Stetson House v. Inhabitants of the Town of Newcastle and Newcastle Shores

Opinion

STATE OF MAINE SUPERIOR COURT LINCOLN, ss CIVIL ACTION C.

DOCKET NO. AP-04-011 $-&

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STETSON HOUSE LLC and *- 1,

OLD SHIPYARD LLC,

Petitioners

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DECISION AND ORDER

THE INHABITANTS OF THE TOWN OF NEWCASTLE and NEWCASTLE SHORES, INC.,

Respondents

On July 15, 2004, the Town of Newcastle Planning Board (PB) granted site plan and subdivision approval to Newcastle Shores, Inc. (NS) to construct a five-unit residential condominium and dock facility. R. 10, 14, 32, 33. On October 13, 2004, the Town of Newcastle Board of Appeals affirmed the PB's decision. See R. D. Stetson

House LLC and Old Shpyard LLC (SH/OS) appeal these decisions. See R. K. The court reviews directly the decision of the PB to determine whether the PB abused its

discretion, committed errors of law, or made findings not supported by substantial evidence. See Gensheimer v. Town of Phppsburg, 2005 ME 22, ¶¶ 7, 16, 868 A.2d 161, 163,166. The burden of persuasion rests with SH/OS. See Mack v. Mun. Officers of the Town of Cape Elizabeth, 463 A.2d 717, 720 (Me. 1983). In order to vacate the PB's findngs, SH/OS must show that there is no competent evidence to support the PB's conclusions. See Adelman v. Town of Baldwin, 2000 ME 91, ¶ 12, 750 A.2d 577, 583.

For the following reasons, the decisions of the PB and Town of Newcastle Board of Appeals are affirmed.'

COUNT I Normal High Water Line

"Normal high water line" is defined by the Mandatory Shoreland Zoning Act and the Town of Newcastle Land Use Ordinance (NLUO). See 38 M.R.S.A. § 436-A(9)

(2005); NLUO, ch. I1 at 17. The PB concluded that the h g h water mark shown on the

survey met the requirements of the ordinance. See 7/1/04 Tr. at 9-27. The PB's interpretation of the ordinance was reasonable and is supported by substantial

evidence. See Drawings 1 & 2 (1811 h g h water mark); Drawings 8 & 9, based on a Boundary Survey by Maine Coast Surveying dated 1/8/04 (normal h g h water line); Adelman, 2000 ME 91, ¶ 12,750 A.2d at 583.

Work Performed on Wharf

The PB must review new wharves but not repairs to existing wharves. See NLUO, ch. XI at 109-110. Initially, the Town of Newcastle Code Enforcement Officer

(CEO) issued a permit for rebuildng a stone wall around an existing wharf but later determined h s permit was not necessary. See 7/ 15/04 Tr. at 6, 9; 71 1/ 04 Tr. at 46-47. Instead, the CEO determined that NS needed a permit from the Department of Environmental Protection. See R. B-18. Plans and photographs of the property revealed that a filled area with a retaining wall existed at the time of the application. See, Preliminary Subdivision 131an, Site Plan & Landscape Plan, C-1; Drawing 2; R. B-1. The

1 The petitioners filed a 40-page brief and a 27-page reply brief. Respondent Town of Newcastle filed a 27-page brief with an addendum. The requirements of M.R. Civ. P. 7(f), and the reasons for those requirements, apply to a M.R. Civ. P. SOB review. 2 This is a retaining wall with fill.

PB's conclusion that NS did not build a new wharf is supported by substantial evidence in the record. See 7/15/04 Tr. at 109-110.

Lot Size Calculation The PB determined that the entire parcel, including the repaired wharf, was located above the h g h water mark and that NS met the requirements for minimum lot size of 30,000 square feet for a parcel in the Shoreland Zone. R. 33 at 11; 7/1/04 Tr. at 27-28. The record reveals that the PB determined that chapter V, § F(10) of the NLUO applied only to cluster developments. See 6/ 17104 Tr. at 51-52. The PB's conclusions are supported by substantial evidence and the construction of the Town's ordinance is

reasonable. See Perenrine Developers, LLC v. Town of Orono, 2004 ME 95, ¶ 9, 854 A.2d 216, 219.

Lot Width Determination The PB's application of the shoreland standards for lot width to the NS plan was discussed at the 71 1/04 hearing. See 71 1/04 Tr. at 35-46; NLUO, ch. XI, § J(l)(f); R. 33 at 12. The PB declined to measure the property as requested by SH/OS. See 71 1/04 Tr. at 44-45. The PB's construction of its ordinance was reasonable. The PB's conclusion that the width of the NS parcel met the NLUO requirements is supported by substantial evidence and is consistent with the requirements of the ordinance.

Minimum Lot Size In determining the required lot size for the NS project, the PB applied the amendments to the standards for the Village Waterfront District, where the NS parcel is located. See NLUO, ch. XI Proposed Changes to Maritime District Section of NLUO, § Ha(2), passed 12/1/03 (addendum to Town of Newcastle Mem.). The PB determined that based on the survey in the record, the minimum lot size of 30,000 square feet was met. See R. 33 at 11.Based on the language of the ordinance, the PB determined that the

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lot size did not have to be doubled because NS intended two uses for the parcel.

