Johansen v. City of Bath

• Court: Superior Court of Maine
• Decided: December 14, 2010
• Docket: SAGap-10-002
• Status: Unpublished

Opinion

STATE OF MAINE SUPERIOR COURT I

IJIVlH - SAG- (.:)f'"1/~O!D Sagadahoc, ss.

\ WENDY JOHANSEN and ROBERT JOHANSEN,

Plaintiffs

v. Docket No. SAGSC-AP-10-002

CITY OF BATH

Defendant

STAY ORDER

This appeal pursuant to M.R. Civ. P. 80B returned to court December 14, 2010 for

oral argument after remand. Jenny Burch and Patrick Scully appeared as counsel for the

Plaintiffs Wendy and Robert Johansen and the Defendant City of Bath respectively. The

argument was electronically recorded.

As discussed at hearing, the court intends to remand this case a second time on the

same issues addressed in the first remand, and expects this time that the Bath Planning

Board, with the assistance of independent counsel not associated with the applicant, will

engage in a full and meaningful review of the areas within the scope of remand. Any and

all future meetings of the Board held in compliance with the remand will be held on at least

10 days' notice to the Plaintiffs and the public.

Plaintiffs are hereby authorized to record in the Sagadahoc County Registry of Deeds

a notice of the pendency of this appeal and a description of the access road-in the nature

of a lis pendens notice. A stay having previously been requested and denied, the court on its own motion

elects to reconsider that decision, see M.R. Civ. P. 54(b)(1) (any non-ftnal order is subject to

revision at any time).

Pursuant to M.R. Civ. P. 80B(b), the court deems it proper to stay any further action

by the City of Bath during the remand and thereafter until further order of the court,

regarding the access road which is the subject of this appeal, other than the Bath Planning

Board's actions within the scope of the remand. The purpose of the stay is to prevent the

City of Bath from taking any action whatever to advance the status of the access road during

the stay, other than to the extent complying with the remand might be deemed to do so.

lt is therefore hereby ORDERED that any and all actions by the City of Bath, and

its offtcers, employees, board members, agents and contractors regarding the access road for

Phase III West Bath Wing Farm Business Park, are hereby stayed and enjoined including

without limitation:

(1) any improvement, construction or physical alteration of any kind whatever of the

access road

(2) any act of legal signiftcance in the nature of issuing permits, approvals,

certiftcations, inspections or acceptances or anything else of that nature.

The court was advised that no work is currendy being performed on the access road,

at least as located in the City of Bath. On that basis, the court is not directing that the City

of Bath issue a stop work order to halt any ongoing improvements or construction, but will

consider amending this stay to include that requirement if Plaintiffs so request.

In aid of the stay, the City of Bath, and its offtcers, employees, board members,

agents and contractors are hereby enjoined and prohibited from taking any actions in

violation of this stay. The City shall make the employees with planning, permitting and

2 code enforcement responsibilities specifically aware of this stay and injunction, and to make

them aware that construction work on the access road, if commenced, should be stopped.

This stay does not apply to any activity located outside the boundaries of the City of

Bath. No security for this stay is required of the Plaintiffs.

This stay order also does not prohibit the members of the Bath Planning Board, City

planning staff and legal counsel from performing any and all activity in compliance with the

court's remand of this case, including act to grant or deny, with or without modification or

amendment, approval of the application again before the Planning Board.

Pursuant to M.R. Civ. P. 79(a), the Clerk is hereby directed to incorporate this Order

~.; 91/· .-----­ h:YifA&/~~ by reference in the docket.

Dated 14 December 2010 . Justi.{, Sup~rior Court Andrew M. Ho/ton, presiding

3 STATE OF MAINE SUPERIOR COURT A-M+t-SAG - v;l~O(l Sagadahoc, ss.

WENDY JOHANSEN and ROBERT JOHANSEN,

Defendant.

ORDER OF REMAND

This appeal pursuant to M.R. Civ. P. 80B came before the court July 22, 2010 for

argument on the Plaintiffs' motion for stay. Counsel for the parties presented argument.

During the argument, I indicated that a remand on certain issues was likely.

Without waiving their positions, the parties agreed to a remand on the understanding that

the court retained jurisdiction, meaning that after the Bath Planning Board acted on remand,

the case can return to this court and proceed at the request of any party without a further

appeal by the Plaintiffs. l

However, if the applicant Town of West Bath disagrees with the Planning Board's determinations on remand, it would have to file an appeal in order to raise its concerns with the court.

The court was advised at oral argument that the same law firm is representing the City of Bath, the Defendant in this case, and the applicant, Town of West Bath, which has not been made a party. That may be appropriate on this appeal, when the applicant and Board have the same objective-to have the Board approval upheld. However, the court trusts that this will not be the case on remand. The Board's duty is to make the additional fmdings and decisions called for in this order based on the evidence and the law, whether or not they favor the applicant. For the same law firm that represents the applicant to advise the Board on how to respond to this order of remand presents obvious problems and would complicate matters considerably. Background

Plaintiffs Wendy and Robert Johansen have appealed from a decision of the City of

Bath Planning Board approving a nine-lot business park subdivision proposed by the Town

of West Bath. The project is part of a larger development called the West Bath Wing Farm

Business Park, two prior phases of which have already been approved.

What makes this application for what is called Phase III of the project somewhat

unusual is that the subdivision lots themselves lie in the Town of West Bath. West Bath has

engaged in a separate permitting process for the lots and roads within West Bath, which is

not an issue on this appeal.

The only part of the proposed subdivision that lies within the City of Bath is a

portion of the access road to the subdivision. The access road would be built along what is

now an unpaved way dating to colonial times, the King's Highway. The City of Bath access

road connects to an existing public road called Wing Farm Parkway that evidendy was

approved during one of the earlier phases of the business park project.

The City of Bath Phase III permitting process began in September 2009 with a pre­

application meeting at which representatives of the applicant, the Town of West Bath,

appeared before the Bath Planning Board to introduce the project and answer preliminary

questions. In October 2009, West Bath submitted its application to the Bath planning and

development director. Between November 2009 and April 2010, the Bath Planning Board

held additional meetings regarding the project, during which it received documentary

information and heard comments from the applicant and a variety of others, including the

Plaintiff Wendy Johansen.

Although not detailed in the record, the Phase III subdivision proposal also

underwent review in the Town of West Bath under a separate process. When a subdivision

2 is located in two different municipalities, as here, the subdivision statute requires the two

reviewing authorities to meet jointly unless they agree to waive joint meetings. See 30-A

M.R.S. § 4403(1-A). In this case, the two municipalities waived joint meetings and

proceeded separately in their review.

The Plaintiffs own property that does not abut the subdivision but is located within

100 feet of Lots 3 and 4 of Phase III. Much of the traffic that will be generated from the

nine lots in Phase III of the business park project will pass by the Plaintiffs' property.

During the Planning Board meetings, the Plaintiffs presented information indicating that

their ability to go conveniently to and from their property will be affected by traffic from the

project unless adequate measures and alternative means of access were provided.

