Richard Tominsky v. Town of Ogunquit et al.

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2023 ME 30
Docket: Yor-22-206
Argued: January 12, 2023
Decided: May 23, 2023

Panel: STANFILL, C.J., and MEAD, JABAR, HORTON, CONNORS, and LAWRENCE, JJ.

RICHARD TOMINSKY

v.

TOWN OF OGUNQUIT et al.

CONNORS, J.

[¶1] This is an appeal brought by Richard Tominsky pursuant to M.R.

Civ. P. 80B challenging the issuance of building permits by the Town of

Ogunquit’s code enforcement officer (CEO) to 477 Shore Road LLC. Because the

Town’s Board of Appeals erred in concluding that good cause existed for

Tominsky’s untimely appeal, its decision denying Tominsky’s administrative

appeal on the merits must be vacated and his appeal to the Superior Court must

be dismissed. In so ruling, we resolve thorny questions regarding the interface

among standing requirements, M.R. Civ. P. 80B, and M.R. App. P. 2C(a)(1).

I. BACKGROUND

[¶2] The LLC owns a parcel of property located at 477 Shore Road in

Ogunquit. Between December 2020 and January 2021, the CEO issued six
2

building permits to the LLC for construction relating to six single-family

dwelling units. The permits allowed for renovations and width and height

changes to four existing units and the demolition and rebuild of a “barn” into

two separate units.

[¶3] Tominsky owns property abutting the LLC’s parcel. When the

permits were issued, Tominsky was living in Florida; he only learned of the

project when he returned to Ogunquit in May 2021. Tominsky’s counsel

contacted the CEO on May 27, 2021, requesting information about the project

but did not receive a response.

[¶4] In June 2021, having not received a response from the CEO,

Tominsky filed a complaint in the Superior Court requesting an injunction, a

writ of mandamus, and a declaratory judgment against the Town, the CEO, and

the LLC. That matter was dismissed in early August 2021 because of

Tominsky’s failure to exhaust his administrative remedies. On

August 8, 2021—roughly seven months after the CEO’s issuance of the final

building permit and three months after Tominsky learned of the project—

Tominsky filed an administrative appeal with the Board requesting that it

overturn the CEO’s issuance of the permits.
3

[¶5] The Board held a hearing on Tominsky’s appeal on

September 9, 2021, and, as a threshold matter, debated whether it could hear

Tominsky’s appeal given its untimeliness. The Ordinance provides that once

the CEO has “render[ed] a written decision to a party, any aggrieved party may

file an administrative . . . appeal within 30 calendar days of the date of the

official, written decision.” Ogunquit, Me., Zoning Ordinance § 225-5.3.A

(Apr. 1, 2009). The Board may “grant exceptions to this 30-day rule” but “only

where, in its sole and exclusive judgment, extraordinary circumstances have

been shown which would result in a flagrant miscarriage of justice unless the

said 30-day time period is extended.” Id. The Board referred to this language

as a “good cause” exception.

[¶6] After debate, the Board unanimously agreed to apply the exception

to hear Tominsky’s appeal on the merits.1 Its decision “was based, in part, on

[Tominsky’s counsel’s] assertion that he received no response from the [CEO]

to his May 27, 2021 request for information; and by the delay caused by . . .

1 The LLC filed an appeal pursuant to M.R. Civ. P. 80B challenging the Board’s granting of the good

cause exception. The Superior Court (York County, Mulhern, J.) denied the appeal, and the LLC then
appealed to us. Simultaneously with this decision, we are vacating the Superior Court’s judgment
with instructions to dismiss the appeal, 477 Shore Road LLC v. Town of Ogunquit, Mem-23-61
(May 23, 2023), because, as discussed below, see infra ¶¶ 16-20, the LLC lacks standing to challenge
the Town’s decision in a separate appeal.
4

Tominsky’s case in [the] Superior Court which he asserted he was forced to do

because of the Town’s lack of response.”

