Johansen v. City of Bath
| Decision Date | 04 January 2011 |
| Docket Number | Docket No. SAGSC-AP-10-002 |
| Parties | WENDY JOHANSEN and ROBERT JOHANSEN, Plaintiffs v. CITY OF BATH Defendant |
| Court | Maine Supreme Court |
This appeal pursuant to M.R. Civ. P. 80B returned to court December 14, 2010 for oral argument after remand. Jenny Burch and Patrick Scully appeared as counsel for the Plaintiffs Wendy and Robert Johansen and the Defendant City of Bath respectively. The argument was electronically recorded.
As discussed at hearing, the court intends to remand this case a second time on the same issues addressed in the first remand, and expects this time that the Bath Planning Board, with the assistance of independent counsel not associated with the applicant, will engage in a full and meaningful review of the areas within the scope of remand. Any and all future meetings of the Board held in compliance with the remand will be held on at least 10 days' notice to the Plaintiffs and the public.
Plaintiffs are hereby authorized to record in the Sagadahoc County Registry of Deeds a notice of the pendency of this appeal and a description of the access road—in the nature of a lis pendens notice.
A stay having previously been requested and denied, the court on its own motion elects to reconsider that decision, see M.R. Civ. P. 54(b)(1) ().
Pursuant to M.R. Civ. P. 80B(b), the court deems it proper to stay any further action by the City of Bath during the remand and thereafter until further order of the court, regarding the access road which is the subject of this appeal, other than the Bath Planning Board's actions within the scope of the remand. The purpose of the stay is to prevent the City of Bath from taking any action whatever to advance the status of the access road during the stay, other than to the extent complying with the remand might be deemed to do so.
It is therefore hereby ORDERED that any and all actions by the City of Bath, and its officers, employees, board members, agents and contractors regarding the access road for Phase III West Bath Wing Farm Business Park, are hereby stayed and enjoined including without limitation:
(1) any improvement, construction or physical alteration of any kind whatever of the access road
(2) any act of legal significance in the nature of issuing permits, approvals, certifications, inspections or acceptances or anything else of that nature.
The court was advised that no work is currently being performed on the access road, at least as located in the City of Bath. On that basis, the court is not directing that the City of Bath issue a stop work order to halt any ongoing improvements or construction, but will consider amending this stay to include that requirement if Plaintiffs so request.
In aid of the stay, the City of Bath, and its officers, employees, board members, agents and contractors are hereby enjoined and prohibited from taking any actions in violation of this stay. The City shall make the employees with planning, permitting andcode enforcement responsibilities specifically aware of this stay and injunction, and to make them aware that construction work on the access road, if commenced, should be stopped.
This stay does not apply to any activity located outside the boundaries of the City of Bath. No security for this stay is required of the Plaintiffs.
This stay order also does not prohibit the members of the Bath Planning Board, City planning staff and legal counsel from performing any and all activity in compliance with the court's remand of this case, including act to grant or deny, with or without modification or amendment, approval of the application again before the Planning Board.
Pursuant to M.R. Civ. P. 79(a), the Clerk is hereby directed to incorporate this Order
Justice, Superior Court
Andrew M. Horton, presiding
This appeal pursuant to M.R. Civ. P. 80B came before the court July 22, 2010 for argument on the Plaintiffs' motion for stay. Counsel for the parties presented argument.
During the argument, I indicated that a remand on certain issues was likely. Without waiving their positions, the parties agreed to a remand on the understanding that the court retained jurisdiction, meaning that after the Bath Planning Board acted on remand, the case can return to this court and proceed at the request of any party without a further appeal by the Plaintiffs.1
Plaintiffs Wendy and Robert Johansen have appealed from a decision of the City of Bath Planning Board approving a nine-lot business park subdivision proposed by the Town of West Bath. The project is part of a larger development called the West Bath Wing Farm Business Park, two prior phases of which have already been approved.
What makes this application for what is called Phase III of the project somewhat unusual is that the subdivision lots themselves lie in the Town of West Bath. West Bath has engaged in a separate permitting process for the lots and roads within West Bath, which is not an issue on this appeal.
