Hannaford v. Town of Kennebunk

• Court: Superior Court of Maine
• Decided: February 6, 2006
• Docket: YORap-05-005
• Status: Unpublished

Opinion

STATE OF MAINE SUPERIOR COURT CIVIL ACTION YORK, ss. DOCKET NO: AP-05-005

HANNAFORD BROS. CO.,

Appellant

ORDER

TOWN OF KENNEBUNK,

Appellee

This case comes before the Court on Hannaford's Rule 80E appeal of the Town of

Kennebunk Planning Board's site plan and subdivision application approval of "the

Kennebunk Market Place," to be developed by G.I. Kennebunk, LLC. Following

hearing, the Planning Board's decision is Affirmed.

BACKGROUND

On December 27, 2004, after two years and thirteen public meetings, the Town of

Kennebunk Planning Board ("Planning Board") approved the site plan and subdivision

application for the development of the Kennebunk Market Place, a 65,665 square foot

Stop and Shop, two separate retail buildings with a total of 16, 589 square feet and a

5,926 square foot restaurant located 011 a lot north of the town on Route 1 (Portland

Road). G.I. Kennebunk is the developer and Hannaford is the abutting property owner

objecting to the development.'

Hannaford contends that the Planning Board erred in the following ways: First,

the site plan proposes one street connection in violation of the Street and Design

Ordinance, which requires two street connections to Portland Road for a development

As owner of 12.7 acres across Portland Road from the proposed Kennebunk Market Place, Hannaford actively participated in each of the PlC1nningBoard meetings. generating more than 250 trips per day. R. Vol. I, p. 49. Second, the Planning Board

lacked the authority to accept contributtons for mitigation costs from G.I. Kennebunk,

and to condition approval on requiring a traffic study within one year of full occupancy

in place of requiring strict compliance with site plan standards. R. Vol. IV, p. 1615.

Third, the site plan violates Article 11, 5 8 (7)(e) of the Kennebunk Zoning Ordinance,

which requires internal road connectors and rear access roads for developments east

and west of Portland Road. Finally, Hannaford argues that the project violates title 30-

A M.R.S.A. 5 4404 and the Kennebunk Comprehensive Plan by accepting a lower level

of service (LOS) for road traffic than the Zoning Ordinance requires; by faling to foster

commercial growth in the Downtown area; a ~ by d approving the project without first

determining that G.I. Kennebunk, the applicant, has the financial capacity to sustain this

project.

DISCUSSION

The Superior Court reviews the findings of the Planning Board "for an abuse of

discretion, error of law, or findings unsupported by substantial evidence in the record."

Yusem v. Tozon of Raynlond, 2001 ME 61, P7, 769 A.2d 865, 869. As the party seelung to

overturn the Planning Board's decision, Hannaford has the burden of establishing that

the evidence compels a contrary conclusion. Herrick v. Town of Mechanic Falls, 673 A.2d

1348, 1349 (Me. 1996). 11%otliei vvoi.ds, deniolistmtion tliat no c~iiipeteiitevideiice

supports the local board's findings is required in order to vacate the board's decision.

Thacker v. Konover Dev. Cory., 2003 ME 30, ¶ 8, 818 A.2d 1013, 1017. The Court will not

substitute its own judgment for that of a local administrative board. Thacker, 2003 ME

30, ¶ 6,618 A.2d at 869.

Interpretation of the provisions of an ordinance is a questiot~of law. K~irlanskiv.

