Rogers v. Town of Old Orchard Beach

• Court: Superior Court of Maine
• Decided: May 14, 2007
• Docket: YORap-05-052
• Status: Unpublished

Opinion

STATE OF MAINE SUPERIOR COURT CIVIL ACTION YORK, ss. DOCKET NO. AP-OS-052

PAUL ROGERS,

Plaintiff

v. ORDER

DONALD L. GARBRECHT TOWN OF OLD ORCHARD BEACH LAW L1BRARV And SEACOAST RV RESORT, LLC, AUG 02 2007 Defendants

This matter comes before the Court on Paul Rogers's 80B appeal of

administrative action taken by the Town of Old Orchard Beach.

BACKGROUND Plaintiff Paul Rogers ("Rogers") lives off of Ross Road in Old Orchard Beach,

Maine, on land abutting the property of Defendant Seacoast RV Resort, LLC

("Seacoast"). In 2004, Defendant Town of Old Orchard Beach ("OOB") granted

Seacoast a conditional use permit to develop its 26.5-acre property into a seasonal

campground with 88 sites, a pool, and recreational buildings. Conditions of that

approval included that the property would have IOO-foot natural buffers to the adjacent

properties as required by OOB's zoning ordinance, and that Seacoast would add

buffering on the side of its property abutting Rogers. Rogers sought review of the

planning board's decision to grant the permit in March 2004 via an 80B action. 1

Before resolution of the case, Seacoast and Rogers entered into a settlement

agreement dated October 21, 2004. As a result, Rogers dismissed his 80B complaint

The prior case was York County Superior Court Docket No. AP-04-023. with prejudice. OOB's Town Planner decided in June 2005 that Seacoast would not be

required to provide the buffering described in the conditional use permit. Rogers

appealed that decision to the OOB Planning Board ("the Board") later that month. On

July 21, 2005, Seacoast applied to the Town for an amendment to its conditional use

permit, seeking to install fencing near the Rogers - Seacoast boundary. Seacoast

proposed the addition of seven six foot tall evergreen trees and an eight foot tall

wooden, stockade style fence. Following a hearing on August 11, 2005, the Board

approved the amendments to the permit, including the evergreens and the site plan

with fencing, finding that the plan complied with the zoning ordinance.

In September 2005, Rogers filed an 80B appeal in this court and also complained

for breach of contract, arguing that Seacoast violated the terms of the settlement

agreement, which included abiding by the original conditional use permit. Seacoast

raised the affirmative defenses of failure to state a claim, accord and satisfaction, the

Statute of Frauds, and that the suit is barred by terms of the settlement agreement.

Action on the breach of contract claim has been stayed until final judgment is reached

on Rogers's 80B appeal?

DISCUSSION

1. Does Ro&ers Have Standin& to Brin& This 80B Appeal?

In order to appeal a local board's decision, the appellant must "have appeared

before the board of appeals" and "be able to demonstrate a particularized injury as a

result of the board's action." Sproul v. Town of Boothbay Harbor, 2000 ME 30, en 6, 746

A.2d 368, 371 (quotations omitted). But, where the appellant is an abutter, he or she

"need only allege 'a potential for particularized injury' to satisfy the standing

2 Due to the stay of the claim for breach, this Court will not address Seacoast's argument that Rogers breached the settlement agreement by bringing this appeal.

2 requirement." Id. As this is a low threshold, "a minor adverse consequence affecting

the party's property, pecuniary or personal rights is all that is required for the abutting

landowner to have standing." Id. <[ 7,746 A.2d at 371-372.

Applying this standard, Rogers clearly has standing as an abutter who could be

affected by Seacoast's RV campground project. But, Seacoast argues that Rogers has no

standing because he agreed to dismiss his claims against Seacoast in the 2004 settlement

agreement, and the current proposal relates back to the original use permit, which

required it to submit a buffering plan. The agreement, however, clearly reserves the

right of either party to pursue litigation to enforce compliance with the terms and

conditions of the permit. The proposal alters the terms of the original permit, and those

original terms were the ones that Rogers waived his right to contest. In essence, this

appeal presents the issue of whether the Board properly determined that the

amendments complied with the zoning ordinance, which both challenges the new terms

and attempts enforcement of the original permit. The settlement agreement does not

prevent Rogers from pursuing this appeal.

2. Did the Board Err When It Authorized an Amendment of the Conditional Use Permit?

A municipal board's interpretation of a zoning ordinance is a legal question

entitled to de novo review. Lewis v. Town of Rockport, 2005 ME 44, <[ 11, 870 A.2d 107,

110. "A court's interpretation of an ordinance must not create 'absurd, inconsistent,

unreasonable or illogical results.'" Banks v. Maine RSA #1, 1998 ME 272, <[ 4, 721 A.2d

655,657 (quoting Melanson v. Belyea, 1997 ME 150, <[ 4,698 A.2d 492, 493).

OOB's zoning ordinance requires 100 feet of vegetation as a buffer zone between

adjacent properties to create visual screening. § 78-1229(l)(b)-(c). The ordinance also

allows the use of artificial screening and buffering materials such as fences and walls. §

3 78-1823. In particular, that section states that "retention of natural vegetation and

topography shall be employed as a screening tool whenever possible." Id. (emphasis

added). In this case, the Board found that Seacoast's proposed amendments to the

conditional use permit satisfied both § 78-1229 and § 78-1823 of the ordinance.

