Thomas McKeon ruled that the town’s Appeals Board had remanded the project to the Planning Board rather than approving or denying it, leaving the court without a final administrative decision.
Sep 16, 2026
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SOUTHWEST HARBOR—Justice Thomas McKeon dismissed a majority of the Town of Southwest Harbor’s motion to dismiss a case that was brought against the town by the owners of 72 Clark Point Road.
In his September 14 decision, the justice also remanded a portion of 72 Clark Point Road LLC’s case back to the town “for further proceedings.”
The case involves Justin Podjasek’s project at 72 Clark Point Road to build a $750,000 guest house where a greenhouse once stood. In 2012, the property, which was a larger lot owned by one property owner, was granted a building code variance from a 15-foot-setback requirement. Setbacks in town zoning rules determine how close structures can be built to property lines. Opponents to the project say that the variance should not have been granted.
HISTORY
In July 2025, the Selmi Family Trust had appealed the town’s Board of Appeals decision to uphold the town’s code enforcement officer’s approval for the 72 Clark Point Road property to renovate his property to create a guest house.
In late July 2025, the town’s appeals board said the Selmis had a “good cause exception.” The board also said that the structures were nonconforming and violated the town’s setback requirements for that property.
The board of appeals then remanded (sent back) the building permit to the code enforcement officer so that the town’s planning board could review the application.
Next, 72 Clark Point Road LLC filed a Rule 80B appeal. It asked for a declaratory judgement on vested right, which is the second count in the case.
The plain language explanation for an 80B review according to the State Rules website is “if you want a court to review a decision made by a government agency, you must follow specific steps for filing your case, meeting deadlines, and presenting your arguments, which usually means the court will only look at the information the agency already considered.”
Maine’s “Rule 80B,” pushes a municipality’s action (or inaction) to court review.
The LLC also asked for res judicata, which is count three. Res judicata in Latin means “a matter judged,” which often in law typically means that once a matter is decided by the court, it can’t be litigated again by the same parties that were involved already.
It also asked for equitable estoppel, count four.
“Equitable estoppel is a legal principle that stops someone from taking a legal action that conflicts with his previous claims or behaviors. Essentially, equitable estoppel is a method of preventing someone from going back on his word in a court of law,” according to the website Legal Dictionary.
The town filed a motion asking to dismiss those three counts (II, III, and IV) and the case was argued September 2, 2026.
REVIEW AND DECISION
“The BOA concluded that the existing structures were non-conforming to the extent that they violated the setback requirements on 72 Clark Point Rd. The BOA voted to remand the building permit application (“Permit”) to the CEO for referral to the Town’s Planning Board. Appellant then filed a Rule 80B appeal and asserted additional claims for declaratory judgment on vested rights (Count II), res judicata (Count III), and equitable estoppel (Count IV). The Town filed a motion to dismiss Counts II, III, and IV of Appellant’s Complaint. Def.’s Mot. Dismiss. The parties appeared before the Court for oral argument on the Rule 80B appeal on September 2, 2026,” McKeon wrote in his September 14 decision.
McKeon explained, “When Rule 80B appeals are combined with additional counts alleging independent causes of action, the court is called upon to act both as an appellate court and as a trial court….”
Much like in the recent findings in a Golden Anchor case against the Town of Bar Harbor’s appeals board decision, McKeon wrote that “joining an independent claim for declaratory judgment to a Rule 80B appeal is appropriate to challenge a regulation or ordinance, ‘before the matter actually proceeds and the challenged ordinance is applied to the detriment of the plaintiffs—in other words, as an anticipatory challenge.’ However, when an independent action ‘relies on the same factual allegations, and seeks the same relief as the Rule 80B appeal,’ it ’may properly be dismissed as duplicative.’”
He found the claims for declaratory relief in Counts II, III, IV duplicative.
“For each count, Appellant rest on the same factual allegations underlying its Rule 80B appeal to support its declaratory judgment actions and seeks the same relief — approval of the permit. Because all three of Appellant’s declaratory judgment actions could be addressed in Appellant’s Rule 80B appeal as it currently exists, independent appellate review is barred and can be combined under the ‘umbrella’ of that appeal. Counts II, III, and IV are dismissed without prejudice.“
The first count was different, McKeon wrote.
“The doctrine of ripeness prevents ‘judicial entanglement in abstract disputes, avoid[s] premature adjudication, and protect[s] agencies from judicial interference until a decision with concrete effects has been made,’ Blanchard v. Town of Bar Harbor, 2019.”
While the LLC argued that Southwest Harbor’s appeals board “decision was in substance and legal effect a denial,” Justice McKeon disagreed.
He said the appeals board found the structure proposed was nonconforming.
“The decision then referred to Section III of the Land Use Ordinance. When an owner of a ‘non-conforming’ structure seeks to replace a nonconforming structure, the ordinance requires review by the Planning Board to determine whether the replacement is ‘in compliance with the dimensional requirements to the greatest practical extent,’” he wrote and cited the town’s land use ordinance’s (LUO), section III(C)(3).
He continued, “When the owner seeks another use, the Planning Board must determine whether the new use has a ‘greater adverse impact’ than the existing use. LUO, Section III(C)(4). Because the Planning Board had not conducted the review as required by the Ordinance, the BOA (Board of Appeals) remanded the matter for Planning Board review.”
He wrote that Appeals Board decision was “neither a denial nor an approval of the permit.” It was, he wrote, a remand back to the planning board so therefore he couldn’t read it as a denial and therefore it could not be an 80B appeal.
“Questions remain for future consideration and judgment by the town’s Planning Board — such as whether the proposed building will have no greater adverse impact than the current non-conforming use — before a final administrative decision can be made. Because the BOA’s remand is not a final administrative action, Rule 80B review is unripe, and is remanded to the Town for further proceedings,” he wrote. “The court also appreciates the parties’ frustration at the procedural roadblocks to a final decision. Unfortunately, those roadblocks are often the hallmark of a hard-fought municipal proceeding and subsequent appeal. In this case, the most efficient approach would have been to allow the municipality to reach a final decision before commencing an appeal. Here, the law plainly leaves the court with no other option than a remand.”
LINKS TO LEARN MORE
Southwest Harbor Board Grants Selmi Appeal, Guest House Project Returns to Planning Board
More about declaratory judgements.
Suits involving declaratory judgements.
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