STATE OF MAINE SUPERIOR COURT CUMBERLAND, ss. CIVIL ACTION Docket No. AP-06-44 -7- 2
PAMELA COLE, / J Plaintiff, ST4TE OF pYj,!\ I, , Cumbc;i;;ni: , g ' I VL. scj,Gq,i!,js.s C'@'h" 0ffjC8 v. ORDER COG:? !.Lit /.)A .<,( j 2". - Udj' TOWN OF GRAY,
Defendant.
Before the court is Pamela Cole's Rule BOB appeal from a July 14, 2006 decision of
the Gray Planning Board not to approve Cole's application for a three-lot subdivision
on Depot Road.
1. Record
The record demonstrates that on January 12, 2006 Cole initially proposed two
alternative plans to the Gray Planning Board - a cluster subdivision and a traditional
subdivision. R.6 at 2-3. In both cases Planning Board members expressed concern, inter
alia, about the number of curb cuts and the safety issues created by multiple driveways
on the Depot Road. Id. The Board moved to reject Cole's sketch plans until she returned with a more satisfactory plan. R. 6 at 3.
The record reflects that on February 6,2006, approximately three weeks after the
January 12, 2006 131anning Board meeting, the State Department of Transportation
issued Cole a permit to construct a driveway under 23 M.R.S. § 704. R.5.
On February 9,2006 a representative of plaintiff presented a revised plan, noting
that the number of lots had been reduced to three with two curb cuts. R. 7 at 2. One
curb cut had been approved by MDOT, and apparently construction of a driveway had commenced. Apparently because Cole did not have subdivision approval, the Town's
Code Enforcement Officer had then issued a stop work order. This concerned members
of the Board who felt that subdivision approval should have been obtained before any
road was put in. Id. However, the Board ultimately voted to accept the preliminary
sketch plan and voted to complete a site walk prior to any further submittal. Id.at 3-4.
However, at the February 23, 2006 meeting it was reported that Cole had withdrawn
her application. R. 8 at 1.
On June 8,2006 Cole's representative submitted a new sketch plan for a three-lot
subdivision. R. 9 at 7. Apparently a portion of the property had been sold to a family
named Soucy, who would use the already constructed driveway, and Cole was seelung
approval for at least one additional driveway (or curb cut) to access the other
residences. Id. Board members again expressed concern over the number of curb cuts,
and there was discussion as to whether the overall plan could be amended to have only
one driveway onto Depot Road. At least one member suggested that a site plan and a
traffic study would be necessary before the plan could be approved. Id. The Board ultimately tabled the issue until a traffic study and site walk were completed. Id.at 7-8.
On June 26, 2006, several weeks after the Planning Board's June 8, 2006 meeting,
the State Department of Transportation issued a permit to Cole to construct a second
driveway on the property. R. 4.
On July 13, 2006, Cole's representative again appeared before the Board.
Although he informed the Board at that time that the plan had been reconfigured to
eliminate one curb cut Cole's June 2006 plan must have originally called for three
driveway entrances because the record reflects that Cole was still seelung approval for
two curb cuts. R. 10 at 4. The record does not reflect that any traffic study was
submitted, and Board members continued to express their concerns as to the existence of more than one driveway. Id. They also expressed their concern that Cole was asking
them to approve two driveways because of actions she had taken before obtaining any
approvals. Id. Steve Lavallee from the Town's Department of Public Works stated that
he thought there should only be one opening because of the traffic. Id.at 5. In the end,
the Board voted 4-1 against approving the sketch plan submitted by Cole. Id.
Written confirmation of the Board's action was issued the following day. R. 11
("As you know, the Boards major concern was the location of the two proposed
driveways on a hazardous section of Depot Road").
2. Standard of Review
On an 80B appeal, interpretation of a local ordinance is a question of law that is
subject to de novo review. Isis Development LLC v. Town of Wells, 2003 ME 149 ¶ 3, 836
A.2d 1285,1287 n.4. In contrast, factual determinations made by a local planning board
will only be overturned if they are not adequately supported by evidence in the record.
