Janet Drew et al. v. Town of York et al. — 2026 ME 15

MAINE SUPREME JUDICIAL COURT 	Reporter of Decisions
Decision: 	2026 ME 15
Docket: 	Yor-25-31
Submitted
On Briefs: 	October 29, 2025
Decided: 	February 24, 2026
Panel: 	MEAD, LAWRENCE, DOUGLAS, and LIPEZ, JJ.
JANET DREW et al.
v.
TOWN OF YORK et al.
LIPEZ, J.
[¶1] After the Town of York Planning Board approved an application by
New Cingular Wireless PCS, LLC, to install a new wireless communications
facility, Janet Drew and Linda Molda (collectively, the neighbors) appealed to
the Town of York Board of Appeals. 	The Board denied the neighbors’
administrative appeal and the Superior Court (York County, Martemucci, J.),
operating pursuant to M.R. Civ. P. 80B, affirmed the Board’s decision. 	The
neighbors now appeal to us, claiming that the Board erred in concluding that
the project complies with provisions in the Town’s Wireless Communications
Facilities Ordinance having to do with fencing and setback requirements. We
conclude that the neighbors have not preserved their argument regarding the
fencing requirements. We further conclude that although the neighbors have

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preserved their argument regarding the setback requirements, the Board’s
findings on this issue are insufficient for appellate review. 	We accordingly
remand this matter to the Superior Court with instructions to remand the case
to the Board for further findings.
I. BACKGROUND
[¶2] 	On January 8, 2024, the York Planning Board approved an
application by New Cingular Wireless to install six antennas on top of the York
Water District water tower. 	The neighbors filed an application for an
administrative appeal with the Board of Appeals, asserting that the project
violates the Town’s Wireless Communications Facilities Ordinance.
[¶3] 	In April 2024, the Board held a public, de novo hearing on the
appeal. 	The neighbors testified that the project “violates [the Ordinance’s]
setbacks for residential structures on neighboring properties.” In response, the
Board asked New Cingular Wireless to provide a survey to help the Board
assess whether the project met applicable setback requirements; the Board
then adjourned the hearing to be continued at a later date.
[¶4] The next month, New Cingular Wireless presented an updated site
plan 	showing 	the 	distances 	between 	the 	proposed 	project 	and 	nearby
residential structures. 	At the conclusion of the hearing, the Board voted

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unanimously to deny the appeal. In a written decision issued on May 28, 2024,
the Board made the following findings:
At the April 10 meeting [the neighbors] fully presented the basis
for their appeals and the [New Cingular Wireless] representative
made the Omnibus response. 	The [B]oard requested of [New
Cingular Wireless], for the next meeting, that a more accurate
survey 	be 	made 	identifying 	setbacks 	of 	the 	project 	to 	all
surrounding 	residential 	structures. 	[New 	Cingular 	Wireless]
presented this undated information at the May 8 meeting to the
satisfaction of the [B]oard.
[¶5] 	The neighbors then filed in the Superior Court a timely Rule 80B
complaint for review of the Board’s decision. 	See 30-A M.R.S. § 2691(3)(G)
(2025); M.R. Civ. P. 80B; York, Me., Zoning Ordinance § 18.8.3.6 (Nov. 7, 2023).
The neighbors argued, as relevant here, that the project did not meet the
Ordinance’s 	setback 	or 	fencing 	requirements. 	By 	judgment 	entered
January 9, 2025, the court affirmed the Board’s decision. The neighbors timely
appealed. See M.R. Civ. P. 80B(n); M.R. App. P. 2B(c)(1).
II. DISCUSSION
[¶6] 	On appeal, the neighbors again assert that the project does not
comply with provisions of the Wireless Communications Facilities Ordinance
regarding fencing and setbacks from adjacent residential properties.

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A. 	Preservation of Issues
[¶7] 	We first address the parties’ disputes as to which issues the
neighbors have preserved for appellate review. “In order to preserve an issue
for appellate review, a party must timely present that issue to the original
tribunal; otherwise, the issue is deemed waived.” Brown v. Town of Starks, 2015
ME 47, ¶ 6, 114 A.3d 1003. 	“An issue is raised and preserved if there was a
sufficient basis in the record to alert the [decision maker] and any opposing
party to the existence of that issue.” Id. (quotation marks omitted).
[¶8] We conclude that the neighbors have not preserved their argument
that the project lacks the type of perimeter fencing that the Ordinance requires.
The neighbors’ application for administrative appeal made no mention of the
project’s failing to comply with applicable fencing requirements, nor did the
neighbors raise this issue at either of the public hearings or in their written
submission to the Board. We therefore deem the issue waived. See id. ¶¶ 6-7.
[¶9] By contrast, the neighbors have repeatedly raised the setback issue,
beginning with their application for an administrative appeal, where they
asserted 	that 	the 	project 	violates 	section 	1.9(F)(4) 	of 	the 	Wireless
Communications 	Facilities 	Ordinance, 	which 	requires 	that 	a 	wireless
communications 	facility 	be 	located 	a 	minimum 	of 	sixty-five 	feet 	from

