JPP v. Town of Gouldsboro

• Court: Superior Court of Maine
• Decided: May 8, 2008
• Docket: HANap-07-16
• Status: Unpublished

Opinion

STATE OF MAINE SUPERIOR COURT HANCOCK, ss DOCKET NO. AP-07-16 \.,' , .

JPP, LLC Plaintiffs/Appellants

v. TOWN OF GOULDSBORO

80B APPEAL DECISION

This is an appeal under Rule 80B M.R.Civ.P. from the

decision of the Gouldsboro Planning Board denying an

application for approval of a Major Subdivision under the

Gouldsboro Ordinance. The Planning Board denied the

application and the applicant commenced this Rule 80B

action in a timely fashion seeking review of that decision.

1 Review Standard

The standard of review to be applied by the Superior

court is to review the decision of the Planning Board for

errors of law, abuse of discretion or findings not

supported by substantial evidence in the record. Adelman v

Town of Baldwin, 1999 ME 91, 750 A.2d 577, 582; Forbes v.

Southwest Harbor, 2001 ME 9, 763 A.2d 1183, 1186; Bodack v.

Town of Ogunquit, 909 A.2d 620, 623 (Me. 2006. Substantial

evidence in the record is said to be that evidence that a

reasonable mind would accept as sufficient to support a

conclusion. The Superior Court is not to make independent

findings of fact or substitute its judgment for that of the

Planning Board. Brown v. Town of Kennebunkport 565 A.2d

324 (Me. 1989). To the extent that an ordinance requires

interpretation, that is a question of law subject to de

novo review. Gensheimer v. Town of Phippsburg, 2005 ME 22,

868 A.2d 161, 166.

Background

Applicant sought approval by the Gouldsboro Planning

Board of a 14 unit Major Subdivision. Among other

components, the subdivision contemplated construction of a

road in excess of 11,000 feet that would connect with a

private road known as the South Road. Following

consideration of the applicant's submissions at several

2 Planning Board meetings between April and August of 2007

(Exhibits 9-16) [Exhibit references are to the

Administrative Record filed with the Court] and a public

hearing on August 14, 2007, the Planning Board denied

approval of the subdivision at its meeting of August 21,

2007. It was noted in the minutes of August 21, 2007, that

"(t)he Board spent the remainder of the meeting filling in

the Finding-of-Fact form, parts of which remain conditional

upon DEP's pending evaluation of the SD's phosphorous

loading documents." At the same meeting the Board denied

the request to waive the Ordinance requirements dealing

with the length of the road (Administrative Record, Exhibit

16, hereinafter 'Exhibit').

The Planning Board used a "subdivision findings-of­

fact checklist & comments" form to provide its reasoning.

As reflected on the checklist dated September 4, 2007, it

opined that the subdivision proposed "#9 does not conform

with all existing ordinances and plans. Does not meet road

length per Art. 10 Sec. C #3 Subdivision Ord. 1000 Ft.

limit requested 11,000 feet." (See Exhibit 22) It also

opined that (#14) Freshwater wetlands had not been

identified on any maps submitted as part of the

application, referencing #16 (See Exhibit #22) on the

checklist and that (#16) the plan did not provide adequate

3 storm water management (See Exhibit 22). Finally the

Planning Board determined that (#18) the long term

cumulative effects of the subdivision would unreasonably

increase a great pond's phosphorous concentration during

the construction phase and life of the subdivision,

referencing a 9/4/07 memo from DEP (See Exhibit 21 and 22).

For those cumulative reasons the Planning Board did not

approve the proposed subdivision.

Issues

The parties have elected to use the Findings of Fact

Checklist (Record Exhibit 22) as a reference around which

to discuss the issues and the Court will follow that lead.

1. Conformity with Town Ordinance (#9 on Ex. 22)

Plaintiff Appellant takes issue with the Town's

conclusion that the subdivision did not Umeet road length

per Art 10 Sec. #3 Subdivision Ord. 1000 ft. limit

requested 11,000 ft." (See Exhibit 16 and 22) That is, the

Ordinance limited construction to roads of 1,000 feet and

the Planning Board found that the proposed road violated

the Ordinance (See Exhibit 16 and Exhibit 23 at 'a' on pg

44 of the Ordinance and 'h' on pg. 45 of the Ordinance).

4 In interpreting the Ordinance, much like one would

interpret a statute, the Court looks to the plain meaning

giving effect to the legislative intent. First Union

National Bank v. Curtis, 2005 ME 108, 882 A.2d 796

At the outset, it is clear to this Court that the

Ordinance suffers from a mis-numbering error but not from

any ambiguity on the points in question. Clearly Article X

[C] of the Ordinance was intended to deal with streets.

Just as clearly the numbering erroneously goes from 3 at

the bottom of page 40 back to 1 at the top of page 41 (See

Exhibit 23 pgs 40 and 41). This Court interprets the

Ordinance as 1 at the top of page 41 (Two Lane Roads) was

intended to be 4. 2 at the bottom of page 42 (Layout) was

intended to be 5. 3 at the bottom of page 43 (Design and

Construction Standards) was intended to be 6, etc.

In that context, the 'Design and Construction

Standard' (at the bottom of pg. 43 of the Ordinance], sub­

section (h) [at pg. 45] applies to the sub divider in terms

of dead-end streets shall not exceed 1,000 feet in length.

It is a misinterpretation of the Ordinance to suggest that

sub-section (h) only applies to streets that enter onto

Route 1, as the applicant argues. The Court does not adopt

that suggestion by the Plaintiff.