Portlancl Yacht Clt~b,2001 VIE 147, 71 9, 782 A.2d 783, 786. The language at issue in the ordinance must be construed reasonably and with regard to both the ordinance's

specific object and its general structure. Id. Each undefined term is generally given its

common and generally accepted meaning unless the context of the ordinance clearly

indicates otherwise. See Town of Union v. Strorlg, 681 A.2d 14/17(Me. 1996) (interpreting

a statute).

a. - and Construction Standards Ordinance The Street Design

Hannaford argues that the Street Design and Construction Standards Ordinance

("Street Ordinance") requires this project to have two street connections with existing

streets. In response, the Town argues that in order for the Street Ordinance to apply,

the project must propose the extension or creation of a new street. In the alternative,

Hannaford argues that the entrance to the project and the two internal connector roads

on the east and west constitute streets and require compliance with the ordinance. -

The disputed language of the Street Ordinance is in sections 8.6.2 and 8.6.2 (F).

These sections provide, inter alia, that "all proposed streets shall be designed and

constructed as follows: . . . Developments containing over 25 dwelling units or which

generate average daily traffic (ADT) of over 250 trips per day, shall have at least two

street connections either with existing public streets, or with streets shown on approved

subdivision plan or site plan for which a performance guarantee has been filed and

accepted." R.Vol. I, y . 49.

While Hannaford interprets the language of section 8.6.2 and 8.6.2 (F) as

requiring two street connecbons for the Kennebunk Market Place, this language must

be construed reasonably and with regard to the Street Ordinance's specific objective

and its general struckire. Kiiilaiiskij, 2031 PdE 147, 9, 782 A.26 at 786. The stated

objective of the Street Ordinance "is to establish appropriate standards for the design

and construction of all streets in the Town, and to establish a procedure for the petitioning of streets to the Town for acceptance as Town Ways." Street Design and

Construction Standards Ordinance, § 8.2; R. Vol. I, y . 45.' The general structure of the

Street Ordinance is such that each section of the Ordinance has a caption having to do

with existing or newly proposed street^.^ Furthermore, the language of the

waiverlvariance provision requires that there be a street to apply the waiverlvariance

Taken as a whole, the specific objective, general structure, and context of the

Street Ordinance illustrate that for the Street Ordinance to apply, the project must be

proposing the extension or creation of a new street. However, because the entrance to

the Kennebunk Market Place is a private driveway, and the internal connectors are not

"streets,""he Street Ordinance does not apply.6

2 These standards are designed to promote, inter alia, the health, safety, and welfare of the Town's- inhabitants; and to provide safe and convenient vehicular and pedestrian circulation. Id.; 1 .: Vol. I, p. 45. 3 For example, section 8.2 defines the terms "Average Daily Traffic," "Driveway," "Street," and "Town Way;" section 8.4, lays out the procedures for proposing a street for Town acceptance; section 8.4.2 explains the application procedure for street acceptance; section 8.5 explains how to classify existing or proposed streets; and section 8.6 describes the street design and construction standards. 4 Section 8.8 of the Ordinance also provides that a provision may be waived where extraordinary and unnecessary hardships would result, or due to the special circumstances of the site, certain requirements of this ordinance may be varied or waived by the Board of Selectmen based upon the following criteria:

1) the requested variancelwaiver shall have been previously reviewed and approved by the Planning Board (if the street is part of a subdivision plan review) or by the Site Plan Review Board (if the street is part of a site plan review). Such approval shall specifically address the impact of the requested variance/waiver upon: the safe functioning of the street, the long term costs of maintaining the street, and the Town's abilib to provide public services alonp, the street.

2) 'L'he required thickness of pavement shall not be reduced, and

3) A report from the Town's I-ligl~\vay Superintertdent and Town's Consulting Engineer concerning the expected performance of the street (per the criteria listed in subsection A.1. above) if variancelwaiver is granted.

Street Design and Construction Standards Ordinance, § 8.8 (Emphasis added). 5 The Street Ordinance defines "stree~" as: " S L I C ~ I public or privale ways as alleys, avenues, highways, roads, streets and other rights-of-way which are used or intended to be used for passage or travel by motor vehicles. The term street shall not include driveways." b. Conditions / Impact Fees

Hannaford argues that absent an impact fee ordinance, the Planning Board

lacked the authority to accept contributions for mitigation costs from G.I. Kennebunk in

lieu of requiring strict compliance with site plan standard^.^ It also argues that the

Planning Board did not have the authority to condition the site plan approval on

requiring the applicant to conduct a traffic study within one year of full occupancy.