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residential 	structures 	on 	abutting 	properties. 	See 	York, 	Me., 	Wireless
Communications Facilities Ordinance § 1.9(F)(4) (Nov. 8, 2016). The neighbors
continued to press this argument at the hearing before the Board, testifying that
they had measured the distances between the water tower and their residential
structures and that the “measurements all came [in] under sixty feet.” 	The
neighbors also submitted written testimony in which they argued that New
Cingular Wireless incorrectly measured from the water tower rather than from
the perimeter fencing. 1 In response, the Board asked New Cingular Wireless to
provide a survey identifying the distances between the project and abutting
residential structures, making apparent that the neighbors had successfully
alerted the Board and New Cingular Wireless to the existence of the issue.
See Brown, 2015 ME 47, ¶ 6, 114 A.3d 1003. 	The neighbors have therefore
preserved for appellate review the issue of whether the project complies with
the Ordinance’s setback requirements.
B. 	Setback Requirements
[¶10] We review the decision of the Board as “the operative decision of
the municipality” because the Board conducted a de novo review of the
Planning Board’s decision. 	See McCallion v. Town of Bar Harbor, 2025 ME 58,
1 The neighbors did not clarify why they, too, had measured from the water tower if they believed
that that was the incorrect starting point.

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¶ 2, 	340 	A.3d 	37 	(quotation 	marks 	omitted); 	York, 	Me., 	Wireless
Communications Facilities Ordinance § 1.12; York, Me., Zoning Ordinance
§18.8.3; 30-A M.R.S. § 2691(3)(C).
[¶11] As noted, the Ordinance requires that all wireless communications
facilities “shall be located a minimum of sixty-five (65) feet from any residential
structure located on any abutting property at the time the structure is initially
constructed, 	unless 	the 	affected 	abutting 	property 	owner 	waives 	this
requirement.” 	See York, Me., Wireless Communications Facilities Ordinance
§ 1.9(F)(4). The Ordinance further provides:
The setback shall be the separation of the corresponding border of
the footprint of the base area of the [wireless communications
facility], as defined by the required fencing, from the property lines,
buildings, or other feature from which the setback is defined. 	It
shall not refer to the center point of the [wireless communications
facility].
Id. § 1.9(F).
[¶12] The neighbors raise two arguments: (1) because the Board did not
require New Cingular Wireless to install the type of fencing typically required
of wireless communications facilities, the Board has effectively eliminated or
made it impossible to determine whether the project complies with the
Ordinance’s setback requirements; and (2) if the setback is measured from a
pre-existing fence surrounding the water tower—as the neighbors contend the

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Ordinance requires—then the project is too close to adjacent residential
structures.
[¶13] We are unable to reach the merits of this issue because the Board
failed to make sufficient findings. 	See 30-A M.R.S. § 2691(3)(E); York, Me.,
Zoning Ordinance § 18.8.3.4; Sanborn v. Town of Sebago, 2007 ME 60, ¶ 14, 924
A.2d 1061. “It is black letter law that meaningful judicial review of a decision
requires that the decision contain findings of fact sufficient to apprise the
reviewing court of the decision’s basis . . . .” LaMarre v. Town of China, 2021 ME
45, ¶ 6, 259 A.3d 764. Here, the Board’s decision states only that the Board is
“satisf[ied]” with the information that New Cingular Wireless provided in its
revised site plan. The Board did not address the important question of the point
or line from which the setbacks should be measured or make any findings that
abutting residential structures are more than sixty-five feet from that point or
line. The Board’s decision is therefore inadequate for appellate review. See id.
¶¶ 6-7; Sanborn, 2007 ME 60, ¶¶ 14-16, 924 A.2d 1061.
[¶14] 	Given the absence of findings sufficient for appellate review, we
must remand the matter to the Board. 	Sanborn, 2007 ME 60, ¶ 17, 924 A.2d
1061. On remand, the Board must make factual findings regarding whether the
project meets the setback requirements of the Ordinance and should explain

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the bases for its findings, including where the setback measurements begin and
whether any residential structures are within the Ordinance’s setback distance.
The entry is:
Judgment vacated. 	Remanded to the Superior
Court with instructions to remand to the Town
of York Board of Appeals for further proceedings
consistent with this opinion.
Patrick S. Bedard, Esq., Law Office of Patrick S. Bedard, P.C., Eliot, for appellant
Janet Drew and Linda Molda
Joseph C. Siviski, Esq., Perkins Thompson, P.A., Portland, for appellee New
Cingular Wireless PCS, LLC
Mary E. Costigan, Esq., Bernstein Shur, Portland, for appellee Town of York
York County Superior Court docket number AP-2024-18
FOR CLERK R EFERENCE O NLY