5 The Plaintiff next looks to the language "dead-end

street" and argues that absent definition in the Ordinance,

that term does not apply to the facts even though the

Town's Planning Board has interpreted its own Ordinance in

terms of the prohibition against roads over 1,000 feet

applying to these facts. Initially the Court will not

substitute its interpretation of the language in the

Ordinance for the Town's interpretation, absent a strong

and clear basis to alter the Town's interpretation of its

Ordinance. Here, we are faced with a record that indicates

that some but not all lots in the proposed subdivision will

have a potential alternate ingress and egress over a

private road with which the proposed Rocky Road of the

subdivision will join. Since it is an agreed fact that the

proposed street (Rocky Road) will be beyond the 1,000 foot

limit and since it is an agreed fact that some of the

proposed subdivided lots will not be entitled to go across

the private road (South Road) with which the Rocky Road is

intended to join, the Court would also find and conclude

that subsection (h) at pg. 45 of the Ordinance applies. The

Court is satisfied with the dictionary definition of 'dead

end' as "an end of a street, alley etc. that has no regular

exit." Webster's New World Dictionary (1972), Second

College Edition. In the context of that definition,

6 whether it is one lot or thirteen that do not have the

right to go across the private road (South Road), the Rocky

Road as proposed is a 'dead-end' road to those subdivision

lot owners who cannot go across the South Road. Whether

there is a physical barrier across the South Road is not

relevant. It is the lack of lawful authority to cross the

South Road that makes the terminus of the Rocky Road with

the South Road a dead-end intersection. The interpretation

by the Planning Board that the 11,000 foot road violates

the Gouldsboro Ordinance at pg. 44 'a' and pg. 45 'h' is

neither an error of law, an abuse of discretion or a

finding of fact without substantial evidence on the record.

On this ground alone the appeal is DENIED.

Plaintiff further argues that it was an abuse of

discretion on the part of the Planning Board not to grant a

waiver of the 1000-foot road length limitation with

reference to the proposed road anticipated to be in excess

of 11,000 feet. Given the discretion allowed to the

Planning Board in Article IV of the Ordinance and given the

facts, the Court cannot say that the failure to grant the

requested waiver of the 1000-foot road length limitation

was legally improper judgment on the part of the Planning

7 Board reflecting an abuse of discretion or an error of law.

On this ground the appeal is likewise DENIED.

2. Failure to identify fresh water wetlands (#14);

Failure to provide adequate storm water management

(#16); Failure to show that effects of the subdivision

will not unreasonably increase a great pond's

phosphorous concentration (#18)

If there is a valid basis to deny the application for

subdivision approval, that makes it unnecessary to discuss

the other contentions of the applicant. Although the other

issues raised by the applicant may be moot, the Court thinks

it appropriate to at least address those issues should this

matter be further reviewed. Plaintiff argues that its due

process or fundamental fairness rights were impermissibly

intruded on by the Planning Board identifying these

additional grounds for denial on September 4 th after having

decided the Plaintiff's several requests for waiver of the

Ordinance requirements at the Planning Board Meeting of

August 21, 2007. A review of the record does not support

the facts suggested by the applicant. A review of Exhibit

16 (minutes of 8/21/07 meeting of Planning Board) confirms

that at the August 21 meeting the waiver requests of this

8 applicant were granted in part and denied in part. Clearly

representatives of the applicant were present at this

meeting. On the same date the Board specifically denied the

subdivision application as not meeting the requirements of

the Gouldsboro Ordinance. (See Exhibit 16) That dismissal

was Uconditional upon DEP's pending evaluation. u That is,

the applicant was on notice as of August 21 that the

application was denied AND that there might be additional

reasons relating to the phosphorous loading.

Due Process carries with it the obligation that a

citizen be given notice and the opportunity to be heard.

Crispin v. Town of Scarborough, 736 A.2d 241, 247,248 (Me.

1999). In this instance the record supports the conclusion

that the applicant/Plaintiff attended multiple Planning

Board Meetings, including the meeting of August 21, 2007

(Exhibit 16). It was at that meeting that the decision was

made to deny the application. The reasons for that decision

were that the application did not meet the requirements of

the Gouldsboro Ordinance. Further reasoning was conditional

on the DEP's further evaluation as to phosphorous loading.

There is no indication that the DEP evaluation dated

September 4 (see Exhibit 21) was presented at a public

Planning Board Meeting before or at the time it became a

basis for the denial of the application (see Exhibit 22).

9 Although due process requirements were met with regard to

the exchange of information up to August 21,2007, they were

not thereafter met.

If the only basis for the application denial by the

Planning Board was for reasons found in the DEP evaluation,

the Court would direct that this matter be remanded to the

Planning Board to conduct a public meeting consistent with

the Applicant's due process rights to notice and to be

heard. At that meeting, the applicant would be given the

opportunity to respond (orally or with documents) to the DEP

evaluation and the Planning Board would then be directed to

set forth its reasoning on the findings of fact checklist

for granting or denying the application on the basis of the

DEP evaluation and opposing information submitted by the

applicant. See Lane Construction Corp. v. Town of

Washington et al. and Land Assoc. of Washington et al. v

'Pown of Ivashington et al., 2008 ME 45 ~l 31,32,34

In light of this Court's decision affirming the denial

of the application by the Planning Board based on the

Ordinance restriction on roads in excess of 1,000 feet, the

appeal is DENIED.

Pursuant to Rule 79, M.R.Civ.P. the Clerk will MAY 08 2008 incorpoate this DECISION and ORDER into the docket. i j HANCOCK COUNTY Dated: Hay 8, 2008 .-$ G:;t7Jf/ COURTS