STATE OF MAINE SUPERIOR COURT YORK, SS. Civil Action Docket No. AP-16-0017
ARUNDEL LODGE #76, A. F. & A. M.,
Plaintiff
V. DECISION AND ORDER ON PLAINTIFF'S RULE SOB APPEAL
TOWN OF KENNEBUNKPORT,
Defendant.
Before the court is Plaintiffs appeal from a decision by the Town of
Kennebunkport Planning Board denying a site plan review application with
respect to a proposed change of use of property. For the following reasons, the
Planning Board's decision is vacated and the case is remanded for further
proceedings consistent with this decision and order.
Background
Plaintiff Arundel Lodge #76, A. F. & A. M., ("Lodge") is the owner of
property located at 10 North Street in Kennebunkport, Maine. The property is
located in the town's Village Residential Zone, and is in close proximity to the
Dock Square Zone, a separately identified commercial zone by the town's Land
Use Ordinance ("LUO" or "Ordinance"). Record ("R") 4, 14, 45. This case
involves a dispute over the Lodge's proposed changed use of five parking
spaces in its parking lot.
1 In October 1993, the Kennebunkport Planning Board approved the
Lodge's application for site plan review that sought permission to construct a
gravel parking lot on the property behind the lodge. The Planning Board's
1993 decision found that use of the parking lot "will be restricted to Lodge
functions and possibly to overflow for South Church functions ." R. 1. Further,
the Board found: "The applicant indicated that the Lodge did not intend to
'lease' spaces or in any other way generate revenue from parking." Id. The
Board approved the proposed use subject to a number of conditions. Condition
4 provided: "No public parking may be permitted, nor may parking spaces be
'leased' or otherwise made available for uses other than those described in
Condition 3." R. 3. 1
On November 16, 2015, Plaintiff filed an application for site plan review
for a partial change in use of the parking lot. The application requested that
the Lodge be relieved from Condition 4 in the 1993 decision so that it could
"designate five parking places on its property on an annual rental subscription
basis to local business owners from Memorial Day to Columbus Day." R. 6.
The application stated that this proposal was "not for a public parking lot" but
rather for the limited purpose of renting five parking spots on a seasonal basis
to business owners as a means of generating funds for maintenance and
upkeep of the lodge. Id. No other changes in the 1993 decision were
requested.
1 Condition 3 required installation of security features to "prevent use of the parking lot except for Arundel Hall functions or for South Church overflow." R. 3.
2 The Planning Board reviewed the Lodge's application on March 2, 2016,
and deemed it complete. R. 8-10.
The Board held a hearing on March 16, 2016, and voted to deny the
application. R. 12-13.
On April 6, 2016, the Board issued its Findings of Fact and Decision on
the application. Among its findings were the following:
• "The proposal is not for a parking lot."
• Referring to the 1993 decision: "In an approval of a previous
application (dated October 27, 1993) a specific condition was
placed on the Lodge and the use of the lot."
• "The Applicant seeks to be relieved from that restriction, namely
condition #4 contained in the Planning Board decision in its
Findings of Fact dated October 27, 1993 and revised November 10,
1993."
• "At the public hearing on March 16, 2016 an abutter to the
Arundel Lodge raised several concerns ...."
• The Board's "actions regarding this application would not set a
precedent (each application being unique)"
• "[T]he application did not constitute a commercial parking lot
under the LUO"
• "While there are larger concerns about parking in Kennebunkport,
they are outside the purview of the Planning Board"
3 • "[T]here is not sufficient evidence or clarity under the LUO to
compel the Planning Board to overturn the prior condition (#4) set
by the Planning Board in 1993."
See R. 2.
The Board concluded as follows: "The Board found no compelling
rationale or evidence, nor any clear mandate under the current LUO, to justify
relieving the Applicant of the Conditions contained in the 1993 Planning Board
Findings of Fact, specifically Condition #4." Accordingly, "the Site Plan
Application identified above is hereby: Disapproved." Id.