At its April meeting, the Planning Board gave final approval to the Phase III

application, as amended. The City of Bath subdivision ordinance permits appeal to the

Superior Court directly from final decisions of the Planning Board regarding subdivisions.

See 30-A M.R.S. § 4353(1) (permitting direct appeal if provided by ordinance). The Plaintiffs

fJ.1ed a timely appeal. The parties have agreed upon the record on which the appeal will be

decided, and have briefed the issues.

Standard of Review

In an appeal brought pursuant to M.R. Civ. P. 80B, the Superior Court reviews the

administrative decision for errors of law, abuse of discretion, or findings of fact unsupported

by the record. Yates v. Town ojSouthwest Harbor, 2001 ME 2, '1110, 763 A.2d 1168, 1171.

When "reviewing an administrative ... decision, the issue before the court is not whether it

would have reached the same conclusion as the [administrative tribunal], 'but whether the

record contains competent and substantial evidence that supports the result reached.'" Seider

v. Bd. ofExam'rs ojPrychologists, 2000 ME 206, '118, 762 A.2d 551, 555 (quoting CWCO, Inc. v.

3 Superintendent ofIns. , 1997 ME 226,,-r 6, 703 A.2d 1258, 1261). "Substantial evidence is

evidence that a reasonable mind would accept as sufficient to support a conclusion." York v.

Town ojOgunquit, 2001 ME 53, ,-r 6, 769 A.2d 172, 175.

The court may not substitute its own judgment for that of the administrative

tribunal. See id.; accord, Brooks v. Cumberland Farms, Inc. 1997 ME 203, ,-r 12, 703 A.2d 844,848.

In other words, an administrative decision is not wrong because it is inconsistent with parts

of the record or because the court might have come to a different conclusion. See Twigg v.

Town ofKennebunk, 662 A.2d 914, 916 (Me. 1996). Further, "[i]nquiry into the thought

process of a decision maker is improper," as analysis must be based on the "expressed

[mdings and conclusions of the lower tribunal." Stewart v. Town ofSedgwick, 2000 ME 157, ,-r

14 n.8, 757 A.2d 773,777-78.

However, if a board "fails to make sufficient and clear findings of fact [as] are

necessary for judicial review," the court must remand the matter back to the board for those

findings. Comeau v. Town ojKittery, 2007 ME 76, ,-r 9, 926 A.2d 189, 192 (quoting Carroll v.

Town of&ckport, 2003 ME 135, ,-r 30, 837 A.2d 148, 157).

The burden of persuasion in an action challenging an administrative decision rests on

the party seeking to overturn the decision. See SaU!Jer Envtl. Recovery Facilities, Inc. v. Town oj

Hampden, 2000 ME 179, ,-r 13, 760 A.2d 257, 260.

Discussion ofthe Issues

Plaintiffs' brief focuses on nine issues, discussed in depth below. Before turning to

the issues raised by the Plaintiffs, the court needs to address an issue of standing raised by

the Defendant City of Bath.

Standing

4 The Defendant City of Bath asserts that the Plaintiffs lack standing to appeal. The

ordinance permits any "aggrieved party" to appeal from decisions of the Planning Board, but

does not define the term. However, the Law Court has held that in an appeal from a

subdivision approval, a party's appearance before the planning board, together with

allegations of particularized injury, are sufficient to confer standing. See Lakes Assoc. v. Town

of Naples, 486 A.2d 91, 93-94 (Me. 1984) (citing Hanington v. Inhabitants ofthe Town of

Kennebunk, 459 A.2d 557, 559-60 (Me. 1983)).

Plaintiffs participated in the Planning Board's permitting process, and they claim to

own property that will be adversely affected by traffic from the Phase III lot. The Plaintiffs

have lived near the project for decades. Their primary concerns are with traffic but they

also cite potential impact on wetlands that they use recreationally. The fact that the Bath

Planning Board decided that the project would indeed have traffic impacts in the vicinity of

the Plaintiffs' property that needed to be addressed through permit conditions, implies that

the Board decided that there will be adverse traffic impact absent those conditions. Thus,

although not direct abutters, the Plaintiffs have shown both particularized injury and

significant participation in the proceedings before the Bath Planning Board sufficient to

confer standing.

Lack of Findings on Requirements Deemed Not Applicable

The first issue raised in the Plaintiffs' brief focuses on the Planning Board's decision

not to apply certain requirements of the state subdivision statute and the Bath ordinance to

the Phase III project, because the requirements were "not applicable as the lots are in West

Bath." The requirements that the Plaintiffs say were applicable and should have been

considered were: undue water and air pollution; undue scenic; aesthetic wildlife and other

impacts; conformity with the comprehensive plan; undue adverse impact on groundwater

5 and stormwater management. See 30-A M.R.S. § 4044(1), (8), (12), (16); City of Bath

Subdivision Ordinance § 13.13. The second issue raised is that the Planning Board made

the decision that those same requirements did not apply without making any fmdings of fact.

The City responds that the Board plainly applied those elements of the statute and

ordinance that were relevant to the small portion of the subdivision in the City of Bath, and

properly decided that other requirements did not apply. The City says the Board's reasoning

is so obvious that the Board did not need to make formal fmdings.

The court agrees with the Plaintiffs' position.

The Board decision is incorrect in saying that the requirements in question "are not

applicable as the lots are in West Bath." All of the performance standard requirements of

the state statute and City ordinance are applicable to the portion of the access road in the

City of Bath, just as they are applicable to the lots themselves. See Moulton, ~ 9, 710 A.2d at

255 (access road "is an integral part of the subdivision").

The Board may have really meant that there is no evidence that the part of the access

road within Bath has any impacts or effects of the kind described in the performance

standards that the Board decided do not apply, but that is different than saying that the

standards themselves "are not applicable."

Because all of the standards in the statutes and ordinance apply to the access road,

the Plaintiffs are also correct that the Board failed to make necessary fmdings regarding the

standards that the Board said are not applicable. On remand, the Board will need to make

actual findings regarding whether the portion of the project in the City of Bath complies

with the requirement in question. It may be that the finding is that the portion of the project

in Bath will not have any of the impacts that the particular requirement is meant to regulate,

but there still needs to be a finding of some kind.

6 Review Limited to the Portion of the Project in Bath

Plaintiffs also argue that the Board had to conduct a full review of the entire parcel

comprising the subdivision, not only the portion in Bath. They rely on the Law Court

decision in Town ofNorth Yarmouth v. Moulton, in which the court held that the Town of

N orth Yarmouth had jurisdiction to review a subdivision even though only a portion of the

access road was within the town, and all of the subdivision lots lay entirely outside town

boundaries. 1998 ME 96, -,r-,r 8-9, 710 A.2d 252,254-55.

Noting that the proposed access for the subdivision connected to a public road in

North Yarmouth, the Court said, "Given the increased traffic flow [associated with the

access road], North Yarmouth clearly has a legitimate interest in reviewing the Moultons'

proposed subdivision." Similarly, in the present case, the fact that the Phase III

subdivision's access road lies within the City of Bath confers jurisdiction on the Bath

Planning Board to conduct the review that it did, in which the Board focused mainly on

traffic and wetlands.

