Rockland Plaza Realty Corp. v. City of Rockland

ALEXANDER, J.,

with whom SAUFLEY and CALKINS, JJ., join, dissenting.

[¶ 19] I respectfully dissent. This Court’s opinion and the Superior Court’s opinion interpreting the Rockland Zoning Ordinance violate both the final judgment rule and our constitutional separation of powers. In each instance, a court has provided what is, in essence, an advisory ruling invading the primary jurisdiction of a local planning board before that board has issued or denied any permit in a final administrative action.

[¶ 20] In this case, the Rockland Planning Commission has never issued a final approval (or denial) of the Ellsworth Builders Supply site plan review application. Instead, the Commission tabled both further review and any final approval of the application because Plaza Realty filed an interlocutory appeal, allowed by the Rockland Zoning Ordinance, with the Rockland Zoning Board of Appeals. The Rockland Zoning Board of Appeals decided against Plaza Realty’s challenge to certain findings and conclusions made by the Planning Commission during their consideration of the Ellsworth Builders Supply application. Plaza Realty then appealed to the Superior Court the interpretations on their interlocutory appeal offered by the Rockland Zoning Board of Appeals.4

*263[¶ 21] On appeal to the Superior Court, Ellsworth Builders Supply objected that the case was not in an appropriate posture for decision on the merits. However, the Superior Court reached the merits, upheld the Zoning Board’s interpretations, and remanded for issuance of the permit, although issuance of the permit would be a matter within the primary jurisdiction of the Planning Commission which had not yet reached that issue.

[¶22] We recently discussed why the final judgment rule is important to: (i) prevent piecemeal litigation; (ii) curtail interruption, delay, duplication and harassment; (iii) minimize interference with the decision-maker below; (iv) serve the goal of judicial economy; and (v) save the appellate court from deciding issues which may ultimately be mooted or otherwise avoid appeal altogether. See Millett v. Atl. Richfield Co., 2000 ME 178, ¶ 8, 760 A.2d 250, 253.

[¶23] The history of this case amply demonstrates the prudence of the final judgment rule. The interlocutory appeals, authorized by the Rockland Ordinance, have already resulted in a year and a half delay in consideration of the Ellsworth Builders Supply application, without any final determination on that application having been issued by the Rockland Planning Commission, the agency originally charged to hear and decide the merits of the application.

[¶ 24] Just four months ago in Herrle v. Town of Waterboro, 2001 ME 1, 763 A.2d 1159, we dismissed an appeal from a zoning board of appeal’s interpretation of a local ordinance offered to inform a local enforcement decision. Id. ¶ 12, 763 A.2d at 1162. We reasoned that the decision to enforce or not to enforce based on the zoning board’s interpretation remained a matter of discretion with the enforcement authorities. Id. ¶¶ 9-11, 763 A.2d at 1161-62. Although an appeal was authorized by the local ordinance, we concluded that the Superior Court and this Court were essentially being asked to render an advisory opinion, and we dismissed the appeal. Id. ¶ 12, 763 A.2d at 1162. See also Pepperman v. Town of Rangeley, 659 A.2d 280, 282-83 (Me.1995).

[¶25] We have long held that, absent special and narrow exceptions, we only consider appeals from final decisions or judgments. We have defined a final judgment as a judicial or administrative action which “fully decides and disposes of the whole cause leaving no further questions for the future consideration and judgment of the Court .... ” Hazzard v. Westview Golf Club, Inc., 217 A.2d 217, 222 (Me.1966); accord Musson v. Godley, 1999 ME 193, ¶ 5, 742 A.2d 479, 481. See also Digital Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863, 868, 114 S.Ct. 1992, 128 L.Ed.2d 842 (1994); Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 89 L.Ed. 911 (1945); MOORE’S FEDERAL PRACTICE § 202.2 (3d ed.2000); Field, McKusick & Wroth, Maine Civil Practice § 73.1 (1970). The final judgment rule is equally applicable to appeals from administrative decisions. See Herrle, 2001 ME 1, ¶ 9, 763 A.2d at 1161; Mechanic Falls Water Co. v. Pub. Utils. Comm’n, 381 A.2d 1080, 1087 (Me.1977); Sawin v. Town of Winslow, 253 A.2d 694, 698 (Me.1969).

[¶ 26] In Mechanic Falls Water Co.,5 we determined that findings of fact and conclusions of law reached by the Public Utili*264ties Commission, prior to issuance of a final decision, were not final judgments because, although the Commission’s determinations may have indicated what the Commission would do with respect to the pending proceeding, the rulings were not sufficient to transform the factual and legal conclusions into a final judgment. Mechanic Falls Water Co., 381 A.2d at 1087.

[¶ 27] No local decision-making process can be considered over until it is over. Planning Boards, like other decision-making bodies, are subject to change of mind and change of membership which can sometimes lead to change of result between preliminary and final decision-making. See Sawyer Envtl. Recovery Facilities, Inc. v. Town of Hampden, 2000 ME 179, ¶¶ 8-11, 760 A.2d 257, 259-60 (noting a town’s change of position in the course of consideration of a land use application).

[¶ 28] Plaza Realty may not have liked the drift of the preliminary determinations in the Planning Commission’s review, but the drift of those determinations is not ripe for our review. Courts decline to intervene in the actions of an administrative agency “unless the action has achieved, through the administrative tribunal, the stage at which it is ripe for judicial consideration.” LeVesque v. Town of Eliot, 448 A.2d 876, 878 (Me.1982). Until there is final Planning Commission approval, Plaza Realty has not been harmed “in a concrete way” necessary to create a case or controversy for decision on the merits of an appeal. Reno v. Catholic Soc. Servs. Inc., 509 U.S. 43, 57, 113 S.Ct. 2485, 125 L.Ed.2d 38 (1993); Lujan v. Nat'l Wildlife Fed’n, 497 U.S. 871, 890-92, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990).

