Newfield Sand v. Town of Newfield

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2025 ME 45
Docket: BCD-24-384
Argued: April 8, 2025
Decided: June 3, 2025

Panel: STANFILL, C.J., and MEAD, HORTON, CONNORS, DOUGLAS, and LIPEZ, JJ.

NEWFIELD SAND

v.

TOWN OF NEWFIELD

HORTON, J.

[¶1] Newfield Sand appeals from a judgment entered in the Business and

Consumer Docket (McKeon, J.) affirming the Town of Newfield Planning Board’s

issuance of a conditional use permit for Newfield Sand’s mineral-extraction

operations. Newfield Sand challenges provisions in the permit providing that

“[t]he Board reserves the right to re[e]valuate” the permit conditions governing

the hours of operation and the maximum number of truck trips per day and per

hour. We agree with Newfield Sand that the applicable ordinance did not

authorize the Planning Board to retain jurisdiction after approving a

conditional use permit and therefore vacate the judgment with an instruction

for the court to remand the matter to the Planning Board for further

consideration.
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I. BACKGROUND

[¶2] The relevant facts are drawn from the Planning Board’s findings,

which are supported by the administrative record. See Gensheimer v. Town of

Phippsburg, 2005 ME 22, ¶ 17, 868 A.2d 161.

[¶3] Newfield Sand is a Maine corporation engaged in mineral extraction.

Newfield Sand owns a nearly three-hundred-acre parcel in the Town of

Newfield. In 1994, the Planning Board granted a permit to Douglas Woodward,

who owned the property at the time, to operate a five-acre gravel-extraction

operation on the property. The permit included two conditions of approval that

are relevant here: (1) operations could occur only Monday through Friday,

excluding holidays, from 6:30 a.m. to 5:30 p.m.; and (2) truck trips were limited

to seventy per day, with the Board reserving “the right to revise if [a] hazardous

situation occurs.” In 1997, Woodward sold the property to R. Pepin and Sons,

Inc. Newfield Sand acquired the property from R. Pepin & Sons in May 1998.

[¶4] In 2015, Newfield Sand sought an after-the-fact variance approval

from the Department of Environmental Protection to operate a working pit

larger than ten acres. When the Department granted the variance, the existing

open area of the pit was about twenty-five acres, though the intention was to
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keep an open pit area of only nineteen acres—the area currently open on the

property.

[¶5] In May 2022, Newfield Sand submitted an application for the

Planning Board to issue a conditional use permit. As required by the ordinance,

Newfield Sand attached exhibits detailing its plans to expand its

mineral-extraction operations to operate on thirty acres of open pit at a time

and to extract minerals from a total of about eighty-five acres. See Newfield,

Me., Land Use and Zoning Ordinance art. VIII, §§ 1-2 (June 14, 2022). Newfield

Sand proposed that the permit retain the limit of seventy truck trips daily.

[¶6] The Planning Board considered the application at multiple

meetings, beginning in August 2022, and viewed the property in November

2022. It held a public hearing on the application on December 7, 2022. See id.

art. VIII, § 2(B).

[¶7] On November 29, 2023, the Planning Board approved the

application subject to multiple conditions. See id. art. VIII, § 5. Among those

conditions were the following, with the contested provisions italicized:

2. The Applicant’s hours of operation shall be limited to
6:30 am-5:30 pm, Monday-Saturday, excluding Holidays.
The Applicant shall only be allowed to operate one machine
on the Property on Saturdays. The Board reserves the right to
re[e]valuate the Applicant’s hours of operation in the event
that the CEO presents evidence, at a duly noticed public
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hearing in which the Applicant is permitted to present
evidence and object to any evidence presented by the CEO, to
the Board that the Applicant’s operations have resulted in a
significant adverse impact upon the value or quiet possession
of surrounding properties greater than would normally occur
from such a use in the zoning district in which the Property is
located.

