Olson v. Town of Yarmouth, Docket: Cum–17–274

• Decision Date: 22 February 2018
• Docket Number: Docket: Cum–17–274
• Citation: 179 A.3d 920
• Parties: Frederick OLSON et al. v. TOWN OF YARMOUTH et al.
• Court: Maine Supreme Court

179 A.3d 920

Frederick OLSON et al.

v.TOWN OF YARMOUTH et al.

Docket: Cum–17–274

Supreme Judicial Court of Maine.

Argued: December 13, 2017

Decided: February 22, 2018

Nathaniel A. Bessey, Esq. (orally), Brann & Isaacson, Lewiston, for appellants Frederick Olson and Leora Rabin

Philip R. Saucier, Esq. (orally), Bernstein Shur, Portland, for appellee Town of Yarmouth

Scott D. Anderson, Esq. (orally), Verrill Dana, LLP, Portland, for appellee Verizon Wireless

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

HUMPHREY, J.

[¶ 1] Frederick Olson and Leora Rabin appeal from a judgment of the Superior Court (Cumberland County, Warren, J. ) affirming, pursuant to M.R. Civ. P. 80B, the Town of Yarmouth Planning Board's approval of a site plan application by Portland Cellular Partnership, d/b/a Verizon Wireless (Verizon), to install wireless communication equipment on a tower and site owned by the Yarmouth Water District. Olson and Rabin argue that Verizon's application did not comply with Yarmouth's Zoning Ordinance because (1) the Yarmouth Water District site was subject to a presumption of unsuitability that Verizon failed to overcome, and (2) Verizon did not present sufficient evidence that it investigated other technically feasible sites. Because the Board did not err by concluding that Verizon's application complied with the relevant provisions of the Zoning Ordinance, we affirm the judgment.

I. BACKGROUND

[¶ 2] In 2001, Sprint Spectrum L.P. (Sprint) submitted a site plan application to the Town of Yarmouth in which it applied to install a wireless communication antenna array on a water tower owned by the Yarmouth Water District and to install equipment cabinets on the ground near the tower. The Planning Board denied the application because it did not meet zoning and site plan ordinance standards. In April 2016, Verizon applied to the Planning Board for a similar use at the same site.

[¶ 3] At a public meeting on May 25, 2016, the Planning Board reviewed Verizon's plan. The Planning Board and neighboring residents, including Olson and Rabin, questioned the location of the equipment enclosure and the related visual, noise, and health effects on the neighborhood. Olson's property abuts the Yarmouth Water District site, and Rabin resides within 500 feet of the site. Verizon represented that it would examine other sites and look at the gaps in coverage that led to the selection of this location. The Planning Board did a site walk on June 15, 2016.

[¶ 4] On July 20, 2016, Verizon submitted its final site plan application to install equipment on the Yarmouth Water District site. Verizon asserted in its application that, by installing the equipment on the Yarmouth Water District site, Verizon would "be able to fill the substantial coverage gap that it now experiences, and provide improved coverage and capacity to residents, businesses, and traffic corridors within sections of Yarmouth that are currently located within deficient service areas of Verizon Wireless'[s] network."

[¶ 5] The Town of Yarmouth Director of Planning and Development (Director) submitted a report to the Planning Board on September 23, 2016. The Director detailed how Verizon's application complied with individual site plan and zoning standards and concluded that the project conformed to the Town's comprehensive plan and submission requirements. As to the Ordinance's requirement that Verizon investigate other technically feasible sites, he concluded that Verizon had "described [its] site selection process," and the Yarmouth Water District site allows "the antenna to be located on an existing water tower which avoids the need to construct a new tower." The Director recommended that the Planning Board approve the application if Verizon accepted the conditions that he proposed in his report.

[¶ 6] The Director's report included the 2001 letter denying Sprint's site plan application and the Planning Board's findings on Sprint's application. The 2001 Planning Board report stated that "[t]he size and configuration of the lot on which the water tower is located and upon which equipment is located is too small in area and too narrow in width and therefore too constrained for ‘adverse impacts' of the proposed equipment installation on the ground to be adequately minimized, per [Yarmouth, Me., Zoning Ordinance, art. II(Z)(1) ], in the residential context and close proximity to adjacent and nearby residences involved."¹

[¶ 7] On September 28, 2016, the Planning Board considered Verizon's final site plan application at a public meeting. The Planning Board asked about alternative sites that Verizon had considered, and a Verizon representative explained that it looked at the gaps in its area of coverage and then looked for sites that could fill the gaps with a minimal impact on the Town. The Verizon representative told the Planning Board that Verizon's "[g]oal at this site has been to ... comply with the primary goal of the Town's wireless ordinance, and that is to avoid the need for new towers." Verizon's search revealed that the Yarmouth Water District site was the only appropriate location because other buildings in the area were not tall enough and a Central Maine Power pole would not fill the coverage gap and posed administrative hurdles. The Planning Board unanimously gave conditional approval to Verizon's application after finding that the plan conformed to the Site Plan Review Ordinance. The Planning Board issued a written approval letter on October 7, 2016.

