For Want of Findings: Administrative Appeal Lessons from the Law Court

Posted by: Archipelago Law in Maine Court Decisions on March 8, 2024

By Keith Richard, Esq. and Richard Qualey, Esq.

Published in the MAINE LAWYERS REVIEW – November 9, 2023

In the recent Law Court decision Murray v. City of Portland, the Court once again remanded a government agency decision for lack of sufficient factual findings.  2023 ME 57. The case follows an increasing trend that began in 2021, when the court issued three decisions in administrative appeals that followed a similar disposition and reasoning.  

Attorneys that appear before, or on behalf of, state and municipal decision makers should be mindful of the sufficiency of the factual findings in decisions, regardless of whether they would be bringing or defending an appeal.  Particularly where the matter is controversial or contested, and an appeal is likely, the parties must ensure that decisions are both legal and reviewable.  More detailed and supported adjudication will not only promote transparency but also judicial economy by avoiding multiple appeals and a protracted path to finality.  As this recent remand trend illustrates, the case may travel to the highest court only to be sent back without a resolution—a very costly and inefficient result for the parties.

The recent trend began with Fair Elections Portland, Inc. v. City of Portland which considered whether a petition to implement public campaign financing in City elections constituted a charter “amendment” that could be put directly to voters, or a charter “revision” that could only be submitted to the voters upon recommendation of a charter commission.  2021 ME 32, 252 A.3d 504.  The Court, drawing on the relevant statutes and case law from other jurisdictions, held that the City Council’s determination of whether a proposal was an “amendment,” or a “revision” must be accompanied by a statement of its basis in law and fact to allow for meaningful judicial review.  Because the record contained no such statement, the Court vacated the decision of the Superior Court and remanded to the City for further proceedings.  Attorney efforts on appeal to extrapolate findings and reasoning from City Councilor statements during deliberations and the Council’s votes were held inadequate. 

Narowetz v. Board of Dental Practice concerned a Board complaint and the resulting discipline imposed on a dentist for allegedly failing to appropriately respond to a patient records request.  2021 ME 46, 259 A.3d 771.  The Court observed that the basic facts, as well as the ultimate facts and conclusions by a decision maker are an “indispensable prerequisite to effective judicial review.”  Id. ¶ 17.  The findings issued by the Board, which summarized all the evidence but made no firm conclusions, left the Court questioning what evidence and testimony the Board relied on in its decision, and what the factual basis was for the Board’s conclusion—particularly the discipline imposed.  These defects hampered the Court’s ability to conduct meaningful judicial review, and the Court again vacated the decision of the Superior Court and remanded to the Board for further proceedings.

In LaMarre v. Town of China, the Court considered an appeal from a decision of the Town’s Code Enforcement Officer (CEO) regarding whether a trailer constituted a “recreational vehicle” permitted under the applicable ordinances.  2021 ME 45, 259 A.3d 764.  The Court concluded that the record lacked sufficient factual findings, including the basis for the CEO’s conclusion and the evidence he relied on, to review the decision.  The Court again vacated the decision of the Superior Court and remanded to the Town for further proceedings, including guidance regarding the applicable legal standards for the CEO’s findings and conclusions on remand.  The Court’s guidance clearly hinted at a likely result, but unfortunately for the parties, a result that would not be final until an undetermined date in the future.  The following year, in 29 McKown LLC v. Town of Boothbay Harbor, the Court reviewed a CEO determination and quoted Lamarrepractically verbatim in reaching the identical result—vacate and remand.  2022 ME 38, ¶ 13, 277 A.3d 364.

Finally, Murray v. City of Portland involved a multi-unit residential development that the City of Portland Planning Board approved and neighbors appealed.  2023 ME 57.  After the Superior Court affirmed, the Law Court vacated and remanded for the Board to issue further factual findings.  The Court noted that the Board’s summary finding incorporating a planning staff memo and concluding that applicable code standards were met was insufficient.  In particular, the Court was unable to review the City’s determination that a retaining wall was not a “structure” subject to setbacks or to review the City’s calculation and application of height restrictions because no relevant factual findings were included, making meaningful judicial review again impossible. 

Attorneys sometimes mistakenly assume that because the issues and arguments are novel or weighty that the Law Court will necessarily reach the merits, or that deference conferred on agency factual determinations will overcome any gaps or deficiencies in the decision on appeal.  To the contrary, the Court resists reviewing—much less affirming—legal interpretations and conclusions without sufficient factual findings.  This approach is sound where the factual basis could impact the Court’s analysis and ultimate conclusion in the appeal.  It is incumbent on attorneys representing municipalities, developers, and concerned residents to be mindful of these issues and ensure that you litigate one appeal rather than two.