3. The daily truck trips from the Property shall be limited to
seventy (70) trips per pay, and no more than seven (7) truck
trips may occur in any one hour. The Board reserves the right
to re[e]valuate this truck trip limitation in the event that the
CEO presents evidence, at a duly noticed public hearing in
which the Applicant is permitted to present evidence and
object to any evidence presented by the CEO, to the Board that
truck traffic travelling to and from the Property has resulted
in a significant adverse impact upon the value or quiet
possession of surrounding properties greater than would
normally occur from such a use in the zoning district in which
the Property is located.

(Emphasis added.) The Planning Board imposed these conditions despite

Newfield Sand’s opposition to any condition that would allow the Board to

modify the permit after issuing it.

[¶8] Newfield Sand timely filed its complaint for review of governmental

action in the Superior Court on December 18, 2023. See id. art. XI, § 6;

M.R. Civ. P. 80B(b). The case was accepted for transfer to the Business and
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Consumer Docket. The court affirmed the Planning Board’s decision. Newfield

Sand timely appealed. M.R. App. P. 2B(c)(1).1

II. DISCUSSION

[¶9] Newfield Sand argues that although the Planning Board may issue a

permit with conditions, it may not thereafter change those conditions or revoke

the permit. It contends that nothing in the ordinance authorizes the Planning

Board to monitor the activity of a conditional-use-permit holder or modify the

permit after it has been issued, and that because the ordinance does not supply

a standard for modifying a permit upon a showing of a “significant adverse

impact,” the Board is improperly legislating by adopting a standard and process

not contained in the ordinance.

1 Although the Town argues that Newfield Sand’s challenge to the provision allowing reevaluation

of the daily truck trip limit cannot be raised in the current appeal because there was no appeal from
the reservation of the right to revise in the 1994 permit, Newfield Sand is not contesting the 1994
permit’s condition reserving the right to revise “if [a] hazardous situation occurs.” Cf. Town of
Boothbay v. Jenness, 2003 ME 50, ¶ 21, 822 A.2d 1169 (“If a party does not challenge an administrative
order through an available appeal that contains the essential elements of adjudication, the failure to
do so may have preclusive effect upon any subsequent litigation on identical issues and claims dealt
with in the administrative order.” (emphasis added and quotation marks omitted)). Newfield Sand
is instead contesting a condition in a new conditional use permit that retains jurisdiction in the
Planning Board to adjust the limit on daily truck trips upon a showing by the code enforcement officer
of a specified significant adverse impact. This condition could not have been challenged in 1994
because it is contained in a new permit and differs from the reservation of right in the 1994 permit.
Moreover, the applications yielding the permits were themselves different, with the most recent
application seeking approval for more extensive use. See Town of Ogunquit v. Cliff House & Motels,
Inc., 2000 ME 169, ¶ 13, 759 A.2d 731.
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[¶10] The Town argues that although there is no explicit authorization

of a post-approval modification of conditions, the ordinance does not have to

explicitly grant that authority; instead, the authority derives from a necessary

inference that the Planning Board may impose such conditions to exercise its

full powers. The Town also notes that we previously affirmed the revocation of

an issued permit for failure to satisfy conditions in Bushey v. Town of China,

645 A.2d 615, 617 (Me. 1994).

[¶11] Our review of Newfield Sand’s challenge to the scope of the

Planning Board’s authority requires the interpretation of the Town’s ordinance.

“The interpretation of an ordinance is a question of law that we review de novo,

with no deference to the local board’s interpretation.” Stiff v. Town of Belgrade,

2024 ME 68, ¶ 12, 322 A.3d 1167.

[¶12] The ordinance at issue here gives the Planning Board the authority

to decide whether to issue a conditional use permit: “A building, structure or

parcel of land may be employed for a conditional use if the use is specifically

listed in the regulations governing the zoning district in which the use is

proposed, and if a conditional use permit is approved by the Planning Board.”

Newfield, Me., Land Use and Zoning Ordinance art. VIII, § 1. “A conditional use

may be granted by the Planning Board only in the event that the applicant has
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established to the satisfaction of the Planning Board that,” among other things,

“[n]either the proposed use nor the proposed site upon which the use will be

located is of such a character that the use will have significant adverse impact

upon the value or quiet possession of surrounding properties greater than

would normally occur from such a use in the zoning district.” Id. art. VIII, § 3(A).