[¶7] In the same hearing, the Board addressed the merits of Tominsky’s

appeal. Tominsky raised multiple arguments, focusing primarily on the manner

in which the permits were issued and whether the sections in the Ordinance

concerning nonconformities were applicable. The CEO responded to each of

Tominsky’s arguments. The LLC was also permitted to address the Board and

asserted, inter alia, that the Board could still decline to grant the good cause

exception. Ultimately, the Board voted 4-1 to deny Tominsky’s appeal on the

merits and issued its written decision shortly thereafter.

[¶8] Tominsky timely appealed to the Superior Court (Tominsky I).

See Ogunquit, Me., Zoning Ordinance § 225-5.3.K (Apr. 1, 2009); 30-A M.R.S.

§ 2691(3)(G) (2023). His complaint contained multiple counts and named the

Town, the Board, the CEO, and the LLC as defendants. On a motion to dismiss

filed by all named defendants, the court (York County, Mulhern, J.) dismissed all

but one count and treated the remaining count as an appeal pursuant to

Rule 80B. It also dismissed Tominsky’s claims against the Board and the CEO

and ordered that the LLC remain as a party in interest.
5

[¶9] While Tominsky I was pending, the CEO issued a certificate of

occupancy for one of the dwelling units. Tominsky appealed the issuance of the

certificate to the Board. At a hearing held in December 2021, the Board had a

“lengthy discussion regarding whether it had jurisdiction to hear the appeal, in

light of the fact that it recently heard an appeal by the same appellant of the

same building permit.” Citing Salisbury v. Town of Bar Harbor, 2002 ME 13,

¶ 14, 788 A.2d 598, the Board unanimously voted not to hear the appeal.

[¶10] Tominsky then filed a second complaint containing multiple

counts against the Town and the LLC (Tominsky II). The Town moved to dismiss

the complaint pursuant to M.R. Civ. P. 12(b)(6), arguing that the action was an

attempt to litigate the underlying building permits in violation of Salisbury. The

LLC joined the Town’s motion.

[¶11] In June 2022, the court denied Tominsky’s appeal in Tominsky I

and dismissed his appeal in Tominsky II. Tominsky timely appealed both

decisions, and we consolidated the two appeals for our review.

II. DISCUSSION

A. Although the complaints in Tominsky I and Tominsky II contain
multiple counts, they each assert only an appeal pursuant to
Rule 80B.

[¶12] The complaints in both actions originally contained multiple
6

counts.2 As noted above, the Superior Court granted a motion to dismiss

various counts in Tominsky I and treated the remaining count as an appeal

pursuant to Rule 80B. In Tominsky II, the Superior Court disposed of all four

counts in one order.

[¶13] It is unclear whether in the appeals to us Tominsky seeks to

challenge the rejection of his complaints as containing anything but Rule 80B

appeals. In any event, the exclusive avenue to challenge a municipality’s

adjudicative decision is a Rule 80B appeal unless that avenue is somehow

inadequate or a statute provides otherwise. See Cayer v. Town of Madawaska,

2016 ME 143, ¶ 24, 148 A.3d 707; Fisher v. Dame, 433 A.2d 366, 372 (Me. 1981).

Here, the only relief Tominsky seeks is that obtainable under Rule 80B. In

addition, to the extent that Tominsky claims a violation of his procedural due

process rights, the judicial review provided by Rule 80B bestows all the

post-deprivation process that is due. Cf. Moreau v. Town of Turner, 661 A.2d

677, 680 (Me. 1995).

