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Planning board tables appeal over 42 Atlantic Street after court remand raises jurisdiction questions
Summary
The board tabled an appeal of a Historic Preservation Board decision for 42 Atlantic Street after Superior Court orders created uncertainty about whether the court retained jurisdiction. City counsel advised the board it could either proceed on an appellate review or wait for court clarification; the board voted to table pending further direction from the court.
On April 14 the Portland Planning Board addressed an appeal of the Historic Preservation Board’s findings for a 30‑unit project at 42 Atlantic Street. The matter had been remanded by the Superior Court to the city for more detailed findings, but subsequent handwritten docketing from the court raised ambiguity about whether the court retained jurisdiction of the appeal.
City counsel Joe Skiskey, appearing as outside counsel for the city, explained the issue: the court’s remand required the Historic Preservation Board to adopt more detailed findings, but a later handwritten notation on the docket directed supplemental briefing and oral argument dates—creating doubt whether the planning board should exercise intermediate appellate review or wait for further court direction. “There’s a question in my mind as to whether or not the planning board has jurisdiction to even hear this appeal tonight in light of this order,” Skiskey said.
Board members discussed options—including tabling, conducting a limited appellate review focused solely on whether the HPB complied with the remand, or taking a ministerial action to forward the record to the court. Several members noted that only a few current planning board members had reviewed the full 2024 record and that an appellate review would require members to certify they had reviewed the underlying proceedings.
A motion to table the appeal until the Superior Court clarifies whether it intends the planning board to perform an intermediate appellate review passed on a roll call vote. The roll call recorded the following responses: Nicholas Pesina — Yes; Eric Den — Yes; David Selt — Yes; Beverly Eulenhink — Absent; Austin Smith — Yes; Kelsey Robertson — Yes; Joseph Zamboni — Yes. The board did not reach the merits of the underlying preservation decision; tabling preserves options for the parties and reduces the risk of procedural missteps while the court’s docket remains unsettled.
The appeal will be revisited after the board receives clearer direction from the Superior Court or when more members have certified review of the record; no substantive ruling on the HPB findings was made at the April 14 session.