On April 14, 2016 Plaintiff timely filed its complaint for review under
M.R. Civ. P. Rule SOB. The complaint alleges that the Board's decision
committed errors of law; was not supported by substantial evidence; and was
arbitrary and capricious. (Compl. ,r 13.) Plaintiff filed its brief on May 24,
2016, and Defendant filed its brief on July 1, 2016. Plaintiff filed its reply brief
on July 20, 2016. Hearing was held on November 9, 2016.
Conclusions
Interpretation of a zoning ordinance is a question of law, and a Board's
interpretation of its own ordinance is subject to de nova review. Jordan v. City
of Ellsworth, 2003 ME 82, ,r 9, 828 A.2d 768; Isis Dev., LLC v. Town of Wells,
2003 ME 149, ,r 3, 836 A.2d 1285. In interpreting an ordinance, the court
looks to the plain meaning of the language, and if the meaning is clear need
not look beyond the words themselves. Wister v. Town of Mount Desert, 2009
ME 66, ,r 27, 974 A.2d 903.
4 The Lodge sought Planning Board review and approval for a proposed
change of use of its property, specifically its use of five parking spaces in the
parking lot adjacent to its building on North Street. The Ordinance requires in
Section 10.2.A.3 that a "change of any existing use" undergo site plan review
by the Planning Board. R. 60. The Ordinance provides in Section 10.10.A. l
that the Planning Board "shall approve an application for Site Plan Review
unless it m~es one or more of the following written findings with respect to
the proposed development," and then lists 16 specific findings, any one of
which, if found, can serve as a basis for denying the application. R. 70-71.
Although Defendant's brief in this appeal advances arguments related to these
findings, the Board's decision itself is not based on the existence of any one of
these findings. R. 14-15.
Instead, the Planning Board applied a different standard-that there was
"no compelling rationale or evidence, nor any clear mandate under the current
LUO to compel the Planning Board to overturn the prior condition (#4) set by
the Planning Board in 1993." R. 72. The Ordinance, however, does not provide
for such a standard of review.
The Town argues on appeal that the Board considered the 2015
application for site plan review in the context of its earlier conditional approval
of the 1993 application; and that Plaintiffs application for site plan review in
2015 was barred by res judicata because .the Board expressly prohibited the
leasing of parking spaces in its conditional approval of Plaintiffs 1993
application. R. 3.
5 The common law doctrine of res judicata prevents parties from re
litigating claims that were already tried, or that could have been tried, in a
previous suit on the same cause of action. Town of Ogunquit v.
Free access — add to your briefcase to read the full text and ask questions with AI
STATE OF MAINE SUPERIOR COURT YORK, SS. Civil Action Docket No. AP-16-0017
ARUNDEL LODGE #76, A. F. & A. M.,
Plaintiff
V. DECISION AND ORDER ON PLAINTIFF'S RULE SOB APPEAL
TOWN OF KENNEBUNKPORT,
Defendant.
Before the court is Plaintiffs appeal from a decision by the Town of
Kennebunkport Planning Board denying a site plan review application with
respect to a proposed change of use of property. For the following reasons, the
Planning Board's decision is vacated and the case is remanded for further
proceedings consistent with this decision and order.
Background
Plaintiff Arundel Lodge #76, A. F. & A. M., ("Lodge") is the owner of
property located at 10 North Street in Kennebunkport, Maine. The property is
located in the town's Village Residential Zone, and is in close proximity to the
Dock Square Zone, a separately identified commercial zone by the town's Land
Use Ordinance ("LUO" or "Ordinance"). Record ("R") 4, 14, 45. This case
involves a dispute over the Lodge's proposed changed use of five parking
spaces in its parking lot.
1 In October 1993, the Kennebunkport Planning Board approved the
Lodge's application for site plan review that sought permission to construct a
gravel parking lot on the property behind the lodge. The Planning Board's
1993 decision found that use of the parking lot "will be restricted to Lodge
functions and possibly to overflow for South Church functions ." R. 1. Further,
the Board found: "The applicant indicated that the Lodge did not intend to
'lease' spaces or in any other way generate revenue from parking." Id. The
Board approved the proposed use subject to a number of conditions. Condition
4 provided: "No public parking may be permitted, nor may parking spaces be
'leased' or otherwise made available for uses other than those described in
Condition 3." R. 3. 1
On November 16, 2015, Plaintiff filed an application for site plan review
for a partial change in use of the parking lot. The application requested that
the Lodge be relieved from Condition 4 in the 1993 decision so that it could
"designate five parking places on its property on an annual rental subscription
basis to local business owners from Memorial Day to Columbus Day." R. 6.
