Fitanides v. City of Saco

• Decision Date: 17 March 2015
• Docket Number: Docket No. Yor–14–298.
• Citation: 113 A.3d 1088,2015 ME 32
• Parties: Fred FITANIDES v. CITY OF SACO et al.
• Court: Maine Supreme Court

113 A.3d 1088

2015 ME 32

Fred FITANIDES

v.CITY OF SACO et al.

Docket No. Yor–14–298.

Supreme Judicial Court of Maine.

Submitted on Briefs: Dec. 18, 2014.

Decided: March 17, 2015.

Fred Fitanides, appellant pro se.

Timothy S. Murphy, Esq., Prescott, Jamieson, Nelson & Murphy, LLC, Saco, for appellee City of Saco.

Susan B. Driscoll, Esq., Bergen & Parkinson, LLC, Saco, for appellees Gordon O'Donnell Living Trust, David Ordway, Elegant Homes, Inc., Cascade Flea Market, LLC, Wayne McClellan, and Michelle McClellan.

Panel: SAUFLEY, C.J., and MEAD, GORMAN, JABAR, and HJELM, JJ.

Opinion

HJELM, J.

[¶ 1] Fred Fitanides appeals from a judgment of the Superior Court (York County, Fritzsche, J. ) affirming two decisions of the Saco Zoning Board of Appeals (ZBA). The ZBA affirmed the Saco Planning Board's issuance of conditional use permits to Wayne and Michelle McClellan for construction of a disc-golf course on property abutting a campground owned by Fitanides. Because the permits were issued in compliance with the City of Saco Zoning Ordinance, and because Fitanides was not prejudiced by procedural irregularities in the administrative process, we affirm the judgment.

I. BACKGROUND

[¶ 2] In March 2013, Wayne and Michelle McClellan applied for a conditional use permit to build a disc-golf course¹ in Saco on land abutting a campground owned by Fred Fitanides. The proposed site for the course is located on two parcels of land, one owned by Elegant Homes, Inc., and the other by the Gordon O'Donnell Living Trust. Michelle McClellan is the principal beneficiary of the trust and the manager of Elegant Homes.

[¶ 3] The proposed site is situated in several different zoning districts. It is located partially in the B–6 district and partially in the B–2a district, and an area surrounding a stream that runs through the property is in the Resource Protection (RP) district. In addition, a portion of the project site is within a Mobile Home Parks (MHP) Overlay district. The B–2a and B–6 districts require a conditional use permit for “[o]utdoor commercial recreational facilities,” see Saco, Me., Zoning Ordinance §§ 410–6A, 410–9A (April 7, 2003), and the RP district requires a conditional use permit for “[r]ecreation uses involving minimal structural development,” Saco, Me., Zoning Ordinance § 410–15 (April 5, 2002). The McClellans applied for both types of conditional use permits. Later, the Planning Board determined that an additional conditional use permit was necessary in the RP district for a footbridge that the McClellans planned to construct over the stream, and the McClellans submitted an application for that permit in July 2013. No application was submitted for conditional approval in the MHP Overlay district.

[¶ 4] The Planning Board held two public hearings on the disc-golf project, and Fitanides spoke at both meetings. At the end of the second meeting, on May 7, 2013, the Planning Board voted to grant conditional approval for the project and issued conditional use permits for construction in the RP and B–6 districts.² One of the conditions of approval was that “[n]o deviations from the approved plans are permitted without prior approval from the Planning Board for major changes, and from the City Planner for minor changes. The determination of major or minor shall be made by the City Planner.” On June 5, 2013, Fitanides appealed the conditional use approval to the ZBA, contending, among other things, that the project did not comply with the requirements of the MHP Overlay district and that the Board improperly delegated review of minor changes to the City Planner.

[¶ 5] Prior to the ZBA's consideration of the appeal, the City Planner sent an email to the ZBA stating that “[Fitanides] has demonstrated numerous times in the past that litigation is little more than a hobby of his” and urging the ZBA not to “compound the injury inflicted on the applicant by [Fitanides] by dragging this unfounded appeal on any longer.” After the ZBA held a public hearing on the appeal on July 1, 2013, it voted to affirm all aspects of the Board's decision except the delegation of authority to the City Planner to approve minor changes to the approved plans. The ZBA issued a written decision on July 16, 2013, remanding the matter to the Board with instructions “to amend Condition of Approval # 2 [the delegation to the City Planner] to comply with the Saco Zoning Ordinance.” Fitanides filed a complaint in the Superior Court pursuant to M.R. Civ. P. 80B, seeking review of the ZBA's decision.