However, the Law Court in Moulton specifically left open the issue that the Plaintiffs

here have raised: "This case does not require us to ascertain the scope of North Yarmouth's

review or whether the Town may review those portions of the subdivision relating solely to

Yarmouth." Id. -,r 6 n.2, 710 A.2d at 254 n.2.

However, the court agrees with the City that the Bath Planning Board's review of the

subdivision should be limited to the portion of the subdivision within the City of Bath. The

Bath Planning Board was not required to review impacts associated with the portion of the

subdivision in West Bath. The primary reason for that conclusion has to do with the

statutory review criteria for subdivisions. The section 4404 review criteria, with few

exceptions, require the reviewing municipality to consider the impacts of a proposed

7 subdivision wherever they occur, not only those impacts occurring within the municipality.

Thus, with respect to air and water pollution for instance, the statute does not limit

review to impacts within the municipality. It was therefore the duty of the West Bath

Planning Board to review the portion of the subdivision in West Bath, and the impacts

associated with that portion, even if the impacts occurred outside West Bath. The Bath

Planning Board was correct in not applying the subdivision review criteria to those parts of

the subdivision located in West Bath.

A contrary interpretation of the statute raises obvious problems. If each

municipality's planning board had jurisdiction to conduct a full review of all parts of the

subdivision, including the parts of the subdivision located in the other municipality, how

would any conflicts between the requirements of each municipal ordinance be resolved?

How would differences in the outcome of planning board review be resolved?

It is noteworthy that the statutory provision regarding subdivisions located in two

municipalities calls for joint meetings unless waived (as occurred here), see 30-A M.R.S. §

4403(1-A), but does not call for joint decisions on the same parts of the subdivision, nor

does it expand the jurisdiction of either reviewing authority.

The Plaintiffs' reliance on the Law Court opinion in Grant's Farm Associates, Inc. v.

Town ojK.ittery, 554 A.2d 799, 803 (Me. 1989), is misplaced. In Grant's Farm, the Law Court

noted that review by the State Board of Environmental Protection overlaps with review by

the town authority and does not displace it. That principle does not apply to review by two

coordinate municipal authorities.

Impact on Wetlands

Plaintiffs' third issue relates to the Board's finding with regard to the City subdivision

ordinance standard titled "Impact on Water Quality and Shoreline." City of Bath

8 Subdivision Ordinance § 13.13(K). In its decision, the Board found: "This subdivision is

not within 250 feet of a river as defmed." Plaintiffs correctly point out that section 13.13(K)

applies to any subdivision located within 250 feet of a wetland as well as a river. This

project is clearly within 250 feet of a wetland, so the Board's decision on its face fails to

address one of the Subdivision Ordinance's standards. On remand, the Board will need to

decide whether the application complies with the requirements of section 13.13(K) with

respect to the wetland, and make fmdings in any case.

The Connectivity Issue

Plaintiffs' fourth argument relates to the connectivity provisions of the ordinance.

See City of Bath Subdivision Ordinance § 13.14(B)(2)(d). In substance, those provisions are

intended "to require street connectivity whenever possible," and to require any subdivision

applicant to demonstrate how its design achieves connectivity, "if feasible."

If connectivity is not feasible, the Ordinance appears to mandate that the Board

incorporate at least one of several enumerated "measures" into the design of the subdivision,

which in this case would mean the access road. See City of Bath Subdivision Ordinance §

13.14(B)(2)(d)(ii). In this case, the Board does not appear to have considered connectivity in

its written decision or decided whether it was feasible, contrary to the requirement of the

Ordinance. This was despite the fact that the Plaintiffs expressly raised the issue. In failing

to address connectivity in any way in its decision, the Board erred.

The remand on this issue requires the Board to follow the provisions of section

13.14(2)(d), including at least, but not necessarily limited to: deciding what further

conditions should be required if connectivity is feasible; deciding what alternative

"measures" to impose if it is not feasible, and making fmdings supporting all of its

determinations. In deciding whether connectivity is feasible, the Board is not limited to

9 considering conditions within the City of Bath. For example, if the Board decides that

connectivity is feasible by means of another access road, it may condition approval of its

portion of the project on completion and use of a second access road, even if that second

road is located in West Bath. If the Board decides that connectivity is not feasible, it should

decide which of the alternative measures to apply to the access road. In theory, the Board

might waive the connectivity requirement altogether, but such a broad waiver could be

vulnerable to a challenge for nullifying the purposes of the connectivity provisions of the

Ordinance.

Waivers Without Findings

Plaintiffs' fifth and sixth arguments are that the Board waived certain requirements

of the subdivision ordinance-relating to the width, grade and turning radius of the access

road, and to an infrastructure construction plan-pursuant to section 13.18 of the

Ordinance, but did not make the "written findings of fact and conclusions" that are

specifically required by the Ordinance. Again, the Plaintiffs are correct.

On remand, the Board must make written findings and conclusions regarding all

waivers under section 13.18, should it decide to stand by the waivers. Plaintiffs claim that

the waiver of the infrastructure construction plan would nullify the purposes of the

Ordinance, and the Board should consider that question also on remand.

Completeness of Application

Plaintiffs' seventh argument is that the Board erred in deeming the application

complete when it failed adequately to identify streams. On this issue, the Plaintiffs have

failed to demonstrate error. Specifically, the Plaintiffs have failed to show that there was no

substantial evidence on which the Board could have deemed the application sufficient in

terms of identifying streams. In fact, the application site plan shows a watercourse named

10 Whiskeag Creek within the wetland adjacent to the access road. See, e.g. Record at 2.65

(overall site plan).

Traffic Conditions

Plaintiffs' [mal two arguments pertain to the Board's decision to condition its

approval of the Phase III subdivision proposal upon certain traffic improvements. Section

13.13(E) of the Bath Subdivision Ordinance requires the Board to determine whether the

proposed subdivision will cause unreasonable traffic conditions. In particular, the additional

traffic associated with the subdivision cannot reduce the Level of Service of adjacent streets

to Level E or below.

The Board decision sets forth the conclusion that this requirement is met, "with

certain Conditions." Record at 1.3. The Plaintiffs fault the Board for not spelling out what

those conditions are. Although the Decision later indicates that the conditions are to be

recorded on the approved [mal plan, the conditions themselves are never spelled out in the

Decision. By looking at the plan, one perhaps might assume that the conditions listed there

are the same as the ones referred in the Decision, but the conditions should be spelled out in

the Decision itself to remove any uncertainty. On remand, if it decides to approve the

project, the Board should spell out the traffic-related conditions that are required in its

amended decision, and also make findings as to whether the required conditions will handle

the traffic impacts of the project as required by the Ordinance, and why.

