More discussion

From the Town Council Chairman to a citizen 12/15/11:

Council Leadership has met with them [Seacoast] informally to discuss their options and we are working very hard to find a solution that will keep this development in Freeport.  The Council is very sensitive to the concerns of residents in the project area and we will not make any final decisions without giving all a chance to weigh in on the matter.  There is just nothing concrete to discuss at this point as Seacoast is doing their investigation of options.  Once the Council has heard from them on the 17th we will be better able to assess next steps and build a process that is inclusive for all who would like to comment.

 From the Maine Municipal Association on Board Member Bias:

Maine courts have repeatedly recognized that the constitutional guarantee of procedural due process presupposes a fair and impartial decisionmaker. 

For example, in Mutton Hill Estates, Inc. v. Town of Oakland, 468 A.2d 989 (Me. 1983), the Law Court held that a planning board violated a developer's procedural due process rights when it invited the developer's opponents to assist in making factual findings sufficient to support the denial of the developer's proposal, without giving the developer notice or permitting the developer's representative to attend the meeting. The Law Court agreed with the Superior Court that "the findings of the Planning Board were irreversibly tainted by this procedural impropriety" and echoed the Superior Court's grave doubts that the developer could ever get "a fair, impartial, and expeditious hearing and decision from the Planning Board." Because of the irreversible bias, the Law Court removed the decision of whether to approve the developer's application from the Planning Board and authorized the Superior Court to make that decision for the board. Mutton Hill thus stands for the proposition that board member bias can so affect the fairness and impartiality of a municipal proceeding that a procedural due process violation results.

The Superior Court in Burns v. Town of Harpswell, No. CV-90-1083 (Me. Super. Ct. Cum. Cty., July 10, 1991) approached the issue of board member bias and procedural due process from a slightly different angle. In that case, a group of abutters successfully challenged a ZBA's action approving a special exception as violative of procedural due process by pointing out that one of the members of the ZBA was both an abutter and a friend of the applicant. Prior to the hearing, the board member's husband had written a letter in support of the special exception which was entered into the record. Although the board member abstained from voting, she participated in the ZBA's discussion of the application which was ultimately approved. The court found her abstention from voting insufficient to overcome the procedural due process error. It noted that "[g]enerally, due process requires neutrality of the decision-makers" and held that "[w]here a member's bias or conflict of interest is of sufficient magnitude to disqualify that person from voting, the member should not participate in debate or advocacy of the matter." The court therefore sustained the appeal on procedural due process grounds.

A similar result was reached in Sevigny v. City of Biddeford, 344 A.2d 34 (Me.1975). There, the Law Court held that procedural due process was violated by the participation of the mayor, as the presiding officer, in a city council hearing regarding the dismissal of another city official. The Law Court noted that because of his interest the mayor could not approach his duties with the "requisite freedom from bias and prejudgment." 

These cases demonstrate that a fair and impartial decision-maker is an integral component of procedural due process and that a decision made in the absence of this component may be constitutionally deficient.