Seaforth Housing v. City of Portland

• Court: Superior Court of Maine
• Decided: December 13, 2005
• Docket: CUMap-05-034
• Status: Unpublished

Opinion

STATE OF MAINE SUPERIOR COURT CUMBERLAND, SS DOCKET NO. AP-05-034 ,' . SEAFORTH HOUSING, LLC -J- 7

- 2 --- 1 -: , I ; - 6 k___ .- 3 , I ,

Plaintiff

VS. ORDER ON 80B APPEAL

CITY OF PORTLAND

Defendant

and

WATERVIEW DEVELOPMENT, LLC

Party-in-interest

Before the court is Plaintiff Seaforth Housing, LLC's ("Seaforth") appeal,

pursuant to M.R.Civ.P. 80B, of the City of Portland Planning Board's ("Board")

approval of party-in-interest Waterview Development, LLC's ("Waterview")

application for development of a condominium building.

BACKGROUND

Seaforth owns Back Bay Tower, a fifteen-story condominium building in

Portland situated on Cumberland Avenue, across Mechanic Street from the

Waterview development site. The Waterview development, as approved by the

Board, will have twelve stories, 94 residential units, and 144,000 square feet of

space. On February 28, 2005, Waterview submitted an application to the Board

for final site plan and subdivision approval, which was approved by the Board

after a public hearing, in a decision dated May 10, 2005. On June 8, 2005, Seaforth filed an appeal from this decision, and on June 28, 2005, filed a motion

for a stay, which was denied. The court now considers Seaforth's appeal.

On appeal, Seaforth contends that the Board erred with respect to its final

site plan and subdivision approval in finding that (1)Waterview has adequate

financial capacity to complete the proposed development, (2) the project

minimizes, to the extent feasible, any substantial diminution in the value or

utility to Back Bay Tower ( 3 ) Waterview's application satisfied traffic

requirements (4) Waterview complied with the parlung space requirement and

(5) the proposal would not cause significant wind impact.

In addition, Seaforth maintains in its appeal briefs that it did not receive

notice of any of the proceedings before the Portland City Council. These

proceedings resulted in the City Council's approval of a Contract Zone

Agreement, a necessary step in \VaterviewJs process of obtaining final site plan

and development approval from the Board. However, in its motion to strike

certain portions of the appeal record submitted by Waterview, Seaforth also

maintains that it "is only appealing the [May 101 decision on the February 28,

2005 application. Plaintiff is not seeking to challenge the Contract Zone

Agreement between the City and Waterview." Plaintiff's Motion to Strike

Portions of "Record" with Incorporated Memorandum of Law at 2. Thus, by

Seaforth's own admission, the Contract Zone Agreement is not challenged, and

any question of adequate notice with respect to hearings held on the Contract

Zone is waived. Accordingly, Seaforth's claims that it did not receive notice of

these hearings will not be reviewed. DISCUSSION

I. The Board's Findings Concerfiing the Adequacy of Waterview's Proposal

The Board's site plan and subdivision approval is governed by state

statute and by the provisions of the City of Portland 1,and Use Ordinance

("Ordinance"). 30-A M.R.S.A. § 4404. The court reviews the Board's decision for

errors ~f law, abuse of discretion, c; findings of fact not supported by substantial

evidence in the record. Sre York v. Town of Ogz~rzyuit,2001 IvlE 53, 6, 769 A.2d

172, 175.

A. Fina/tcinl Capacity

Seaforth claims that Waterview did not meet the requirements of

Ordinance 5 14-525(c)(9).' Waterview had submitted to the Board a letter from

Key Bank stating that it has a strong interest in proceeding with financing the

project in the amount of $20,000f000. In addition, Waterview submitted a cover

letter to the Planning Board describing the scale of the project and stating that the

estimated construction cost is $17,000,000. These submissions appear to cover

the statutory requirement under 5 14-525(c)(9). Although 5 14-525(c)(9)requires

a letter from a responsible financial institution stating that it "would seriously

consider findncing" the development and Key Bank's letter states that it has a

"strong interest" In financing the development, these phrases indicate sirnilar

levels of interest. Thus, the substance of 5 14-525(c)(9)'srequirement is met.

