Thacker v. Konover Development Corp.

• Decision Date: 05 March 2003
• Citation: 818 A.2d 1013,2003 ME 30
• Parties: Richard THACKER et al. v. KONOVER DEVELOPMENT CORP. et al.
• Court: Maine Supreme Court

818 A.2d 1013

2003 ME 30

Richard THACKER et al. v. KONOVER DEVELOPMENT CORP. et al.

Supreme Judicial Court of Maine.

Argued: October 8, 2003.

Decided: March 5, 2003.

Richard Golden (orally), Clifford & Golden, P.A., Lisbon Falls, for plaintiffs.

Catherine R. Connors (orally), Helen L. Edmonds, Matthew D. Manahan, Pierce Atwood, Portland, for Konover Development Corp.

James E. Smith, Toni Kemmerle, Legal Division, Department of Transportation, Augusta, Richard L. Hornbeck, Moncure & Barnicle, Brunswick, for Town of Topsham.

Panel: SAUFLEY, C.J., and RUDMAN, DANA, ALEXANDER, CALKINS, and LEVY, JJ.

LEVY, J.

[¶ 1] Richard and Sherry Thacker appeal from a judgment entered in the Superior Court (Sagadahoc County, Brennan, J.) affirming the decision of the Topsham Planning Board approving Konover Development Corporation's site plan and subdivision applications, and from a judgment entered in the Superior Court (Kennebec County, Studstrup, J.) affirming the decision of the Maine Department of Transportation approving Konover's application for a traffic movement permit. The Thackers contend that: (1) the Topsham Planning Board erred when it concluded that Konover's proposed subdivision would comply with the requirements of the Topsham site plan and subdivision ordinances pertaining to the use of existing public roads; and (2) the Maine Department of Transportation erred by failing to perform a level of service analysis and by issuing a traffic movement permit to Konover. We affirm both judgments.

I. BACKGROUND

[¶ 2] Richard and Sherry Thacker own the Arby's Restaurant that is located on a southeast corner parcel at the intersection of Topsham Fair Mall Road (the Mall Road) and Route 196 in Topsham. There are two means of ingress and egress to the Mall Road from Arby's. The first is provided by an unsignalized paved accessway (Arby's access drive) that begins 190 feet southwest of Route 196. Four other businesses located on two other lots also have direct access to Arby's access drive. The second means of ingress and egress to Arby's is located a little farther southwest at a currently unsignalized intersection formed by the Mall Road, the access drive for the Tire Warehouse and other commercial establishments on the southeasterly side of the Mall Road, and, directly across the street, an access drive for Hannaford Brothers on the northwest side of the Mall Road. Arby's access drive and the access road for the Tire Warehouse are connected by a private service road (the Bank service road) that runs parallel to the Mall Road across a parcel, with several commercial establishments including Gardiner Savings Bank. Directly across the Mall Road from the entrance to Arby's is Winners Circle, a drive that provides access to McDonald's and Wendy's restaurants.

[¶ 3] In February 2001, Konover Development Corporation applied for site plan and subdivision approval from the Topsham Planning Board so that it could subdivide a large parcel of land adjacent to the Mall Road and construct a Wal-Mart Superstore and a second retail store on two of the new lots. Konover retained Sitelines, P.A., a civil engineering and land planning firm, to secure the necessary permits for the project, and Eaton Traffic Engineering to study the impact of the proposed development on traffic and carry out a CORSIM analysis.¹ The subsequent CORSIM analysis was carried out for the Mall Road, a section of Route 196, and neighboring roads. Although the study examined traffic levels at Winners Circle and the access drive to Hannaford Brothers, it did not examine traffic levels for Arby's access drive at the Mall Road.

[¶ 4] From September 2000 until November 2001, the Board held fourteen meetings and workshops at which it considered Konover's proposed site and subdivision plans. The Board retained DeLuca-Hoffman Associates, Inc., a consulting engineer firm, to review the information provided by Sitelines and Eaton Traffic Engineering. In a May 3, 2001 letter to the Board, the DeLuca-Hoffman project engineer made several recommendations in response to Sitelines's plan and questioned whether the proposed additional width of the Mall Road would increase delay time for people making left turns to and from any of the driveways, including the Arby's access drive. On September 18, 2001, the Board reviewed a traffic impact study and discussed a September 14 letter from DeLuca-Hoffman, in which DeLuca-Hoffman agreed with Sitelines that the number of vehicles that would exit from Arby's via the Bank service road to the Mall Road at the Tire Warehouse would not represent a safety or operational concern. At the meeting, Bill Eaton from Eaton Traffic Engineering stated that people who are exiting Arby's access drive and turning left onto the Mall Road would have "incredibly long delays" during peak hours. In addition, the Thackers' attorney expressed concern over the proposed traffic plan because Gardiner Savings Bank would not give the Thackers an easement for Arby's customers to drive across the Bank service road to get to the proposed signal at the intersection of the access road for Tire Warehouse and the Mall Road.