Plaintiffs also argue that the Board's finding that, with "certain Conditions" the

project complied with the traffic-related requirements of the Subdivision Ordinance, is not

supported by substantial evidence. In particular, they say the conditions the Board

presumably imposed-meaning the ones listed in the approved plan but not in the

11 Decision-are not sufficient to reduce the traffic impacts of the project to the level required

by the Subdivision Ordinance.

The court has to defer consideration of this issue until after the case returns from

remand. The very reason for the remand regarding the traffic-related conditions is that the

current Decision is insufficiently clear in that respect to be subjected to judicial review. It is

also quite possible the Board will require different or additional traffic-related conditions in

its amended decision as a result of considering connectivity. Thus, before the court can

detennine whether the Board's response to the traffic impacts of the project is supported by

substantial evidence or not, the court needs to see what that response is, as reflected in the

Board's amended decision.

Effect of Remand on Permit

The Plaintiffs seek to have the court vacate the Board's approval based on

deficiencies in the Board's decision. Because the court agrees with the Plaintiffs on many or

most of their points of appeal, some discussion of whether to vacate the permit is in order.

In its decisions, the Law Court has distinguished between situations in which a

board's grant of a permit is overturned based on lack of evidence to support it, and

situations in which the court remands for further findings. In Glasser v. Town ofNonhpon, the

Law Court rejected the appellant's contention that the inadequacy of findings by the board

meant that the court had to vacate the permit:

The statute required the Planning Board, before approving the subdivision application, to make findings that the subdivision would meet the statutory defined criteria and would comply with the Town's subdivision ordinance. Glasser contends that the Board failed to make adequate findings on certain of those criteria and that therefore its approval of the subdivision application is a nullity. There is no support in our decisions for any such draconian consequence of inadequate findings. At most, were we to find the record contained inadequate findings, we would remand the case to the Board and direct it to make funherfindings.

589 A.2d 1280, 1282 (Me. 1991) (emphasis added).

12 The problems with the Planning Board all center on inadequate flI1dings-meaning

that the Board in its written Decision failed to make findings on matters that the state statute

and/ or the Bath Subdivision Ordinance require be addressed. If the court concluded that

there was insufficient evidence to support the Board's decision to approve the Phase III

subdivision, the court would likely be constrained to vacate the approval. The court also

might well have granted the Plaintiffs request for stay of construction. However, because

the deficiencies in the Board's decision relate to its findings or lack thereof in the areas

mentioned above, the appropriate response is to remand for further findings without

nullifying the approval.

For these reasons, this Order of Remand does not vacate the approval granted to the

project. The court assumes the Board will comply with this Order and conduct a bonafide

and meaningful review of the areas identified in this Order. If after that review the Board

decides to stand by its approval, with or without additional or different conditions, the

Plaintiffs may renew their request for the approval to be vacated. The court's response will

likely center on whether the issues identified in this Order are resolved in compliance with

the statute and the Ordinance on the remand. As indicated at oral argument, the applicant

is at risk if it proceeds with construction before this case is resolved.

Activity on Remand

The purpose of the remand is for the Bath Planning Board to re-examine the entire

existing record, consider the issues that it did not address, and make the flI1dings that it

omitted, as set forth above. This is not an opportunity to re-open the record for new

evidence. Nor should the Board revisit areas outside those identified in this Order as

requiring further action. However, the Board can permit the applicant, the Plaintiffs, and

others to comment on what actions the Board should take to respond to the remand.

13 When the Board has made decisions on the issues identified in this order, it should

issue an amended decision that includes all of the Board's findings. Depending on what

decisions the Board makes on the various issues listed above, the amended decision may

uphold the previous decision to grant approval or it may rescind that decision and deny

approval. In either case, the amended decision shall include the Board's findings in the

areas identified above. If the Board decides to uphold the previous decision, the amended

decision should include any additional conditions the Board decides to impose.

After the Board has issued its amended decision in writing and notified the parties to

this case, the parties shall notify the court. The court will likely then schedule a conference

of counsel. In the meantime, counsel are requested to confer on the contents of a

supplemental record of the proceedings on remand.

Conclusion

For the reasons stated, it is hereby ORDERED:

1. The appeal is sustained.

2. This matter is remanded to the City of Bath Planning Board for further

proceedings consistent with this Order.

Pursuant to M.R. Civ. P. 79(a), the clerk is hereby directed to incorporate this Order

of Remand by reference in the docket.

Dated 30 July 2010 A. -M. Horton Justice, Superior Court

14 STATE OF MAINE SUPERIOR COURT)

Sagadahoc, ss. ~ MhI___'7 (-It:? -.. l) 4/ ~XO ) )

WENDY JOHANSEN and ROBERT JOHANSEN, Plaintiffs

CITY OF BATH Defendant

SECOND ORDER OF REMAND

This order sets forth the court's reasons for remanding this case a second time. The

facts of this case were described in depth in the court's July 30, 2010 Order, so they are only

briefly recapitulated here, along with the subsequent proceedings on remand.

Background

Plaintiffs Wendy and Robert Johansen have appealed from a decision of the City of

Bath Planning Board approving a nine-lot business park subdivision proposed by the Town

of West Bath. The subdivision lots themselves lie in the Town of West Bath; but the access

road to the subdivision lies within the City of Bath. The Plaintiffs own property that does

not abut the subdivision but is nearby. Much of the traffic projected to be generated by the

project would pass by the Plaintiffs' property.

During the Planning Board meetings, the Plaintiffs presented information indicating

that their ability to go conveniently to and from their property will be affected by traffic

from the project unless adequate measures and alternative means of access were provided. At its April 201 ° meeting, after numerous meetings on the project, the Bath Planning

Board gave fmal approval to the application as amended. The Plaintiffs fued a timely appeal

of the decision to the Superior Court. 1

On July 22, 2010, the court heard argument on the appeal. On July 30, 2010, this

court issued an Order of Remand. In the Order the court noted:

The court was advised at oral argument that the same law firm is representing the City of Bath, the Defendant in this case, and the applicant, Town of West Bath, which has not been made a party. That may be appropriate on this appeal, when the applicant and Board have the same objective-to have the Board approval upheld. However, the court trusts that this will not be the case on remand. The Board's duty is to make the additional fmdings and decisions called for in this order based on the evidence and the law, whether or not they favor the applicant. For the same law firm that represents the applicant to advise the Board on how to respond to this order of remand presents obvious problems and would complicate matters considerably.

Nevertheless, that was what happened during the remand. The supplemental record

flied after remand revealed that the Bath Planning Board's attorney also represents the

applicant, the Town of West Bath, regarding the Town's Wing Farm project. See, e.g.,

Pamela Hile Dep. at 5 ("Do you consider the Town of West Bath currently a client of the

firm, Therriault & Therriault?"... ''Yes.''); id. Ex. B; Letter to Economic Development

Administration from Roger Therriault) ("As you know, our office represents the City of

Bath as its City Solicitors. We also serve as Town Attorney for the Town of West Bath.").