Under title 30-A M.R.S.A. § 4403(5) (1996), a planning board may grant

subdivision approval "upon any terms and conditiol~sthat it considers advisable" in

order to satisfy the criteria listed in section 4404, any other applicable regulation, or to

protect and preserve the public's health, safety, and welfare. In this case, the Planning

The Street Ordinance defines "driveway" as: " a private entrance from a street or right-of-way to a building or buildings on abutting grounds. The driveway itself shall not constitute the means of legal access to a lot. - 6 As further support for this interpretation of the Street Ordinance, the Zoning Ordinance provides that the Street Ordinance applies when the development proposes the extension or creation of a street. Article 11, 5 8 (7)(a); R. Vol. I, p. 314. Furthermore, the only requirement arising from the number of vehicles visiting tlie site on a daily basis concerns the level of service ("LOS") of the intersections. Article 11, 5 (7)(c); R. Vol. I, p. 315.

The Planning Board found that the project would not cause unreasonable highway congestion or unsafe conditions with the following conditions: "fair share contribut~onsmade to Town to be used for mitigation at Portland Road Post Office Square ($50,000), and Maine Street at I-Iigh Street ($7,500) to be provided with performance guarantee and returned to the applicant after 10 years, if improvements are not made by the 'Town."

Title 30-A M.R.S.A. 5 4404 provides that the municipal reviewing authority shall consider the following criteria before granting subdivision and site vlan approval, and must determine, inter alia, that:

5. TRAFFIC. The proposed subdivision will not cause unreasonable highway or public road congestion or unsafe conditions with respect to the use of the highways or public roads existing or proposed and, if the proposed subdivision requires driveways or entrances onto a state or state aid highway located outside the urban compact area of an urban compact municipality as defined by Title 23, section 754, the Department of Transportation has provided documentation indicating that the driveways or entrances conform to Title 23, section 704 and any rules adopted under that section;

9. CGPJFGFuZ/Z:T'I' LVITII LOCAL GRSIPVTANCES AXD PLANS. The i;rc;pos2d s..'-,~' uuLL~vision conforms with a duly adopted subdivision regulation or ordinance, co~nprehensiveplan, development plan or land use plan, if any. In making this determination, the municipal reviewing authority may interpret these ordinances and plans;

10. FINANCIAL AND 'I'ECI-TNICAL CAPACITY. The subdivider has adequate financial and technical capacity to meet the standards of this sect~on. Board was acting within its statutory authority by attaching conditions ill the form of

contributions made to the Town ill order to ensure that resources would be available to

- make the project safer. The Planning Board specifically indicated that the contributions

would be returned to the applicant if improvements were not made within ten years.

Similarly, requiring the applicant to conduct a traffic study within one year of full

occupancy in order to make improvements is a condition that furthers traffic safety.

Beyond this, the necessary project: approval from the Maine Department of

~ r a n s ~ o r t a t i olikewise n required the same mitigation payments. Thus, the Planning

Board did no more than to require the applicant to satisfy the condition imposed by the

M.D.O.T. approval.

c. Internal Connection Roads

Hannaford argues that the site plan violates Article 11, 5 8(7)(e) of the

Kennebunk Zoning Ordinance, which requires 24 foot wide rear connection roads and-

internal road connectors east and west of developments along Portland Road.

Article 11, section 7(e) of the Kennebunk Zoning Ordinance provides that a rear

connection road shall be considered as part of the site design for projects proposed

along the Route One corridor in order to avoid future intersection conflict^.^ While rear

30-A M.R.S.A. 4404.