2Specifically, the complaint in Tominsky I contained five counts, captioned “Constitutional Due
Process violations” by the CEO, the Board, and the Town; “Violation of Purposes and Policies
Underlying Limited Allowance of Nonconformities, and the Existence of Grandfather Clauses”;
“Violation of Ordinance Article 3 Provisions on ‘Nonconformance’”; “Ordinance Violations
Concerning Incomplete Building Permit Applications And Failure to Follow SLR Requirements”; and
“Variance.” The complaint in Tominsky II contained four counts, captioned “Constitutional Due
Process Violations”; “MR Civ P 80B”; “Administrative Procedure, 5 MRS sec. 8001 et. seq.”; and
“Variance.”
7

B. The appeal to the Board in Tominsky I was untimely.

1. If a municipal body grants the good cause exception and hears
an untimely administrative appeal and subsequently rejects
that appeal on the merits and the objecting party appeals the
merits decision pursuant to Rule 80B, the party that has
obtained municipal approval need not, and should not, file its
own Rule 80B appeal or a cross-appeal pursuant to M.R.
App. P. 2C(a) to challenge the application of the exception, but
instead may argue in its briefs to the Superior Court and to this
Court that the exception should not have been granted.

[¶14] The procedural posture of Tominsky I presents a question of first

impression regarding what steps a party that has obtained municipal approval

must take in a Rule 80B appeal of a municipal body’s decision on the merits in

order to preserve an argument that its opponent’s administrative appeal was

fatally tardy. Here, covering nearly all possibilities, the LLC raised the

untimeliness argument in its own Rule 80B appeal; as the Rule 80B-appellee in

the Superior Court; and again to us as an alternative argument pursuant to M.R.

App. P. 2C(a)(1) (“An appellee may, without filing a cross-appeal, argue that

alternative grounds support the judgment that is on appeal.”).

[¶15] We conclude that a party that has obtained municipal approval

(e.g., the permittee) need not, and should not, file its own Rule 80B appeal to

assert that the Board improperly granted a good cause exception. Rather, when

an objecting party appeals a municipal body’s ruling on the merits pursuant to
8

Rule 80B, the permittee may raise the good cause issue in its brief. Similarly, if

the Superior Court rejects the objecting party’s appeal on the merits, the

permittee need not file a cross-appeal should its opponent appeal to us. Rather,

the permittee may, pursuant to M.R. App. P. 2C(a)(1), 7A(b), raise the good

cause issue in its brief. We reason as follows.

[¶16] A party lacks standing to appeal a judgment that grants the relief

the party sought simply because the party would prefer to have the judgment

rest on different reasoning.3 Hence, because the LLC prevailed on the merits

before the Board, i.e., it obtained a determination that the building permits

were valid, the LLC was not aggrieved and lacked standing to file an appeal.

See Witham Fam. Ltd. P’ship v. Town of Bar Harbor, 2011 ME 104, ¶¶ 7, 15-16,

30 A.3d 811; Brooks v. Town of N. Berwick, 1998 ME 146, ¶ 10, 712 A.2d 1050

(“Although [the abutter] might have preferred that the ZBA base its decision on

the alternative rationale that the property was no longer grandfathered, he

nonetheless received exactly what he asked for from the ZBA: an invalidation

of the CEO’s decision.”).

3 We have noted an exception to this principle that applies “when an essential finding on which
the judgment is based might otherwise prejudice the party through the use of collateral estoppel in
the future proceeding.” See Witham Fam. Ltd. P’ship v. Town of Bar Harbor, 2011 ME 104, ¶ 16, 30
A.3d 811 (quotation marks omitted). This exception does not apply here; the LLC does not contend
that the Board’s finding of good cause might prejudice the LLC in some future proceeding.
9

[¶17] The requirement that a party must have standing to appeal does

not disappear when another party appeals first. A cross-appeal must meet the

same justiciability requirements as an initial appeal. See Nat’l Union Fire Ins.

Co. v. West Lake Acad., 548 F.3d 8, 23 (1st Cir. 2008) (“A cross appeal is generally

not proper to challenge a subsidiary finding or conclusion when the ultimate

judgment is favorable to the party cross-appealing.”); Matter of Sims, 994 F.2d

210, 214 (5th Cir. 1993) (“A cross-appeal filed for the sole purpose of advancing

additional arguments in support of a judgment is ‘worse than unnecessary’,

because it disrupts the briefing schedule, increases the number (and usually the

length) of briefs, and tends to confuse the issues. Such arguments should,

instead, be included in the appellee’s answering brief.” (citation omitted)).