[¶ 8] On November 8, 2016, Olson and Rabin, who both appeared and commented at the Planning Board meetings, filed a complaint and petition for review of final municipal action pursuant to M.R. Civ. P. 80B in the Superior Court.² Verizon intervened in the action. The court affirmed the Planning Board's decision on June 1, 2017.

[¶ 9] Olson and Rabin filed a timely appeal. See M.R. Civ. P. 80B(n) ; M.R. App. P. 2(b)(3) (Tower 2016).³

II. DISCUSSION

[¶ 10] Olson and Rabin raise two issues on appeal. First, they argue that the Planning Board erred in its approval of Verizon's site plan application because, pursuant to article II(Z)(4)(a)(3) (Sept. 2016) of the Yarmouth Zoning Ordinance, the Yarmouth Water District site was presumed to be unsuitable and Verizon failed to overcome that presumption. Second, they contend that there was not substantial evidence in the record to support the Board's finding that Verizon investigated other technically feasible sites, as required by Yarmouth, Me., Zoning Ordinance, art. II(Z)(9)(c) (Sept. 2016).

[¶ 11] "We review the Planning Board's approval of the [site plan application] directly for error of law, abuse of discretion or findings not supported by substantial evidence in the record." Osprey Family Tr. v. Town of Owls Head , 2016 ME 89, ¶ 9, 141 A.3d 1114 (quotation marks omitted). "Substantial evidence exists when a reasonable mind would rely on that evidence as sufficient support for a conclusion." Id. (quotation marks omitted). "Although interpretation of an ordinance is a question of law, we accord substantial deference to the Planning Board's characterizations and fact-findings as to what meets ordinance standards." Bizier v. Town of Turner , 2011 ME 116, ¶ 8, 32 A.3d 1048 (quotation marks omitted). When interpreting an ordinance de novo, "we first evaluate the plain meaning of the Ordinance and, if the meaning is clear, [we] need not look beyond the words themselves. We construe the terms of an ordinance reasonably, considering its purposes and structure and to avoid absurd or illogical results." Fryeburg Tr. v. Town of Fryeburg, 2016 ME 174, ¶ 5, 151 A.3d 933 (citation omitted) (quotation marks omitted). Olson and Rabin bear the burden of persuasion on appeal because they seek to vacate the Planning Board's decision. See Bizier , 2011 ME 116, ¶ 8, 32 A.3d 1048.

A. Application of the Presumption of Unsuitability

[¶ 12] We first consider Olson and Rabin's argument that, pursuant to article II(Z)(4)(a)(3) of the Ordinance, the Planning Board's 2001 denial of Sprint's application to install a wireless communication antenna array and associated equipment cabinets on the Yarmouth Water District site created a rebuttable presumption that the site was unsuitable to accommodate Verizon's proposal.

[¶ 13] Article II(Z)(4)(a)(3) states:

Once the Planning Board has determined that telecommunications equipment proposed by the applicant cannot be accommodated on an existing or approved tower or Alternative Tower Structure, each tower or Alternative Tower Structure so found is presumed unable to accommodate similar equipment that may be proposed in the future unless the Board determines, after additional information is provided, that new technology or other considerations enables the existing or approved tower or Alternative Tower Structure to accommodate the equipment.

Yarmouth, Me., Zoning Ordinance, art. II(Z)(4)(a)(3).

[¶ 14] Olson and Rabin argue that Yarmouth, Me., Zoning Ordinance, art. II(Z)(4) (Sept. 2016)⁴ broadly addresses co-location requirements and is not limited to applicants seeking to construct a new tower. They contend that although article II(Z)(4)(a)(1) applies only to new-tower-construction applicants, article II(Z)(4)(a)(3) applies both to new-tower-construction applicants and to co-location applicants seeking to install similar equipment on an existing structure. Based on this reading of the Ordinance, Olson and Rabin assert that the presumption of unsuitability attaches to a site whenever the Planning Board has determined that the site is unsuitable for co-location. Olson and Rabin contend that the Planning Board's 2001 determination that the Yarmouth Water District site was "too small in area and too narrow in width" to accommodate Sprint's proposal made the site presumptively unsuitable for any later application to install similar equipment at that site, and that Verizon needed to rebut that presumption before its application could be...