Article 11,s7(e) of the Zoning Ordinance provides:

[flor all projects, provision for vehicle and pedestrian connection to adjacent sites shall be considered. Provision of a rear connection road shall be considered as part of the site design for project proposed along the Route One corridor in order to avoid future intersection conflicts. For sites along the Portland Road corridor conformance to the recolnmendations of F i ~ u r e10 of the Portland Road Traffic Management Study shall be required. . . .

(In order to function as a connector road, the design for the road shall be free of perpendicular or angle parking, shall provide a minimum of a 24 foot travel way and be designed in terms of ~ u l n speed of 30 mph.). horizontal and vertical aligrlrnents for a ~ l l i r ~ i ~ rdesign

Article 11,§ 7(e) (emphasis added); R. Vol. I, p. 315. connection roads shall be considered, the Ordinance makes con~pliancewith Figure 10

of the Portland Road Traffic Management Study a requirement.'" According to Figure

10, developers must provide internal road connectors to parcels east and west of

Portland Road as they are developed.''

Here, the Planning Board approved an internal connector road to the Farragut

property on one side of the project which is 18 feet wide.'' On the other side of the

project, the Horn property remains undeveloped. As such, the Planning Board

approved the completion of the future connection to the edge of the applicant's

property abutting the Horn property.

According to the Ordinance, internal connector roads must be 24 feet wide.

However, the Planning Board may waive this requirement if it finds that "unnecessary

hardship will result, or where there are extraordinary circun~stancesof a particular

plan." Article 11, 5 9; R. Vol. I, p. 316. - In its Findings of Fact, the Planning Board prefaced the Traffic section in the

following way: "The Board, with four in favor and one opposed, finds that this

standard is met with the following conditions and/or waiver:" Proceeding to

subsection (c), which pertains to the internal road connectors, although the Planning

Board did not explicitly state that it found unnecessary hardship or extraordinary

roads, the record supports the conclusion that it did so. The roadway withn the

Farragut property is a limited access, private way. The underlying easement is at least

10 Supra, n. 9. 11 Figure lii ol the Portland Road Traffic X,Iaiiageiiient Stiidy provides: "As development occurs along Portland Road, it is recommended that developers be required to provide internal road connections on parcels east and west of Portland Road a s they are developed." R. Vol. 11, p. 71 6. 12 Although the Findings of Fact d o not reter to the exact w ~ d t of l ~the road, the l'own concedes a s much. The Town also contends that the easement area between the two properties is substantially w ~ d e r than 18 feet. twenty-four feet wide. Consideration was given to erecting a gate to control access to

the Farragut property. The Planning Board approved the proposal with the condition

that this issue be reviewed after one year of actual experience. While it would have

been preferable had the Planning Board made explicit findings on this point, a fair

reading of the record reveals its findings, and those findings are supported by the

evidence adduced at hearing.

d. 30-A M.R.S.A. $4404

Finally, Hannaford argues that the project violates title 30-A M.R.S.A. 5 4404 and

the Kennebunk Comprehensive Plan ("KCP") by failing to foster commercial growth in

the Downtown area; by accepting a lower level of service (LOS) than the Town's

Ordinance Standards require and by approving the project without first determining

that G.I. Kennebunk, the applicant, has the financial capacity to sustain this project.

Pursuant to 30-A M.R.S.A. 5 4404 (Supp. 2004), before a subdivision may be

approved, the Planning Board must determine that 1) it will not cause unreasonable-

highway or public road congestion or unsafe conditions with respect to the use of the

highways; 2) that the proposed subdivision conforms with local ordinances and the

'Town's Comprehensive Plan; and 3) that the subdivider has adequate financial capacity

to meet the standards of this section.'"

The C w r t must determice whet?-[cr,frcfi1 the evidence 'cefzli-e it, the Planiiing

Board could have determined that the Kennebunk Market Place site approval was in

basic harmony with the KCP. See LnBontrr v. City of Wntcrville, 528 A.2d 1262, 1265 (Me.