[¶18] This case is further complicated by the fact that whether a

cross-appeal is necessary is normally determined by whether the argument

that the cross-appellant seeks to advance would result in different relief than

that granted by the judgment. See M.R. App. P. 2C(a) Advisory Committee

Note—July 2022. A timeliness argument differs from the argument that the

merits were incorrectly decided in terms of applicable relief. See id. A ruling

on the merits is a judgment on the merits, whereas a ruling that an appeal is

untimely results in a dismissal, i.e., a “change to the judgment.” Id.
10

[¶19] But Rule 80B includes no provision for cross-appeals. Indeed, it

also does not specifically permit a motion to dismiss. Rule 80B is designed “to

afford prompt, effective, expeditious and direct judicial review of

administrative action.” Colby v. York Cnty. Comm’rs, 442 A.2d 544, 547

(Me. 1982). It would promote form over substance, undermine the goal of

expedition of administrative appeals, and lead to “worse than unnecessary”

procedural complications to require a permittee to appeal municipal approval

under Rule 80B if an opponent files a separate Rule 80B appeal simply because

the permittee seeks to preserve its ability to advance an argument that would

result in a dismissal of its opponent’s appeal instead of a judgment affirming

the municipal decision. See Matter of Sims, 994 F.2d at 214 (quotation marks

omitted). Moreover, the rules of civil and appellate procedure are to be

construed to secure “the just, speedy[,] and inexpensive determination of

every” action and appeal. M.R. Civ. P. 1; M.R. App. P. 1.

[¶20] For these reasons, the LLC did not need to file a separate Rule 80B

appeal.4 Nor did it need to file a cross-appeal to Tominsky’s appeal. Raising the

good cause issue as an alternative argument pursuant to M.R. App. P. 2C(a)(1)

was appropriate in this context.

Thus, as noted above, supra n.1, the matter is dismissed. 477 Shore Road v. Town of Ogunquit,
4

Mem-23-61 (May 23, 2023).
11

2. The meaning of the Ordinance’s good cause exception is
determined by the court de novo.

[¶21] There are two types of “good cause” exceptions to the deadline for

filing an appeal to a municipal body. First, there is a judicially crafted exception:

a deadline contained an ordinance or established by statute may be extended

“when a court ‘finds special circumstances which would result in a flagrant

miscarriage of justice.’” Viles v. Town of Embden, 2006 ME 107, ¶ 8, 905 A.2d

298 (quoting Keating v. Zoning Bd. of Appeals, 325 A.2d 521, 524 (Me. 1974)).

With respect to this judicially crafted exception, on appeal to us, we review the

Superior Court’s application and apply an abuse of discretion standard to the

court’s determination of the existence of good cause and a clearly erroneous

standard to the court’s factual findings. See id. ¶ 9.

[¶22] Second, as is the case here, a deadline may be extended pursuant

to an applicable ordinance when a municipal entity finds good cause to hear an

appeal that would otherwise be deemed late under the ordinance. In this

context, the Superior Court acts in an intermediate appellate capacity, and we

review directly the operative decision of the municipality. See Tomasino v.

Town of Casco, 2020 ME 96, ¶ 5, 237 A.3d 175. As to the standard of review,

language in Otis v. Town of Sebago, 645 A.2d 3, 5 (Me. 1994) suggests that we

give deference to a board’s determination whether the good cause exception
12

has been met. More precisely, our standard of review for municipal

adjudicative decisions is to give great deference to a board’s findings of fact, i.e.,

to sustain the findings unless the evidence compels a contrary conclusion,

see Tomasino, 2020 ME 96, ¶ 5, 237 A.3d 175, and to give no deference to a

board’s interpretation of an ordinance because such interpretation is a

question of law that we review de novo, Jade Realty Corp. v. Town of Eliot, 2008

ME 80, ¶ 7, 946 A.2d 408; Gensheimer v. Town of Phippsburg, 2007 ME 85, ¶ 8,

926 A.2d 1168; Isis Dev., LLC v. Town of Wells, 2003 ME 149, ¶ 3, 836 A.2d 1285.

As to mixed questions of law and fact, we afford a board’s ultimate

characterization “substantial deference.” Jordan v. City of Ellsworth, 2003 ME

82, ¶¶ 8-9, 828 A.2d 768. The test for affording substantial deference is

whether the issue involves a situation in which the legal determination is

“greatly informed” by the board’s factual findings. See Lane Constr. Corp. v.

