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STATE OF MAINE SUPERIOR COURT CUMBERLAND, ss CIVIL ACTION DOCKET NO. CV-15-480
FRIENDS OF THE MOTHERHOUSE, et al.,
Plaintiffs
v. ORDER
CITY OF PORTLAND,
Defendant STATE OF MAINE Cumberland $S C!~rl{'s Office and APR 2 O2016 SEA COAST AT BAXTER WOODS ASSOCIATES, LLC, et al., RECEIVED Intervenors.
Before the court is a motion for summary judgment brought by Intervenors Motherhouse
Associates LP and Sea Coast at Baxter Woods Associates, LLC and joined by defendant City of
Portland.
The plaintiffs in this action are a non-profit corporation, Friends of the Motherhouse, and
two individuals, Raymond Foote and Barbara Weed. They allege that recent amendments to the
City of Portland's zoning ordinance and zoning map are inconsistent with the City's
comprehensive plan and that the rezoning failed to comply with applicable procedural
requirements in the comprehensive plan. They seek a declaratory judgment that the amendments
are unlawful.
The intervenors are developers whose proposed project depends upon approvals granted
by the City under the zoning amendments. The intervenors' motion for summary judgment (
asserts that the amendments are not inconsistent with the comprehensive plan and are otherwise
lawful.
Summary Judgment
Summary judgment should be granted if there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law. In considering a motion for I
summary judgment, the court is required to consider only the portions of the record referred to
and the material facts set forth in the parties' Rule 56(h) statements. E.g., Johnson v. McNeil,
2002 ME 99 1 8, 800 A.2d 702. The facts must be considered in the light most favorable to the
non-moving party. Id. Thus, for purposes of summary judgment, any factual disputes must be
resolved against the movant. Nevertheless, when the facts offered by a party in opposition to
summary judgment would not, if offered at trial, be sufficient to withstand a motion for judgment
as a matter of law, summary judgment should be granted. Rodrigue v. Rodrigue, 1997 ME 99 1
8, 694 A.2d 924.
In this case plaintiffs have admitted all of the factual assertions in the intervenors'
statement of material facts. Although plaintiffs also submitted a statement of additional material
facts, that statement consists almost entirely of legal arguments that the rezoning is inconsistent
with plaintiffs' interpretation of the comprehensive plan. 1 The court concludes that there are no
disputed issues of material fact.
After filing their opposition to the motion for summary judgment and essentially agreeing
that there were no disputed issues of fact, plaintiffs filed a Rule 56(f) motion to stay any decision
on the motion until they had the opportunity to conduct discovery. Because plaintiffs did not
I Indeed, plaintiffs argue that based on the undisputed record, summary judgment should be granted in their favor pursuant to the last sentence of M.R.Civ.P. 56(c). See Plaintiffs' Opposition to Intervenors ' Motion for Summary Judgment dated December 28, 2015 at 1, 18.
2 ( r. demonstrate that the discovery they sought was in any way needed to discover facts essential to
their opposition to summary judgment, their Rule 56(f) motion was denied in an order dated
· March 8, 2016.
Factual Background
In June 2014 Sea Coast Healthcare Inc. entered into an agreement with St. Joseph's
Convent and Hospital to purchase a 17.5 acre property located on Stevens Avenue in Portland.
The property includes the vacant St. Joseph's convent, known as the Motherhouse, as well as
Catherine McAuley High School, St. Catherine's residence hall, surrounding grounds, and
playing fields. Intervenors' SMF ,r,r 1, 3. At that time the property was in an R-5 zone.
The purchase agreement was assigned to Intervenor Sea Coast at Baxter Woods
Associates, LLC (Sea Coast), which proposes to develop the property by converting the vacant
Motherhouse into a multifamily dwelling of 88 affordable and market rate senior housing units
and creating a retirement community or congregate care facility consisting of additional dwelling
units and assisted living facilities. Sea Coast will offer Catherine McAuley High School a 25
year lease and St. Catherine's Hall will remain as housing for retired Sisters of Mercy.
Intervenors' SMF ,r,r 2, 4-5.
In March 2015 Sea Coast filed an application for a zoning amendment concerning the
property. The original application sought to rezone the entire property from R-5 to R-6A.
However, during the course ofreview by the Planning Board, Sea Coast revised its application to
reduce the size of the area to be rezoned from 17.5 to 13.5 acres, excluding Catherine McAuley
High School and St. Catherine 's Hall and certain associated land areas, which would remain in
the R-5 zone. Sea Coast also revised its proposal by switching the proposed rezoning of the
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remaining 13. 5 acre parcel to R-5 A, which is lower density than R-6A. Intervenors' SMF ,i,i 8,
_10.