The Planning Board may attach conditions to its approval of a
conditional use permit. These conditions may include, but not
limited to, such requirements as[:]

A. Street improvements;
B. Access restrictions;
C. Hours of use;
D. Buffering and screening;
E. Utility improvements;
F. Performance guaranties for required off-site improvements.

Id. art. VIII, § 5. “Provided all conditions and standards of approval are met, a

conditional use permit shall expire if there has been inactivity for two years

unless activity can be shown by tax returns, licenses, permits, etc.” Id. art. VIII,

§ 7.

[¶13] Although the Planning Board does have a role in the process for

amending the zoning ordinance, its role in that process is to hold a public

hearing and submit the matter to the legislative authority.2 See id. art. XI, § 4

2 Neither party has provided a town charter or any other legal authorities governing the
organization of the Town. Newfield Sand indicates in its brief that the legislative authority of the
Town is exercised by the residents at town meetings.
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(“No land use regulation or amendment thereof or change in the Official Land

Use Map shall be adopted until after the Planning Board has held a public

hearing thereon at least ten days before it is submitted to the legislative body

for consideration.”).

[¶14] The parties agree that the ordinance does not explicitly provide a

procedure for the Planning Board to modify an issued permit. The Town argues

that the ordinance does, by necessary inference, confer authority on the

Planning Board to establish such a procedural mechanism, citing authority that

draws necessary inferences from statutes—not ordinances—that create public

bodies. See Hallissey v. Sch. Admin. Dist. No. 77, 2000 ME 143, ¶ 11, 755 A.2d

1068 (“[P]ublic bodies . . . may exercise only that power which is conferred

upon them by law. The source of that authority must be found in the enabling

statute either expressly or by necessary inference as an incidence essential to

the full exercise of powers specifically granted.” (quotation marks omitted)).

We apply the same principles in construing the ordinance because the Town

exercised its legislative power to adopt the ordinance, as it is authorized by

statute to do, and its placement of authority in a Planning Board mirrors the

Legislature’s placement of authority in a public body through a statute.

See 30-A M.R.S. § 3001 (2025) (“Any municipality, by the adoption, amendment
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or repeal of ordinances or bylaws, may exercise any power or function which

the Legislature has power to confer upon it, which is not denied either

expressly or by clear implication, and exercise any power or function granted

to the municipality by the Constitution of Maine, general law or charter.”);

see also 30-A M.R.S. §§ 4351 to 4364-C (2025) (governing municipal land use

regulation);3 Me. Const. art. VIII, pt. 2 (governing municipal home rule

authority).

[¶15] In determining whether to issue a permit, the Planning Board is

required to consider, among other things, whether a proposed use would “have

significant adverse impact upon the value or quiet possession of surrounding

properties greater than would normally occur from such a use in the zoning

district.” Newfield, Me., Land Use and Zoning Ordinance art. VIII, § 3(A).

Conditions may be imposed to prevent such adverse impacts. See id. art. VIII,

§ 5.

[¶16] The ordinance does not, however, explicitly or by necessary

implication, authorize the Planning Board to reevaluate or modify a condition

after it issues a permit, nor does it provide for continuing Planning Board

3 Although some amendments to these statutes took effect after the Planning Board’s decision,
see, e.g., P.L. 2023, ch. 536, § 1 (effective Aug. 9, 2024) (codified at 30-A M.R.S. § 4364-C(3) (2025)),
the amendments are not material to our discussion, and we cite the statutes currently in effect.
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jurisdiction over the permit. It also does not authorize what would essentially

be a delayed reopening of the evidentiary record on a permit application.

[¶17] Our caselaw suggests that any conditions imposed must be

authorized by the enabling ordinance and defined clearly when a permit is

granted so that the permittee understands what is required. See Cobbossee Dev.

Grp. v. Town of Winthrop, 585 A.2d 190, 193-94 (Me. 1991); Total Quality, Inc. v.

Town of Scarborough, 588 A.2d 283, 285 (Me. 1991). Permits and ordinances

lacking those attributes may be vulnerable to challenge for vagueness or

excessive delegation of the municipality’s legislative authority. Cf. Doane v.

