Cunningham v. Kittery Planning Bd.
| Decision Date | 24 April 1979 |
| Citation | 400 A.2d 1070 |
| Parties | Margaret CUNNINGHAM et al. v. KITTERY PLANNING BOARD et al. |
| Court | Maine Supreme Court |
Lund & Goodall by Clifford H. Goodall, Augusta (orally), for plaintiff.
Verrill & Dana by Michael T. Healy, Portland (orally), for L. J. Davidson, Assn.
McEachern, Winiarski & Thornhill by Duncan A. McEachern, Kittery (orally), for Town of Kittery and Rossiter.
Before McKUSICK, C. J., and POMEROY, WERNICK, ARCHIBALD, GODFREY and NICHOLS, JJ.
Fourteen persons owning property in the town of Kittery brought a five-count complaint in Superior Court seeking both judicial review of the Kittery Planning Board's approval of a subdivision application made pursuant to 30 M.R.S.A. § 4956 and injunctive relief against further development of the subdivision. The Superior Court dismissed two counts of the complaint and granted summary judgment for the defendants on the remaining three counts. The property owners have appealed the Superior Court's decision to the Law Court.
From the pleadings, motions, and accompanying affidavits, the following facts appear to be undisputed. In September of 1976, Mr. L. John Davidson attended a meeting of the Kittery Planning Board on behalf of L. John Davidson Associates, a limited partnership which owns land on Gerrish Island in the town of Kittery. Mr. Davidson presented a rough plan for the development of a residential subdivision on the Gerrish Island property and informed the Board of his intention to present more complete plans for the subdivision in the future. At a meeting of the Board the following March, Mr. Davidson presented extensive drawings and materials concerning the proposed subdivision on Gerrish Island. He completed an application form and paid the necessary fee pursuant to the provisions of 30 M.R.S.A. § 4956. The Board informed him that a preliminary plan and then a final plan must be filed and that a public hearing would be required on each of the plans.
On April 28, 1977, Mr. Davidson presented his preliminary plan to the Board. After questioning Mr. Davidson and discussing the application, the Board unanimously approved the preliminary plan subject to specified conditions. At a Board meeting on June 9, 1977, Mr. Davidson presented his final plan. After considerable questioning and discussion, the Board voted to receive the final plan and scheduled a public hearing on the Davidson subdivision for June 23, 1977.
At the June 23 public hearing, Mr. Davidson brought those present up to date with respect to his plans. Seven of the fourteen plaintiffs attended the hearing. Of the seven, five participated in the hearing, questioning Mr. Davidson and indicating their opposition to the proposed subdivision. The chairman of the Board read a letter opposing the subdivision from a plaintiff who did not attend the hearing.
When there were no further questions, the chairman of the Board closed the public hearing. He announced that there would be open deliberation and that the people were welcome to stay. After a five-minute recess, the Board began to discuss the application, frequently addressing questions to Mr. Davidson, who responded to the inquiries. After considerable discussion, the Board decided that another meeting would be necessary.
The Board's final meeting on the Davidson subdivision was held on June 30, 1977. Five of the seven plaintiffs who had attended the public hearing on June 23 were present. The meeting was a continuation of the open deliberations of the previous meeting. Mr. Davidson continued to provide information to the members of the Board and responded to their questioning. When Mr. Martin, one of the plaintiffs in attendance, requested permission to speak, the chairman reminded him that the public hearing was closed and that the Board was then engaged in deliberation. However, the Board agreed to allow him to speak briefly. Mr. Martin then proposed a compromise. After further deliberation and additional questioning of Mr. Davidson, the members of the Board voted four to one to approve the subdivision application subject to specified conditions. The approved plan was recorded in the York County registry of deeds on July 6, 1977, with a copy of the Board's "Conditions of Approval" and a copy of the site location order and findings of fact issued by the State Department of Environmental Protection approving the subdivision. The Board sent Mr. Davidson a letter dated July 19, 1977, officially notifying him of the approval of the final plan subject to the stated conditions.
During the proceedings before the Board and on the date of approval of the subdivision, the 1960 zoning ordinance of the Town of Kittery was in effect. A new zoning ordinance, under consideration while the application was pending, was adopted by the town on June 13, 1977, to be effective July 13, 1977, two weeks after the Davidson subdivision was approved by the Planning Board. The plaintiffs assert that the lots in the Davidson subdivision are non-conforming under the 1977 zoning ordinance.