' Ordinance 14--525(c)(9)states: [For] all site plans . . . the applicant shall . . . provide written statements containing the following: (9) evidence of financial and technical capacity to undertake and complete the development including, but not limited to, a letter from a responsible financial institution stating that it has reviewed the planned development dnd would seriously consider financing it when approved, ii requested to do so. Seaforth claims, however, that Waterview was also required to present

evidence cf the actual costs of completing the project, for comparison against the

amount the financial institution svould be willing to finance. Bruk el. Town of

Georgetowrz, cited by Seaforth to support this assertion, is inapposite. See 436

A.2d 894, 897 (hie. 1981). In Bri~k,the court was considering whether a Board's

denial of a proposed subdivision xvas supported by substantial evidence in the

record. The Law Court upheld the Board's decision in part because it was

supported by its finding that the developer had not tallied costs associated with

the project in a way that satisfied the Board that the developer had adequate

financial capacity to cover those costs. See id., n. 5. This opinion merely reaffirms

that a planning board has broad discretion to make factual findings, and that the

findings svill not be overturned by the court on appeal if they are supported by

substantial evidence in the record. See id. This opinion does not add to the

minlmum requirements for approval as stated in 30-A M.R.S. 5 4404(10)2and

Ordinance 5 14-525(c)(9). Under these requirements, the Board xvas entitled to

find, based on Waterview's presentation of the scale and total estimated cost of

the project, as well as the letter of strong interest from Key Bank, that Waterview

had demonstrated adequate financial capacity to complete the development. See

id.

B. Dirnint~tioliIn I7alueor Utility to Neigliboving Structzlres

30-A 1LI.R.S.A. s4404(10) states: When adopting any subdivision regulations and when reviewing a n y subdivision for approval, the municipal reviewing authority shall consider the following criteri'l and, before granting approval, mu:jt determine that: (10) the subdivider has adequate financial and technical capacitjf to meet the requirements ot this section; Seaforth claims that Waterview did not satisfactorily demonstrate that its

development had minimized, to the extent feasible, any substantial diminution

in the value or utility to neighboring structures. See Ordinance § 14-526(a)(4).3

The Board's Decision includes a detailed explanation for its finding that the LA7 v a~t.1 I. ..----: vlt.vv ,-I U c V ----- ..--L LL"c3 ,.--. el"plILel~~ A,. .... meet this reqiiirernent. 'IA4ithoutreprinting the

entire text of this explanation, the Board noted, significantly:

Con~mentswere received on behalf of Seaforth, w h c h asserted that the Project's height 2nd mass will cause a $1.4 million diminution of value to its property. Seaforth failed to present any documentation or rational analysis to support this statement.

Board Decision at 8. Seaforth asserts that its testimony before the Board was

supported by rational analysis, and points to its written submission to the Board

as well as the testimony of its financial director, Caskie Collett. Ms. Collett stated

that Seaforth has received to date seven notices to vacate units, and that Seaforth

has re-leased five of those spaces, at an average decrease in rent of about $300.

See R. at 21. The Board, horvever, found this evidence unpersuasive. The Board

di.d not abuse its discretion in choosing to believe that the asserted diminution in

value was either not related to the proposed development, or not proven to be

substantial. Moreover, the Board was well within its discretion to weigh

Seaforth's assertions against what it considered to be the "high quality" and

"attractive design" of Waterview, which "would actually enhance local property

values." S r e Board Decision at 8. Accordingly, the Board did not err in

concluding that the Waterview Development minimizes, to the extent feasible,

3 Ordinance 5 14-526(a)(4)states: The Planning Board . . . shall not approve a site plan unless . .. (3) The bulk, location or height of proposed buildings and structure minimizes, to the extent feasible, any substantial diminution in the value or utility to nrighboring structures under different ownership and not subject to a legal servitude in favor of the site being developed; any substantial diminution in the value or utility to neighboring structures. See

Twigg z1. Tozivl ofKe!r?lebu?zk,662 A.2d at 916 (stating that a board's decision is not

wrong because the record is inconsistent or 1' different conclusion could be

drawn from it.) P L. T I . c ~ R~q~~i'i'eiiie~iis ~;~c

Before approving a site plan application, the Planning Board must find

that the Project will not cause "unreasonable hghway or public road congestion

or unsafe conditions with respect to use of the highway or public roads existing

or proposed." Ordinance 5 14-497(a)(5). In addition, the Board must find that

the incremental volume of traffic will not create or aggravate any significant

hazard to safety, at or to and including intersections in any direction where

traffic could be expected to be impacted. Ordinance 5 14-526(a)(l).

The record shows that the Board had before it a detailed traffic study

issued by lvatervie~v'sexpert, Gorrill-Palmer Consulting Engineers, Inc.; reviews

of the Gorrill-Palmer study, by- the City's Consulting Traffic Engineer, Thomas

Errico; a Plannlng Board Iieport prepared by City Planner Barbara Barhydt,

discussing Mr. Errico's conclusions on traffic; a ~ a~presentation d by William J.