Dep’t of Health & Hum. Servs., 2021 ME 28, ¶ 17, 250 A.3d 1101.

[¶18] The decisions cited by the Town do not support its argument that

the Planning Board has actual or implied authority to include conditions

allowing it to reevaluate and potentially rewrite permit requirements and

limitations. In Bushey, for example, we affirmed the revocation of a permit

when the municipal board of appeals concluded, on appeal by a neighbor, that

permit conditions for a kennel had not been satisfied within the prescribed

time. Bushey, 645 A.2d at 617-19. Those conditions were specific and

established in the permit: “the off-site disposal of solid waste, the installation

of a buffer for noise control, and the installation of a mechanical dog silencer
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device.” Id. at 617. Here, the challenged portions of the permit render Newfield

Sand’s obligations uncertain because the permit limits are subject to change at

any time if the code enforcement officer initiates a proceeding for the Planning

Board to revisit the permit.

[¶19] The Town also cites S.D. Warren Co. v. Bd. of Env’t Prot., 2005 ME

27, ¶ 23, 868 A.2d 210, for the proposition that the Planning Board was entitled

to include conditions allowing the reopening of the record for a reevaluation of

the permit standards for operating hours and truck trips. In S.D. Warren, we

said, “The [Board of Environmental Protection (BEP)] included conditions in its

certification that permit the certification to be reopened and the conditions

amended following notice and hearing. The inclusion of these ‘reopeners’ is

permissible under both state and federal law.” Id. We reasoned that, because

the Board of Environmental Protection had express state statutory authority

both to issue certain federal environmental certifications and to enforce Maine

water quality standards, the use of “reopeners” was essential to the Board’s full

exercise of the powers granted to it. Id. ¶ 28. “This authority is essential

because if the conditions are not as effective as planned, the water quality

standards will not be met and the BEP’s goal to restore and maintain the

chemical, physical and biological integrity of the State’s waters . . . will not be
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achieved” during the license’s forty-year term. Id. (quotation marks omitted).

The conditions imposed here are different because (1) the Planning Board lacks

the authority to enforce permits or performance standards, (2) a forty-year

discharge license is not the equivalent of a conditional use permit with no

definite limit on duration once the use is commenced, and (3) the Planning

Board’s reopeners are not tied to readily measurable criteria akin to water

quality standards.

[¶20] This case also differs from the situation presented in Fitanides v.

City of Saco, 2015 ME 32, ¶ 14, 113 A.3d 1088, in which the applicable ordinance

allowed the planning board to attach such conditions as it found “necessary to

further the purposes of th[e] Ordinance.” (Quotation marks omitted.) The

planning board issued a permit with a condition delegating authority to the City

Planner to consider minor deviations from the approved plans to ensure that

those changes would be subject to municipal review for compliance with zoning

and building laws. Id. We held that the condition was authorized and noted

that the condition imposed was “consistent with other provisions of the

Ordinance that delegate[d] similar tasks to that official.” Id. ¶ 15. Here, in

contrast, the Planning Board conferred continuing jurisdiction on itself to

modify major conditions limiting the hours of operation and the number of
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daily truck trips—conditions that are fundamental to the proposed use and do

not represent minor deviations from the permit. Cf. id. ¶ 14.

[¶21] Although we have acknowledged the authority of boards to

reconsider permitting decisions, see Cardinali v. Town of Berwick, 550 A.2d 921,

921 (Me. 1988) (“Planning boards and other agencies have the inherent power

to reconsider actions previously taken.”), we have generally held that

procedures for such reconsideration must be officially adopted, see id. at

923-24 (holding that in the absence of an adopted rehearing process, a decision

of a municipal planning board was final and appealable when it was made, not

after further proceedings flowing from an informal request for rehearing). We

have upheld a planning board’s authority to reconsider a decision in the

absence of an adopted process when the board initially denied the permit, then

reconsidered and approved a modified proposal. See Jackson v. Town of

Kennebunk, 530 A.2d 717, 717-18 (Me. 1987). Nothing in our opinion endorses

an open-ended, post-approval reconsideration period—not provided for by

ordinance—as contemplated by the conditions imposed here.

