York v. Town of Ogunquit

• Decision Date: 04 April 2001
• Citation: 2001 ME 53,769 A.2d 172
• Parties: Charles T. YORK et al. v. TOWN OF OGUNQUIT et al.
• Court: Maine Supreme Court

769 A.2d 172

2001 ME 53

Charles T. YORK et al. v. TOWN OF OGUNQUIT et al.

Supreme Judicial Court of Maine.

Argued: December 13, 2000.

Decided: April 4, 2001.

Alan S. Nelson, Esq., (orally), Prescott Lemoine Jamieson & Nelson, P.A., Saco, for plaintiffs.

Roy T. Pierce, Esq., (orally), John P. McVeigh, Esq., Preti, Flaherty, Beliveau, Pachios & Haley, LLC, Portland, (for Town of Ogunquit), Paul D. Cadigan, Esq., (orally), Wayne T. Adams, Esq., Kennebeunk, for defendants.

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

CLIFFORD, J.

[¶ 1] Charles T. York and others¹ (York) appeal from a judgment entered in the Superior Court (York County, Fritzsche, J.) affirming the Ogunquit Planning Board's approval of Robert Young's final subdivision plan. York challenges Young's standing, the Planning Board's authority to grant waivers of ordinance provisions, the sufficiency of the findings of fact issued by the Board and the sufficiency of the evidence on which those findings were based, and the Board's approval of the plan without compliance with subdivision requirements. Although we are convinced of Young's standing and the sufficiency of both the evidence and the findings of fact, we vacate the judgment and remand for the limited reasons that are stated below.

[¶ 2] In July of 1998, Robert Young sought approval from the Ogunquit Planning Board for the development of a thirty-nine lot subdivision, the Windward Subdivision. At the time, Young's interest in the property consisted of his right to purchase the property pursuant to two purchase and sale agreements. Young has since purchased both parcels and conveyed title to a limited liability company, but does continue to hold a mortgage interest in both parcels.²

[¶ 3] The Board met and discussed the plan for the subdivision numerous times between August of 1998 and June of 1999. The Board held two public hearings and conducted one site review. Abutters participated in both public meetings and voiced various concerns. On June 21, 1999, the Board voted to accept and approve the final plan for the subdivision on three conditions, one of which was the condition that "the developer will discuss bonding requirements with the Town Manager."

[¶ 4] The Board later issued twelve pages of findings of fact approving Young's application. Included in its approval were waivers of five Ogunquit Subdivision Standards requirements and one Ogunquit Zoning Ordinance requirement discussed at many of the meetings: a thirty-two foot road width requirement, a six percent road grade requirement, a cul-de-sac dead end street design requirement, a two street connections requirement, and a five foot sidewalk width requirement.³ The Board disclosed the lengthy considerations underlying each waiver.⁴ Finally, the findings included the statement that Young had not demonstrated a legal interest in the property. At a subsequent Board meeting on May 22, 2000, the findings of fact were amended to fix a "clerical error" by removing the word "not" from the statement that Young had not demonstrated an interest in the property. Thus, the Board found that Young did have a legal interest in the property for the proposed subdivision.

[¶ 5] On July 16, 1999, York filed a complaint in the Superior Court for review of the Board's decision pursuant to M.R. Civ. P. 80B.⁵ The Superior Court affirmed the Ogunquit Planning Board's approval of Young's subdivision plan, and this appeal by York followed.

[¶ 6] Because the Superior Court acted in an appellate capacity, we review the decision of the Planning Board directly 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, 372 (quoting Veilleux v. City of Augusta, 684 A.2d 413, 415 (Me.1996)). Substantial evidence is "evidence that a reasonable mind would accept as sufficient to support a conclusion." Id. We may not substitute our own judgment for that of the Board. Brooks v. Cumberland Farms, Inc., 1997 ME 203, ¶ 12, 703 A.2d 844, 848.

I.

[¶ 7] York first contends that Young lacked the requisite standing to pursue a development application before the Board because he had no interest in the property he proposed to develop.⁶ To have standing, that is, a sufficient personal stake in the outcome of a case, a party must have a "right, title or interest" in the property he or she seeks to develop. Halfway House, Inc. v. City of Portland, 670 A.2d 1377, 1381. Although the initial findings of fact by the Board indicated that Young did not have standing to pursue his development application, that finding was the result of a clerical error and was amended by the Board.