At the September 7, 2010 meeting at which the Bath Planning Board addressed the

application in response to the remand, the same attorney who represents the applicant

served as legal advisor to the Planning Board. He presented the Board with a draft amended

decision, showing "redline" changes made from the original decision. The transcript of the

proceeding indicates that the J ohansens and their attorney appeared at the meeting and

I The City of Bath subdivision ordinance permits appeal to the Superior Court directly from final decisions of the Planning Board regarding subdivisions. See 30-A M.R.S. § 4353(1) (permitting direct appeal if provided by ordinance).

2 objected to the Planning Board's use of the Board's attorney's draft amended decision.

Supplemental Record, Ex. 3 at 6-7. The transcript also shows that after public comment

was closed, the Board essentially went through the draft decision its attorney had prepared,

and approved it with no significant changes. Supplemental Record, Ex. 3 at 9 et seq.

Finally, the transcript indicates that the Board's attorney went beyond the rok of legal

advisor to the Board and in at least one instance told the Board how to decide one of the

factual issues before it.

By the time the appeal returned to the Superior Court, the City of Bath was

represented by different counsel for purposes of briefing and oral argument. The

Johansens now argue that because of the Board's attorney's dual representation of both the applicant and the board reviewing the application, the entire remand process was so flawed

as to require that the case be remanded again.

DiJCIIJSion

In an appeal brought pursuant to M.R. Civ. P. 8013, the Superior Court reviews the

administrative decision for errors of law, abuse of discretion, or findings of fact unsupported

by the record. Yates v. Town ojSouthwest Harbor, 2001 ME 2, '110, 763 A.2d 1168, 1171.

Generally, when "reviewing an administrative ... decision, the issue before the court is not

whether it would have reached the same conclusion as the [administrative tribunal], 'but

whether the record contains competent and substantial 'evidence that supports the result

reached.'" Seider v. Bd ojExam'rs ojP.rychologiJtJ, 2000 ME 206, ~ 8, 762 A.2d 551,555

(quoting CWCO, Inc. v. SuperintendentqfIns., 1997 ME 226, ~ 6,703 A.2d 1258,1261).

However, a court cannot permit the violation of a party's constitutional rights, such

as where municipal action is "taken without according procedural and substantive due

3 process." Mul/oll Hi/I Estates, Inc. I), Oakland, 468 A2d 989, 992 (J\le. 1983) (citing Frank I).

AJSeJJorJojSkowhegatl, 329 A.2d 167, 170 (J\le. 1974)).

In A'17ftton Elill, the Law Court found that the applicant's due process rights were

violated when the Board permitted the opponents of the application to help formulate the

ftndings of facts, without notice or an opportunity for the applicant to be heard. 468 A.2d at

992. The court, in upholding the Superior Court's decision to vacate the Board, held: "1 t

cannot be determined from the record of the Planning Board if new evidence was taken at

those meetings or if the opponents unduly influenced members of the Board in making

ftndings of fact unfavorable to the applicant's proposal." Jd

Decisions from other jurisdictions make it clear that a conflict of interest on the part

of an attorney advising a board can render adjudicative decisions of the board vulnerable to

challenge on due process grounds. See, e.g. Quintero 1). City ojSanta Ana, 114 Cal. App. 4th

810,7 Cal. Rptr. 3d 896, 2003 Cal. App. LEXIS 1912 (2003), reI). den., 2004 Ca. LEXIS 2785

(2004); Davenport Pastum, U 1). Morris County Board ojCounty Comm'rJ, 291 Kan. 132,238 P.3d

731,2010 Kan. LEXIS 622 (2010); Newtown TownJhzp Board~! Supe17Jisors 1). Greater Media Radio

Co., 138 Pa. Commw. 157,587 A.2d 841,1991 Pa. Commw. LEXIS 102 (1991).

In the zoning case of Crispin 1). Town~! ScarbOTOt{gh, the Law Court addressed a project

opponent's argument that the planning board's attorney had a conflict of interest affecting

the validity of the decision. 1999 ME 112, n.5, 736 A.2d 241, 244. Although the court

ultimately found no conflict affecting the outcome, the court's analysis confltms that the

validity of a planning board decision can be affected by a conflict of interest on the part of

the board's attorney.2

In its discussion, the court in CnJpin noted as follows:

Several times during the course of the proceedings, the Town's attorney fully disclosed the

4 For two reasons, the court agrees that the case must be remanded, again,

First, the fact that the Planning Board's attorney also represented the applicant Town

of West Bath on the sam.c subject matter-West Bath's Wing Farm Subdivision-created an

obvious conflict of interest. His duty to represent West Bath's interests regarding the

subdivision project prevented him from advising the Planning Board in any manner contrary

to West Bath's interests, whereas his duty to the Bath Planning Board was to give good

independent advice, even that if that advice was contrary to West Bath's interests. That is a

classic conflict of interest-exactly the conflict the court flagged in its remand order.

Second, the Board's attorney's actual role during remand was such as to raise a

significan t doubt as to whether the Bath Planning Board engaged in the meaningful review

the court expected to occur. lbe fact that the Board's attorney presented the board with a

draft amended decision favorable to the applicant before the Board had even begun its

discussion was problematic in itself. It can only be inferred that the attorney assumed and

intended from the outset that the Board would act in favor of the attorney's other client on

details of the alleged conflict and stated that he believed he could represent the Town consistently with his obligations under the Code of Professional Responsibility. In addition, he offered to withdraw from representation of the Town if any of the members of the Planning Board wished, The Planning Board fully and publicly considered the disclosure by its long-time attorney and afftrmatively sought his continuing representation,

1999 ME 112, n.S, 736 A.2d 241, 244 (citing TowJaint v, Town ~(HarpJwell, 1997 ME 189, ~Ill, 698 A.2d 1063, 1066-67), The situation in Cn'spin is distinguishable in that differen t attorneys represented the town and the other party, and the other attorney's representation involved the real estate involved in the application before the town board, not the application itself. Moreover, the just-quoted reference in CriJpin notwithstanding, this court cannot conceive of a situation in which a planning board in a contested proceeding could legitimately waive its own attorney's conflict of interest, at least when the conflict is of such significance as to affect the attorney's ability to render fully independent legal advice. The cases cited in this order stand for the proposition that, just as a public board with adjudicative responsibility cannot relinquish its own duty to act impartially, it cannot consent to be advised by an attorney whose ability to give completely impartial and independent advice is constrained or limited by other representation.

5 all issues. The attorney also took an active role dming the board deliberations. Regarding

the issue of whether connectivity is feasible--the Board's attorney appears in the transcript

actually to be telling the Board how to decide that issue.'

In remanding this case, the court expected the Board to review the record and

deliberate on the guestions that were not answered in its original Notice of Decision. In

other words, the court expected a genuine, straight-up revisitation of the remaining issues.

That is not what happened. The transcript of the Planning Board meeting on remand,

indicates that the Board instead adopted, more or less wholesale and without substantive

discussion, the decision drafted by its attorney, who also represented the applicant.

Supplemental Record, Ex. 3 at 2,5-7,9, 10-11, 13-19.