Town of Washington, 2008 ME 45, ¶ 13, 942 A.2d 1202.

[¶23] Applying these principles here, we defer to the Board’s fact finding

regarding why the appeal was filed more than thirty days after the CEO’s

issuance of the permits. But whether those facts present “extraordinary

circumstances . . . which would result in a flagrant miscarriage of justice unless

the said 30-day time period is extended” is a question of law that we review
13

de novo. See Zoning Ordinance § 225-5.3.A. Indeed, because the language used

in the Ordinance to define when the good cause exception should apply mirrors

the test we crafted in Keating, the meaning of the test is squarely a legal one for

our resolution.5

3. Tominsky did not qualify for the Ordinance’s good cause
exception because a mistaken belief of law is not an
“extraordinary circumstance” that would result in a “flagrant
miscarriage of justice.”

[¶24] When interpreting a zoning ordinance, “we first evaluate the plain

meaning of the Ordinance and, if the meaning is clear, we need not look beyond

the words themselves. We construe the terms of an ordinance reasonably,

considering its purposes and structure and to avoid absurd or illogical results.”

Olson v. Town of Yarmouth, 2018 ME 27, ¶ 11, 179 A.3d 920 (alterations and

quotation marks omitted). Here, we conclude that, given the purpose of the

Ordinance provision and the choice of words mirroring our language in Keating,

the Ordinance’s good cause exception is intended to adopt the test we

announced in Keating. It follows that our decisions interpreting the contours

of the judicial test can be applied to the analogous Ordinance exception.

5 It is clear from the language in the Ordinance providing that the Board may grant the exception

only when it concludes “in its sole and exclusive judgment” that the test has been met that the
Ordinance intends to give a wide berth to the Board when assessing whether to grant the exception.
That said, it is the courts’ job to interpret the language of the Ordinance in order to conclude whether
the facts as found by the Board establish a predicate to apply that test.
14

[¶25] “The need for a good cause exception primarily stems from the lack

of notice of the issuance of the building permit to abutting landowners or other

persons who may be aggrieved by its issuance.” Viles, 2006 ME 107, ¶ 12, 905

A.2d 298. “Therefore, when [a fact finder] examines whether the good cause

exception is applicable to a situation, it starts with determining whether the

appellant received notice of the issuance of the permit.” Id. ¶ 13. Importantly,

“lack of notice is a key factor, but it is not a determinative factor. Another factor

is the amount of time the appellant waited to file the appeal after obtaining

actual knowledge of the permit.” Id. (citation omitted). Other factors may be

relevant because “all the equities of the situation” should be considered in

deciding whether to grant the exception. Id. ¶¶ 11, 13 (quotation marks

omitted).

[¶26] The first question is whether Tominsky lacked notice. See id. ¶ 13.

The building permits were issued between December 2020 and January 2021,

but the Board found that Tominsky did not learn of the project until he returned

to Ogunquit in May 2021 because he was living in Florida. Thus, Tominsky’s

failure to appeal between January and May based on lack of notice could trigger

application of the exception.
15

[¶27] After allowing for Tominsky’s inaction owing to a lack of notice,

there is no viable excuse for the eighty-one day delay that followed. The record

reflects that Tominsky had actual knowledge of the project as early as

May 19, 2021, yet he did not file his appeal with the Board until August 8. One

of his stated reasons—that he did not receive a response to his counsel’s

May 27 letter to the CEO—is untethered to the lack of notice that can form a

predicate to the application of the good cause exception. Indeed, regarding the

CEO’s lack of response, the letter sent to the CEO by Tominsky’s counsel on

May 27 states, “It seems to me that such a massive proposal should at least have

gone to the ZBA . . . .” Although a municipal officer’s failure to respond to a

citizen inquiry is concerning, the CEO’s lack of response did not prevent

Tominsky from filing an administrative appeal with the Board. There is no

prerequisite in the Ordinance that an appellant must speak with the CEO before

filing an appeal.