The only part of the proposed subdivision that lies within the City of Bath is a portion of the access road to the subdivision. The access road would be built along what is now an unpaved way dating to colonial times, the King's Highway. The City of Bath access road connects to an existing public road called Wing Farm Parkway that evidently was approved during one of the earlier phases of the business park project.
The City of Bath Phase III permitting process began in September 2009 with a pre-application meeting at which representatives of the applicant, the Town of West Bath, appeared before the Bath Planning Board to introduce the project and answer preliminary questions. In October 2009, West Bath submitted its application to the Bath planning and development director. Between November 2009 and April 2010, the Bath Planning Board held additional meetings regarding the project, during which it received documentary information and heard comments from the applicant and a variety of others, including the Plaintiff Wendy Johansen.
Although not detailed in the record, the Phase III subdivision proposal also underwent review in the Town of West Bath under a separate process. When a subdivisionis located in two different municipalities, as here, the subdivision statute requires the two reviewing authorities to meet jointly unless they agree to waive joint meetings. See 30-A M.R.S. § 4403(1-A). In this case, the two municipalities waived joint meetings and proceeded separately in their review.
The Plaintiffs own property that does not abut the subdivision but is located within 100 feet of Lots 3 and 4 of Phase III. Much of the traffic that will be generated from the nine lots in Phase III of the business park project will pass by the Plaintiffs' property. During the Planning Board meetings, the Plaintiffs presented information indicating that their ability to go conveniently to and from their property will be affected by traffic from the project unless adequate measures and alternative means of access were provided.
At its April meeting, the Planning Board gave final approval to the Phase III application, as amended. The City of Bath subdivision ordinance permits appeal to the Superior Court directly from final decisions of the Planning Board regarding subdivisions. See 30-A M.R.S. § 4353(1) (). The Plaintiffs filed a timely appeal. The parties have agreed upon the record on which the appeal will be decided, and have briefed the issues.
In an appeal brought pursuant to M.R. Civ. P. 80B, the Superior Court reviews the administrative decision for errors of law, abuse of discretion, or findings of fact unsupported by the record. Yates v. Town of Southwest Harbor, 2001 ME 2, ¶ 10, 763 A.2d 1168, 1171. When "reviewing an administrative... decision, the issue before the court is not whether it would have reached the same conclusion as the [administrative tribunal], 'but whether the record contains competent and substantial evidence that supports the result reached.'" Seider v. Bd. of Exam'rs of Psychologists, 2000 ME 206, ¶ 8, 762 A.2d 551, 555 (quoting CWCO, Inc. v.Superintendent of Ins., 1997 ME 226, ¶ 6, 703 A.2d 1258, 1261). "Substantial evidence is evidence that a reasonable mind would accept as sufficient to support a conclusion." York v. Town of Ogunquit, 2001 ME 53, ¶ 6, 769 A.2d 172,175.
The court may not substitute its own judgment for that of the administrative tribunal. See id.; accord, Brooks v. Cumberland arms, Inc. 1997 ME 203, ¶ 12, 703 A.2d 844, 848. In other words, an administrative decision is not wrong because it is inconsistent with parts of the record or because the court might have come to a different conclusion. See Twigg v. Town of Kennebunk, 662 A.2d 914, 916 (Me. 1996). Further, "[i]nquiry into the thought process of a decision maker is improper," as analysis must be based on the "expressed findings and conclusions of the lower tribunal." Stewart v. Town of Sedgwick, 2000 ME 157, ¶ 14 n.8, 757 A.2d 773, 777-78.
However, if a board "fails to make sufficient and clear findings of fact [as] are necessary for judicial review," the court must remand the matter back to the board for those findings. Comeau v. Town of 2007 ME 76, ¶ 9, 926 A.2d 189, 192 (quoting Carroll v. Town of Rockport, 2003 ME 135, ¶30, 837 A.2d 148, 157).
The burden of persuasion in an action challenging an administrative decision rests on the party seeking to overturn the decision. See Sawyer Envtl. Recovery Facilities, Inc. v. Town of Hampden, 2000 ME 179, ¶13, 760 A.2d 257, 260.
Plaintiffs' brief focuses on nine issues, discussed in depth below. Before turning to the issues raised by the Plaintiffs, the court needs to address an issue of standing raised by the Defendant City of Bath.
The Defendant City of Bath asserts that the Plaintiffs lack standing to...
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