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Conservation Law Foundation v. Town of Lincolnville
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	2001 ME 175
Docket:	Wal-01-486
Argued:	December 5, 2001
Decided:	December 20, 2001



	[¶1]  Christopher Osgood and the Conservation Law Foundation (CLF)
appeal from a judgment of the Superior Court (Waldo County, Mead, J.)
affirming the Lincolnville Planning Board's decision to approve a subdivision
plan.  Osgood and CLF argue that 1) the Planning Board's approval was not
supported by substantial evidence in the record; 2) the Planning Board's
findings of fact were inadequate to support its decision; and 3) the Board's
finding that the proposed subdivision conformed with the town's
Comprehensive Plan was insufficient and was not supported by substantial
evidence in the record.  The Developers, Richard Nightingale and James
Munroe, cross-appealed asserting that Osgood and CLF lacked standing to
challenge the Board's decision and that the town's subdivision ordinance is
unconstitutionally vague.  Because we affirm the decision of the Superior
Court, we do not reach the cross-appeal.
	[¶2]  On June 16, 1998 the Developers submitted an application to the
Lincolnville Planning Board for approval of a fourteen lot subdivision of an
area of land known as Munroe Field.  The field is a fifty-one acre lot located
on Route 1 in Lincolnville that gently slopes down from the road to the
shores of Penobscot Bay.  The Developers' proposed subdivision would
occupy the bottom half of the field and consist of two rows of seven lots to
be accessed by a road leading down from Route 1.  The proposal calls for the
development of twenty-one acres of the fifty-one acre field.  Presently,
because of the wide open nature of the area, it provides a spectacular view of
Penobscot Bay and its outlying islands.  The Lincolnville Town
Comprehensive Plan acknowledges that "[a]mong Lincolnville's most
valuable and important resources are its scenic resources."  One of the
enumerated goals of the Plan is the protection of the town's scenic views. 
The view across Munroe Field is one of these viewscapes.  
	[¶3]  Section 1(H) of the town's Subdivision Ordinance requires the
Planning Board to ensure that any approved subdivision "[w]ill not have an
undue adverse affect on the scenic or natural beauty of the area, aesthetics,
historic sites or rare and irreplaceable natural areas or any public rights for
physical or visual access to the shoreline."  Lincolnville, Me., Subdivision
Ordinance 1(H) (1999).  This language is very similar to the state's
subdivision legislation.  See 30-A M.R.S.A. § 4404(8) (1996).
	[¶4]  The Board voted to approve the Developers' preliminary
subdivision plan subject to the condition that the Developers create a
conservation easement that would adequately protect the view.  The Board
specifically determined that "[g]iven the unique and significant
characteristics of the view from Route 1 over the proposed subdivision
project, a conservation easement to protect that view is necessary in order
for the subdivision to meet the criteria of Section 1(H) of the Subdivision
Ordinance."  To satisfy this requirement, the Developers proposed a view
corridor, 250 feet in width, to proceed straight down from Route 1 and end
at the row of shorefront houses.  The proposed view corridor extends over
the length of an access road, but does not extend to the shore of Penobscot
Bay.  Although the Developers agreed to place height restrictions on any
structures located within the easement, they reserved the right to place
three street lamps along the road.  
	[¶5]  The minutes of numerous Planning Board meetings show that the
Board members devoted much time to discussing the Developers' request
for subdivision approval.  The Board asked the Developers many questions
and did not hesitate to express their concerns and expectations regarding
the project.  Thus, the minutes indicate that these meetings were dynamic
and that the Board carefully considered many facets of the project.  Although
the Board voted to approve the subdivision plan, it did so on the condition
that the town vote to accept the easement.{1}  The Board ultimately found that
the subdivision "will not have an undue adverse effect on the scenic or
natural beauty of the area," and also concluded that "[t]he [Developers']
compliance with the condition concerning the conservation easement or
view easement mitigates the undue adverse effect of the proposed
development on the view from Route One overlooking the land of the
proposed subdivision toward the ocean."  CLF and Osgood appealed to the
Superior Court which affirmed the Board's decision.  This appeal followed.