In its brief, the City points out that the Board's attorney never actually represented

West Bath in front of the Bath Planning Board. This makes no difference in the court's

view. Dual representation does not have to be simultaneous to present a conflict.

The court in the above~cited New/own Township case addressed a similar situation:

Having reviewed the transcript of the public hearings held before the Board, we share the trial court's concerns about the manner in which these public hearings were conducted, and concur in its characterizations of the proceedings. It creates an appearance of impropriety for the township's solicitor to serve as legal advisor to the Board in ruling on Appellee's conditional use application, and to also act in an adversarial capacity in opposition to the conditional use application. It is true that the solicitor was not literally representing any objector or party opposed to Appellee's

In the same exchange, the Board's attorney appears to be speaking for one client-the Town of \Vest Bath-in advising his other client-the Bath Planning Board-how to decide the connectivity Issue:

MR. THERRIAULT: Mr. Chairman, if I might, I wanted to emphasize the connectivity issue that in some significant discussion in your record about that. And we cannot provide, it's not possible to provide full conductivity with respect to accessing the lots in West Bath. For a number of reasons that you dealt with in your finding that there are alternative things that can be done to amelIorate the problem. And we have listed here several of them ....

(Supplemental Record, Ex. 3 at 14~15). At least the first "we" seems to refer to the applicant \X'est Bath, given that it is the applicant's oblIgation to provide connectivity when it is feasible.

6 proposal; howcver, a review of the hearing transcripts leaves us with the distinct impression that the solicitor played the role of opposing counsel in this proceeding.

138 Pa. Commonw. 157, 162,587 A.2d 841, 843 (emphasis added).

A review of the transcript in this case lcavcs the impression that the Board's

attorney, in presenting the Board up front with a draft decision that assumed frndings

favoring the applicant on all issues, was likewise playing dual and incompatible roles.

Because the Board adopted its attorney's draft decision more or less verbatim, the

court is unable to say that the Bath Planning Board's action on remand was not influenced

by its attorney's conflict of interest. The court does not fault the Board for relying on its

attorney, because a planning board should rely on its counsel on legal issues. That very fact

makes it essential for a citizen board to have legal advice that is entirely independent and

impartial, and is not subject to a conflict of interest.

To summarize, the combination of the conflict of interest, the Board's attorney's

active role in drafting and presenting a decision favorable to the applicant before the Board

had even deliberated, and the Bath Planning Board's adoption of the attorney's draft

decision, resulted in at least the appearance of bias and partiality, if not actual prejudice.

Based on these circumstances, the court concludes that a second remand is necessary. It is

ORDERED, that this matter is again remanded to the Bath Planning Board.

Action on Remand

The court's July 30, 2010 Order where the court provided a detailed description of

the issues before the Board. To avoid any further difficulties in this case, the court will

specify what it expects the board to consider in the course of the remand:

Lack ofFinding.r on Requirements Deemed Not Applicable: On remand, the Board will

need to make actual frndings regarding whether the portion of the project in the City of Bath

complies with certain requirements of the state subdivision statute and the Bath ordinance;

7 such as undue water and air pollution; undue scenic, aesthetic, wildlife, and other impacts;

conformity with the comprehensive plan; and undue adverse impact on groundwater and

storm water management. See 30-1\ M.R.S. § 4044(1), (8), (12), (16); City of Bath Subdivision

Ordinance § 13.13.

Impact on Wetlandr: On remand, the Board will need to decide and make fIDdings

whether the application complies with the requirements of section 13.13(K) with respect to

the wetland.

The ConnectilJi(y hflle: The remand requires the Board to follow the provisions of

section 13.14(2)(d), including, but not necessarily limited to: deciding what further

conditions should be required if connectivity is feasible; deciding what alternative

"measures" to impose if it is not feasible, and making findings on all of its determinations.

In deciding whether connectivity is feasible, the Board is not limited to considering

conditions within the City of Bath-it can require the applicant to provide connectivity in

West Bath. 4 The record below suggests that the Bath" Planning Board may have felt that

the fact that the subdivision was designed with only one means of vehicular access meant

that connectivity is not feasible. The Board is not limited by the design presented to it.

The court expects the board to review the existing record and determine if

connectivity is feasible-meaning in this case, whether it is feasible for the subdivision to be

configured with a second access road in West Bath. If the Planning Board decides that a

second access road is feasible, even if that second access road is in West Bath, the board can

4 Admittedly the Law Court has left somewhat open the question of the extent of one town board's ability to regulate subdivision activity in another town. See Town ofNorth Yarmouth v. Moulton, 1998 ME 96, 'l~ 8-9, 710 A.2d 252, 254-55. However, the Bath Planning Boatd's right/ obligation to review that portion of an access road located within Bath must include the ability to put conditions on the use of that road, including, presumably, conditions that could require changes in that portion of the subdivision located in West Bath. In fact, the Board already done just that in requiring sprinklers, all of which would be located in the Town of Wes t Bath.

8 condition its approval of the Bath access road on the implementation of that second means

of access. Regardless of its determination, the board should make appropriate fIndings

based on substantial evidence in the existing record.

Waivers Without Findings: On remand, the Board must make written fIndings and

conclusions regarding all waivers under section 13.18, should it decide to stand by the

waivers. Plaintiffs claim that the waiver of the infrastructure construction plan would nullify

the purposes of the Ordinance, and the Board should consider that question also on remand.

Traffic Conditions: On remand, if it decides to approve the project, the Board should

spell out the traffIc-related conditions that are required in its amended decision, and also

make fIndings as to whether the required conditions will handle the traffIc impacts of the

project as required by the Ordinance, and why.

When the Board has made decisions on the issues identifIed in this Order, it should

issue a second amended decision that includes all of its fllldings and any additional

conditions the Board decides to impose. After the Board has issued its amended decision in

writing and notifIed the parties to this case, the parties shall notify the court. The court will

likely then schedule a conference of counsel. In the meantime, counsel are requested to

confer on the contents of a supplemental record of the proceedings on remand.

Pursuant to M.R. Civ. P. 79(a), the Clerk is hereby directed to incorporate this Order

a/U~ by reference in the docket.

Dated 4 January 2011 ,7 Justice, Superior Court Honorable Andrev MHorton, presiding

9 STATE OF MAINE SUPERIOR COU~T fl N1 f+- -SAC7 - 9j.;z <6 i/~ l'/; Sagadahoc, ss.

RULE soB DECISION AND ORDER

This appeal, pursuant to M.R. Civ. P. SOB, comes before the court again after this

court's Second Order of Remand. The facts of this case were described in depth in the

court's July 30, 2010 Order of Remand and January 4, 2011 Second Order of Remand, so

they are only briefly recapitulated here, along with the subsequent proceedings.

For the reasons that follow, the Third Amended Notice of Planning Board Decision

is affirmed.

Plaintiffs Wendy and Robert Johansen have appealed from a decision of the City of

Bath Planning Board approving a nine-lot business park subdivision proposed by the Town

of West Bath. The subdivision lots themselves lie in the Town of West Bath but the access

road to the subdivision lies within the City of Bath. 1 The Plaintiffs own property that does

not abut the subdivision but is nearby.

