Comeau v. Town of Kittery

• Court: Superior Court of Maine
• Decided: November 7, 2006
• Docket: YORap-06-021
• Status: Unpublished

Opinion

STATE OF MAINE SUPERIOR COURT CIVIL ACTION YORK, ss. DOCKET NO. AP-06-021 - 2 - - 1 <

LISA COMEAU, et al., DONALD L. GARBRECHT Plaintiffs LAW llRRARY

ORDER

TOWN OF KITTERY,

Defendant

This matter comes before the Court on Lisa Comeau's and other Kittery

residents' 80B appeal of the Town of Kittery Planning Board's decision to approve

construction of a 25,500 square foot recreational center.

FACTUAL BACKGROUND

Lisa Comeau and other Kittery residents (the "Residents") seek reversal of a

planning board decision approving the Town of Kittery's ("Town's") plan to construct a recreation center. The Residents are all abutters or members of the local community.

The proposed site for the recreation center is on 5.6 acres of land owned by the Town at

2 Cole Street in Kittery's Admiralty Village Residential District, known as "Emory

Field." The Town has unsuccessfully tried to create such a facility for several years, and

the Kittery Community Center Building Committee ("Committee") recommended this

location to the Town Council. The 25,500 square foot center would include a basketball court, exercise area, and meeting rooms, and would replace the 5,700 square foot wood-

framed recreation center that has been on the same parcel since the 1940s. Additionally,

2,500 square feet of the center would be leased to York Hospital to be used for a physical therapy practice. After retaining an architect and an engineering firm, Sebago

Technics, whch developed specific plans for the facility, the Town sought approval for

the project from the Kittery Planning Board ("Board").

Following an extensive technical review process that included examining the

adequacy of the Town's plan for parlung, the impact of traffic, preservation of wetlands,

and numerous other issues, the Board found that the application process had concluded

and scheduled the matter for a public hearing.' The hearing occurred on December 15,

2005, and after the archtect's and engineer's presentations, several residents spoke in

opposition to the plan. Their principal concerns were the impact on this primarily

residential area of increased traffic and a loss of wetlands and field space. In short, they

argued that the Town should seek another location for the recreation center.

At the February 23, 2006 Board meeting, the landscape archtect addressed

concerns that had been raised at the prior meeting, including water runoff and

drainage, wetland concerns, and lighting and parking issues, proposing strategies to

combat these potential problems. On March 9, 2006, the engineering firm submitted a

revised plan to address the above concerns, and the Board revisited the site plan at its

March 23, 2006 meeting. The Board then determined that the proposal substantially

complied with the Kittery Ordinance, and the chairman moved for approval of the plan

with five conditions.' The Town agreed to adopt the meeting minutes as findings of

fact and also accepted the listed conditions.

1 Although the official public hearing was on December 15, 2005, this project was discussed at Board meetings in April, August, October, and November 2005, as well as at meetings in February, March, and April 2006. Residents addressed the Board at several of these meetings. 2 The conditions were: demolishing the current rec center when the new one was finished, removing 23 parlung spaces from the proposed lot, maximizing "open space," adding a light at a nearby intersection, and correcting one of the plan documents. Lastly, at the April 13, 2006 meeting, the Board heard proposed changes to

accommodate the conditions and concluded that the revised plan conformed to the new

requirements. The Board then voted to adopt the plan. The Residents' 80B appeal

followed. They contend that the plans for both the rec center and the physical therapy

practice do not conform to the Kittery Land Use and Development Code and

Comprehensive Plan. Moreover, they contend that they were not given a reasonable

chance to express their views and that the Board neglected to consider some opponents'

letters. The Town, however, contends that it entertained comments from the public

several times, that the claim against the physical therapy facility is barred by res

judicata3, and that the proposed plan is consistent with the comprehensive plan and the

ordinance's traffic requirements, and should therefore be affirmed.

DISCUSSION

1. Standing & Standard of Review.

Town of l t t e r y Ordinance 516.24.020 permits "an aggrieved party" to appeal a

planning board decision to the Superior Court per M.R. Civ. P. 80B w i h n forty-five

days of the board's decision. An "aggrieved party" is customarily one who was a party

at the administrative level and "suffer[ed] a particularized injury." Lewis v. Town of

Rockport, 2005 ME 44, ¶8, 870 A.2d 107, 110. "An abutting landowner has a

particularized injury if there is a conceivable injury." Id.

Review of the board's findings is "for an abuse of discretion, error of law, or

findings unsupported by substantial evidence in the record." O'Toole v. City of Portland,

2004 ME 130, ¶8, 865 A.2d 555,558. This Court is "limited to determining whether the

3 The ZBA held an evidentiary hearing on York Hospital's petition for a special use exception to allow the physical therapy program in the VR District and granted the exception on November 15, 2005. This decision prompted an 80B appeal by Ms. Comeau, but J. Fritzsche dismissed the appeal as untimely on May 4,2006 (AP06-02). Ms. Comeau cannot indirectly challenge that decision in this action.

3 record contains evidence to justify the Board's determination." Lewis v. Maine Coast

Artists, 2001 ME 75, q14, 770 A.2d 644, 650. The party appealing a board's decision

bears the burden of persuasion. Twigg v. Town of Kennebunk, 662 A.2d 914, 916 (Me.

1996).

Neither side challenges the standing of these Residents as aggrieved parties. The

primary issues presented by this appeal are whether sufficient findings of fact

supported the Board's approval of the recreation center, allowing for judicial review,

and whether the proposed center plans conform to the Gttery Land Use Code and

Comprehensive Plan.