The application stated that this proposal was "not for a public parking lot" but
rather for the limited purpose of renting five parking spots on a seasonal basis
to business owners as a means of generating funds for maintenance and
upkeep of the lodge. Id. No other changes in the 1993 decision were
requested.
1 Condition 3 required installation of security features to "prevent use of the parking lot except for Arundel Hall functions or for South Church overflow." R. 3.
2 The Planning Board reviewed the Lodge's application on March 2, 2016,
and deemed it complete. R. 8-10.
The Board held a hearing on March 16, 2016, and voted to deny the
application. R. 12-13.
On April 6, 2016, the Board issued its Findings of Fact and Decision on
the application. Among its findings were the following:
• "The proposal is not for a parking lot."
• Referring to the 1993 decision: "In an approval of a previous
application (dated October 27, 1993) a specific condition was
placed on the Lodge and the use of the lot."
• "The Applicant seeks to be relieved from that restriction, namely
condition #4 contained in the Planning Board decision in its
Findings of Fact dated October 27, 1993 and revised November 10,
1993."
• "At the public hearing on March 16, 2016 an abutter to the
Arundel Lodge raised several concerns ...."
• The Board's "actions regarding this application would not set a
precedent (each application being unique)"
• "[T]he application did not constitute a commercial parking lot
under the LUO"
• "While there are larger concerns about parking in Kennebunkport,
they are outside the purview of the Planning Board"
3 • "[T]here is not sufficient evidence or clarity under the LUO to
compel the Planning Board to overturn the prior condition (#4) set
by the Planning Board in 1993."
See R. 2.
The Board concluded as follows: "The Board found no compelling
rationale or evidence, nor any clear mandate under the current LUO, to justify
relieving the Applicant of the Conditions contained in the 1993 Planning Board
Findings of Fact, specifically Condition #4." Accordingly, "the Site Plan
Application identified above is hereby: Disapproved." Id.
On April 14, 2016 Plaintiff timely filed its complaint for review under
M.R. Civ. P. Rule SOB. The complaint alleges that the Board's decision
committed errors of law; was not supported by substantial evidence; and was
arbitrary and capricious. (Compl. ,r 13.) Plaintiff filed its brief on May 24,
2016, and Defendant filed its brief on July 1, 2016. Plaintiff filed its reply brief
on July 20, 2016. Hearing was held on November 9, 2016.
Conclusions
Interpretation of a zoning ordinance is a question of law, and a Board's
interpretation of its own ordinance is subject to de nova review. Jordan v. City
of Ellsworth, 2003 ME 82, ,r 9, 828 A.2d 768; Isis Dev., LLC v. Town of Wells,
2003 ME 149, ,r 3, 836 A.2d 1285. In interpreting an ordinance, the court
looks to the plain meaning of the language, and if the meaning is clear need
not look beyond the words themselves. Wister v. Town of Mount Desert, 2009
ME 66, ,r 27, 974 A.2d 903.
4 The Lodge sought Planning Board review and approval for a proposed
change of use of its property, specifically its use of five parking spaces in the
parking lot adjacent to its building on North Street. The Ordinance requires in
Section 10.2.A.3 that a "change of any existing use" undergo site plan review
by the Planning Board. R. 60. The Ordinance provides in Section 10.10.A. l
that the Planning Board "shall approve an application for Site Plan Review
unless it m~es one or more of the following written findings with respect to
the proposed development," and then lists 16 specific findings, any one of
which, if found, can serve as a basis for denying the application. R. 70-71.
Although Defendant's brief in this appeal advances arguments related to these
findings, the Board's decision itself is not based on the existence of any one of
these findings. R. 14-15.
Instead, the Planning Board applied a different standard-that there was
"no compelling rationale or evidence, nor any clear mandate under the current
LUO to compel the Planning Board to overturn the prior condition (#4) set by
the Planning Board in 1993." R. 72. The Ordinance, however, does not provide
for such a standard of review.