1987). Hannaford bears the burden of proving that the approval of the Kennebunk

Market Place site plan is inconsistent ivith the KCP. See Aldciiinii v. Tiwiz if Bflldi~i;~,

2000 ME 91, ql22,750 A.2d 577,584.

13 Supra, n. 8. 1. Failing to Foster Commercial Growth in the Downtown Area

Hannaford argues that the development of the Kennebunk Market Place violates

the KCP by diverting commercial grobvth from downtown Kennebunk. However, the

KCP specifically envisioned a large-scale supermarket along Route One, north of the

village. R. Vol. 11, p 456. Moreover, Article 8, 5 13.A of the Zoning Ordinance

characterizes this part of Route One as a suburban commercial district designed "to

provide an area well suited for automobile-oriented co~nmercial and industrial

activity." R. Vol. I, p. 190. Hannaford has not met its burden of proving the approval of

the Kennebunk Market Place site plan is inconsistent with the KCP.

2. Level of Service

Hannaford asserts that pivotal intersections within one-half mile of the

Kennebunk Market Place will drop from acceptable LOS levels during peak travel

times. As such, Hannaford argues that the Planning Board violated local ordinances

and the KCP by accepting a lower level of service (LOS) than the Planning Board 7

Standards require.14

Article 11, 5 8 of the Zoning Ordinance provides the criteria for approving

subdivision site plans. R. Vol. I, p. 307. According to §8(7)(c),for intersections on access

roads functioning at LOS "D", and within one-half mile of a project driveway

gel~eralillg500 or lllol-e dnily ~ l e wvel~icleir-ips, Llle projecl will 11c)L recluce ille currerl t

level of service. R. Vol. I, p. 314. The KCP, which expressly incorporates the Portland

Road Traffic Management Study, provides that "[iln village or central business districts,

1a Eiannaford aiso argues that the Planning Board had no auihoriiy to decide that Storer Street should not be reduced to one lane after the 2003 KCP Update decided to consolidate Storer Street to a single lane to reduce sideswipe accidents. However, a 2004 report of Diane Morabito, the Town's traffic engineer at Casey & Godfrey, indicates that the overall intersection will fail if Storer Street is converted to a single lane under the Market Place volumes. 'I'he Planning Board was within its authority to approve a plan that promotes safer traffic patterns. LOS "E" is generally considered the minimum acceptable level." R. Vol. 11, p. 685.15

However, the Town is permitted "to tolerate periodic, short-term low levels of service

in certain parts of Town, such as Downtown if major reconstruction that would change

their character can be avoided as a result." R. Vol. 11, p. 481.

In arguing that the Planning Board erred by allowing lower than acceptable

levels of service, Hannaford refers the Court to a 2003 traffic study conducted by C o r d -

Palmer Consulting Engineers. R. Vol. V, p. 1701. The 2003 study indicates that more

than one-half mile from the site, the Main StreetISummer Street ii~tersectioi~ will drop

from LOS E to LOS F. Further, within one-half mile from the site the study indicates

that the Merrifield DrivelPortland Road intersection will drop from LOS C to LOS D

during weekday hours; the Shoppers Village/Portland Road intersection will drop from

LOS C to LOS D; the Shape DrivelPortland Road intersection will drop from LOS C to

LOS D, and lower to LOS E in the westbound left lane during weekday peek hours.

The Planning Board subsequently commissioned a peer review of the Gorrill-

Palmer report from Diane Morabito, the Town's traffic engineer at Casey & Godfrey - Consulting Engineers. R. Vol. V, pp. 1822-1825. In response to each of the above-

mentioned intersections, the 2004 review states that at the Maine Street/Summer Street

intersection, the LOS will drop to F post construction until improvements are made,

which will r e t u r , ~tl~e LC, 1 1 L ---- ~ LGS to E. E. 'v'ul. 'J, p. 1635. rurtl------- k l L e, tlie applicant has

agreed to conduct a traffic study of this intersection within one year of full occupancy

and to make improvements if the Planning Board requires as much. R. Vol. IV., p. 1615.