[¶22] In a pair of cases from other states addressing issues similar to

those presented here, each court rejected conditions that provided for

continuing administrative jurisdiction over matters when the authorizing
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legislation did not provide for the retention of jurisdiction. See Appeal of N.H.

Div. of State Police, 286 A.3d 170, 178 (N.H. 2022); In re Treetop Dev. Co. Act 250

Dev., 143 A.3d 1086, 1091 (Vt. 2016). The New Hampshire Supreme Court

considered a challenge to a state agency’s imposition of a condition allowing it

to modify a decision for good cause. Appeal of N.H. Div. of State Police, 286 A.3d

at 172-73, 178. The court held that the agency had “exceeded its statutory

authority by attempting to retain continuing jurisdiction over th[e] matter”

when “[n]othing in the statutory or regulatory scheme provide[d it] with the

authority to exercise ongoing jurisdiction over its decisions.” Id. at 178.

[¶23] The Vermont Supreme Court reviewed a condition that reserved

continuing jurisdiction over a stormwater system by providing “a mechanism

to continuously amend the permit as necessary to redress future . . . violations

or failures under the terms of the approved project by adding additional

conditions.” In re Treetop Dev. Co. Act 250 Dev., 143 A.3d at 1091. The court

held, “Not only does this exceed the Commission’s authority, which is limited to

considering permit applications in the context of the . . . statutory criteria and

either approving or denying the application, and amending permits under the

procedure outlined in In re Stowe Club Highlands, 166 Vt. 33, 37, 687 A.2d 102,
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105 (1996), but it prevents finality, an integral part of the land use permitting

process.” In re Treetop Dev. Co. Act 250 Dev., 143 A.3d at 1091.

[¶24] We conclude that the conditions here are outside the Planning

Board’s authority because the ordinance does not—explicitly or by necessary

implication—authorize the Planning Board to modify or revoke a permit, retain

jurisdiction over the permit, or reopen the evidentiary record on the permit

after it is issued. Moreover, the conditions do not clearly define what is

required for Newfield Sand to comply with the limits on truck trips and hours

of operation without triggering a reevaluation of those limits, see Cobbossee

Dev. Grp., 585 A.2d at 193-94; Total Quality, Inc., 588 A.2d at 285; Bushey, 645

A.2d at 617-19, and unlike the water quality monitoring at issue in S.D. Warren

Co., 2005 ME 27, 868 A.2d 210, there are no quantifiable or concrete triggers

for reevaluation.4

[¶25] Having concluded that the challenged provisions cannot stand, we

now consider whether we should order those provisions stricken and affirm

the issuance of the permit as modified or require remand to the Planning Board

for further consideration. Although the Planning Board found that the

proposed use would not have “a significant adverse impact upon the value or

4 We need not, and do not, reach the other issues raised by Newfield Sand regarding the vagueness

of the reevaluation provisions and the effect of the provisions on Newfield Sand’s vested rights.
16

quiet possession of surrounding properties greater than would normally occur

from such use in the zoning district,” it also stated that “[i]n order to make this

finding, the Board ha[d] imposed several conditions of approval.” Because we

cannot assume in this instance that the Planning Board would have approved

the permit without the provisions that we now hold were not within the

Planning Board’s power to impose, we vacate the court’s judgment and order

the court to remand the matter to the Planning Board for further consideration

of Newfield Sand’s application for a conditional use permit. See Houlton Water

Co. v. Pub. Utils. Comm’n, 2014 ME 38, ¶¶ 37-38, 87 A.3d 749 (remanding to the

Public Utilities Commission for further consideration, including consideration

of imposed conditions, when we vacated its decision based on our statutory

interpretation).

The entry is:

Judgment vacated. Remanded to the court with
instructions to remand to the Planning Board for
further consideration.

Kristin M. Collins, Esq. (orally), Preti Flaherty Beliveau & Pachios, LLP, Augusta,
for appellant Newfield Sand

Benjamin J. Plante, Esq. (orally), and Leah B. Rachin, Esq., Drummond
Woodsum, Portland, for appellee Town of Newfield

Business and Consumer Docket docket number APP-2024-4
FOR CLERK REFERENCE ONLY