2. Findings of Fact.

A threshold issue is whether the Board's findings in h s case are sufficient to

allow for judicial review. By statute, a zoning board is required to provide not only a

statement of its findings of fact, but also "the reasons or basis" for them. 30-A M.R.S.

§2691(3)(E) (2005). Adequate findings of fact are crucial to the Court's review of a

zoning board's action under Rule 80B because "[mleaningful judicial review of an

agency decision is not possible without findings of fact sufficient to apprise the Court of

the decision's basis." Chapel Road Associates, LLC v. Tozun of Wells, 2001 ME 178, P[9, 787

A.2d 137, 140.

For example, in the context of an 80B appeal considering a subdivision plan, the

Law Court remanded for additional fact finding where the "findings" in the record

merely consisted of the Board's "secretary's paraphrasing of the reasons gven by some .

. . of the Board members for their votes." Carroll v. Town of Rockport, 2003 ME 135, 931, 837 A.2d 148, 157. On remand, the Court instructed the Board to make findings

"addressing each factor that must be considered" and noted that the comments in the

minutes were "not findings." Id. In h s case, the Board adopted the meeting minutes as its findings of fact

supporting its decision. Unlike the findings in Carroll, however, it is apparent from the

record here that the kttery Planning Board gave extensive time and attention to

evaluating every aspect of the proposed project, including compliance with the land use

ordinance and comprehensive plan. Not only did the archtect and engineers make

detailed presentations, which were transcribed by the Secretary, but concerned citizens

also had the opportunity to express their views about the project on several occasions.

Their presentations, therefore, are part of the record in h s matter. In addition, the

project underwent numerous revisions, each of which were thoroughly recounted in the

minutes, to alleviate concerns and to bring the proposal in line with Code requirements.

Consequently, the Board adopted these exhaustive deliberations as findings of fact, and

the Board's thorough evaluation process demonstrates adequate fact finding for this

Court to engage in "meaningful appellate review."

3. Public Hearing.

The Gttery Municipal Ordinance provides that a public hearing must be held so

that the public may comment on pending site review applications. §16.36.040(A). The

residents contend that the Town violated the ordinance by not affording them the

requisite opportunity to speak out against the project.

Yet, opponents of the plan have had ample opportunity to express their views for

the Board's consideration by speaking at the December 15, 2005 public hearing and by

submitting written complaint^.^ Additionally, concerned citizens spoke to the Board

about this project at its regular meetings on October 27, 2005 and November 10, 2005.

4 Ms. Comeau contends that on April 13, 2006, she was not allowed to speak. But, it seems apparent from the minutes of that Board meeting that she was not allowed to speak first, while the Board addressed other matters, but was afforded a chance to address the Board later in the meeting when it started to consider the recreation center. Although it is true that the Board had not reviewed some citizens' letters prior to its

vote, the Board did entertain thorough public comments on almost every occasion on

which it discussed h s plan. As a result, concerned residents were afforded numerous

opportunities to express their views about all aspects of the proposal, and the Board

was well aware of the abutters' and residents' concerns. The Residents' contention that

the hearing procedures were inadequate is therefore without merit.

4. Compliance with the Comprehensive Plan.

Additionally, the residents contend that the project violates the Kittery

Comprehensive Plan ("KCP"). One of the Board's duties in reviewing applications

such as this is to determine whether they comply with the KCP. The plan itself states

that the current recreational center at Emery Field is in poor condition and does not

serve the recreational needs of residents. One of the goals set forth in the plan is to

meet the Town's recreational needs by providing appropriate facilities; the plan goes so

far as to encourage the Town to consider enlarging the current facility. KCP p. 134.

The Board thoroughly addressed the project's compliance with the KCP at each

meeting and created specific conditions that would enhance conformity with both the

ordinance and with the plan. Moreover, the Board ultimately decided that the project,

as amended, complied with the applicable standards, and the project was designed and

later altered to effectuate the plan's goals. It cannot be said that the Board abused its

discretion in h s regard.

5. Compliance with the Ordinance's Traffic Provisions.

When evaluating a development proposal, the ordinance requires that the Board

ensure that the proposal would not "cause unreasonable hghway or public road

congestion or unsafe conditions." §16.36.070(1)(e). In addition, the proposed project

must not substantially increase traffic on neighboring roads. fj16.32.120C. The Residents contend that the new recreation center would generate too much traffic,

impeding access to their neighborhood and creating congestion in the surrounding area.

But, substantial testimony was presented at the various meetings in connection

with h s project, demonstrating that the Board gave ample consideration to the traffic

implications of this project. It reviewed a comprehensive study, heard from engineers,

and entertained the input of concerned residents. Indeed, the Board made it a condition

of approving the project that when the State determined it practicable, a traffic light

would be added at the most problematic intersection, and money would be reserved to

that end. The Town Council later appropriated those funds. There is extensive

evidence in the record, therefore, showing that the Board considered these requirements

at length. As this Court's review of a Board's factual findings is deferential, it cannot be

said that the Board abused its discretion by accepting the revised plan's provisions

regarding traffic problems.

CONCLUSION

The Planning Board's decision is affirmed, as it is supported by "substantial

evidence in the record" and was not, therefore, an abuse of discretion.

The clerk may incorporate this order in the docket by reference.

Dated: November 7 ,2006 PLAINTIFFS : ALAN SHEPARD ESQ SHEPARD & READ 93 MAIN S T KENNEBUNK ME 04043-7086 A . Ar ur Brenna usti tick Superior Court

DEFENDANT : DUNCAN A MCEACHERN ESQ MCEACHERN & THORNHILL PO BOX 360 KITTERY ME 03904