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	
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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.
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[¶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.
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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.
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[¶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	
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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).

2 Specifically,	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.”
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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	
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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.
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[¶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.
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[¶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.

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

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