During the Planning Board meetings, the Plaintiffs presented information indicating

that their ability to go conveniendy to and from their property will be affected by traffic

from the project unless adequate measures and alternative means of access were provided.

t The access road to the subdivision, referred to as the "Bath Access Road Segment," is an

approximately 300-foot segment over an old section of road called the King's Highway.

1 In April2010, after numerous meetings on the project, the Bath Planning Board gave final

approval to the application, as amended. The Plaintiffs filed a timely appeal of the decision

to the Superior Court?

On July 30, 2010, this court issued an Order of Remand ordering the Planning Board

to reexamine the record, to make additional findings of fact and conclusions of law on

several standards required by the state subdivision statute and the Bath subdivision

ordinance, and to issue an amended decision. The Order of Remand also cautioned the

Planning Board and the applicant Town of West Bath regarding the conflict of interest

inherent in being represented by the same law firm in the same matter.

When the Planning Board reconsidered the application on remand, it failed to heed

this caution and was advised by the same firm that represented the applicant. Furthermore,

the actions of the Planning Board's counsel raised significant doubt as to whether the

Planning Board engaged in the meaningful review the court expected to occur.

On January 4, 2011, this court issued a Second Order of Remand again instructing

the Board to make written findings of fact and conclusions of law. The Planning Board

convened to reconsider the subdivision application and, on May 3, 2011, issued a Third

Amended Notice of Planning Board Decision granting approval of the subdivision. 3

The Plaintiffs have appealed from the Third Amended Decision4 and argument was

heard on September 7, 2011. The original appeal raised several issues but the Plaintiffs limit

this appeal to the issue of whether the factual findings on which the roadway design standard

2 The City of Bath subdivision ordinance permits appeal to the Superior Court directly from final decisions of the Planning Board regarding subdivisions. See 30-A M.R.S. § 4353(1) (permitting direct appeal if provided by ordinance). 3 A decision entitled "Second Amended Notice of Planning Board Decision" is included in the

record but is marked as a draft. 4 This court retained jurisdiction over an appeal by the Plaintiffs after remand. See Order of Remand,

johansen v. Ciry oJBath, SAGSC-AP-10-002 (Me. Super. Ct., Sag. Cty.,July 30, 2010).

2 waivers granted by the Planning Board rest are supported by substantial evidence and

whether the grant of the waivers violates Bath's City Ordinances.

Discussion

In an appeal brought pursuant to M.R. Civ. P. SOB, the Superior Court reviews the

administrative decision for errors of law, abuse of discretion, or findings of fact unsupported

by the record. Yates v. Town ofSouthwest Harbor, 2001 ME 2, ~ 10, 763 A.2d 1168, 1171.

Generally, when "reviewing an administrative ... decision, the issue before the court is not

whether it would have reached the same conclusion as the [administrative tribunal], 'but

whether the record contains competent and substantial evidence that supports the result

reached.'" Seider v. Bd. ojExam'rs ofP.rycho/ogists, 2000 ME 206, ~ 8, 762 A.2d 551, 555

(quoting CWCO, Inc. v. Superintendent of Ins., 1997 ME 226, ~ 6, 703 A.2d 1258, 1261).

Substantial evidence is defined as evidence that a reasonable mind would rely on to

sufficiendy support a conclusion. Bodack v. Town ofOgunquit, 2006 ME 137, ~ 6, 909 A.2d

620, 622. It is proper for the court to take into account the source of the evidence when

weighing its substantiality. Grant Farm Assoc., Inc. v. Town of Kittery, 554 A.2d 799, 801 n.1

(Me. 1989). Substantial evidence is not lacking simply because inconsistent conclusions may

be drawn from it. Toomry v. Town ojFrye Is/and, 2008 ME 44, ~ 12, 943 A.2d 563, 566.

Ultimately, the court must uphold the agency's decision unless it was unlawful, arbitrary,

capricious, or unreasonable. Juliano v. Town ojPo/and, 725 A.2d 545, 547 (Me. 1999).

The Defendant City of Bath raises the question of whether the Plaintiffs have

standing to bring this appeal. This court found in the July 30, 2010 Order of Remand that,

based on the standard articulated in Lakes Association v. Town ofNap/es, 486 A.2d 91, 93-94

(Me. 1984), the Plaintiffs did have standing because of their participation in the Planning

3 Board's process and their allegation that their property would be adversely affected by traffic

and potential damage to nearby wetlands. The Defendant now argues that because the

Plaintiffs no longer assert claims related to traffic or wetlands impacts and because the road

standard waivers do not cause a particularized injury to them, the Plaintiffs no longer have

standing.

Because the court affirms the Planning Board decision, it is unnecessary for the court

to address standing. See Morse Bros. v. Webster, 2001 ME 70, ~ 32, 772 A.2d 842, 852; G!Jnn v.

Ciry of S. Portland, 640 A.2d 1065, 1067 (Me. 1994). For the purposes of this decision the

court assumes, without deciding, that the Plaintiffs have standing to undertake this appeal.

Substantial Evidence

The Plaintiffs argue that the Planning Board's Findings of Fact supporting its

decision to grant three waivers of roadway design standards for the Bath Access Road

Segment are not supported by substantial evidence in the record. Section 13.14(B)(2)(e)

provides the design standards for each category of street in the City. A street that travels to

industrial or commercial land uses is categorized as a "Major Street." R. 23.28 (Bath, Me.

Land Use Code,§ 13.14(B)(2)(e), n.1). A Major Street must have a minimum traveled-way

width of 30 feet, a maximum grade of 5 percent, and a minimum centerline radius of 400

feet, without superelevation. R. 23.27-23.28 (Bath, Me. Land Use Code,§ 13.14(B)(2)(e)).

The Third Amended Decision grants waivers for these requirements and allows the

Bath Access Road Segment to have only a 24-foot traveled-way width, an 8 percent grade,

and a centerline radius of 200 feet, without superelevation. S.R.2d 8.16. The Board cited

Findings of Fact #36 through #41 as support for this decision. These findings provide two

bases as support for granting the waivers: decreased impacts to the wetland resulting from

4 the reduced footprint of the road and continuity with the geometry of neighboring roads.

S.R.2d 8.7-8.8 (Finding #40).

First, to support the reduction in traveled-way width, the Board relied on the fact

that this portion of the road would match the traveled-way width of Wing Farm Parkway, an

existing road intersecting with the Bath Access Road Segment. R. 11.6. The Board

concluded that it would be inappropriate to require the Bath Access Road Segment to have a

wider traveled-way width than the road with which it intersects. Furthermore, it is logical for

the Board to have concluded that a narrower traveled-way width will cause less of an impact

on the surrounding wedands because less of the wedand will be filled. Although the

applicant, not a neutral source, presented this information, the Planning Board could

reasonably rely on it, given that the information was not materially contradicted by other

evidence in the record.