In May 2015, after notice and public hearing, the Planning Board voted 4-0 to
recommend that the City Council approve the proposed rezoning as revised. The proposed
revisions included both amendments to the text of the zoning code and to the zoning map.
Intervenors' SMF ,i 12.
The City Council held a public hearing on the proposed rezoning and voted to adopt the
proposed text amendments on June 15, 2015. At that time it tabled the proposed map
amendments to its next meeting. Intervenors' SMF ,i,i 16, 18.
Before that meeting Sea Coast suggested that its proposal be revised to rezone only 7 .51 2 acres to R-5A, increasing to 9.53 acres the area that would remain as originally zoned in R-5.
This had the effect of reducing the maximum number of dwelling units potentially allowed under
the proposed rezoning from 334 to 249, including the 88 units in the converted Motherhouse.
Intervenors' SMF ,i,i 19-21. On July 6, 2015 the City Council unanimously approved the
proposed map amendment as revised, rezoning 7.51 acres to R-5A. Intervenors' SMF ,i 22.
On August 11, 2015 the Planning Board approved Sea Coast's application to approve a
four lot subdivision of the property, along with subdivision approval for a multifamily dwelling
consisting of 88 senior housing units (66 affordable and 22 market rate) in the Motherhouse. No
appeal from the Planning Board's approvals was filed. Intervenors' SMF ,i,i 23-25.
2 The record suggests that this revision was proposed "to address neighbor and Councilor concerns about density as expressed at the June 15, 2015 hearing." Exhibit J-1 at 68.
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Consistency with Comprehensive Plan
The Law Court has stated that review of rezoning decisions by a city council must respect
that "zoning is a legislative act" and must give deference to the legislative body. Remmel v. City
ofPortland, 2014 ME 114 ~ 12, 102 A.3d 1168, quoting Golder v. City ofSaco, 2012 ME 76 ~
11, 45 A.3d 697. By statute, zoning decisions and rezoning decisions must be "pursuant to and
consistent with a comprehensive plan adopted by the municipal legislative body." 30-A M.R.S. §
4352(2). See also 30-A M .R.S. § 4314(3). In considering whether a rezoning action is consistent
with a city's comprehensive plan, the court must determine whether the City Council could have
determined from the evidence before it that the rezoning was "in basic harmony" with the
comprehensive plan. Remmel, 2014 ME 114 ~ 13, quoting Adelman v. Town of Baldwin, 2000
ME 91 ~ 22, 750 A.2d 577, and LaBonta v. City ofWaterville, 528 A.2d 1262, 1265 (Me. 1987).
The party challenging a zoning amendment has the burden of proving that the amendment is
inconsistent with the comprehensive plan. Remmel, 2014 ME 114 ~ 13; Golder, 2012 ME 76 ~
11.
The Law Court has also ruled that a rezoning action will be "in basic harmony" with the
comprehensive plan
so long as it strikes a reasonable balance among the municipality's various zoning goals or overlaps considerably with the plan . . . In addition, a comprehensive plan is considered as a whole; a municipality may conclude that a rezoning action is consistent with a comprehensive plan when it is in harmony with some provisions of the plan, even if the action appears inconsistent with other provisions of the plan.
Remmel, 2014 ME 114 ~ 14 (quotations and citations omitted).
The City's Comprehensive Plan is contained in the record as Exhibits L-2 and L-3 to the
Intervenors' motion for summary judgment. The record before the City Council is found at
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Exhibit J-1, and the pertinent sections of the Zoning Code, showing both the prior language and
the amendments that were adopted, is contained in Exhibit J-2. The Zoning map as amended is
included as Exhibit J-3. The record before the City Council contains an analysis by the Planning
Board of the proposed changes, Exhibit J-1 at 70-98, including the Planning Board's finding that
the proposed text amendments were consistent with the Comprehensive Plan. Exhibit J-1 at 89
98.
Portland's Comprehensive Plan adopts state goals of (1) encouraging orderly growth and
development, while making efficient uses of public services and preventing development sprawl;
(2) encouraging and promoting affordable housing; and (3) preserving state historic resources.
See 30-A M.R.S. §§ 4312(3)(A), (D), (I); Exhibit L-2 at 21, 43, 71. In particular, the
Comprehensive Plan emphasizes the shortage of housing in Portland (Exhibit L-2 at H-1) and the
particular shortage of affordable housing (Exhibit L-2 at H-13).