[¶ 5] On November 6, 2001, the Board approved the final subdivision plan contingent upon certain road improvements, restrictions, and requirements. The Board's approval included a written finding that the proposed subdivision "[would] not cause unreasonable highway or public road congestion or unsafe conditions with respect to use of the highways or public roads existing or proposed." The Thackers appealed this decision pursuant to M.R. Civ. P. 80B. The Superior Court affirmed the Board's decision, and the Thackers filed a timely appeal.

[¶ 6] In addition to applying for and receiving site plan and subdivision approval from the Board, Konover applied for and received a traffic movement permit from the Maine Department of Transportation (MDOT) pursuant to 23 M.R.S.A. § 704-A (Supp.2002).² In response to a request by the Thackers that MDOT reconsider its decision based on five grounds, including the left turn issue, the MDOT Commissioner issued a letter to the Thackers setting forth the reasons for its decisions and concluding that there was "no reason to modify its permit decision." The Thackers then appealed pursuant to M.R. Civ. P. 80C on various grounds. The Superior Court affirmed MDOT's decision, and the Thackers filed a timely appeal. We consolidated both appeals.

II. DISCUSSION

A. Topsham Planning Board's Approval of Konover's Application

[¶ 7] The Thackers contend that the Board erred by approving Konover's application because the proposed development will prevent vehicles from making a left turn from Arby's access drive onto the Mall Road during peak hours, causing the level of service of the intersection to fail. This, they contend, violates the requirements of Topsham's Site Plan Review and Zoning ordinances and the subdivision statute.

[¶ 8] When a decision of the Superior Court acting in an intermediate appellate capacity is appealed, we directly review the operative decision of a town planning board "for an abuse of discretion, error of law, or findings unsupported by substantial evidence in the record." Bragdon v. Town of Vassalboro, 2001 ME 137, ¶ 4, 780 A.2d 299, 301 (quoting Springborn v. Town of Falmouth, 2001 ME 57, ¶ 8, 769 A.2d 852, 855) (internal quotation marks omitted). "Substantial evidence exists when a reasonable mind would rely on that evidence as sufficient support for a conclusion...." Forbes v. Town of Southwest Harbor, 2001 ME 9, ¶ 6, 763 A.2d 1183, 1186. "We will not substitute our own judgment for that [of a local administrative board]." Id. A demonstration that no competent evidence supports the local board's findings is required in order to vacate the board's decision. Id.

1. Topsham Site Plan Review and Zoning Ordinances

[¶ 9] The Site Plan Review ordinance provides that: "[t]he proposed site layout shall provide for safe access and egress from public and private roads by providing adequate location, numbers and control of access points, including site distances, turning lanes and traffic signalization when required by existing and projected traffic flow on the municipal road systems."³ Topsham, Me., Code § 175-8(C) (Sept. 25, 2002). The corresponding provision of the Zoning ordinance provides:

Proposed developments shall provide for safe access and egress to roads. Safe access shall be assured by providing an adequate number and location of access/egress points with respect to sight distances, intersections and other traffic generators. The proposed development shall not have an unreasonable impact on local roads by degrading the levels of service and shall assure safe interior circulation patterns by separating vehicular and pedestrian traffic within the site.

Topsham, Me., Code § 225-28(A) (Sept. 25, 2002). Both provisions focus on assuring "safe access and egress" to and from public and private roads. The zoning ordinance provision also focuses on whether the proposed development will cause "an unreasonable impact on local roads by degrading levels of service." Id.

[¶ 10] The Board's finding that the development "[w]ill not cause unreasonable highway or public road congestion or unsafe conditions with respect to use of the highways or public roads existing or proposed" was supported by substantial evidence.⁴ Over the course of the fourteen meetings and hearings held by the Board in considering Konover's application, substantial attention was paid to the effect the expansion of the Mall Road would have on persons entering and leaving Arby's. The Board considered the engineers' evaluations that vehicles exiting Arby's during peak hours would experience difficulty in attempting a left turn from Arby's access drive onto the Mall Road, as well as the alternative means of egress provided by the Bank service road. The Town's and Konover's engineers agreed that any delay turning left onto the Mall...