	[¶6]  When the Superior Court acts in its appellate capacity, we
directly review the decision of the Planning Board.  Kurlanski v. Portland
Yacht Club, 2001 ME 147, ¶ 7, 782 A.2d 783.  The Board's decision is
reviewed for "abuse of discretion, errors of law, or findings not supported by
substantial evidence in the record."  Id. (quoting Rockland Plaza Realty Corp.
v. City of Rockland, 2001 ME 81, ¶ 7, 772 A.2d 256).  We have defined
substantial evidence as "such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion."  Gorham v. Cape Elizabeth, 625
A.2d 898, 903 (Me. 1993) (quoting Hrouda v. Town of Hollis, 568 A.2d 824,
826 (Me. 1990)).  Furthermore, "[t]he fact that two inconsistent conclusions
can be drawn from the evidence does not mean that a Board's finding is
unsupported by substantial evidence."  Id. 
	[¶7]  CLF and Osgood argue that the record contained insufficient
evidence to support the Planning Board's approval of the subdivision.  First,
it should be noted, that section 1(H) of Lincolnville's subdivision ordinance
requires a subjective analysis.  See Kosalka v. Town of Georgetown, 2000 ME
106, 752 A.2d 183.  Whether a particular development has an "undue
adverse effect on the scenic or natural beauty of the area" necessarily
depends upon the perspective of the individual making the determination.
	[¶8]  The members of the Lincolnville Planning Board were familiar
with the Munroe Field area and visited the site before making their
determination.  They also reviewed other materials submitted by the
Developers such as an artist's renderings of the proposed development, a
profile of the project which portrayed the height of the residences in
relation to the tree line, and engineering data containing contour lines of
the slope of the hill.  After much discussion, the Board voted 3-1 that the
project satisfied the requirements of section 1(H) of the town's ordinance. 
Perhaps a Board made up of different individuals would have voted
differently.  Nonetheless, we are satisfied that there was sufficient evidence
in the record to support the Board's decision.
	[¶9]  Although they made no request for findings of fact, CLF and
Osgood also argue that the Board's findings were insufficient to support its
decision.  They contend that the findings were conclusory and failed to
explain how the Board reached its decision.  Again, the Board found that the
proposed subdivision "will not have an undue adverse effect upon the scenic
or natural beauty of the area" and that the view corridor would sufficiently
mitigate any undue effect caused by the development.  Due to the subjective
nature of the section 1(H) requirement, it is difficult to envision more
adequate findings.  The Board members were familiar with the site and the
minutes from the Board's meetings reflect much discussion concerning the
proposed subdivision.  It is clear that the Board fully and conscientiously
considered the proposed easement before it made its final decision.  We
conclude that the Board's findings were adequate.  
	[¶10]  Finally, CLF and Osgood argue that the Board's decision is
inconsistent with Lincolnville's Comprehensive Plan.  The Plan states that
"[t]he protection of the significant scenic views in Lincolnville is important
to maintaining the town's rural character, identity, and quality of life." 
Lincolnville, Me., Comprehensive Plan (June 21, 1993).  To implement this
goal, the Plan calls for the Board to "[e]ncourage and seek scenic easements
of high priority views."  And that is precisely what the Planning Board did. 
The record clearly shows that the Board was concerned with and carried out
the Plan's policies.  As noted above, the Board conditioned its approval on
the Developers' conveyance of an appropriate view easement.  
	The entry is:
			Judgment affirmed.
Attorney for plaintiffs: Carol F. Blasi, Esq. Conservation Law Foundation 112 Tillson Avenue Rockland, ME 04841 Attoneys for defendants: Terry F. Calderwood, Esq. Gibbons & Calderwood, L.L.P. P O Box 616 Camden, ME 04843 (for Town of Lincolnville) Wayne R. Crandall, Esq. P O Box 664 Rockland, ME 04841-0664 (for Munroe and Nightingale)
FOOTNOTES******************************** {1} . At oral argument, counsel acknowledged that the town had voted to accept the Developers' proposed view easement.