The "Housing Initiatives" section in the Comprehensive Plan begins from the premise
that Portland seeks to grow and that appropriate growth is needed to sustain Portland as a healthy
city. Exhibit L-3 at 3. Among the initiatives recommended are three that are pertinent to the
zoning amendments at issue in this case:
• Reuse of existing non-residential buildings for housing;
• New senior citizen housing; and
• Creation of affordable housing units.
Exhibit L-3 at 4.
The Housing Initiatives section of the Comprehensive Plan includes a chart setting forth
specific implementation strategies. One of those is to "update zoning to encourage neighborhood
livability with higher density multi-family & innovative mixed use projects that are along major
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transportation routes ...." Exhibit L-3 at 6 (emphasis added). Other implementation strategies
listed are to "increase rental and homeownership options for senior citizens" and to "find
productive uses for vacant and underutilized lots." Id.
In keeping with the requirements of state law, Portland's Comprehensive Plan designates
certain areas as growth areas. Exhibit L-3 at 54; 30-A M.R.S. § 4326(3-A)(A). Both R-5 zones
(the designation of the entire St. Joseph's convent property before rezoning) and R-5A zones (the
designation of the 7.51 acres to be developed by Intervenors after rezoning) are designated as
growth areas. Exhibit L-3 at 59. In addition, Stevens Avenue, which is classified as a "minor
arterial" under the Federal Street Classification categories (Exhibit J-1 at 73), 3 is one of the main
transportation routes in the area.
The court concludes that the zoning amendments and the map rezoning at issue in this
case are consistent with the Comprehensive Plan's provisions to encourage growth by providing
additional housing, including affordable housing and housing for senior citizens, by converting
and reusing the existing Motherhouse and by developing up to 161 units on currently
underutilized property, while at the same time leaving the remaining 9.5 acres zoned as R-5 with
existing uses (Catherine McAuley and St. Catherine's Hall) unaffected.
Plaintiffs' counterargument is solely based on the premise that the textual changes
affecting R-5A zoning districts and the zoning map amendments applicable to the Intervenors'
development of the St. Joseph's convent site are inconsistent with what they allege is a
requirement in the Comprehensive Plan that any rezoning to R-5A be accomplished through
conditional or contract zoning.4 Because the amendments made to the Zoning Code allow
3 0ther Portland streets classified as "Minor Arterials" are Warren Avenue and Washington Avenue. Forest Avenue, Brighton Avenue and outer Congress Street are classified as "Principal Arterials." Id. 4 Statutory definitions of "conditional zoning" and "contract zoning" are contained in 30-A M.R.S. §§ 4301(4) and 4301(5).
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rezoning to R-SA without conditional or contract zoning, plaintiffs argue that the amendments
are inconsistent with the Comprehensive Plan and that the rezoning is procedurally invalid
because it was accomplished by a procedure that did not comply with the Comprehensive Plan. 5
The short answer to plaintiffs' arguments is that Portland' s Comprehensive Plan does not
require that any rezoning to R-SA be accomplished only through conditional or contract zoning.
The section in the Comprehensive Plan that addresses R-SA Residential Districts states in its
entirety that the purpose of R-SA zoning is
To provide for moderate-density residential development in off peninsula sections that can provide a unique residential living experience with a high degree of natural site amenities; and to provide areas in the city in the general proximity of the peninsula that have the capability for adequate municipal services, including traffic corridors with adequate traffic capacity, that can appropriately accommodate a more intensive use of land than other lower-density zoned land and be compatible with surrounding neighborhoods; and to increase affordable housing opportunities in off-peninsula locations by providing a moderate-density zone.
The permitted residential uses in the R-Sa zone are very similar to those in the R-5 zone, except that multiplexes are not allowed. The other significant difference is that PRUDs [Planned Residential Unit Developments6] may be developed at a higher density. PRUDs in an R-Sa zone require a minimum net land area of 1,600 square feet per unit compared to 3,000 square feet in the R-5 zone. The R-Sa is applied through rezoning when a site and development proposal meets the intent of this zoning classification. This would be a tool for encouraging more housing in specific neighborhood locations as determined through the city's neighborhood-based planning programs and recommended in Housing: Sustaining Portland's Future. Potential text amendments will be considered to update the residential zones in conformance with the recommendations in Housing: Sustaining Portland's Future.
5 Plaintiffs apparently also disapprove of certain of the other text amendments made to the zoning code but never explain how they contend those other changes are inconsistent with the Comprehensive Plan. 6 A Planned Residential Unit Development (PRUD) is described as "horizontally or vertically attached dwelling units or a series of such dwelling units." Zoning Code§ l 4-l 27(a)(2); Exhibit J-2 at 3.
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Exhibit L-3 at 64.
