Carroll v. Town of Rockport

• Decision Date: 26 November 2003
• Citation: 837 A.2d 148,2003 ME 135
• Parties: Royce CARROLL et al. v. TOWN OF ROCKPORT et al.
• Court: Maine Supreme Court

837 A.2d 148

2003 ME 135

Royce CARROLL et al. v. TOWN OF ROCKPORT et al.

Supreme Judicial Court of Maine.

Argued: September 29, 2003.

Decided: November 26, 2003.

David J. Perkins, Esq. (orally), Perkins Olson, P.A., Portland, for plaintiffs.

Amy K. Tchao, Esq., William L. Plouffe, Esq., Drummond Woodsom & MacMahon, Portland, for Town of Rockport.

Clifford H. Goodall, Esq. (orally), Thomas B. Federle, Esq., Mary A. Dennison, Esq., Dyer Goodall and Federle, LLC, Augusta, for Land & Holly Limoges.

Panel: SAUFLEY, C.J., and RUDMAN, DANA, ALEXANDER, CALKINS, and LEVY, JJ.

ALEXANDER, J.

[¶ 1] Royce Carroll and Cindy Salo (Carroll) appeal from a judgment of the Superior Court (Knox County, Atwood, J.) affirming a vote of the Town of Rockport Board of Appeals to approve a revised plan for the Mount Pleasant Subdivision. Carroll contends that the Superior Court erred when it determined that (1) Carroll's appeal was filed too late to preserve a challenge to a Board vote approving a waiver of a 1000-foot dead-end road length limitation; (2) the Board properly approved revised plans with changed road lengths after initially rejecting a plan with longer road lengths; and (3) the Board's approach to decision-making had not improperly shifted the burden of proof to the opponents of the subdivision. Because the Board failed to make the findings of fact required by the Town of Rockport Ordinances and state law, we vacate and remand for further proceedings.

I. CASE HISTORY

[¶ 2] Lance and Holly Limoges own a 46-acre parcel of land in the Town of Rockport. On this land they constructed a home and a private road approximately 1600 feet in length. Royce Carroll owns land abutting the Limogeses' land. Cindy Salo is the personal representative of an estate which owns land within the immediate vicinity of the Limogeses' land.

[¶ 3] In December 1999, the Limogeses submitted an application for approval of a thirteen-lot subdivision to the Rockport Planning Board. Carroll, Salo, and others objected to the subdivision plans and participated in the administrative proceedings before the Planning Board and subsequent proceedings before the Board of Appeals. Many issues were raised and addressed in the course of consideration of the subdivision by the Planning Board and the Board of Appeals. However, for purposes of this appeal, we address in detail only two aspects of the broader subdivision plan—the length and grade of the road.

[¶ 4] The Limogeses' initial subdivision plan included a proposal for a dead-end road, 3477 feet in length, to provide access to the thirteen lots in the subdivision. Section VI(A)(3)(c) of the Rockport Subdivision Ordinance states, "Dead-end streets shall not exceed 1000 feet in length, from centerline of the feeder street to center of turnaround, and shall be provided with a turnaround having a minimum outside radius of 65 feet."

[¶ 5] The proposed subdivision is located on the side of a hill, and the original plan contemplated a road with an approximate twelve percent grade. The Rockport Subdivision Ordinance provides that grades of roadways serving three or more homes may not exceed eight percent except, with approval of the Planning Board, a paved section of a private way may have a maximum grade of ten percent. Rockport Subdivision Ordinance § VI(A)(3)(a)(*). The Rockport Land Use Ordinance incorporates by reference the street design and construction standards of the Subdivision Ordinance. Rockport Land Use Ordinance § 803.1.6.

[¶ 6] Section IX(A) of the Subdivision Ordinance grants the Planning Board discretion to waive requirements of the Subdivision Ordinance when it "finds that extraordinary and unnecessary hardships may result from strict compliance with these standards or where there are special circumstances of a particular plan. . . ." (Emphasis added.)

[¶ 7] The Limogeses requested a waiver from the Planning Board of the road length and grade requirements of the Rockport ordinances. Initially, the Planning Board denied the request for a waiver. The Limogeses then requested findings of fact and, at the same time, presented a revised plan to the Planning Board. With the revised plan, the Limogeses presented a new waiver request, addressing only road length. They asserted that the grade issues were resolved by the plan revisions. In their road length waiver request, the Limogeses asserted that other subdivisions had steeper grades and longer dead-end roads than their proposed subdivision. After reviewing the revised plan, the Planning Board waived the 1000-foot dead-end street limitation. However, after several subsequent meetings, the Planning Board denied the Limogeses' request for subdivision approval. The Limogeses requested reconsideration, asserting that one of the planning board members had a conflict of interest. The Planning Board denied the motion for reconsideration.