Tordan v. City of Ellsworth, 2003 ME 82 ¶ 8, 828 A.2d 768, 771. On factual issues the
court may not substitute its judgment for that of a local planning board. Just because a
different conclusion could be drawn from the record does not justify overturning a
planning board's decision if there is evidence in the record that could support the
board's determination. Twigg v. Town of Kennebunk, 662 A.2d 914,916 (Me. 1995). To
prevail on factual issues, the party challenging a board's decision must show that the
evidence compels a different result.
3. Discussion
Cole's brief on appeal does not separately divide her arguments in to sections
alleging errors of law, procedural deficiencies, or findings unsupported by sufficient evidence. Instead, she lumps her arguments together under the heading that the
Board's denial of her application "was an abuse of discretion, error of law, and/or is
unsupported by substantial evidence in the record." Plaintiff's Brief dated September
18, 2006 and filed September 20, 2006 at 4. Nevertheless, it is possible to glean that Cole
is malung two separate arguments. The first is that because Cole satisfied section 1.11
of the Town's Street Construction Ordinance, the Planning Board could not turn down
her subdivision application based on the existence of too many driveway openings on
the Depot Road.
Cole's argument on this issue is unavailing. Section 1.11 of the Town's Street
Construction Ordinance requires minimum sightlines dependant on the allowable
speed (which requirements were met here) and compliance with MDOT standards
(demonstrated here by MDOT's permits). However, the subdivision ordinance and the
governing statute require the Board to consider whether the proposed subdivision will
cause "unreasonable highway or public road congestion or unsafe conditions with
respect to the use of the hghways or public roads existing or proposed . . . " 30-A
M.R.S. fij 4404(5); Gray Subdivision Ordinance § 401.1(E).' Just because Cole's proposal
met the sightline criteria in fij 1.11 of the street construction ordinance does not mean the
Planning Board was required to find that it would not cause unreasonable road
congestion or unsafe conditions under the subdivision ordinance. In addition, a portion
of the Street Construction Ordinance not cited by Cole also directs consideration of safe
access, relationship of proposed driveways to existing streets, and the relationshp of
Section 4404(5) also requires that any driveways in a subdivision outside of any urban area be approved by MDOT under 23 M.R.S. § 704. Cole obtained the necessary MDOT approvals in this case.
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STATE OF MAINE SUPERIOR COURT CUMBERLAND, ss. CIVIL ACTION Docket No. AP-06-44 -7- 2
PAMELA COLE, / J Plaintiff, ST4TE OF pYj,!\ I, , Cumbc;i;;ni: , g ' I VL. scj,Gq,i!,js.s C'@'h" 0ffjC8 v. ORDER COG:? !.Lit /.)A .<,( j 2". - Udj' TOWN OF GRAY,
Defendant.
Before the court is Pamela Cole's Rule BOB appeal from a July 14, 2006 decision of
the Gray Planning Board not to approve Cole's application for a three-lot subdivision
on Depot Road.
1. Record
The record demonstrates that on January 12, 2006 Cole initially proposed two
alternative plans to the Gray Planning Board - a cluster subdivision and a traditional
subdivision. R.6 at 2-3. In both cases Planning Board members expressed concern, inter
alia, about the number of curb cuts and the safety issues created by multiple driveways
on the Depot Road. Id. The Board moved to reject Cole's sketch plans until she returned with a more satisfactory plan. R. 6 at 3.
The record reflects that on February 6,2006, approximately three weeks after the
January 12, 2006 131anning Board meeting, the State Department of Transportation
issued Cole a permit to construct a driveway under 23 M.R.S. § 704. R.5.
On February 9,2006 a representative of plaintiff presented a revised plan, noting
that the number of lots had been reduced to three with two curb cuts. R. 7 at 2. One
curb cut had been approved by MDOT, and apparently construction of a driveway had commenced. Apparently because Cole did not have subdivision approval, the Town's
Code Enforcement Officer had then issued a stop work order. This concerned members
of the Board who felt that subdivision approval should have been obtained before any
road was put in. Id. However, the Board ultimately voted to accept the preliminary
sketch plan and voted to complete a site walk prior to any further submittal. Id.at 3-4.