Before the amendments challenged in this action, the zoning code provided that planned
residential unit developments (PRUDs) "shall be implemented through conditional or contract
zoning . . . for specific sites and proposed development meeting the overall requirements
specified herein." That language was deleted in the new amendments. Zoning Code §
14.127(a)(2); Exhibit J-2 at 3. Plaintiffs' theory appears to be that since the Comprehensive Plan
states that in an R-SA zone PRUDs may be developed at a higher density, and since the zoning
code at that time required that PRUDs be implemented through conditional or contract zoning,
the Comprehensive Plan mandates that rezoning to R-SA can only be accomplished through
conditional or contract zoning.
Nowhere in the section of the Comprehensive Plan addressing R-SA zoning is there any
statement that R-SA zoning can only be implemented through conditional or contract zoning.
Just because the Comprehensive Plan mentions an existing zoning tool - the use of PRUDs to
allow higher density development - and just because PRUDs at that time were to be
implemented through conditional and contract zoning does not convert the Comprehensive Plan
into a straitjacket that only allows increased density through the use of PRUDs and conditional
or contract zoning. PRUDs, conditional zoning, and contract zoning are all zoning tools, and the
Comprehensive Plan does not foreclose the use of other tools to allow higher density
development in R-SA zones.
Thus, although the Planning Board's analysis noted that the R-SA zone had been
envisaged as an overlay zone in which multifamily development would be implemented through
conditional rezoning using PRUDs (Exhibit J- 1 at 84), the Planning Board ultimately concluded
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that the text and map amendments proposed were consistent with the Comprehensive Plan.
Exhibit J-1 at 98.
The crucial language in the Comprehensive Plan relating to R-SA zones is that " [t]he R
Sa is applied through rezoning when a site and development proposal meets the intent of this
zoning classification." The intent of the zoning classification is set forth in the first paragraph of
the R-SA description - to provide moderate density residential development in off-peninsula
sections, to provide areas in the city that have the capability (including adequate traffic capacity)
to appropriately accommodate a more intensive use of land, and to increase affordable housing
opportunities. Exhibit L-3 at 64.
The section in the Comprehensive Plan addressing R-SA zoning expressly states that R
SA zoning is a tool to "encourage more housing." It also expressly contemplates that, contrary to
plaintiffs' arguments, "text amendments will be considered to update the residential zones" in
accordance with the recommendations contained in a report entitled Housing: Sustaining
Portland's Future. Exhibit L-3 at 64 (emphasis added).
Excerpts from the Housing: Sustaining Portland's Future report are contained m the
record, and the objectives listed in that report include:
• creation of housing with a range of services for the elderly, including assisted living and
congregate care;
• encouraging higher density housing;
• encouraging housing generally for senior citizens; and
• encouraging affordable housing for seniors and others.
Exhibit L-4 at 29-32. The zoning code and map amendments challenged by plaintiffs are
consistent with those objectives.
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It also bears emphasis that under the zoning code as it existed prior to the amendments
sought by Intervenors - and employing R-5A zoning with PRUDs (the zoning tool which
plaintiffs contend was required) - the minimum lot area per dwelling unit would have been 1600
sq. feet and the minimum open space per dwelling unit would have been 200 sq. feet. These
minimums remain unchanged under the zoning code as amended. Exhibit J-1 at 83 .
For all the above reasons, the court concludes that the zoning code and map amendments
at issue are "in basic harmony" with Portland's Comprehensive Plan, Remmel, 2014 ME 114 ~
13, and that the rezoning of 7.51 acres of the St. Joseph's convent site to R-5A did not have to be
accomplished by conditional or contract zoning. Accordingly, Intervenors are entitled to
summary judgment granting declaratory relief to that effect.
Having reached that result, the court does not need to reach the second issue raised by
Intervenors on the pending motion -- that, even if the text and map amendments were not found
to be consistent with the Comprehensive Plan, the Planning Board's August 15, 2015 subdivision
approvals could not be overturned because plaintiffs did not file timely appeals from the
Planning Board's actions. See Sold Inc. v. Town ofGorham, 2005 ME 24, 868 A.2d 172.
The entry shall be:
The motion for summary judgment by Intervenors Motherhouse Associates LP and Sea Coast at Baxter Woods Associates, LLC is granted. The court enters judgment declaring that the amendments to the Zoning Code and the rezoning challenged in this case are consistent with the City's Comprehensive Plan. Accordingly, plaintiffs' complaint is dismissed.
The Clerk is directed to incorporate this order in the docket by reference pursuant to Rule 79(a).