Bray, Seavle~v'straffic expert, critiquing the Gorrill-Palmer study. From these

various sources of information, the Board may accept some expert opinions and

reject others. Sre iVfack v. hiIuniclpa1 Officers of Touln of Cape Eliznbeth, -163 A.2d

717, 729 (Me. 1983). Seaview's assertion that the Board was required to analyze

all of Mr. Bray's comments in order to make the required findings under the

Ordinance is mistaken. Se.e id., see also Glasser zl. Northport, ,589 A.2d 1280, 1283

(Me. 1991). The Board had more than enough evidence to conclude that the plan before it would not result in unsafe traffic conditions or aggravate any hazard to

safety, and it was not rccjuired to address in its Decision all of the contradictory

evidence put before it in order to come to its conclusion. See id.

Seaview contends that Mr. Errico never approved the Gorrill-Palmer

study%s stated in the Hoard's Decision; however, the Board may logically

conclude that the comments Mr. Errico did make about the study after stating

that he had reviewed the site plan and supporting traffic and p a r h n g

information, set forth the only difficulties or disagreements he had with it. See

Exhibit 22, attachment F. It appears from the Hoard's Decision that all of Mr.

Errico's comments except two were fully dealt with by the Board. Without

acting capriciously and based on substantial support in the record, the Board

concluded Mr. Errico had "opined that the applicant's traffic management plan

and proposed improvements meet aii of the City standards, subject to certain

conditions.'" Board Decision at 2.

The two points in hfr. Errico's commentary that are left unaddressed by

the Board are as follows:

(3) Bituminous stamped crosswalks are proposed across the project's driveway. Specifications of the method to be used should be reviewed and approved by me and Eric Labelle (4) The underground p a r h n g garage will be very tight for vans entering and exiting the designated areas. The applicant should provide information that documents the ability to make the required parlung maneuvers.

The Study, for its part, concludes clearly that the proposed construction presents no traffic problems: the Executive Summary of the Study notes, "It is the opinion of Gorrill-Palmer Consulting Engineers, Inc. that the local roadway network can accommodate the additional traffic generated by the proposed Waterview ~ p a r t m e n t sand that the proposed parking supply is adequate." Although these comnlents were undoubtedly intended by Mr. Errico to increase

the traffic-related safety of the development, it was within the Board's discretion

under the Ordinance to find that, if these particular points were left

unaddressed, the plan as proposed would still co~nplywith the Ordinance's

traific recluirements. The Board is charged by the Ordinance with finding that

the project will not create unsafe conditions with respect to use of public roads.

Ordinance 5 14-497(a)(5). The difficulty with the parlung garage does not relate

to an unsafe condition with respect to use of public roads. Rather, it seems to

relate to a potential liability on the part of Waterview, which the Board could

reasonably have anticipated Waterview would address without the Board

issuing an instruction to do so. Likewise, a recommendation that Mr. Errico and

Mr. Labelle review the method of stamping a cross~valkcan be reasonably

understood by the Board as not pertaining to unsafe conditions with respect to

use of public roads, but rather as a suggestioll by Mr. Errico that Waterview

consult with him for its own benefit. Accordingly, the Board's finding that the

project xvill not cause unreasonable highway or public road congestion or unsafe

conditions with respect to the use of the highway or public roads, subject to

conditions as outlined in the Board Decision, is reasonable and based on

substantial evidence in the record.

D. Payking Space Requirement

The Conditional Zone for Waterview's 96 units, established by the Board

prior to the May 10, 2005 meeting, requires a minimum of 119 spaces. Ordinance 5 14-526(a). Seaforth does not contest the adequacy of this number as an

acceptable ratio of parking spaces-to-dwelling units. Rather, Seaforth contends

that Waterview had not adequately demonstrated that it in fact has acquired the

required number of spaces under the Conditional Zone, and that the Board

exceeded its authority in granting final site plan and subdivision approval

without first holding Waterview to the parlung requirement established by the

Conditional Zone.

The Board Decision states, "In addition to the 9 spaces on-site, the

Applicant recently acquired an option to purchase the Gateway Garage and is

proposing to provide all of the 110 required parking spaces within this

structure." Waterview had submitted a copy of the option to purchase Gateway

Garage, which indicates that Waterview has an unconditional option to purchase

the Gateway Garage.

Seaforth maintains, however, that the Board tacitly acknowledged that

Waterview had not met the parlung requirement by imposing the additional

condition that, post-construction and prior to the City's issuance of a certificate

of occupancy, Waterview would be required to present additional evidence that

the required parking spaces are available. This is one plausible interpretation of

this requirement. Another, equally plausible interpretation is that the Board was

satisfied that Waterview had met the parlung requirement but that it considered

it prudent to impose further requirements on the applicant, to be met at future . -

' Ordinance § 14-526(a) states in part: (1)The Planning Board . . . shall not approve a site plan unless it meets the . . . provisions for parlung. (2)(b) \,Vhere construction is proposed of new structures having a total floor area in excess of fifty thousand (50,000) square feet, the Planning Board shall establish the parlung requirement for such structurr?~.The parking requirement shall be determined based upon a parking analysis submitted by the applicant, which shall be reviewed by the city traffic engineer, and upon the recorninendation of the city traffic engineer. dates when the projections made by various persons involved in the project

would c a n e to fruition. SuckL is the case with the Board's requirement that the

applicant monitor the intersection at hlechanic Street and Cumberland Avenue

post-development, and, in the event the already-implemented traffic

improvements Ivere not sufficient, that Waterview provide up to $25,000 in

additional improvements. As a matter of law, the court cannot say that the

Board's post-development requirement that Waterview provide additional

evidence of parlung is any different than its post-development traffic-monitoring

requirement.