In regards to the Merrifield Drive/Portland Road intersection, the Town has recently

relocated the traffic signal at this iiitersectio~ito provide separate left and right turn

15 TIie 2003 Comprehensive Plan Update states: "all site plans for development occurring along the Portland Road corridor are required to conforin to the recolnmendations of the Portland Road Traffic Management Study." R. Vol. I, p. 827. lanes, which will return the LOS to its original level. R. Vol. V, p. 1835. In regards to

the Shoppers Village/Portland Road intersection, the Town has recently obtained a

right of way for future construction of a right turn lane on northbound Portland Road

into Shopper's Village. Id. The applicant has agreed to construct this right turn lane,

which will return the LOS to its original level. In regards to Shape Drive/ Portland

Road, an intersection with no traffic light, Diane Morabito admits that some side street

approaches do not operate at acceptable LOS levels but will in time with planned Town

improvement projects. R. Vol. V, p. 1807. Because the Town is permitted to tolerate

periodic low levels of service until improvements are made, the failure of Shape Drive

to meet an acceptable LOS level at this time is not fatal to the site plan approval.

At the outset, the Planning Board made clear that traffic was an important

concern. R. Vol. IV, p. 1416. Two of the thirteen public hearings in this matter were

devoted almost entirely to traffic issues whereby the Planning Board examined various

traffic studies and heard from a number of traffic engineers. R. Vol. IV, pp. 1409-1422,

1500-1514. Whle there may be conflicting opinions regarding the LOS issue, there is

competent evidence in the record to support the Planning Board's decision. The Court

will not substitute its judgment for that of the Planning Board.

3. Financial Capacity

I-Ia~nalordargues that the Plaiiiiii-tg Bcai-d approvzd tEle silbdivisi~nsitc plan

without sufficient evidence of the applicant's financial capacity. In response, G.I.

Kennebunk argues that it provided financial documents from Great Island

Development Group, ("Great Island"), the manager of G.I. Kennebunk. G.I. Kennebunk

and the Town also argue tliat becaiise the Planning Board coriditioned the subdivision

approval on the submission of a valid performance guarantee, the financial capacity

requirement has been satisfied. The Planning Board Standards Ordinance ("Standards Ordinance), Article 1(J),in

compliance with 30-A M.R.S.A. 5 4404 (Supp. 2004), requires that the Planning Board

determine, inter alia, that the developer has adequate financial capacity to meet the

standards of these regulations prior to subdivision approval. R. Vol. I, p. 3. Article 12.2

also requires a submission of a performance guarantee for an amount to cover the total

construction costs of all required improvements before granting subdivision approval

of the site plan.16 R. Vol. I, p. 40.

The requirement that the applicant demonstrate adequate financial capacity must

be read in the context of the purpose of the ordinance. See Secure Elzvironme~zts,Inc. v.

Norridgmock, 544 A.2d 319, 325 (discussing whether the ordinance contained sufficient

guidelines to allow for effective judicial review). The stated purpose of the Town of

Kennebunk's Standards Ordinance is "to assure the comfort, convenience, safety, health

and welfare of the people, to protect the environment and to promote the development

of an economically sound and stable community." R. Vol. I, p. 3. The obvious purpose

of the ordinance is to reasonably insurc that a developer will have sufficient financial

capacity to successfully complete a project once approval is granted.

In Bruk v. Tozun of Georgetozon, 436 A.2d 894, 898 (Me. 1981), the Law Court

reviewed a planning board's finding that the subdivider did not have adequate

financial capacity to iiieet statutory and oi-dinai-ice stai-~c1lai.d~. AltI-IoiigI-~the plai~iing

board did receive a letter from a financial instih~tionjndicating that $50,000 would be

available for developmental purposes for this project, no evidence was submitted of the

applicant's access to other funds. Id. Furthermore, the applicant did not provide the

p l a n ~ ~ iboard i ~ g wit11 evidence of anticipated construction costs.