The Town argues on appeal that the Board considered the 2015
application for site plan review in the context of its earlier conditional approval
of the 1993 application; and that Plaintiffs application for site plan review in
2015 was barred by res judicata because .the Board expressly prohibited the
leasing of parking spaces in its conditional approval of Plaintiffs 1993
application. R. 3.
5 The common law doctrine of res judicata prevents parties from re
litigating claims that were already tried, or that could have been tried, in a
previous suit on the same cause of action. Town of Ogunquit v. Cliff House &
Motels, Inc., 2000 ME 169, ,r 10, 759 A.2d 731 (quoting Blance v. Alley, 1997
ME 125, ,r 4, 697 A.2d 828). Specifically, resjudicata applies when:
(1) the same parties or their privies are involved in both actions; (2) a valid final judgment was entered in the prior action; (3) the matters presented for decision in the second action were, or might have been, litigated in the first action . . . ; and (4) both cases involve the same cause of action. The doctrine may apply to bar a second cause of action even where the legal theories, relief sought, and evidence submitted may differ from those which were asserted, sought, and submitted in the first cause.
Id. (quoting Goumas v. State Tax Assessor, 2000 ME 79, ,r 5, 750 A.2d 563).
The doctrine applies to administrative proceedings so long as the
proceedings include the "essential elements of adjudication." Town ofBoothbay
u. Jenness, 2003 ME 50, ,r 20, 822 A.2d 1169. The Board's 1993 decision was
a final decision involving the same parties. The issue of leasing parking spaces
in the lot apparently was not actually "litigated," though Plaintiff presumably
would have had the opportunity to do so had it been seeking permission to
lease spaces (which, apparently, it was not). The extent to which there was any
record relating to such issue is unclear. R. 1. Nor is it clear for purposes of a
res judicata analysis that the "cause of action" is the same. For example,
among the factors the court considers in making this determination is whether
the facts underlying the two cases are "related in time." Lewis v. Me. Coast
Artists, 2001 ME 75, ,r 10, 770 A.2d 644. The Board's prior decision predates
Plaintiff's 2015 application by more than 20 years.
6 Defendant argues that Plaintiff must show a substantial change of
condition between the 1993 and 2015 applications in order to avoid the
application of res judicata. See Silsby u. Allen's Blueberry Freezer, Inc., 501
A.2d 1290, 1295 (Me. 1985). Silsby, however, stands for the proposition that a
board of zoning appeals "may not entertain a second application concerning the
same property after a previous application has been denied, unless a
substantial change of conditions had occurred or other considerations
materially affecting the merits of the subject matter had intervened between the
first application and the subsequent application." Id. (emphasis added) . This
case, however, does not involve a situation in which an unsuccessful applicant
seeks another review shortly after denial of a previous application. See, e.g.
Silsby, 501 A.2d 1292 (Second application for building permit filed within
months after denial of first application); Driscoll u. Gheewalla, 441 A. 2d 1023,
1027 (Me. 1982) (Second application for variance filed less than one month
after denial of first barred by terms of Ordinance and principles of res judicata).
Plaintiffs previous application was granted (but with an added condition
addressing a matter not requested).
Condition 4 in the 1993 decision, as well as the reasons for its inclusion
therein and any changed circumstances since, certainly are relevant to the
Board's consideration of Plaintiffs 2015 application. However, Plaintiffs 2015
site plan review application should be evaluated on the basis of relevant
current facts and circumstances to determine whether or not it meets the
Ordinance's stated criteria. If the Board denies the application, its decision
7 should articulate specifically the findings that support its denial with respect to
said criteria. The Board's April 6, 2016 Findings of Fact and Decision did not
do so.
Order
In accordance with the foregoing, the decision of Defendant Town of
Kennebunkport's Planning Board is VACATED. This case is REMANDED for
further proceedings consistent with this decision and order.
The clerk may incorporate this order upon the docket by reference
pursuant to Rule 79(a) of the Maine Rules of Civil Procedure.
SO ORDERED.
DATE: February 17, 2017