Buckingham v. Town of Scarborough

• Court: Superior Court of Maine
• Decided: August 13, 2000
• Docket: CUMap-99-79
• Status: Unpublished

Opinion

/

STATE OF MAINE . Se anya SUPERIOR COURT

CUMBERLAND, ss. aed CIVIL ACTION DOCKET NO. AP-99-79 Um-CUM- 2/13/20 22 THOMAS & DIANE BUCKINGHAM, et al., Plaintiffs vs. DECISION AND ORDER ~

TOWN OF SCARBOROUGH, et al.,

Defendants

The plaintiffs own properties which abut Glendale Circle or Kerryman Circle in Scarborough.! They appeal the September 13, 1999 decision of the Town of

Scarborough Planning Board. For the following reasons, the plaintiffs’ appeal is

denied. -

On July 12, 1999, the Planning Board granted final plan approval for a subdivision, Thurston Woods, located on land owned by defendant Gamage. See R. 60. In that approval, the Planning Board determined that a road would extend from Kerryman Circle to the proposed subdivision. See R. 109. No appeal was filed

regarding this approval.

1The plaintiffs have standing to bring this appeal based on their argument that the removal of

the condition will result in unsafe conditions near the cul de sac. See Leadbetter v. Ferris, 485 A.2d 225, 227 (Me. 1984).

The plan approval was conditioned on defendant Gamage’s obtaining approval from the Town of Scarborough Town Council to remove portions of the pavement from the cul de sac at the end of Kerryman Circle. The plan was not to be signed until the Council made its determination. See R. 51-53, 60, 69-70; 30-A M.RS.A. § 4403(5)(C) (1996). On August 18, 1999, the Town Council voted not to allow removal of the pavement in the cul de sac. See R. 75. On September 13, 1999, the Planning Board voted to eliminate the condition from the subdivision approval. See R. 78.

Planning Board’s Authority to Eliminate Condition

Defendant Gamage requested that the Planning Board amend the final subdivision approval to remove the condition after the Town Council declined to allow removal of the pavement. See R. 62, n.11; 71; 82; 93; 99. There are no time

limits imposed on an amendment to a plan. See 30-A M.R.S.A. § 4407 (1996).

Requirements for Amendment to Final Plan

The September 2, 1999 letter to the Planning Board from Sebago Technics satisfied the requirements of the statute and the Town of Scarborough Subdivision Ordinance for amending a plan. See 30-A M.RS.A. § 4407; R. 112, 114, 119-21. Plaintiffs’ Due Process Rights

The filing of a preliminary plan triggers notice requirements, which were complied with in this case. See 30-A M.RS.A. § 4403(3)(A) (1996); R. 40-45. There are no notice requirements regarding an amendment to a plan. See 30-A M.R.S.A. §

4407. The Town of Scarborough was not required to hold a public hearing regarding the subdivision application. See 30-A M.R.S.A. § 4403(4) (1996). Some of the. plaintiffs participated at various stages of the process and a letter submitted from an attorney is referred to in the 2/23/98 minutes. See R. 3, 10, 29, 57-60, 97-99; Crispin v. Town of Scarborough, 1999 ME 112, TI 22, 24, 736 A.2d 241, 248-49.

Final Plan Satisfies Traffic Safety Requirement

The Planning Board was required to determine that the subdivision would not cause unreasonable road congestion or unsafe conditions regarding the use of proposed or existing roads. See 30-A M.R.S.A. §4404(5) (1996); R. 111. At the September 13 meeting, the planning Board heard from a traffic engineer, who had done an assessment of the cul de sac issue and determined that not removing the pavement would not pose a traffic safety issue. See R. 87-88. There is substantial evidence in the record to support the Planning Board’s determination that the plan with no condition regarding the cul de sac pavement satisfied that statute and

ordinance. See Veilleux v. City of Augusta, 684 A.2d 413, 415 (Me. 1996); Driscoll v.

Gheewalla, 441 A.2d 1023, 1026-27 (Me. 1982); R. 81-88, 90, 92, 98.