[¶28] Even if the CEO’s lack of a response could support a short delay

after May 27, Tominsky did not file his appeal until August 8. See Wilgram v.

Sedgwick, 592 A.2d 487, 488 (Me. 1991) (determining that the good cause

exception could not save an abutter’s untimely appeal that was filed seven

months after the issuance of the building permit and seventy-six days after the
16

abutter obtained actual notice of the project). The reason for Tominsky’s

further delay cited by the Board was Tominsky’s decision to file a complaint in

the Superior Court and waiting until that case was dismissed before appealing

to the Board. But delay based on ignorance of the law cannot establish an

extraordinary circumstance that would result in a flagrant miscarriage of

justice. Cf. Alley v. Alley, 2004 ME 8, ¶¶ 1-2, 840 A.2d 107 (affirming the denial

of relief under M.R. Civ. P. 60(b) because “[a]n attorney’s mistaken belief as to

the law does not rise to the level of excusable neglect” (quotation marks

omitted)); Young v. Sturdy Furniture Co., 441 A.2d 320, 321-22 (Me. 1982)

(compiling cases and discussing whether mistake of law can satisfy the “strict”

standard of excusable neglect).

[¶29] As we noted in Young, in determining whether excusable neglect

exists, the standard is “strict,” and extensions of time “should be limited to

extraordinary cases.” 441 A.2d at 321. The text of the Ordinance referencing

the need for “extraordinary circumstances” underscores that the Ordinance

exception does not excuse delay based on mistaken belief of the law.

[¶30] Nor was this even a mistaken belief as to a difficult issue of law.

We have long required parties to exhaust their administrative remedies before

turning to the courts for relief. See, e.g., Bryant v. Town of Camden, 2016 ME 27,
17

¶¶ 10, 12, 132 A.3d 1183; Town of Levant v. Seymour, 2004 ME 115, ¶ 13, 855

A.2d 1159; Ne. Occupational Exch., Inc. v. Bureau of Rehab., 473 A.2d 406, 408-09

(Me. 1984); Cushing v. Smith, 457 A.2d 816, 821 (Me. 1983); Levesque v. Town

of Eliot, 448 A.2d 876, 878 (Me. 1982).

[¶31] In sum, the Board misapprehended the scope of the good cause

exception, and the exception does not apply to the factual predicate reflected in

the Board’s findings as to the cause of Tominsky’s delay in appealing.6

6 Even if the appeal had been timely and we could have reviewed the Board’s merits
determination, the Board’s decision would have been affirmed.

Tominsky’s arguments can be divided into two categories: challenges to the application of the
Ordinance’s substantive provisions and procedural challenges. Beginning with the relevant
Ordinance provisions, we note that Tominsky argues that the Ordinance bars six dwelling units on
477 Shore Road. But if there were six units there prior to the enactment of the Ordinance, then the
units are not only grandfathered but can also be “repaired, maintained, improved, enlarged, changed
or relocated” in conformity with all other dimensional requirements besides lot area or street
frontage. Ogunquit, Me., Zoning Ordinance § 225-3.4.C (Apr. 1, 2009). Although Tominsky argues
that there was insufficient evidence in the record to support the finding that six units pre-existed the
Ordinance, according to the Board’s meeting minutes, he conceded that six units pre-existed the
Ordinance. Additionally, although the record shows that the LLC’s alterations to the units were
substantial, given that the issue whether the construction met Ordinance standards is a fact-intensive
question, the Board’s determination that the changes were permissible was reasonable. See id.;
Bizier v. Town of Turner, 2011 ME 116, ¶ 8, 32 A.3d 1048. Finally, to the extent that Tominsky claims
that the project violated shoreland zoning requirements, the Board did find, and could reasonably
find on the evidence before it , that no construction occurred “within” that zone as required for the
shoreland zone provisions to apply. See Ogunquit, Me., Zoning Ordinance § 225-4.5.E (Apr. 1, 2009).