11 Dated: April fl_, 2016
Thomas D. Warren Justice, Superior Court
12 STA TE OF MAINE SUPERIOR COURT CUMBERLAND, SS CIVIL ACTION DOCKET NO. CV-15-480
Defendant STATE OFM Cumberland AINE: . ss, Clerk's Offi rice and MARO 9 2016 SEA COAST AT BAXTER WOOD~ C: .-~ AS SOCIATES, LLC, et al., · L. CC . r~-, VE Q Intervenors.
Before the court are two motions: a motion for summary judgment brought by
Intervenors Motherhouse Associates LP and Sea Coast at Baxter Woods Associates, LLC, as
well as a Rule 56(f) motion filed by Plaintiffs Friends of the Motherhouse, Raymond Foote, and
Barbara Weed seeking a continuance to take further discovery. For the reasons set forth below,
plaintiffs' Rule 56(f) motion is denied and the intervenors' motion for summary judgment will
remain under advisement.
Plaintiffs brought this case alleging that recent amendments to the City of Portland's
zoning ordinance are inconsistent with the City's comprehensive plan and failed to comply with
applicable procedural requirements for re-zoning. Plaintiffs thus seek a declaratory judgment that
the amendments are unlawful. The intervenors are developers whose proposed project depends upon approvals granted by the City under the zoning amendments. Intervenors have moved for
summary judgment arguing that the amendments are not inconsistent with the comprehensive
plan and are otherwise lawful.
Whether zoning is consistent with a comprehensive plan is an issue of law. City of Old
Town v. Dimoulas, 2002 ME 133 ~ 18, 803 A.2d 1018. The challenger has the burdep to prove
that the challenged zoning or zoning amendment is inconsistent with the comprehensive plan.
Id
Plaintiffs first opposed the intervenors' motion for summary judgment, acknowledging
that there were no material disputes of fact. Plaintiffs' Opposition to Intervenors' Motion for
Summary Judgment dated December 28, 2015 at 1. In their opposition plaintiffs argued not only
that the intervenors' motion should be denied but also that summary judgment should be entered
against intervenors and in favor of plaintiffs. Id at 18. However, plaintiffs also suggested in two
footnotes that they expected to file a Rule 56(f) motion in order to determine whether the
rezoning which they challenge in this action was not an isolated instance. In the footnotes they
suggest that if they find other alleged departures from the comprehensive plan, they will seek to
amend their complaint. Id at 3 n.1, 4 n.3 .
After filing their opposition to the intervenors' motion for summary judgment, plaintiffs
filed a Rule 56(f) motion requesting an opportunity to depose city officials. Rule 56(f) allows the
court to continue a ruling on a pending motion to allow a party to conduct further discovery
where the party "cannot for reasons stated present by affidavit facts essential to justify the
party's opposition." M.R. Civ. P. 56(f).
Plaintiffs believe there has been a change in philosophy in the City's Planning
Department and the City Council regarding contract zoning and growth management that
2 fundamentally differs from the philosophy in place when the existing comprehensive plan was
adopted. In their Rule 56(f) motion plaintiffs state that they wish to conduct further discovery to
establish the supposed change in philosophy that they say has led to departures from the
comprehensive plan.
First, plaintiffs are not entitled to take discovery in order to determine if they are going to
seek to amend their complaint. The sole purpose of a Rule 56(f) motion is to allow a party to take
discovery necessary to oppose a motion for summary judgment.
Second, regardless of whether there has been a change in philosophy by the City, the
issue before the court is not whether the City's philosophy has changed but whether specific
zoning amendments are inconsistent with the comprehensive plan. The question of whether the
amendments are consistent with the comprehensive plan will be determined by reference to the
amendments and to the comprehensive plan. The summary judgment record already contains the
evidence necessary to make this determination, and the court cannot see any reason why the
discovery now requested by plaintiffs is needed.
Third, plaintiffs have already opposed the motion for summary judgment and stated that
there are no material factual disputes. Plaintiffs have thereby acknowledged that their additional
proposed discovery is not necessary to obtain facts that are "essential" to justify their opposition
as requited by Rule 56(f).
Under the Law Court's decision in Bay View Bank NA. v. The Highland Golf
Mortgagees Realty Trust, 2002 ME 178 ,-i 22, 814 A.2d 449, plaintiffs have not demonstrated
that they have been diligent in conducting discovery to date and have not adequately indicated
how the discovery requested will influence the outcome of the pending summary judgment
motion.
3 The entry shall be:
Plaintiffs' motion under M.R. Civ. P. 56(f) is denied. The clerk is directed to incorporate
this order in the docket by reference pursuant to Rule 79(a).
Dated: March 15, 2016