[¶ 8] On August 10, 2000, the Limogeses appealed the Planning Board's denial of their subdivision application to the Board of Appeals. In their appeal document, the Limogeses requested that the Board of Appeals:

[R]eview and reverse the planning board's decision of July 12, 2000 and August 9, 2000, concerning the conflict of interest of one of the members, that member's request to withdraw his vote, and the vote of the two members who voted against the final subdivision approval for the reasons that were irrelevant for final approval and that had been approved on May 16, 2000.

[¶ 9] As it was authorized to do,¹ the Board of Appeals reviewed de novo the Planning Board's denial of the Limogeses' subdivision application. The Board of Appeals conducted many meetings and hearings addressing the subdivision. Most of the deliberations focused on the question of whether the proposed subdivision should receive a waiver from the 1000-foot dead-end road length limit. More general concerns were raised regarding public safety and the impact that subdivision approval would have on abutting, active blueberry fields. On July 11, 2001, the Board of Appeals voted to deny the Limogeses' request for a waiver of the dead-end road length limit. The Board issued no findings regarding the denial of the waiver request and did not issue any written decision other than what appears in the minutes of the Board meeting.

[¶ 10] Following the Board of Appeals action on the waiver, the Limogeses indicated that they would file a new subdivision plan for review by the Board of Appeals. Carroll objected, arguing that any new plan would be a new subdivision application that should be referred to the Planning Board for review. The Limogeses then submitted, and the Board of Appeals proceeded to consider, two new plans. Each was essentially the same as the prior subdivision plan except that the subdivision was reduced to eleven lots. In one alternative plan, road length was reduced to 3038 feet and in the other alternative road length was reduced to 2959 feet.

[¶ 11] On October 3 and November 7, 2001, the Board voted to waive the 1000-foot dead-end road limit and approve the private way option with the 2959-foot road length. In other meetings, the Board addressed other criteria stated in the Subdivision Ordinance and in 30-A M.R.S.A. § 4404 (1996 & Supp.2002). During the course of this consideration, the Limogeses submitted further modifications to their plan on or about December 4, 2001. At its meeting on December 19, 2001, the Board of Appeals approved the modified subdivision plan. At that same meeting, the Board signed the private way plan.

[¶ 12] The Board of Appeals issued a document entitled "Mount Pleasant Findings of Fact" on December 26, 2001. The portion of the document entitled "Findings and Criteria" is not a written decision or findings of fact. Instead, it appears to be the compiled minutes of Board meetings. In the document, various motions made at the Board meetings are stated. After the motion is stated, the votes of the individual Board members are indicated along with paraphrasing, by the Board secretary, of some Board members' statements of the reasons for their vote on the particular motion.

[¶ 13] For example, a portion of the December 26, 2001 document addressing the road length waiver reads as follows:

This Board considered the following State Criterion No. 9 at the June 20, 2001, June 26, 2001 and July 11, 2001 meetings: "Conformity with Local Ordinances and Plans—The proposed subdivision conforms with a duly adopted Subdivision regulation or ordinance, comprehensive plan, development plan or land use plan, if any."

The controversy presented by this motion is the issue of the road length waiver. After hours of discussion and debate Geoffrey Parker made the following motion which was seconded by Donald Isikoff: "To find the project on plan prepared by Coffin Engineering is in conformity with all ordinances except for the length of the road, and to grant the applicant a waiver to allow the full length of the road applied for with the additional condition that the road is a private road and will be maintained by the developer". This motion was defeated by vote of 3-2, as follows:

Donald Isikoff—No: Recognizing that the Board will be addressing the rest of the issues and open to the possibility of revisiting the question of road length in the course of that review.

Alan Kumble—No.

R.J. Masiello—Yes.

Geoffrey Parker—No.

Victor Steinglass—Yes: Per page 22 of the Subdivision Ordinance, in his opinion it is appropriate to this private way to have this waiver.

The Chairman advised that Board will continue to review: Pollution, Erosion, Ground water and Stormwater.

At the October 3, 2001 meeting this Board again considered the issue of the road length waiver when the applicant presented a new road design called Option 2 (see Subdivision Ordinance Section VI(3)(f)). Donald Isikoff made the following motion which was seconded by Geoffrey Parker: "To accept road design Option 2 at 2,959 feet in length for the Limoges Subdivisio

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