NLUO, ch. X, 5 J(l)(g)(Proposed Changes to Maritime District Section of NLUO). That conclusion is supported by substantial evidence in the record and is consistent with the requirements of the ordinance.

Easement

The Declaration of Condominium for NS provides that the condominium owners would grant an easement to a h r d party to operate the marina. R. 21 at 7; 71 15104 Tr. at 80-100. Additional language presented at the 7/ 15/04 hearing provided that the owners would have the right to enforce the maintenance agreement with the marina operator. See 7/15/04 Tr. at 813;NLUO, ch. V, 5 F(15). The easement does not confer possession or create a separate unit. The PB concluded that the Declaration language complied with the maintenance requirements of the NLUO. See 7/ 15/ 04 Tr. at 97-100. That conclusion is supported by substantial evidence in the record and is consistent with the requirements of the ordinance.

Shoreland Zone Setback Requirements As discussed above, the PB applied the normal h g h water mark for the property found in the survey filed with the NS application. Based on that mark, the PB concluded that the condominium building met the 75-foot setback requirement found in the NLUO. See NLUO, ch. XI, 5 J(2)(a)(Proposed Changes to Maritime District Section of NLUO).

The PB concluded that the parking area also met the setback requirements. See 7/1/04 Tr. at 64. The PB determined that the driveway and roads were also appropriate pursuant to the NLUO. See 7/ 1/ 04 Tr. at 66-80; R. 33, 5 IV(K); NLUO, ch.

3 The court could not find this document in the record. It appears that Mr. Pooley read the language of "Coordination with Condominium" into the record. 711 5/04 Tr. at 8 1.

XII, § J(8)(a)(2)& (c). These conclusions are supported by substantial evidence in the record and are consistent with the requirements of the ordinance.

Height Limitations / Number of Stories The PB applied the method for measuring the height of a building the PB found in Shoreland Zoning Ordinance, Village Waterfront District. See 7/ 1/ 04 Tr. at 51-56; NLUO, ch. 11, at 14 & ch. X(Ha)(2)(f). The PB determined that the NS application complied with the height requirements. See R. 33, § IV(H). The PB further determined that because most of the garage is located at the basement level, the NS application met the requirements for the number of stories. See 7/1/04 Tr. at 53-54. The PB's conclusions are supported by substantial evidence in the record and are consistent with the requirements of the ordinance.

Lot Coverage The NLUO provides that the "total area of all structures, parlung lots, and other non-vegetated surfaces" may not exceed 70% of the lot. See NLUO, ch. XI, 5 J(2)(d). The engineer for NS considered everyhng that would be landscaped with "trees or some sort of vegetate coverage, including grass" as not included in lot coverage. See 7/1/04 Tr. at 57-58. NS considered part of the wharf as included in the vegetation section and the PB agreed. Se id. at 58-62. The engineer's calculations provide that 45% of the lot is vegetation. See id. at 7. Relying on the NS engineer's calculations, the PB concluded that the NS application met the requirements for lot coverage. See R. 33, 5 IV(1). The PB's conclusions are supported by substantial evidence in the record and are consistent with the requirements of the ordinance.

Functional Water Dependent Use The PB determined that NS's proposed structure on the wharf would be used for storage of items used by boaters. 7/1/04 Tr. at 62. 'The PB concluded that the uses

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required access to the water and the shed was either a functionally water-dependent use, w h c h does not have to meet setback requirements, or a waterfront dock facility.

See R. 33, § IV(J); NLUO, ch. I1 at 13; ch. XI(J)(2)(a)(l)& (J)(3)(e). The PB's conclusions are supported by substantial evidence in the record and are consistent with the

requirements of the ordinance. COUNT I1 The PB discussed the NS project with NS prior to the filing of the application, as

permitted by the NLUO. See NLUO, ~ h V, . § B(3). The PB also recommended

amendments to the NLUO, which were approved by the Town of Newcastle on 3/29/04. See R. Book B-3; 16. None of these actions deprived SH/OS of an impartial tribunal .

The record reflects that SH/OS received sufficient notice and were given the opporbmity to be heard. See R.23/27! 30; NLUO, ch. V, 5 D(3); Cunnineharn v. -Ktterv Planning Bd., 400 A.2d 1070, 1078-79 (Me. 1979) (citation omitted); see also Crispin v. Town of Scarborou~h,1999 NIE 112, 99 17-27,736 A.2d 241, 247-49 (zoning). The record is suffiaent to permit appellate review. See, e.G R. 8, 11, 12, 24, 27, 30, 32, 33; 6/17/04 Tr.; 7/1/04 Tr.; 7/15/04 Tr.; Glasser v. Town of Northport, 589 A.2d 1280, 1282 (Me.

The entry is

The Decisions of the Town of Newcastle Planning Board and Board of Appeals are AFFIRMED.

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Date: April 7, 2006

Petitioner: Hichael E. Stem. Esquire' Respondent Town of Newcastle: Mark V. Franco, Esquire Respondent Newcastle Shores: John A. Cunningham. Esquire