional delegation of legislative authority and thus was facially unconstitutional
Facts.
The Board found that the apartment buildings seeking the exception would endanger the safety of the public and drastically change the characteristics of the neighborhood. The Board also found that a small quiet area would be transformed into heavily traveled area. The ordinance allowing the exceptions required the Board to consider affect on health, safety and welfare (section 2) and devaluation of the essential characteristics of the surrounding property (section 4).
Issue.
Does the ordinance improperly delegate the Board authority to permit the use of the land for construction of the apartment building?
Held.
The Brunswick Zoning ordinance was an unconstitutional delegation of legislative power. An ordinance that grants a broad delegation of power to make or not make zoning exceptions based on a Zoning Board’s assessments of health, safety, welfare and essential property characteristics could lead to selectivity in enforcement of the law. It also posed the danger that the Board would apply the ordinance discriminatory manner and the provisions requiring consideration of health, safety and welfare and character of the neighborhood were more properly addressed by the legislature. Therefore, sections 2 (health, safety and welfare) and section 4 (characteristics of surrounding property) were unconstitutional delegations of legislative power to the Brunswick Zoning Board.
Discussion.
An exception, to be granted by the Brunswick Zoning Board, was a conditional use to be allowed only after a legislative determination that is made that such a use would not be detrimental or injurious to the zone. The Supreme Court found that legislature must make the legislative determination that multi-unit apartments would be permissible. The sections that allowed the Board to take its own assessment into consideration made the ordinance an unconstitutional delegation of power.