However, at the February 23, 2006 meeting it was reported that Cole had withdrawn
her application. R. 8 at 1.
On June 8,2006 Cole's representative submitted a new sketch plan for a three-lot
subdivision. R. 9 at 7. Apparently a portion of the property had been sold to a family
named Soucy, who would use the already constructed driveway, and Cole was seelung
approval for at least one additional driveway (or curb cut) to access the other
residences. Id. Board members again expressed concern over the number of curb cuts,
and there was discussion as to whether the overall plan could be amended to have only
one driveway onto Depot Road. At least one member suggested that a site plan and a
traffic study would be necessary before the plan could be approved. Id. The Board ultimately tabled the issue until a traffic study and site walk were completed. Id.at 7-8.
On June 26, 2006, several weeks after the Planning Board's June 8, 2006 meeting,
the State Department of Transportation issued a permit to Cole to construct a second
driveway on the property. R. 4.
On July 13, 2006, Cole's representative again appeared before the Board.
Although he informed the Board at that time that the plan had been reconfigured to
eliminate one curb cut Cole's June 2006 plan must have originally called for three
driveway entrances because the record reflects that Cole was still seelung approval for
two curb cuts. R. 10 at 4. The record does not reflect that any traffic study was
submitted, and Board members continued to express their concerns as to the existence of more than one driveway. Id. They also expressed their concern that Cole was asking
them to approve two driveways because of actions she had taken before obtaining any
approvals. Id. Steve Lavallee from the Town's Department of Public Works stated that
he thought there should only be one opening because of the traffic. Id.at 5. In the end,
the Board voted 4-1 against approving the sketch plan submitted by Cole. Id.
Written confirmation of the Board's action was issued the following day. R. 11
("As you know, the Boards major concern was the location of the two proposed
driveways on a hazardous section of Depot Road").
2. Standard of Review
On an 80B appeal, interpretation of a local ordinance is a question of law that is
subject to de novo review. Isis Development LLC v. Town of Wells, 2003 ME 149 ¶ 3, 836
A.2d 1285,1287 n.4. In contrast, factual determinations made by a local planning board
will only be overturned if they are not adequately supported by evidence in the record.
Tordan v. City of Ellsworth, 2003 ME 82 ¶ 8, 828 A.2d 768, 771. On factual issues the
court may not substitute its judgment for that of a local planning board. Just because a
different conclusion could be drawn from the record does not justify overturning a
planning board's decision if there is evidence in the record that could support the
board's determination. Twigg v. Town of Kennebunk, 662 A.2d 914,916 (Me. 1995). To
prevail on factual issues, the party challenging a board's decision must show that the
evidence compels a different result.
3. Discussion
Cole's brief on appeal does not separately divide her arguments in to sections
alleging errors of law, procedural deficiencies, or findings unsupported by sufficient evidence. Instead, she lumps her arguments together under the heading that the
Board's denial of her application "was an abuse of discretion, error of law, and/or is
unsupported by substantial evidence in the record." Plaintiff's Brief dated September
18, 2006 and filed September 20, 2006 at 4. Nevertheless, it is possible to glean that Cole
is malung two separate arguments. The first is that because Cole satisfied section 1.11
of the Town's Street Construction Ordinance, the Planning Board could not turn down
her subdivision application based on the existence of too many driveway openings on
the Depot Road.