Yet Rogers contends that the plain language of §78-1229 regarding maintenance

of vegetation and natural buffers would preclude the use of an artificial buffer such as

Seacoast's proposed stockade fence. He contends that the Board should have

interpreted this section consistently with the goal of maintaining natural vegetation, as

articulated in § 78-1823. Seacoast contends that § 78-1823 expressed the goal of

maintaining vegetation but acknowledges that this is not always possible; thus, using

natural screening is not always required. It also argues that § 78-1229 does not prohibit

fencing and is intended to insure that campgrounds are not too close to the property

line, and its fence would accomplish that goal.

Here, the Board conducted a hearing and thoroughly reviewed the proposed

amendments to the conditional use permit. The Board approved the amendments and

found them to be consistent with the buffering and screening provisions of the

ordinance because the natural buffers required under § 78-1229 would still exist.

Additionally, in its list of acceptable materials, § 78-1823 specifically mentions non­

natural buffers such as fences and walls. Considering the two sections in relation to

each other, they prioritize buffering and are designed to minimize the impact of sites

like Seacoast's on abutters such as Rogers. Although the ordinance expresses a

preference for natural buffering, the limiting language "whenever possible" recognizes

that in certain situations, completely natural buffering may not be feasible. If Rogers

was correct that only natural vegetation could serve as a buffer, the ordinance likely

would not have made specific provision for non-natural buffers in it list of acceptable

4 materials. In addition, there is no express statement that fencing cannot be coupled

with natural vegetation to achieve a buffering effect. The Board, therefore, did not

commit legal error by interpreting the ordinance to allow fencing as part of an overall

plan to appropriately buffer the proposed campground.

3. Did the Board Abuse its Discretion By Allowing Seacoast to Place Its Fence Within Five Feet of Rogers's Property?

Review of board findings is "for an abuse of discretion, error of law, or findings

unsupported by substantial evidence in the record." O'Toole v. City of Portland, 2004 ME

130, en 8, 865 A.2d 555,558. The party appealing a board's decision bears the burden of

persuasion. Twigg v. Town of Kennebunk, 662 A.2d 914, 916 (Me. 1996). Rogers contends

that it was an abuse of discretion for the Board to permit the fencing within five feet of

his property.

At the 2005 hearing, the Board discussed placement of the fence. One member

seemed confused about why the Board would require Seacoast to replace trees it

incorrectly removed if fencing was going to be allowed. Another member responded

that the fence would ensure that further tree removal along the property line would not

occur. The Board then decided not to allow fencing within five feet of Rogers's

property. As Seacoast point out, moving the fence too far inward would prevent it from

using a substantial portion of its property. It was within the Board's discretion to limit

the placement of the fence as it did, especially where the ordinance does not set forth

guidelines for placement of fencing near boundary lines. Given this Court's deferential

review, it cannot be said that the proposed placement of the fence constituted an abuse

of the Board's discretion.

5 4. Was There Substantial Evidence in the Record to Support the Board's Finding That the Project Would Not Affect the Value of Rogers's Property?

When assessing specific factual findings, this Court is "limited to determining

whether the record contains evidence to justify the Board's determination." Lewis v.

Maine Coast Artists, 2001 ME 75,

Rogers contends that no evidence was presented at the hearing as to the potential

for positive or negative impact on property values in the form of testimony of real estate

professionals or other anecdotal evidence. He claims that the Board should have

required such evidence before finding that property values would not decrease, as the

ordinance is intended to mitigate the effects campgrounds have on abutters.

In its findings, the Board explicitly determined that the value would not suffer,

basing that finding on the fact that the fence, coupled with the vegetation, provides

100% of the required buffering between Rogers and Seacoast. It also referenced the

2004 findings of fact, which were more detailed regarding impact on property values.

Those findings further specify steps that would be taken to minimize impact on

abutters, such as maintaining natural buffering with evergreen trees, implementing

park rules and regulations, and directing lighting toward the interior. Impact on the

property values of abutters was not required to be a pivotal consideration in the Board's

decision, but in its discussions, the Board seems to have considered that fencing might

actually improve Rogers's situation because it would further shield his property from

Seacoast's. Because this Court's review is a deferential one, there was sufficient

evidence in the record to support the finding that Seacoast's plan would not adversely

affect the property values of abutters.

6 CONCLUSION

The appeal is Denied and the Board's decision is Affirmed.

The clerk may incorporate the decision in the docket by reference.

Dated: May 14, 2007 c. /

PLAINTIFF: CRAIG J RANCOURT ESQ 13 CRESCENT ST BIDDEFORD ME 04005

DEFENDANT - TOWN OF OLD ORCHARD BEACH CHRISTOPHER L. VANIOTIS, ESQ. BERNSTEIN SHUR SAWYER & NELSON PO BOX 9729 PORTLAND ME 04104-5029

DEFENDANT - SEACOAST RV RESORT LLC WILLIAM S KANY ESQ SMITH ELLIOTT SMITH & GARMEY PO. BOX 1179 SACO ME 04072