Turning to his procedural arguments, we conclude that Tominsky misconstrues the applicable
burden of proof. He argues that the project proponents were required to prove that the proposal
complied with the Ordinance. Although a project proponent “shall have the burden of proving that
the proposed land use activity is in conformity with the purposes and provisions of th[e] Ordinance,”
id. § 225-4.5.D, that burden applies at the permitting stage. On appeal to the Board, “[t]he person
filing the appeal shall have the burden of proof.” Ogunquit, Me., Zoning Ordinance § 225-5.3.F
(Apr. 1, 2009). Hence, it was Tominsky’s burden to prove why the project did not meet the
requirements of the Ordinance. To the extent that he is complaining that he did not understand how
the CEO could have issued the permits prior to the hearing before the Board, the CEO’s decision was
subject to de novo review before the Board, Ogunquit, Me., Zoning Ordinance § 225-5.2.A
18

C. The appeal in Tominsky II fails because the issuance of a certificate
of occupancy is not an appealable event except to challenge whether
the certificate holder adhered to the terms of the permit.

[¶32] Finally, Tominsky challenges the dismissal of his appeal in

Tominsky II. But Salisbury, 2002 ME 13, 788 A.2d 598, is directly on point.

There, we stated:

An appeal of a certificate of occupancy may not, however,
substitute for an appeal of the underlying permit. If the permittee
has complied with the terms of a valid permit, an abutter may not
challenge the issuance of the certificate of occupancy based on a
defect in the permit. If, however, the permittee has meaningfully
exceeded the authority contained in the permit, or otherwise
violated conditions of the permit, the issuance of the certificate of
occupancy may be challenged.

Id. ¶ 14 (citation omitted).

[¶33] Tominsky does not allege that the LLC failed to comply with the

permits; rather, he seeks to reassert arguments raised in Tominsky I that the

permits should not have been issued. Thus, Tominsky II falls well within the

type of challenge prohibited by Salisbury, and the court did not err in dismissing

his action for failure to state a claim.

(Apr. 1, 2009), and the CEO explained during the hearing how the permits met the Ordinance’s
requirements. Moreover, Tominsky does not explain how he suffered any specific prejudice from not
having heard the CEO’s explanation prior to the hearing. Cf. Fitanides v. City of Saco, 2015 ME 32,
¶ 22, 113 A.3d 1088.

To the extent that Tominsky seeks to raise any other basis to challenge the permits, his arguments
are not adequately developed and are therefore deemed waived. See Mehlhorn v. Derby, 2006 ME
110, ¶ 11, 905 A.2d 290.
19

III. CONCLUSION

[¶34] For the reasons given above, the appeal in Tominsky I before the

Board was untimely, and the appeal in Tominsky II failed to allege a viable claim

for relief.

The entry is:

The judgment in Tominsky I, AP-21-023, is
vacated. The matter is remanded to the Superior
Court for entry of a judgment vacating the
Board’s decision and remanding the matter to
the Board with instructions to the Board to
dismiss the matter for want of jurisdiction. The
judgment in Tominsky II, AP-22-002, is affirmed.

William A. Hahn, Esq. (orally), Hahn & Matkov, Boston, for appellant Richard
Tominsky

Mary E. Costigan, Esq., and Zachary B. Brandwein, Esq. (orally), Bernstein Shur,
Portland, for appellee Town of Ogunquit

Matthew J. Williams, Esq. (orally), Hodson & Ayer, Kennebunk, for appellee 477
Shore Road LLC

York County Superior Court docket numbers AP-2021-023 & AP-2022-002
FOR CLERK REFERENCE ONLY