Cobbossee Development Group v. Town of Winthrop

• Decision Date: 15 January 1991
• Citation: 585 A.2d 190
• Parties: COBBOSSEE DEVELOPMENT GROUP v. TOWN OF WINTHROP.
• Court: Maine Supreme Court

Page 190

585 A.2d 190

COBBOSSEE DEVELOPMENT GROUP v. TOWN OF WINTHROP.

Supreme Judicial Court of Maine.

Argued Nov. 1, 1990.

Decided Jan. 15, 1991.

Peter B. Bickerman (orally), Lipman & Katz, Augusta, for plaintiff.

Patrick J. Scully (orally), Bernstein, Shur, Sawyer & Nelson, Portland, for defendant.

Before McKUSICK, C.J., and ROBERTS, GLASSMAN, CLIFFORD and COLLINS, JJ.

COLLINS, Justice.

Cobbossee Development Group (Cobbossee) appeals from an order of the Superior Court (Kennebec County, Wathen, J.) affirming the decision of the Winthrop Zoning Board of Appeals (Board of Appeals) upholding the decision of the Winthrop Code Enforcement Officer (C.E.O.) that a conditional use permit granted to Cobbossee by the Winthrop Planning Board (Planning Board) to build a condominium project expired because construction was not commenced within one year after Planning Board approval as required by the permit and the Winthrop Zoning Ordinance (W.Z.O.). ¹ Cobbossee claims error in this decision for four reasons: 1) the conditional use permit did not call for construction within one year; 2) the action taken by the Planning Board did not constitute the "approval" contemplated by the ordinance to start the running of the one year time limit; 3) the interpretation of the W.Z.O. and Planning Board decision was unreasonable; and 4) the one year limitation for the commencement of construction was tolled by the pendency of litigation concerning the project. Finding no error, we affirm.

Cobbossee applied to the Planning Board for approval of a multifamily condominium development project on an island located in Cobbossee Lake in Winthrop in February, 1986. Pursuant to the W.Z.O., because the project was located in the Shorelands Zoning District, a conditional use permit was required. The Planning Board approved the conditional use on October 6, 1986. In its approval, and pursuant to W.Z.O. § 4.8.5.1-4.8.5.2, it imposed conditions that needed to be met prior to construction.

Opponents of the project appealed the Planning Board's decision, naming Cobbossee and the Town of Winthrop as defendants. The Superior Court, on May 8, 1987 (Kennebec County, Alexander, J.), and this court, on December 18, 1987, affirmed the Planning Board's decision. See Duplessis v. Cobbossee Dev. Group, 534 A.2d 674 (Me.1987). In July, 1987, opponents filed another action against the Town of Winthrop and Cobbossee attempting to make the project subject to certain amendments made to the W.Z.O. since the Planning Board approval. The Superior Court granted summary judgment in favor of Cobbossee on January 27, 1988. (Kennebec County, Brody, C.J.). On June 8, 1988, a quiet title action in the subject property that had been pending since July 1986, several months before the Planning Board approval, was decided by the Superior Court (Kennebec County, Chandler, J.) in favor of Cobbossee.

In December, 1988, more than two years after the approval of its conditional use permit, Cobbossee contacted the C.E.O. to ask about initiating compliance with it. The C.E.O. informed Cobbossee that its permit had expired pursuant to W.Z.O. § 4.8.4.10 because construction had not commenced within one year of the approval. The Board of Appeals upheld this determination on April 12, 1989. Cobbossee sought a review of this decision pursuant to M.R.Civ.P. 80B and brought a declaratory judgment action challenging its legality in the Superior Court on May 12, 1989.

On May 17, 1989, Cobbossee asked the Planning Board to extend the three year completion deadline, a condition of the permit. The Planning Board on June 27, 1989, after a second request by Cobbossee, declined to consider an extension since the conditional use approval had expired. Cobbossee appealed this decision to the Superior Court on July 26, 1989, an action that was consolidated with its challenge to the Board of Appeals' decision.

