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Bragdon v. Town of Vassalboro
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	2001 ME 137
Docket:	Ken-01-114
Argued:	September 10, 2001
Decided:	September 27, 2001

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


									

PETER BRAGDON et al. v. TOWN OF VASSALBORO


ALEXANDER, J.

	[¶1]  Peter Bragdon and Stephen Ellis appeal from a judgment
entered in the Superior Court (Kennebec County, Studstrup, J.) affirming
the decision of the Vassalboro Planning Board approving C & C Distributors,
Inc.'s application for a site permit to construct an aluminum products
manufacturing facility.  Bragdon and Ellis contend that the Superior Court
erred in: (1) finding that the Town could adopt a site review ordinance
without first adopting either a comprehensive plan or a zoning ordinance;
(2) finding that the performance standards and general provisions in the
Town's site review ordinance were valid; and (3) affirming the Planning
Board's decision, absent written findings of fact by the Planning Board, in
violation of their due process rights.  Finding no error in the Town's
application of its site review ordinance, we affirm.
I. CASE HISTORY
	[¶2]  On April 19, 2000, C & C Distributors, Inc. (C & C) submitted a
site plan application to the Vassalboro Planning Board for construction of a
light manufacturing facility in a hayfield lying adjacent to property owned by
Bragdon and Ellis.  The facility was to include a one-story 110' x 120'
production building and a two-story 30' x 40' office building to support
manufacture of trailers and other fabricated aluminum products.
	[¶3]  In April 2000, the Planning Board held a hearing focusing on
the performance standards listed in the site review ordinance.  Following
the hearing, the Board unanimously approved C & C's application, and the
Vassalboro Code Enforcement Officer issued a building permit.  Bragdon and
Ellis appealed the Board's decision to the Superior Court pursuant to M.R.
Civ. P. 80B.{1}  The Superior Court affirmed the Board's decision, and this
appeal followed. 
II. DISCUSSION
	[¶4]  When the Superior Court acts as an intermediate appellate court,
we directly review "the operative decision of the municipality" which, in
this case, is the Planning Board.  Springborn v. Town of Falmouth, 2001 ME
57, ¶ 8, 769 A.2d 852, 855 (quoting Forbes v. Town of Southwest Harbor,
2001 ME 9, ¶ 6, 763 A.2d 1183, 1186).  The Board's decision "is reviewed
'for an abuse of discretion, error of law, or findings unsupported by
substantial evidence in the record.'"  Id. 
	[¶5]  Two of Bragdon and Ellis's contentions on appeal are quickly
resolved.  First, the Planning Board may not have issued written findings, but
its minutes, also publicly available, reflect the Board's decision, and there
was no request for supplemental findings after the Board's written decision
was issued.  There is no due process violation where an adequate basis for
public understanding of the Board action exists and the issue was not called
to the Board's attention by a request for supplemental findings.
	[¶6]  Second, if some of the site review ordinance standards are too
vague, as the Town concedes is possible, Bragdon and Ellis gain nothing.  A
standard that is too vague is a standard that is void. Kosalka v. Town of
Georgetown, 2000 ME 106, ¶ 12, 752 A.2d 183, 186.  A void site review
standard cannot be applied to bar an application.  When a site review
standard is void for vagueness, the application must proceed without
consideration of the standard.  Id.  Thus, opposing parties cannot
successfully object to an approval of a project on the grounds that one of the
standards under which approval was granted is too vague, for if the objectors
prevail they gain nothing other than voiding the condition which, they
contend, should have been applied more specifically.
	[¶7]  Bragdon and Ellis also contend that the site review ordinance is
invalid because (1) it was enacted without the Town first enacting a
comprehensive plan; and (2) it constitutes a de facto zoning ordinance that
fails to satisfy statutory requirements.  The law governing comprehensive
plans, 30-A M.R.S.A. § 4324, provides that a municipality "may prepare a
local growth management program," but it is not required to do so.  30-A
M.R.S.A. § 4324(1) (1996).  As the Superior Court correctly noted, the
Legislature in 1991 eliminated the mandate requiring towns to adopt
comprehensive plans and zoning ordinances comprising a local growth
management program.  See House Amend. LL to L.D. 1985, Statement of
Fact (115th Legis. 1991) ("This amendment eliminates the existing
obligation of municipalities to adopt comprehensive plans and related zoning
ordinances.  All forms of state review of local planning efforts are
eliminated.").  However, a municipality that chooses to engage in a growth
management program must adopt both a comprehensive plan and an
implementation strategy.  30-A M.R.S.A. § 4326 (1996).  A municipality that
enacts a zoning ordinance is considered to be engaged in the
implementation strategy phase of a growth management program for which
the creation of a comprehensive plan is a mandatory prerequisite.  See id.
§ 4326(3). 
	[¶8]  A land use ordinance is "an ordinance or regulation of general
application adopted by the municipal legislative body which controls, directs
or delineates allowable uses of land and the standards for those uses." Id.
§ 4301(8) (1996).  A zoning ordinance is a specific type of land use
ordinance "that divides a municipality into districts" and "prescribes and
reasonably applies different regulations in each district."  Id. § 4301(15-A). 
Zoning involves the "'particularistic division of the city into zones for the
purpose of applying different proscriptions and . . . regulations in the
different zones.'"  LaBay v. Town of Paris, 659 A.2d 263, 265-66 (Me. 1995)
(quoting Benjamin v. Houle, 431 A.2d 48, 49 (Me. 1981)).  Municipal
ordinances that regulate "in a general and uniform city- or town-wide
manner," such as a building code, do not qualify as zoning.  Id. at 265.
	[¶9]  The site review ordinance at issue resembles a building code
rather than a zoning ordinance.  It does not regulate growth or determine
where within a community a particular facility should be located.  Instead it
applies specific standards for construction on any site, without regard to the
number or location of sites to be developed.  No comprehensive plan is
required before such a site review ordinance is adopted, and general state
planning goals do not mandate to the contrary.
	The entry is:
			Judgment affirmed.
                  
Attorney for plaintiffs: John E. Nale, Esq., (orally) Nale Law Offices LLC P O Box 2611 Waterville, ME 04903-2611 Attorney for defendant: Alton C. Stevens, Esq., (orally) Marden, Dubord, Bernier & Stevens P O Box 708 Waterville, ME 04903-0708
FOOTNOTES******************************** {1} . The Town does not have a zoning board of appeals. See Vassalboro, Me., Site Review Ordinance § IX (June 1992) (stating that an "aggrieved party may appeal any decision of the [Planning] Board or the Code Enforcement Officer under this Ordinance to the Superior Court within thirty (30) days from the date of the written notice of such decision").