Arnold v. Town of Ogunquit

• Court: Superior Court of Maine
• Decided: June 27, 2000
• Docket: YORap-99-051
• Status: Unpublished

Opinion

STATE OF MAINE a . _ SUPERIOR COURT

—- BONALD L. GARBRECHT CIVIL ACTION YORK, ss. . LAW LESAARY DOCKET NO. AP-99-051 : PAF - Yo - 6/39] aece , \ JUN 29 2000 STEVEN H. ARNOLD, et al., . Plaintiffs . ORDER Vv. AND DECISION ~—

TOWN OF OGUNOUIT and ROBERT M. YOUNG,

Defendants

The plaintiffs are owners of real estate in Ogunquit located near the proposed : Windward Subdivision. They have appealed from a decision of the Ogunquit Planning Board which approved the final plan for the proposed subdivision and granted waivers from several subdivision requirements.

The first set of issues in the appeal concern the standing of both the plaintiffs and the defendant Robert Young. Regardless of whether all of the plaintiffs named in the complaint participated in the Planning Board hearings, a substantial number of them did. As participants who are abutting landowners they have clearly established their standing. See Brooks v. Cumberland Farms, Inc., 1997 Me. 203 1] 8-11, 703 A.2d 844, 847. It is not necessary to potentially dismiss a few of the plaintiffs for lack of standing when a large number of plaintiffs have standing to bring the complaint.

A similar issue has been raised concerning the standing of one of the

defendants, the developer Robert Young. The record is clear that he has been acting as the agent for owners of property that would compromise most of the proposed development. He may not have had an interest in all of the land needed for the subdivision as somie of it may be owned by the Ogunquit Museum of Art. This smaller portion may be subject to a property trading agreement with the museum. He does have a-sufficient personal stake inthe controversy for standing in Court - and had an interest in.the majority of the property which was sufficient to seek administrative action by the Planning Board. .See Madore v. Maine Land Use Regulation Commission, 1998 Me. 167 9% 7-11, 715 A.2d 157, 160-1. This determination is made despite the finding of fact, number 3, of the Ogunquit Planning Board of February 14, 2000 which stated, “The applicant is Robert M. . Young who-has not demonstrated a legal. interest in the property by providing letters from the landowners designating him as their agent.” The word “not” was a clerical error.

The central issues concern the granting of waivers by the Board from a number of subdivision requirements. Can the Board grant these waivers or are they really variances which only a Board of Appeals or Zoning Board of Appeal can grant? See Perkins v. Town of Ogunquit, 1998 Me. 42, 709 A.2d 106. Are the waivers | consistent with the town’s ordinance and are they ‘supported by substantial evidence?

In this case, after public hearings and substantial controversy, the Planning Board, pursuant to Article 12 of its Standards for Reviewing Land Subdivisions and

Other Projects, granted waivers from its normal requirements. Waivers were

granted for road grade, street width, number of public street connections, sidewalk > width and cul-de-sac design requirements. The evidence in the record and the findings of fact demonstrate that all of the requirements for all of the waivers have been met if the Planning Board can grant the waivers. While some of the reasons used by the Board to support the granting of the waivers are of general applicability to all real estate, the Board has made sufficient findings, supported by substantial evidence, to meet the requirement in Article 122 of its Standards that waivers be granted “... due to special circumstances of a particular Plan . we

In the Perkins case, the Ogunquit Planning..Board granted a waiver of a frontage requirement after the Board of Appeals had denied a variance from that frontage requirement. Unlike the Perkins case, in this case the waivers that were sought and granted are truly waivers from sub-division standards and are not an attempt to circumvent a zoning requirement such as a road frontage or set back requirement. .

The final concerns regarding signed plans and a performance bond can be resolved by the signing of the plans and the obtaining of the necessary bond..

Therefore, the entry is:

Judgment for the defendants. Decisions of the Ogunquit

Planning Board regarding the “Windward Subdivision” are affirmed. ~

Dated: June 27, 2000 .

(Fe ful be Ja PLAINTIFF: Alan S. Nelson, Esq. Paul A Fritzsche’ PRESCOTT LEMOINE JAMIESON & NELSON ‘ PO BOX 1190 Justice, Superior Court SACO ME 04072-1190 Defendant -Robert M.Young

3 Paul W. Cadigan, Esq. Wayne T. Adams, Esq.

Defendant: Town of Ogunquit PO Bx 116 PO Bx 3030 John P. McVeigh, Esq. Kennebunk, ME 04043 Kennebunk, ME. 04043 PRETI FLAHERTY BELIVEAU & PACHIOS PO BOX 9546

PORTLAND ME 04112-9546 o