The plaintiffs cite no authority for the argument that. the_original condition regarding the cul de sac imposed by the Planning Board was based on traffic and safety concerns and because nothing changed prior to the amendment except the Town Council vote, the Planning Board exceeded its jurisdiction to eliminate the condition. There was no specific finding at the July 12, 1999 meeting that the traffic standard would not be met if the condition were not imposed. See R. 57-60. One

member stated that reconstruction of the circle “made good sense for the traffic” but s

stated that he would be opposed if eliminating the cul de sac if removal created a non-conforming lot. R. 58-59.

Further, section 4407 does not require changed circumstances; the section does require that the proposed revisions meet the criteria of section 4404. See 30-A

MLR.S.A. § 4407; cf. Driscoll, 441 A.2d at 1027 (requirement of substantial change of

conditions for second application for a variance). The condition in this plan approval became an impossibility when the Town Council refused to allow the pavement removal. The entry is The Plaintiffs’ Appeal is DENIED.

The 9/13/99 Decision of the Town of Scarborough Planning Board is AFFIRMED.

Date: August 13, 2000

Nancy Mills Justice, Superior Cour Date Filed 10-01-99 CUMBERLAND Docket No, 4299-79

Oct. 04 Received 10-01-99: Complaint Summary Sheet filed. " " Plaintiffs' Complaint for review of Governmental Action filed.

County »* Action APPEAL — 80B THOMAS BUCKINGHAM KAREN. LINDHOM DANA VOISINE DIANE BUCKINGHAM EDWARD MORGAN WADSWORTH WILLIAMS MARK DYER REJINA MORGAN JOSEPHINE WILLIAMS VS. TOWN OF SCARBOROUG REBECCA DYER BRUCE SIMPSON BRENDA VOISINE GAMAGE REALTY, LLC NICHOLAS KLEFTIS CAROLYN SIMPSON KATHRYN KLEFTIS JAMES SNOW DAVID LINDHOLM LAURIE SNOW vs Plaintiff's Attorney Defendant’s Attorney JOHN BANNON ESQ 773-5651 CHRISTOPHER VANOITIS, ESQ 774-1200 PO BOX 9785, PORTLAND MAINE 04104 PO BOX 972.9, PORTLAND MAINE 04104 189 Spurwink Ave., CE ME 04107 PORTLAND ME 04112 BONALD L. GARBRECHT LAW LiBRAr

Date of 3 AUG 21 2000

Entry :

1999 :

i

Oct. 04 On 10-4-99. Briefing schedule mailed. Plaintiff's brief due 11-10-99.

Oct. 15 Received 10-15-99; Acceptance of service filed showing reeeipt of Summons & Complaint on behal of Defendant Gamage Realty, LLC on 10-12-99 to Leslie Lowry, Esq.

Oct. 19 Received 10-19-99: zo - - Entry of Appearance of Christopher Vaniotis, Esq., on behalf of defendant Town of Scarborough filed.

Oct. 20 Received 10-20-99: Acceptance of Service filed showing receipt of Summons & Complaint on behalf of defendant Town of Scarborough on 10-15-99 to Chris Vanoitis, Esq.

Now. Received 11/04/99: Plaintiff's Motion for Fnlargenent of Time within which to File Brief and Record on Appeal, with Incorporated Memorancdim of Law filed.

No. 05 Received 11/05/99:

ORDER ON ENLARGING TIME WITHIN WHICH PLAINTIFFS MUST FILE BRIEF AND RECORD ON APPEAL filed. (Mills, J.)

It is ORDERED that the time within which Plaintiffs must file Plaintiffs' Brief and the record in the above captioned matter is enlarged through Noverber 30, 1999.

‘tom On 11/05/99: Copies mailed to John Bannon and Christopher Vancitis, Esqs. Nov. 19 Received 11-19-99.

Entry of appearance of Natalie Burns Esq. as counsel for Gamage Realty LLC filed. ,