On July 27, 1977, the fourteen plaintiffs filed a complaint in Superior Court against the Kittery Planning Board, Richard E. Rossiter, in his capacity as town code enforcement officer, and L. John Davidson Associates. The pleading was labeled a Rule 80B complaint and stated that it was brought "pursuant to Rule 80B of the Maine Rules of Civil Procedure as an appeal for review of the actions of the Kittery Planning Board . . . ." It described the plaintiffs as "property owners of land located on Gerrish Island" but alleged no additional facts either to identify their interests or to show how their interests would be adversely affected by the subdivision.
Counts I, II, and III alleged that the procedures employed by the Planning Board denied the plaintiffs' rights to due process and a fair hearing. The factual allegations of Counts I, II, and III accorded substantially with the statement of facts outlined above. Each of the three counts requested the Superior Court to declare the subdivision permit null and void and to enjoin further development of the subdivision, sale of lots, or issuance of building permits.
Count I asked the court to find that the Board "heard, solicited and considered testimony presented outside of the public hearing; conducted Ex parte meeting with the applicant; and denied the Plaintiffs the same rights and privileges granted to the applicant to present evidence and testimony." Count II claimed that the Board "based its decision on evidence and testimony which was presented to it separate from the application and prior to and after the close of the public hearing." Count III alleged that the Board "did not make a written record of its decision which sets forth the reason or reasons for its decision," and that the Board failed to set forth findings of fact as required by 1 M.R.S.A. § 407 () and 30 M.R.S.A. § 4956(2) (subdivision law).
Counts IV and V directly challenged the legality of the proposed subdivision itself. The plaintiffs asserted that the lots in the Davidson subdivision were non-conforming under the new 1977 zoning ordinance, which became effective two weeks after the Board's approval of the subdivision. Plaintiffs claimed that Richard E. Rossiter, the town code enforcement officer, failed or refused to notify Davidson of the zoning violation, as required by the 1977 zoning ordinance. Count V adds the allegation that the violation of the 1977 zoning ordinance creates a nuisance pursuant to 30 M.R.S.A. §§ 4962(1)(F) and 4964.
Both Counts IV and V requested the Superior Court to find that the lots in the Davidson subdivision violate the minimum-lot-size requirements of the 1977 zoning ordinance and that Mr. Rossiter has failed or refused to enforce such requirements. They also request injunctions prohibiting the further development of the subdivision, sale of lots, or issuance of building permits.
L. John Davidson Associates responded to the complaint by filing on August 18, 1977, a motion to dismiss the five counts for lack of subject-matter jurisdiction and for failure to state a claim upon which relief can be granted. M.R.Civ.P., Rule 12(b)(1) & (6). The other defendants joined in an answer, filed September 15, 1977, which denied most of the allegations of the complaint and prayed that it be dismissed. They also filed a motion for summary judgment on September 16, 1977. The motion was accompanied by an affidavit of the chairman of the Kittery Planning Board. That affidavit summarized the Board's actions and enclosed a copy of the July 19, 1977, notice of the Board's decision, copies of the minutes of the Board meetings in question, a copy of the technical check list of material submitted for use in reviewing the subdivision plans, a copy of the Board's conditions of approval, and the site location order and findings of fact issued by the State of Maine Department of Environmental Protection dated May 25, 1977. John L. Davidson Associates also filed a motion for summary judgment on the same grounds.
The record also contains "Plaintiff's Affidavit in Opposition to Defendants' Motion for Summary Judgment," signed by plaintiff Margaret Cunningham. The affiant stated that she had attended the Planning Board meetings of June 23 and June 30, 1977, and she related facts consistent with the descriptions, set forth above, of those two meetings.
On September 21, 1977, the plaintiffs filed with the clerk of the Superior Court a motion for leave to amend their complaint by adding the following allegations to the original complaint:
"Gerrish Island is a small coastal island with only one access over a single bridge.
The proposed subdivision will substantially increase the population of Gerrish Island and will result in congestion of its bridges, roads, beaches, create traffic hazards, reduce the capacity of the public water...
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