[¶ 6] On July 23, 2013, the Planning Board held a hearing to consider the McClellans' application for a conditional use permit for the footbridge. Fitanides spoke in opposition, but the Board voted to approve the permit. At the same meeting, the Planning Board considered the ZBA's order remanding the permit for amendment of the condition delegating approval to the City Planner. The Board, however, voted to reaffirm its May decision without change. Fitanides filed appeals of those decisions with the ZBA, and after a public hearing held on October 7, 2013, the ZBA voted to deny both appeals.

[¶ 7] On November 4, 2013, Fitanides filed a Rule 80B complaint seeking judicial review of the ZBA's October 2013 decision. The court consolidated the two Rule 80B actions, and, following oral argument, affirmed both ZBA decisions. Fitanides filed a timely appeal of that judgment pursuant to M.R. Civ. P. 80B(n), 14 M.R.S. § 1851 (2014), and M.R.App. P. 2.

II. DISCUSSION

[¶ 8] When reviewing a challenge to a municipal decision pursuant to M.R. Civ. P. 80B, “we review directly the operative decision of the municipality.” Gensheimer v. Town of Phippsburg, 2005 ME 22, ¶ 7, 868 A.2d 161 (quotation marks omitted). The operative decision here is that of the Planning Board because the Ordinance authorizes the ZBA to act only in an appellate capacity, see Saco, Me., Zoning Ordinance § 901–10 (June 18, 1987), and because the ZBA did so in this case. See Mills v. Town of Eliot, 2008 ME 134, ¶¶ 14–16, 955 A.2d 258. We review the Planning Board's decision for “error of law, abuse of discretion or findings not supported by substantial evidence in the record.” Sproul v. Town of Boothbay Harbor, 2000 ME 30, ¶ 8, 746 A.2d 368 (quotation marks omitted). Fitanides bears the burden of persuasion on appeal because he seeks to vacate the Planning Board's decision. See Bizier v. Town of Turner, 2011 ME 116, ¶ 8, 32 A.3d 1048.

[¶ 9] The Planning Board voted twice on the conditional use permits for the disc-golf course—once when the permits were issued in May and again in July following the ZBA's remand. Although there were two votes, however, the Board issued the permits only once, merely voting the second time to keep the permits unchanged. There is therefore only one operative decision for our review: the Board's decision to grant conditional approval and issue the permits to the McClellans.

A. Procedural Error

[¶ 10] Fitanides contends that the Planning Board improperly disregarded the ZBA's order to amend the permit. Because the ZBA has appellate authority over the Board, we agree that the Board acted improperly when it disregarded the ZBA's instructions to amend the permit. See Crosby v. Town of Belgrade, 562 A.2d 1228, 1230–31 (Me.1989) (holding that the Town was bound by a prior adjudication of the zoning board of appeals). That error has no bearing on the outcome of this appeal, however, because we review directly the decision of the Planning Board to grant conditional approval to the project, and that decision was not affected by the Board's procedural error. Similarly, we do not consider Fitanides's argument that the ZBA lacked authority to remand the permit to the Planning Board for amendment because we review the decision of the Planning Board directly, and any error in the decision by the ZBA is irrelevant to that review.

B. Delegation of Authority to the City Planner

[¶ 11] Fitanides contends that the Planning Board erred in issuing a conditional use permit with a condition that allowed the City Planner to approve minor changes to the project plans. He argues that no provision of the Ordinance or any statute authorizes the City Planner to make decisions regarding minor changes to conditional use plans.

[¶ 12] Title 30–A M.R.S. § 4352 (2014) gives municipalities the authority to “provide for any form of zoning” consistent with the statute. State law, embodied in section 4352 and elsewhere, does not directly control delegation of zoning decisions among municipal boards, departments, or officers, leaving those matters to individual town ordinances.³ Consequently, the Planning Board erred only if the condition delegating authority to the City Planner violated the Saco Zoning Ordinance.

[¶ 13] Interpretation of the Ordinance is a question of law that we review de novo. See Wister v. Town of Mount Desert, 2009 ME 66, ¶ 17, 974 A.2d 903. “We examine an ordinance for its plain meaning” and “construe undefined or ambiguous terms reasonably with regard to both the objects sought to be obtained and to the general structure of the ordinance as a whole.”Friends of Congress Square Park v. City of Portland, 2014 ME 63, ¶ 9, 91 A.3d 601 (quotation marks omitted).

[¶ 14] Fitanides concedes that the Ordinance does not contain any provision that prohibits the Planning Board from delegating some tasks to the City Planner. He argues, however, that the Ordinance does not affirmatively grant the Planning Board power to authorize the City Planner to approve minor deviations from conditional use plans, and that it is thus prohibited from doing so. That argument is not supported by the plain language of the Ordinance, which provides that “[t]he Planning Board may attach such conditions, in addition to those required elsewhere in this Ordinance, that it finds necessary to further the purposes of this Ordinance.” Saco, Me., Zoning Ordinance § 901–6 (June 18, 1987). The condition delegating decision-making to the City Planner furthers...