Bruk v. Town of Georgetown

• Citation: 436 A.2d 894
• Parties: Mary BRUK v. TOWN OF GEORGETOWN and Town of Georgetown Planning Board. 1
• Decision Date: 04 November 1981
• Court: Supreme Judicial Court of Maine (US)

Page 894

436 A.2d 894

Mary BRUK v. TOWN OF GEORGETOWN and Town of Georgetown Planning Board.¹

Supreme Judicial Court of Maine.

Argued Sept. 23, 1981.

Decided Nov. 4, 1981.

Locke, Campbell & Chapman, Frank G. Chapman (orally), Augusta, for plaintiff.

Richard W. Smith (orally), Bath, for defendants.

Before McKUSICK, C. J., and GODFREY, NICHOLS, ROBERTS, CARTER, VIOLETTE and WATHEN, JJ.

PER CURIAM.

The defendants appeal from a judgment entered in Superior Court (Sagadahoc County). The Superior Court sustained plaintiff's appeal from a denial of subdivision approval and ordered the Town of Georgetown Planning Board (hereinafter the "Planning Board") to issue a conditional subdivision approval to the plaintiff. We sustain defendants appeal and reverse the judgment entered below.

Procedural History and Facts

In 1976 the plaintiff Mary Bruk filed an application for approval of plans for a subdivision in the Town of Georgetown to be known as Harmon's Harbor Development. The plans envisioned the subdivision of a thirty acre parcel of land into twenty-six separate parcels for seasonal residences. A similar application was filed with the State of Maine Department of Environmental Protection and following plaintiff's receipt of conditional approval from that department a hearing was held before the Planning Board on December 12, 1978. The hearing was conducted pursuant to 30 M.R.S.A. § 4956 (1978), and since the Town of Georgetown had not enacted its own subdivision ordinance, it applied the criteria specified in Paragraph 3 of the statute. ² The Planning Board denied plaintiff's application for approval finding that plaintiff had failed to establish that the proposed subdivision met the criteria concerning water supply and distribution, soil erosion, traffic safety, solid waste disposal, maintenance of the area's beauty, and plaintiff's financial and technical capacity to carry out the project. Additionally, the Planning Board found that plaintiff's plan was not adequate to protect and preserve the public health, safety and general welfare. Plaintiff appealed the Planning Board denial to Superior Court pursuant to M.R.Civ.P. 80B. ³ The Superior Court at the request of the parties referred the matter to a referee who, after a non-evidentiary hearing, rendered a report recommending judgment for the plaintiff. The Superior Court accepted the report over objections by the defendants and entered the judgment which is the subject of this appeal.

I.

The use of a referee in the appeal process in Superior Court requires consideration and comment even though it does not bear directly upon the issues presented. This case was initiated in the Superior Court by complaint seeking judicial review pursuant to M.R.Civ.P. 80B upon the record of proceedings before the Planning Board with no evidentiary hearing required. While M.R.Civ.P. 53(b)(1) provides that "(t)he court may appoint a referee in all cases where the parties agree ...", it does not necessarily follow that the court should do so. ⁴ Reference of cases is a valuable procedure which enables the judiciary to meet an ever-expanding case load. It has been used efficiently and effectively in jury-waived civil cases involving complex and time-consuming factual presentation and application of the law to the developed facts. Reference relieves justices of the Superior Court from the necessity of conducting the trial and requires only that they consider the acceptance or rejection of the referee's report and the entry of judgment. Recognizing that the use of referees in appropriate circumstances contributes substantially to the efficient and orderly management of the civil case docket, we nevertheless point out for the Bench and Bar that the use of a referee in this case was inappropriate. Judicial review of an administrative decision is ordinarily limited to an examination of the record of proceedings below. The Superior Court is called upon to determine whether the factual findings are appropriately supported by evidence and whether the law was correctly applied. The use of a referee in such cases contributes neither to efficiency nor expedition, and the Superior Court justice is not relieved of any function. The referee conducts a record review. When called upon to accept, reject, or rule upon objections to the referees report, the presiding justice must conduct an identical review.

A motion for reference, even if the parties agree and assume the necessary costs, as was the case here, should be allowed by the presiding justice only if that procedure furthers the efficient and orderly handling of that particular case.