The Superior Court on April 20, 1990 affirmed the decision of the Board of Appeals upholding the C.E.O.'s determination that Cobbossee's conditional use permit had expired. Although not specifically referred to in the Superior Court's order, this affirmation validated the Planning Board's decision not to extend the construction completion deadline. Cobbossee appealed to this court from the order of the Superior Court on May 18, 1990.

"When the Superior Court acts as an appellate court reviewing an action of an administrative board, we directly examine the record developed before the board." Shackford & Gooch, Inc. v. Town of Kennebunk, 486 A.2d 102, 104 (Me.1984). On review of an action taken by a zoning board of appeals or a planning board, we will accept the board's factual findings and will not substitute its judgment for that of the board. Id. at 104. Our role is to decide "whether the board abused its discretion, committed an error of law, or made findings not supported by substantial evidence in the record." Id. at 104; see Robinson v. Board of Trustees of the Maine State Retirement System, 523 A.2d 1376, 1378 (Me.1987).

The Board of Appeals found that the conditions placed on the permit did not delay the effective date of the approval and the Planning Board did intend for Cobbossee to comply with the one year construction commencement deadline. Cobbossee, first, contends that the conditional use permit did not call for construction within one year. We agree with the Board of Appeals that it did.

The Planning Board acted in an administrative capacity and was without power to change the regulations under which it operated. See Phillips Petroleum Co. v. Zoning Bd. of Appeals, 260 A.2d 434, 436 (Me.1970); Boutet v. Planning Bd., 253 A.2d 53, 55 (Me.1969). The W.Z.O. § 4.8.4.10 provided: "A ... conditional use permit secured under the provisions of this Ordinance by vote of the ... Planning Board shall expire if the work or change involved is not commenced within one year of the date on which the ... Conditional Use is authorized, or change is not substantially completed within 2 years." Nothing in the W.Z.O. gave the Planning Board discretion to change this time limit. The Planning Board's decision referred to this section in its approval of Cobbossee's conditional use: "The applicant shall complete the project within three years of the date of this approval, in accordance with § 4.2.5 and 4.8.4.10 of the 1981 ... Winthrop Zoning Ordinance...." The W.Z.O. and the decision clearly indicated that Cobbossee's project was subject to the one year commencement of construction limit.

Cobbossee, then, argues that because the Planning Board decision contained numerous conditions to be satisfied before construction commenced, it really was not the approval contemplated by the W.Z.O. to start the one year clock. We disagree. We have said that conditions do not suspend the date of approval or change its nature. Burr v. Town of Rangeley, 549 A.2d 733, 734 (Me.1988) (routine conditions did not suspend approval); Ballard v. City of Westbrook, 502 A.2d 476, 481 (Me.1985) (nature of approval not changed by section that allows conditions). Even conditions that are not within the applicant's control have been held to be valid and not change the fact of approval. Gulick v. Board of Envtl. Protection, 452 A.2d 1202, 1210 (Me.1982) (changes to public street condition of approval). In Winthrop at the relevant time, once the decision was made that a project needs a conditional use permit, as distinguished from a building permit ², W.Z.O. § 4.8.3.2 provided that "the Planning Board shall hear and approve, approve with modifications or conditions, or disapprove all applications for conditional use permits." After finding that Cobbossee met the W.Z.O. criteria, the Planning Board said "therefore, the Board approves the proposed subdivision and multifamily condominium development with the following conditions." (emphasis added). W.Z.O. § 4.8.4.10, incorporated into the permit, imposed on this conditional use the one year construction commencement deadline. Under the W.Z.O., this Planning Board action was the final approval and the time period for construction began when the decision was rendered, October 6, 1986. The conditions placed on Cobbossee did not delay this effective date.

Next, Cobbossee asserts that requiring construction to begin one year from the date of a conditional use approval like the one here at issue, with its numerous conditions precedent to construction, provides a "purely illusory opportunity for developers" and is "unreasonable." This argument is...