Fitanides v. City of Saco

2004 ME 32, 843 A.2d 8, 2004 Me. LEXIS 32
CourtSupreme Judicial Court of Maine
DecidedMarch 8, 2004
StatusPublished
Cited by19 cases

This text of 2004 ME 32 (Fitanides v. City of Saco) is published on Counsel Stack Legal Research, covering Supreme Judicial Court of Maine primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fitanides v. City of Saco, 2004 ME 32, 843 A.2d 8, 2004 Me. LEXIS 32 (Me. 2004).

Opinion

CLIFFORD, J.

[¶ 1] Fred Fitanides appeals from a judgment of the Superior Court (York County, Brennan, J.), affirming, after consolidating Fitanides’s five M.R. Civ. P. 80B appeals, the decisions of the Saco Planning Board and the Saco Zoning Board of Appeals. Fitanides challenges the constitutionality of two “applicability preambles” that precede amendments to the City’s zoning ordinance, and contends that the plan proposed by Paul Deshaies and Properties by the Sea, LLC, the developer, does not comply with several zoning requirements. We are unpersuaded by the majority of Fitanides’s contentions. We agree, however, with Fitanides that the proposed private road in the project cannot provide the required amount of road frontage because it is located within the boundary lines of Deshaies’s lot, and that there is insufficient evidence that the Planning Board waived the through-street requirement in section 10.11.2 of the City’s subdivision regulations, and that the proposed private road satisfies the cul-de-sac requirement in section 10.11.5.9.A. Accordingly, we vacate the judgment of the Superior Court and remand with instructions to remand to the Planning Board for further proceedings.

I. BACKGROUND

[¶ 2] In the fall of 2001, Properties by the Sea, LLC, through its owner, Paul Deshaies, began working on a proposal to develop a lot on Route One in Saco into a condominium project. City officials responded favorably to his proposal, but at that time, the City Council was preparing to amend the City’s zoning ordinance; the ordinance, as it was proposed to be amended, would prohibit Deshaies’s project from going forward.

[¶ 3] The lot was located in the B-2a zoning district, which permitted residential developments as a conditional use.1 The zoning ordinance amendments would have rezoned the lot, placing it in the B-6 zoning district, which limits residential development to “[o]ne [sjingle family dwelling on a lot of record.”

[¶ 4] When Deshaies was informed of the impending amendments, he requested that the City Council adopt applicability preambles to grandfather his project from the changes in the zoning ordinance. The City Council accepted Deshaies’s request, and the following language was added to two sections of the zoning ordinance:

401-2. APPLICABILITY.

Notwithstanding enactment of these amendments to the Zoning Map, the property identified on the City Assessor’s maps as Map 61, Lot 13 and described in a deed recorded in the York County Registry of Deeds at Book 9554 Page 147 shall continue to be governed by the zoning district regulations for the B-2a District in effect on February 19, [11]*112002, provided such property is developed as a residential subdivision not exceeding 13 dwelling units in new structures plus any dwelling units and/or bed and breakfast units permissible in existing structures, and further provided that a sketch plan review application under section 4.2 of the City of Saco Subdivision Regulations has been filed on or before February 19, 2002, a complete application for preliminary subdivision approval and any required applications for site plan and/or conditional use approval are submitted within six months after the filing of the sketch plan application, the subdivision is approved within two years of the filing of the sketch plan application, and substantial construction of the subdivision is commenced within two years after approval.

809-1. SANITARY WASTE DISPOSAL

Applicability. Notwithstanding anything to the contrary in section 4.1 of the City of Saco Subdivision Regulations, the following amendments shall not apply to any property for which a sketch plan review application for a residential subdivision not to exceed 13 dwelling units in new structures plus any dwelling units and/or bed and breakfast units permissible in existing structures was filed under section 4.2 of the Subdivision Regulations on or before February 19, 2002, provided a complete application for preliminary subdivision approval and any required applications for site plan and/or conditional use approval are submitted within six months after the filing of the sketch plan application, the subdivision is approved within two years of the filing of the sketch plan application, and substantial construction of the subdivision is commenced within two years after approval.

The City Council enacted the amendments, including the preambles, to the City’s zoning ordinance on February 19, 2002.

[¶ 5] Deshaies filed site plan, conditional use, and preliminary subdivision applications for the development of thirteen dwelling units with the Planning Board on April 23, 2002. Following public hearings, the Planning Board granted Deshaies site plan, conditional use, and preliminary subdivision approval. Fitanides, whose campground borders the north edge of the property, appealed the site plan approval to the Superior Court pursuant to M.R. Civ. P. 80B, and appealed the conditional use approval to the Zoning Board. The parties agreed to stay the 80B appeal.

[¶ 6] The Zoning Board concluded that the Planning Board erred by including the wetlands area in its calculations, and by not requiring a forty-foot setback between an existing structure and a proposed private road that would serve the new complex. Deshaies then revised the project proposal and reduced the number of units, from thirteen to twelve in six two-family buildings. In August, the Planning Board held a public hearing regarding the revised plan and granted final subdivision approval and a second conditional use permit.

[¶ 7] Fitanides filed a second 80B appeal concerning the final subdivision approval, and appealed the conditional use approval to the Zoning Board. Prior to the hearing before the Zoning Board, Deshaies again modified the plan for the project by lengthening the project’s proposed private road. The Planning Board approved this modification. Fitanides appealed this approval to the Superior Court pursuant to M.R. Civ. P. 80B. When the Zoning Board met in October to consider Fitanides’s appeal of the August conditional use approval, it concluded that the private road, as it was situated in the August plan, was too close to abutting property.

[12]*12[¶ 8] Deshaies requested a third conditional use approval and submitted another modification to the plan to the Planning Board, which adjusted the placement of the private road so that it was properly set back from the abutting property. The Planning Board again granted approval. Fitanides appealed the Planning Board’s site plan and subdivision approvals to the Superior Court pursuant to M.R. Civ. P. 80B, and appealed the conditional use permit to the Zoning Board. The Zoning Board affirmed the decision of the Planning Board, resulting in final approval of Deshaies’s project at the municipal level. Fitanides appealed the Zoning Board’s decision to the Superior Court pursuant to M.R. Civ. P. 80B.

[¶ 9] The five 80B appeals were consolidated by the Superior Court. The court affirmed the decisions of the Planning and Zoning Boards, concluding that Fitanides’s challenges were without merit, and that the record revealed no errors of law, obvious abuse of discretion, or lack of eviden-tiary support. Fitanides then filed this appeal from the Superior Court’s affir-mance of the Planning and Zoning Boards’ decisions.

II. DISCUSSION

A. The Special Legislation Clause

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Bluebook (online)
2004 ME 32, 843 A.2d 8, 2004 Me. LEXIS 32, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fitanides-v-city-of-saco-me-2004.