[¶ 29] The final judgment rule is intended to support our goal of securing “the just, speedy and inexpensive determination of every action.” M.R. Civ. P. 1. It prevents piecemeal review that is prospective rather than final with the unnecessary cost, delay, and disruption of administrative or judicial proceedings inherent in such interlocutory or preliminary reviews. The City of Rockland can adopt a zoning ordinance allowing interlocutory and piecemeal reviews of decisions and delays of a final result as a matter of local policy, but a local ordinance cannot impose on the courts an obligation to undertake interlocutory reviews of local agency decision-making.

[¶ 30] As noted, the Planning Commission has never issued a final decision on this application. Now, a year and a half later, it may change its opinion regarding some of the findings or conclusions it suggested in its 1999 proceedings. Thus, any interpretation of law preceding its final order is essentially advisory. It could be issued by the city’s corporate counsel and with equal, preliminary effect.

[¶ 81] An advisory opinion tells a local board, prospectively, what they should do or how they should act. Depending on many factors, it may or may not be implicated in the final agency decision. An opinion on a final administrative action, by comparison, decides retrospectively whether the board acted legally or not. Retrospective review — the judicial function — is very different from prospective advice. Providing legal advice is an executive function. Laws or ordinances involving the judiciary in advising state or local agencies what actions they should or might take would be violative of the separation of powers language of Article III of the Maine Constitution.

[¶ 32] Courts can issue advisory opinions only where authorized by a special constitutional process pursuant to Article VI, *265section 3 of the Maine Constitution.6 Under that provision, on rare “solemn occasions,” the Governor or the Legislature may ask this Court for advisory opinions. No local ordinance or state statute can provide a similar authorization.

[¶ 33] Two decades ago, the late Justice Harry Glassman, one of Maine’s most respected judges in the last half of the twentieth century, observed that any statute authorizing the courts to issue advisory opinions “would pose serious constitutional problems since it would purport to authorize the Superior Court to render advisory rulings on hypothetical controversies.” Bar Harbor Banking & Trust Co. v. Alexander, 411 A.2d 74, 78 (Me.1980). In discussing the issue, Justice Glassman emphasized that: “We repeat that aside from opinions properly rendered on solemn occasions, see ME. CONST. Art. VI, § 3, the judiciary has no power to issue advisory rulings and the legislature cannot authorize the judicial department to pass on hypothetical questions.” Id. (citations omitted.) See also Moore’s Federal PraCtice § 205.02[1] (3d ed.2000) (noting that the case or controversy rule is a separation of powers issue intended to limit the judiciary’s power of adjudication to actual cases and controversies).

[¶ 34] Six years after Justice Glassman’s carefully considered and well-reasoned opinion, and without citing Bar Harbor Banking & Trust or discussing the separation of powers based prohibition on issuing advisory opinions, this Court indicated that, on some occasions, we could issue advisory opinions second guessing agency interpretations. See Annable v. Bd. of Envtl. Prot., 507 A.2d 592, 596 (Me.1986). That opinion may be considered an aberration because it addressed neither the separation of powers issue nor the constitutional limitation restricting advisory opinions to those specially requested on “solemn” occasions. However, in light of those important constitutional doctrines limiting the judiciary’s power to advise the state or local governments, prospectively, on actions they may take, Annable should be distinguished or overruled.

[¶ 35] The Court’s rendering advice to local governments, by providing interpretations of law before any permit has been issued from which an appeal can be taken, is an inappropriate interference by the judiciary in the affairs of local government prohibited by Article III of the Maine Constitution. Such advisory opinion-making wastes resources of the judiciary and the litigants by promoting preliminary appeals that increase cost and delay and by inviting rulings that may have no effect due to alternatives for final resolution of the local administrative action that are not controlled by whatever opinion the judiciary may issue.

[¶ 36] The Superior Court’s order to issue the permit, although the application had never been finally considered by the Planning Commission, also violated the doctrine of primary jurisdiction. The doctrine of primary jurisdiction is a discretionary doctrine to avoid judicial interference with the functions of an administrative agency by allowing the agency to make the initial determination on a matter within its statutory authority, subject to later judicial review. See Cushing v. Smith, 457 A.2d 816, 821-22 (Me.1983); Levesque, 448 A.2d at 878; Fletcher v. Feeney, 400 A.2d 1084, 1090 (Me.1979); *266State ex rel. Brennan v. R.D. Realty Corp., 349 A.2d 201, 207 (Me.1975).

[¶ 37] Because the Superior Court ordered the Planning Commission to issue the permit, even though Plaza Realty’s interlocutory appeal prevented the Planning Commission from ever reaching the point in their decision-making process where they would consider issuing or denying the permit, and because this is a matter within the primary jurisdiction of the Rockland Planning Commission, not the Court, I would vacate the decision of the Superior Court and remand to the Superior Court with direction to dismiss the appeal. There is no final administrative decision ripe for judicial review.

. The Superior Court characterized the action as an appeal from an "interpretation of the *263Rockland Zoning Ordinance and Site Plan Review Ordinance resulting in tentative approval of Ellsworth Builders Supply, Inc.’s expansion application.”

. In Mechanic Falls, the finality issue was addressed in the context of determining when a time for appeal begins to run.

. Article VI, section 3 of the Maine Constitution states: "The Justices of the Supreme Judicial Court shall be obliged to give their opinion upon important questions of law, and upon solemn occasions, when required by the Governor, Senate or House of Representatives.”