Second, to support the increase in grade, the Board relied on the applicant's

statement that increasing the grade will result in a smaller footprint and that an eight percent

grade is not inappropriate for truck traffic in this situation. R. 11.11. The Board questioned

whether this would be a safe grade for road travel and was presented with additional

evidence that the grade at the intersection would not be eight percent but instead would be

approximately 'two percent, allowing for a truck to safely pull out from the Bath Access

Road Segment onto Wing Farm Parkway. R. 11.12. Again, the court finds that this is

competent evidence, even though the applicant presented it, and that it sufficiendy

demonstrates that the Planning Board questioned and then accepted that this waiver

benefitted the public health, safety, and welfare.

Third, to support the waiver of the centerline radius of the road, the Planning Board

relied on the assumption that reducing the footprint of the road would reduce the impacts

5 on the wetland. S.R.2d 5.14-5.1 5. The court notes the Plaintiffs' argument that the Planning

Board's deliberations are not evidence. Pls. Reply Br. 8. However, the court flnds that the

Planning Board could reasonably rely on the evidence presented regarding the increased

slope and reduced traveled-way width, which reduce the footprint of the roadway and

thereby reduce the impact on the wetlands, to infer that the reduced curve radius would also

reduce the footprint of the roadway and, thus, the impact on the wetland.

The Board was also presented with evidence of safety features, such as the stop sign

for trafflc leaving the Bath Access Road Segment and the posted twenty-ftle mile per hour

speed limit imposed on the road. R. 12.32, 12.33. The Board could reasonably have

considered these features to outweigh any potential decrease in the safety of the roadway

caused by the waivers.

Based on the evidence cited above, the Third Amended Notice of Planning Board

Decision granting these waivers is supported by evidence on which a reasonable mind would

rely. This evidence indicates that special circumstances exist, making the waivers

appropriate. Although much of the evidence is testimony of the applicant, nothing else in

the record suggests that the Board could not reasonably accept the evidence as meeting the

applicant's burden. In acco,rdance with the case law, the court has considered the source of

the evidence and fmds that it does not diminish its substantiality. Also, the Board's ability to

infer that the waivers would result in a smaller footprint and, thus, a reduced impact on the

wetland is sufflcient evidence to support granting the waivers.

Not only are the flndings of fact supported by substantial evidence but the Planning

Board also made sufficient flndings to support the grant of the waivers. In this court's

Second Order of Remand it directed the Planning Board to make "written fmdings and

conclusions regarding all waivers under section 13.18, should it decide to stand by the

6 waivers" and to consider whether waiver "would nullify the purposes of the Ordinance."

Findings #40 and #41 conclude that special circumstances exist that make it inappropriate

to impose an inconsistent and environmentally damaging standard on the road in question

and that the public health, safety, and welfare are enhanced by the minimization of impacts

on the wedands. S.R.2d 8.7-8.8. The Board also found that the waivers did not nullify the

intent and purpose of the Comprehensive Plan, the Land Use Code, or the Subdivision

Ordinance because those documents encourage protecting the natural environment. S.R.2d

8.8, Finding #41.

Furthermore, the court finds that it was not inappropriate for the Planning Board to

have heard this evidence at the Sketch Plan Review on September 15, 2009. Although

section 13.18 of the Ordinance requires a request for a waiver to be made in writing, nothing

requires that the evidence supporting the waiver only be heard after the written request is

made. At the September 15, 2009 Planning Board meeting the applicant notified the

Planning Board that a waiver request would be made, presented evidence to support the

request, and answered questions. The applicant made its formal written request by letter on

November 10, 2009. Subsequent to that written request the Planning Board held four

meetings on this subdivision application. These meetings presented adequate opportunity

for opponents to the waivers to present evidence. The Planning Board agreed to the waivers

in principal at the September 15, 2009 meeting but did not make a written grant until the

April21, 2010 Notice of Planning Board Decision.

Ordinance Waiver Requirements

The Plaintiffs also allege that the road standard waivers that the Planning Board

granted to the applicant Town of West Bath violate the Subdivision Ordinance, article 13 of

the Bath, Maine Land Use Code. Section 13.18(A), entided 'Waivers Authorized," provides

7 two standards by which an applicant may deviate from the requirements of the subdivision

ordinance. First, "if the applicant is able to demonstrate that the intent and purpose of a

submission requirement, performance standard, or design and construction requirement is

met by an equivalent method, that equivalent method may be approved." R. 23.36.

Alternatively,

[t]he Board may waive a standard or requirement if the applicant requests the waiver in writing, and the Board finds that, due to special circumstances or inappropriateness, meeting the standard or requirement is not required in the best interest of the public health, safety, and general welfare. Waivers must be granted only in writing with written fmdings of facts and conclusions, and may be subject to conditions. Waivers must not nullify the intent and purpose of the Comprehensive Plan, the Land Use Code, or this Ordinance. I d. Section 3.14(A), entitled "Applicability of Design and Construction Requirements," also

makes these two alternative avenues (equivalent method or waiver) available for an applicant

to comply with requirements of section 13.14.

The Plaintiffs argue that, under both sections 13.18 and 13.14, the applicant must

prove (1) that special circumstances or inappropriateness exist and meeting the standard is

not required in the best interest of the public health, safety, and general welfare and (2) that

the applicant has shown that the intent and purpose of the standard is met by an equivalent

method. Pls. Br. 5. It is unclear whether section 13.14(A) or 13.18(A) controls this

situation. 5 However, it is clear that both sections present alternative avenues of relief from

the requirements of the Ordinance rather than conjunctive requirements. If the Board

grants a waiver (instead of accepting an equivalent method), the applicant does not have to

prove that the intent and purpose of the requirement be met.

5 Slight differences exist in the language of these two sections. Although section 13.18 appears to be a general section applicable to all of Article 13, section 13.14(A) may be an attempt to differentiate the standard for design and construction requirements. The court does not decide which section controls because the standard is satisfied under either section.

8 The Board's decision to allow deviation from the road design standards was based

on "special circumstances or inappropriateness" rather than an "equivalent method." See

S.R.2d 8. 7, 8.16. The Board was not required to find that the intent and purpose of the road

standard requirements were met by an equivalent method. Therefore, the waivers were not

granted in violation of the Ordinance and do not constitute an error of law.

IT IS HEREBY ORDERED:

The Defendant's Third Amended Notice of Planning Board Decision is affirmed and

Plaintiffs' Rule SOB appeal is denied. Judgment shall be entered for the Defendant.

With regard to costs under M.R. Civ. P. 55, each side has prevailed at different

phases of this case. The court awards the Plaintiffs their allowable costs incurred prior to

the first and second remands, and awards Defendant its allowable costs incurred after the

case was remanded for the second time. Each side may submit a bill of costs, and costs

allowed will be netted in favor of one side or the other.

Pursuant to M.R. Civ. P. 79(a), the Clerk is hereby directed to incorporate this Order

by reference in the docket.

Dated 28 September 2011

Justice, Superior Court