## Facts

- Mitchell Cope and David Cope, doing business as Jordan Associates, sought permission to construct eight six-unit apartment buildings on an undeveloped, wooded 21-acre parcel in Brunswick, Maine.
- The parcel was located in a Suburban A Residential zone under the Town of Brunswick’s zoning ordinance.
- Multi-unit apartment buildings were not permitted as of right in the district; they could be allowed only if the Brunswick Zoning Board of Appeals granted an “exception” (a special exception/conditional use approval).
- The ordinance’s exception provision required applicants to satisfy several criteria, including broad requirements that the proposed use would not adversely affect the public health, safety, or general welfare and would not adversely affect the value or general character (or “essential characteristics”) of surrounding property.
- After hearings, the Zoning Board of Appeals denied the application, finding that the project would (1) endanger public safety and (2) drastically change the neighborhood from a quiet area to a heavily traveled area.
- The Copes appealed the denial to the Superior Court, arguing that the exception criteria were so vague and discretionary that they were facially unconstitutional because they delegated legislative zoning power to the Board without meaningful standards.
- The Superior Court affirmed the Board’s decision, and the Copes appealed to the Maine Supreme Judicial Court.

## Issues

1. Whether the zoning ordinance’s exception criteria requiring the Board to decide, in broad terms, whether a proposal would adversely affect “health, safety, or general welfare” or the neighborhood’s “general character”/surrounding property values were unconstitutional because they delegated legislative authority without adequate standards.
2. If those criteria were unconstitutional, whether the Board’s denial could stand and what relief the applicants were entitled to when the remaining valid ordinance requirements were satisfied.

## Decision

- The Maine Supreme Judicial Court sustained the appeal.
- The Court held that the ordinance provisions authorizing the Board to grant or deny exceptions based on generalized “health, safety, or general welfare” and neighborhood character/value determinations were facially unconstitutional as an unlawful delegation of legislative power.
- The Court concluded that the Board’s denial rested on those invalid criteria and that, once those provisions were set aside, no valid basis remained to deny the exception.
- The Court reversed the judgment that had affirmed the denial and directed relief consistent with granting the requested exception/permit.

## Legal Principles

- Municipal land-use control exists only by legislative grant; a local board’s authority must be confined by standards set by the legislative body.
- When an ordinance allows a use only by special exception/conditional approval, the ordinance must supply clear, definite standards that guide the board’s decision and limit discretion.
- Broad police-power phrases (such as “public health, safety, and general welfare”) and open-ended neighborhood character/value criteria, standing alone, do not provide workable standards for parcel-by-parcel decisions and invite arbitrary or unequal application.
- Invalid delegation provisions may be treated as severable; if the applicant satisfies the remaining valid requirements and the denial rests solely on invalid criteria, the permit/exception should issue.

## Conclusion

In *Cope v. Town of Brunswick*, the Maine Supreme Judicial Court held that Brunswick’s zoning ordinance improperly gave its zoning board standardless discretion to grant or deny apartment-project exceptions based on vague public-welfare and neighborhood-character criteria, making those provisions an unconstitutional delegation of legislative authority; because the denial depended on those invalid standards and the applicants met the remaining valid requirements, the Court sustained the appeal and ordered relief consistent with granting the exception.


Cope v. Town of Brunswick, 464 A.2d 223 (1983)