II.

The issue before the referee, the Superior Court and now this Court, remains the same. Is the decision of the Planning Board denying approval for the proposed subdivision based upon an erroneous interpretation of the law or based upon conclusions of fact which have no substantial evidence in support thereof considering the record as a whole? See, Frank v. Assessors of Skowhegan, Me., 329 A.2d 167 (1974). The Superior Court accepted the recommendation of the referee and concluded that the findings of the Planning Board were not supported by substantial evidence. We disagree.

The Planning Board conducted a hearing and received evidence from an engineer, a soil scientist, a well-driller and an attorney, all acting on behalf of the applicant. In addition, evidence was received from representatives of other agencies and certain residents of the Town of Georgetown. Having heard and considered the evidence, the Planning Board made detailed findings in support of its denial of the application. ⁵

Initially it should be noted that when a Planning Board denies approval, as in this case, the reviewing court is called upon to determine whether the negative conclusion is supported by substantial evidence on the record as a whole. While this may occasion some confusion when first confronted, it does not alter the scope or function of judicial review. 30 M.R.S.A. § 4956(1) casts upon the applicant the burden of proving that the proposed subdivision satisfies the statutory criteria. If the Planning Board concludes that the project does not satisfy any one or more of the criteria, and finds against the moving party, then the reviewing court must determine whether the record contains "such relevant evidence as a reasonable mind might accept as adequate to support ... (that) conclusion." In re Maine Clean Fuels, Inc., Me., 310 A.2d 736, 741 (1973). While the standard of review employed in connection with findings made against the moving party could be described as a "clearly erroneous standard", it is settled law that such phraseology is synonymous with "supported by 'substantial evidence on the whole record'." See Sanford Highway Unit of Local 481, Council No. 74, American Federation of State, County and Municipal Employees, AFL-CIO v. Town of Sanford, Me., 411 A.2d 1010, 1014 (1980).

The Referee and the Superior Court below did not employ the standard of review described above, but rather adopted a procedural device to shift the burden of proof onto the Town once a prima facie case had been established by the applicant. The authority for the use of this device is found in Delogu, The Misuse of Land Control Powers Must End: Suggestions for Legislative and Judicial Responses, 32 Me.L.Rev. 29 (1980). This Court is cognizant of the need to protect against arbitrary decisions of local boards. If a case arises in which it is shown that a planning board is an instrument of exclusion, this Court may have an opportunity to consider the employment of the procedural devices suggested; however, this is not such a case. The court below erred in failing to conduct its review in accord with the "substantial evidence rule."

III.

A review of the findings made by the Planning Board in this case and a review of the entire record reveals that with respect to certain of the negative findings there is relevant evidence in the record to support adequately the conclusions reached. With regard to the water supply the findings of the Planning Board refer to the failure to provide information which would permit a determination of the adequacy of the plan. The plaintiff presented a well driller who testified that a well could be dug on each lot and he expected an adequate supply of water could be obtained by drilling from 150 to 250 feet in depth. No specific information was provided concerning wells in the immediate area and no other data was provided to support that assertion. The plaintiff presented an engineer who stated that a central well would be dug and tested prior to the sale of any lots and would be available to any or all of the lots which did not yield a satisfactory well. The method of distribution from the central well was not defined in the plans and was to be the responsibility of the individual lot owners. The plaintiff assumed that distribution lines would be above ground because the development was expected to consist of seasonal dwellings. However, it was conceded that once a sale occurred there was no assurance that seasonal use alone would result. When the foregoing presentation of evidence is considered, together with the absence of any data regarding the performance of other wells in the immediate vicinity and the absence of any plans for distribution from the central well, we cannot say that a reasonable mind could not accept that evidence as adequate to support the conclusion drawn by the Planning Board.

Since it is the plaintiff's obligation to satisfy each of the criteria, it is not necessary to consider each separate finding. No useful purpose would be served by recounting an analysis of each finding. It is sufficient to note that the evidence reflects that with regard to solid waste disposal no plan was presented except the use of the town dump which was described as marginal and possibly operating only at the sufferance of the enforcement authorities....