Kittery Water Dist. v. Town of York

• Decision Date: 27 March 1985
• Citation: 489 A.2d 1091
• Parties: KITTERY WATER DISTRICT v. TOWN OF YORK.
• Court: Maine Supreme Court

Page 1091

489 A.2d 1091

KITTERY WATER DISTRICT v. TOWN OF YORK.

Supreme Judicial Court of Maine.

Argued March 5, 1985.

Decided March 27, 1985.

McEachern & Thornhill, Duncan A. McEachern (orally), Matthew T. Brock, Kittery, for plaintiff.

Murray, Plumb & Murray, E. Stephen Murray (orally), Portland, for defendant.

Before McKUSICK, C.J., and NICHOLS, VIOLETTE, WATHEN, GLASSMAN and SCOLNIK, JJ.

NICHOLS, Justice.

The Town of York appeals from a judgment of the Superior Court (York County) sustaining the Kittery Water District's Rule 80B appeal from the decision of the York Zoning Board of Appeals; that decision upheld a public recreational use condition imposed by the York Planning Board on the District's permit to construct a reservoir in that town. The Superior Court found that even though under certain circumstances the Planning Board may, pursuant to the Mandatory Shoreland Zoning Law, 12 M.R.S.A. §§ 4811 et seq. (1981 & Supp.1984-1985) and the Town's Shoreland Zoning Ordinance, impose a recreational use condition on a permit, there was insufficient evidence to support such a condition on the District's permit. The Town argues that the Superior Court: (1) exceeded its jurisdiction in not limiting its review to whether the Planning Board had authority to impose recreational conditions; (2) erred in concluding that the condition represented a "taking" of the District's property; and (3) exceeded its scope of review by making independent factual findings from the record.

The District cross-appeals, contending that the Superior Court erred in determining that the Planning Board could, under other circumstances, impose the specific public recreational use condition involved in this case.

We find no error and affirm the judgment.

The Kittery Water District, a quasi-municipal corporation created by the Legislature in 1907, provides the residents of Kittery, the Kittery Naval Shipyard, and portions of York and Eliot with water. In order to maintain a reserve water supply, the District seeks to construct a reservoir below Bell Marsh in York. Bell Marsh at times overflows into Smelt Brook, a brook which is apparently only a few feet wide in most parts and occasionally is dry. The District submitted an application to the Department of Environmental Protection to build an earthen dam on Smelt Brook to contain the overflow from Bell Marsh. The plans revealed that the reservoir would cover an area of approximately 330 acres and that all access to the reservoir would be over land owned by the District. The Department approved the project on September 28, 1983.

The Kittery Water District was also required to obtain a permit from the York Planning Board because part of the proposed reservoir located within 250 feet of Smelt Brook was designated a shoreland zone under local ordinances. On July 28, 1983, the Planning Board approved the project subject to four conditions. Only condition number four was subsequently challenged by the District; it provides as follows:

That a plan for limited recreational usage which would include fishing and non-motorized boat operation and nature viewing be submitted to the Planning Board based upon the fact that this was mentioned by a number of people in Town as a request and the Department of Inland Fisheries & Wildlife also encourages such activities and that one of the purposes of shoreland zoning is to encourage open space uses such as agricultural and recreational uses and that indications were given to the Department of Environmental Protection by the Kittery Water District that the applicant would consider allowing limited public access to the proposed reservoir for recreational purposes.

The Water District appealed the York Planning Board's imposition of the above condition to the York Board of Appeals. Hearings thereon were held on October 12, 1983, and November 9, 1983. The Water District challenged the legal authority of the Planning Board "to impose as a condition to the granting of the permit that the District open access to the District's private water supply to those, in this particular case, wishing to fish or go boating." David Linney, a member of the Planning Board, spoke at the October 12 hearing and reported that the Planning Board thought that requiring some sort of recreational use was an equitable swap for the loss of a very good wildlife nesting habitat. He expressed a concern that the District would not implement a recreational use plan after the reservoir was completed and recalled that the District had stated that it would "allow some sort of recreation." There was some testimony to the effect that in the past area residents had fished in Smelt Brook and that transforming the brook into a reservoir would alter the breeding of fish. In its decision dated November 9, 1983, the Board of Appeals upheld the Planning Board's authority to impose the public recreational use condition in question. Pursuant to M.R.Civ.P. 80B the Water District appealed to the Superior Court.

Upon reviewing this record as an intermediate appellate court, the Superior Court entered its judgment on August 6, 1984, reversing the Board of Appeals on the ground that there was insufficient evidence to support the public recreational use condition in this case. Both parties appeal from that judgment.

The Town argues that the Superior Court exceeded its jurisdiction by examining the facts of this case in determining whether the Planning Board had authority to impose the public recreational use condition on the District's permit. When, as here, the Superior Court acts as an intermediate appellate court reviewing the action of the Board of Appeals, we examine directly the record as it...