I:. Wild lnipact

Finally, Seaforth claims that the Board lacked sufficient evidence to

conclude that the Waterview developnlent would not cause a significant wind

impact, and appears to argue that the Board abused its discretion in not ordering

a wind impact study. Ordinance 5 14-526(a).~A review of the record establishes

that t h s contention is without merit. The Ordinance allows the Board to order a

wind impact study, but does not require such a study in every instance. 5 14-

525(a).7 Only when the Board, in its discretion, finds that it is reasonably

6 Ordinance 14-526(a) states in part: The Planning Board . . . shall not approve a site plan unless it meets the following criteria: . . . (3) The bulk, location or height of proposed buildings and structures and the proposed uses thereof will not cause health or safety problems a s to existing uses in the neighborhood, including without limitation health or safety problems resulting from any substantial reduction in light and air, any significant wind impact, and any significant s n o w loading o n any neighboring structure, where setbacks from property lines are not required by article 111. 7 Ordinance 5 14-525(a) states in part: Notwithstandi~ngthe submission of a complete application,, any applicant shall delineate on the plan or supply such other information, studies or reports from qualified professionals when determined b!. the Planning B o x d or the planning authority to be reasonably necessary to make any of the determinations required by this article, or to impose or effectuate conditions which may be imposed pursuant to section 14-526 including, without limitation: . . . an analysis of wind impacts on surrounding properties. necessary to make a determination about the wind impacts will it order such a

study. Id. The court ~vi!! not second-guess the Board's decision not to order a

wind impact study or its conclusion that the Waterview development would not

cause significant wind impacts where there is record evidence to support that

decision. S1.e Tzuisg u.Town of Kcn~zebt~irk, 662 A.2d at 916.

The record shows that the Board was presented with evidence of the

Waterview development's faqade variation and breakup as a means of reducing

wind impact, R. at 24-5; that wind nuisance to pedestrians is related mainly to

the ability to open doors around negative wind pressure, which is greatest at the

corners of buildings, and that, consequently, all doors in the Waterview are

located in the center of the building, R. at 25; and that the building's designers

confined the size of the building they were designing in an attempt to address

wind impacts. Id. In addition, the Boarci was aware that the \Vaterview, a 12-

story building, was being built next door to an existing 15-story building. The

information provided by the City's downtown urban guidelines, presented by

Seaforth as a reason that the Board should have required a wind impact study,

seems just as likely to reassure the Board that none was necessary in h i s case. It

states:

In general., the taller the building, the stronger the wind potential is at the building's base. Monolithic buildings, those that do not change shape with height, almost invariably will be windy at their base when they are significantly taller than most of the surrounding buildings. When there are a lot of buildings of similar height in an area, the buildings tend to shelter one another.

Based on the above-related evidence, the Board determined that "the project

building is to be located near the existing Back Bay Towers building and may

actually lessen wind impacts associated with that currently single tall structure." This finding is based on substantial evidence in the record, and the Board did not

abuse its discretion in ficding that no additional evidence in the form of a wind-

impact study was required in order for it to make this determination.

Therefore the entry is:

The Portland Plannning Board's approval of Waterview Development LLC'S Application for Site Plan and Subdivision Approval is AFFIRMED.

Dated at Portland, Maine this /?+ay of ,2005.

~ h b e rE. t Crowley . Justice, Superior court ate ~ i l k d JUNE 8 2005 CUMBERLAND County

Action 80B APPEAL

SEAFORTH HOUSING, LLC c I m OF PORTLAND WATERVIEW DEVELOPMENT, LLC

Plaintiff's Attorney Defendant's Attorney I DAVID M HIRSHON ESQ PENNY LITTELL ESQ (CITY OF PORTLAND) MARSHALL J TINKLE ESQ 389 CONGRESS STREET 3 CANAL PLAZA PORTLAND MAINE 04101 PO BOX 15060 (207)874-8480 PORTLAND MAINE 04112-5060 Patrick Scully, Esq. (PI1 Waterview) (207)874-6700 100 Middle Street PO Box 9729 Portland, ME 04104-5029 774-1200 Date of Entry