[¶ 8] Furthermore, various title documents submitted at oral argument clearly resolve the standing issue in favor of Young. Although gaps in his interest do appear in the form of short lapses in the agreements to extend the closing dates for the purchase and sale agreements, these temporary gaps appear only at noncrucial points in this litigation. At all crucial times — the submission of Young's plan to the Board, the plan's approval by the Board, the issuance of the Superior Court's decision, and the argument before us — Young's "right, title or interest" has been clearly established.

II.

[¶ 9] Relying principally on Perkins v. Town of Ogunquit, 1998 ME 42, 709 A.2d 106, York contends that the waivers granted by the Board were actually impermissible variances that the Planning Board had no authority to grant and that must instead be approved by the municipal Zoning Board of Appeals. In Perkins, a landowner was denied a variance from the seventy-five-foot lot frontage requirement of the Ogunquit Zoning Ordinance by the Ogunquit Board of Appeals because he could not establish undue hardship.⁷Perkins, 1998 ME 42, ¶ 4,709 A.2d at 107. Three weeks later, the landowner requested and was a granted a waiver of the same requirement by the Ogunquit Planning Board. Id. We held that the waiver was invalid because it circumvented zoning requirements by functioning as a variance granted in the absence of a finding of undue hardship.⁸Id. ¶ 12, 709 A.2d at 110. We also noted that the Planning Board is without power to grant such a variance because of "the Legislature's express and implicitly exclusive grant of variance-granting authority to boards of appeals." Id. ¶ 9, 709 A.2d at 108. Thus, only the board of appeals is vested with the authority to grant a variance of zoning ordinance provisions.

[¶ 10] In this case, however, the waivers granted by the Board for four of the five requirements — the sidewalk width, cul-de-sac street end design, road grade, and street connections requirements — are waivers of Ogunquit Subdivision Standards alone. This is unlike the situation in Perkins, where the Board purported to waive an Ogunquit Zoning Ordinance provision. See id. ¶ 4, 709 A.2d at 107. The Planning Board does have the authority to waive strict application of Subdivision Standards in certain circumstances, on a Board finding of extraordinary and unnecessary hardship or because of the special circumstances of a plan.⁹ The record is replete with evidence that there are special circumstances associated with Young's plan necessitating these four waivers. This is true even though some of the rationale for the waivers could apply to any plan. For example, the steepness of the property caused significant concerns regarding stormwater runoff and retention, and resulted in the Board permitting a seven rather than a six percent road grade. The waivers also operate to preserve more of the natural features of the property, which is aesthetically desirable, and better for the environment because they reduce the impact on clam beds and vegetation. The waivers also are beneficial in reducing the property's potential flooding problems. Four of the waivers were therefore granted by the Board pursuant to its authority under State statute and municipal ordinance. These four waivers were based on substantial evidence of special circumstances as is required by the Subdivision Standards.

[¶ 11] The remaining fifth requirement, however, that streets must be thirty-two feet in width, is mandated not just by the Subdivision Standards, but also by Ogunquit Zoning Ordinance itself, which provides, "... paved traveled surface shall be at least 32 feet in width." Ogunquit, Me., Ogunquit Zoning Ordinance § 10.2(B)(3) (Apr. 5, 1999). See supra note 3. This requirement is limited to "collector streets," defined in the Zoning Ordinance as, "Any street that carries the traffic to and from the major arterial streets to local access street, or directly to destinations or to serve local traffic generators." Ogunquit, Me., Ogunquit Zoning Ordinance § 2 (Apr. 5, 1999). At least one of the street width waivers granted by the Board was for a collector street; in fact, the Board's findings of fact specifically state, "The Board approved the requested waiver from 32 feet to 24 feet from the collector road, Windward Way...." Therefore, in granting Young a waiver of the thirty-two foot street width requirement, the Board has granted Young a waiver of a provision mandated by the Ogunquit Zoning Ordinance. This is impermissible.

[¶ 12] Although the Board may waive Subdivision Standards requirements, it is not granted the authority to waive Zoning Ordinance provisions. This is the basis of our holding in Perkins, that Zoning Ordinance provisions are specifically subject to the variance analysis mandated by state statute in 30-A M.R.S.A. § 4353(4) (Supp.2000). Perkins, 1998 ME 42, ¶ 12,709 A.2d at 110. Thus, deviation from Zoning Ordinance provisions may be obtained only when the requisite finding is made by the Zoning Board of Appeals. There is no dispute that the Board of Appeals made no such finding in this case. The Planning Board's grant of a waiver of the street width requirement, therefore, was...