Cole's argument on this issue is unavailing. Section 1.11 of the Town's Street
Construction Ordinance requires minimum sightlines dependant on the allowable
speed (which requirements were met here) and compliance with MDOT standards
(demonstrated here by MDOT's permits). However, the subdivision ordinance and the
governing statute require the Board to consider whether the proposed subdivision will
cause "unreasonable highway or public road congestion or unsafe conditions with
respect to the use of the hghways or public roads existing or proposed . . . " 30-A
M.R.S. fij 4404(5); Gray Subdivision Ordinance § 401.1(E).' Just because Cole's proposal
met the sightline criteria in fij 1.11 of the street construction ordinance does not mean the
Planning Board was required to find that it would not cause unreasonable road
congestion or unsafe conditions under the subdivision ordinance. In addition, a portion
of the Street Construction Ordinance not cited by Cole also directs consideration of safe
access, relationship of proposed driveways to existing streets, and the relationshp of
Section 4404(5) also requires that any driveways in a subdivision outside of any urban area be approved by MDOT under 23 M.R.S. § 704. Cole obtained the necessary MDOT approvals in this case. If the legislature had intended MDOT approval to be conclusive, however, it would have limited €4405(5) j to a requirement that MDOT approval be obtained. The presence of statutory language requiring that a proposed subdivision also not cause unreasonable congestion or unsafe traffic conditions demonstrates that something more than MDOT approval is required. proposed driveways with respect to any potential conflict with the existing traffic flow.
Street Construction Ordinance 55 5.3.3, 5.3.4.
The MDOT permits obtained by Cole are also not conclusive as to compliance
with the subdivision ordinance. The MDOT rules expressly state:
Notlung in this rule supplants any municipal ordinance . . . . Where the requirements of this rule differ from a requirement of a municipal ordinance . . . . the most stringent or restrictive requirement as related to the purposes of these rules will apply.
MDOT 17-299 5 1.3(B).
Cole's second argument is that there is no evidence in the record that the
presence of two driveways on that section of the Depot Road would create potentially
hazardous conditions. Cole argues that the evidence she offered demonstrated the
contrary. Her evidence, however, addressed only the adequacy of sightlines at the
location of Cole's proposed driveway entrances. R. 3. The Planning Board was not
required to assume that if the sightlines were adequate, there would be not safety issues
caused by entering or exiting vehicles. In fact, the Planning Board had contrary
evidence from Steve Lavallee from the Town's Public Works Department to the effect
that he did not tlunk more than one driveway entrance would be appropriate and that
MDOT, in approving Cole's permits, did not appreciate the traffic at that location. R. 10
Whle that alone is sufficient evidence to uphold the Board's decision, it is also
evident from the record that a number of the Board members were personally familiar
with the location in question and that their knowledge of the area supported their
concern that the speed and volume of traffic in that area rendered the existence of more
than one driveway entrance (curb cut) hazardous. Personal knowledge, when
competent, may be considered by members of a planning board. See Pine Tree Telephone & Telegraph Co. v. Town of Grav, 631 A.2d 55, 57 (Me. 1993); Lippoth v.
Z o n i n- ~Board of Appeals, 311 A.2d 552, 557 (Me. 1973) (board members' knowledge of
street, surroundings, and Maine weather would encompass any traffic problems readily
foreseeable and enable the Board to make an informed judgment as to whether
approval would generate unusual traffic conditions affecting the general
neighborhood.).
In sum, the court disagrees with Cole's contentions that the Board erred as a
matter of law in not limiting its review to Section 1.11 of the Street Construction
Ordinance and disagrees that the Board's decision was not supported by substantial
evidence. As far as the court can discern, Cole has not raised any other arguments that
the Board's decision was invalid, and the decision is therefore affirmed.
The entry shall be:
The decision of the Gray Planning Board is affirmed. The clerk is directed to
incorporate h s order in the docket by reference pursuant to Rule 79(a).
DATED: March W ,2007
0 Thomas D. Warren Justice, Superior Court Action --- -CUMBERLAND
8OB APPEAL
PAMELA S . COLE r u
County
- Docket No. M.-
*- THE INHABLTANTS OF THE TOWN OF GRAY -
. -.
Plaintiff's Attorney Defendant's Attorney JAMES F. PROSS, ESQ. William Dale Esq DAVID R. DUBORD, ESQ. PO Box 4510 P.O. BOX 1 0 8 1 Portland ME 04112 LEWISTON, ME 04242-1081 783-5261