16 The purpose of a perfomance guarantee is "to ensure the proper installation of required street, utility, storm drainage and other improvements."

12 While not controlling, in Seaforth Housing, LLC, 27. City of Portlarrd, 2005 Me. Super.

LEXIS 194, the Cumberland County Superior Court recently affirmed a planlung

board's finding that a subdivider had financial capacib to meet statutory and ordinance

standards. In order to demonstrate financial capacity, the Portland Ordinance requires

a letter from a responsible financial institution stating that it will seriously consider

financing the project if requested to d o so. The evldence before the planning board was

a cover letter indicating an estimated construction cost of $17,000,000, and a letter from

Key Bank stating that it had a strong interest in proceedii~gwit11 financing the project in

the amount of $20,000,000.

Here, in contrast to the Portland Ordinance in Senforth, the Standards Ordinance

does not prescribe criteria for determining financial capacity. As such, the Planning

Board made its decision based on the following evidence in the record: a subdivision

application listing G.I. Kennebunk as the applicant and Great Island as its manager; a

cover letter from G.I. Kennebunk and Great Island indicating that the total anticipated

construction costs are $2,301,100 for the project; a letter from Great Island stating that it

owns and manages approximately 5,000,000 square feet of retail shopping centers and - malls throughout the New England area; and a letter from Great Island's business

manager indicating that Great Island maintains a seven figure cash balance in its bank

account. R. Vol. 111, p. 920; R. Vol. V, pp. 1778-1780.

Hannaford takes the position that the performance guarantee cannot be

substituted for evidence of financial capacity. The Court agrees. According to the

Standards Ordinance, both a determination of financial capacity and a performance

guarantee are required before the Planning Boai-d approves a siibdivision site plan. The

issue then becomes whether the Planning Board can rely 011 financial information from

G.I. Kennebunk's parent company to determine financial capacity. Great Island is G.I. Kennebunk's parent company which, unlike an unrelated

financial institution which merely states an interest ill funding the project, is intimately

linked to the applicant and has been involved in the process from the outset. The

Planning Board could reasonably have determined that the relationship between these

two companies is such that G.I. Kennebunk has access to the funds of its parent

company.17 The Court will not substitute its judgment for that of the Planning Board on

this score. Because the Standards Ordinance does not prescribe criteria to determine

financial capacity, G.I. Kennebui-tk's access to its parent company's account to fund the

project is sufficient evjdence of the financial capacity of G.I. Kennebunk.18

The entry is as follows:

The decision of the Planning Board is affirmed.

/ ~ustice,Superior Court PLAINTIFFS: Peggy McGehee, Esq. P.I.I. G I KENNEBUNK, LLC PERKINS THOMPSON HINCKLEY AND KEDDY Durward Parkinson, Esq. PO Box 426 BERGEN AND PARKINSON Portland Me 04112-0426 6 2 PORTLAND RD KENNEBUNK ME 04043-6658" DEFENDANT THE TOWN OF KENNEBUNK: Natalie Burns, Esq. William Dale, Esq. JENSEN BAIRD GARDNER AND HENRY PO Box 4510 Portland Me 04112-4510

l7 Although under Maine Law, the manager of an LLC is not held liable for its debts, 31 M.R.S.A. 5 645, i-ieither is a finaficia: institutioii by indicating its iiiterest in fiinding a project.

ls Pursuant to the Standards Ordinance, Article 12.2(4), the Planning Board appropriately conditioned the subdivision approval on G.I. Kennebunk's submission of a performance guarantee to be approved by the Town Manager within one year of Final Plan Approval and prior to any conveyance of lots of issuance of building permits. R. Vol. T, p . 40; R. Vol. IV,p. 1617.