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York v. Town of Ogunquit
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MAINE SUPREME JUDICIAL COURT	Reporter of Decisions
Decision:	2001 ME 53
Docket:	Yor-00-392
Argued:	December 13, 2000
Decided:	April 4, 2001

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




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


CLIFFORD, J.

	[¶1]  Charles T. York and others{1} (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.{7} 
Perkins, 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.{8}  Id. ¶ 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 beyond its authority.
	[¶13]  The Board's waiver of the street width requirement is the only
waiver that was erroneously granted.  This error does not require the
disapproval of Young's plan in its entirety, but only that limited portion of
the plan that violates the street width Zoning Ordinance requirement.  In
vacating the Superior Court judgment, we remand for compliance with the
Ogunquit Zoning Ordinance requirement of a thirty-two foot road width on
the collector street or streets, or for the Board of Appeals to consider a
variance of the street width requirement for Young pursuant to 30-A
M.R.S.A. 4353(4) (Supp. 2000) and the Ogunquit Zoning Ordinance §
5.2(B)(2).{10}
III.
	[¶14]  York also contends that the twelve pages of findings of fact
issued by the Board regarding the five waivers as well as the criteria for
subdivision approval enumerated in 30-A M.R.S.A. § 4404 (1996 &
Supp 2000){11} are both inadequate and based on insufficient evidence
pursuant to 1 M.R.S.A.  407(1) (1989).{12}  We disagree.  Although agencies
are required to make written factual findings sufficient to show the
applicant and the public a rational basis of its decision, the agency is not
required to issue a complete factual record.  Cook v. Lisbon Sch. Comm.,
682 A.2d 672, 677 (Me. 1996). "If there is sufficient evidence on the
record, the Board's decision will be deemed supported by implicit findings." 
Forester v. City of Westbrook, 604 A.2d 31, 33 (Me. 1992).  Substantial
evidence exists if there is any competent evidence in the record to support
a decision.  Adelman v. Town of Baldwin, 2000 ME 91,  12, 750 A.2d 577,
583.  
	[15]  The record before us reveals considerable evidence to support
the Board's determinations, including the four properly granted waivers.  All
of the issues were addressed and discussed at numerous Board meetings
held over the course of more than a year.  There was sufficient competent
evidence, including evidence supporting a finding of the special
circumstances of Young's plan, on which the Board could have based its
ample findings of fact. 
IV.
	[¶16]  Finally, York contends that the Board violated Ogunquit
ordinance requirements by approving Young's final plan in the absence of
the posting of a performance bond.{13}  Young has discussed the bonding
requirement with the Town Manager, but there is no dispute that this
provision has not actually been fulfilled.  Although some towns may permit
their Planning Boards to approve a plan and leave the amount and details of
the bond to the town, the plain language of the Ogunquit Subdivision
Standards requires compliance with the bond conditions prior to the
Board's approval of the final plan.  The failure to comply with this technical
provision is not fatal to Young's plan for proposed subdivision development,
however, and does not require that the entire plan be disapproved. 
Accordingly, we remand only for fulfillment of the bond requirement and
either compliance with or a variance from the street width requirement.  
	The entry is:
Judgment vacated and remanded to the
Superior Court with instructions to remand
the case to the Ogunquit Planning Board only
for compliance with the street width
requirement of the Ogunquit Zoning Ordinance
and the bond requirement of the Ogunquit
Subdivision Standards.

Attorney for plaintiffs: Alan S. Nelson, Esq., (orally) Prescott Lemoine Jamieson & Nelson, P.A. P O Box 1190 Saco, ME 04072 Attorneys for defendants: Roy T. Pierce, Esq., (orally) John P. McVeigh, Esq. Preti, Flaherty, Beliveau, Pachios & Haley, LLC P O Box 9546 Portland, ME 04112-9546 (for Town of Ogunquit) Paul D. Cadigan, Esq., (orally) 57 Portland Road Kennebunk, ME 04043 and Wayne T. Adams, Esq. P O Box 3030 Kennebeunk, ME 04043
FOOTNOTES******************************** {1} . The original plaintiffs included fourteen abutters, the first of whom named in the complaint was Steven H. Arnold. Thus, the name of this case in the Superior Court was Steven H. Arnold et al. v. Town of Ogunquit et al. Three of the original plaintiffs chose not to pursue this appeal before us, however, including Arnold. The name of the case has therefore been changed to Charles T. York et al. v. Town of Ogunquit et al., because York is the next named original plaintiff who participates in this appeal. {2} . Young conveyed title to Windward Ogunquit, LLC, and has taken back a mortgage on the parcels. {3} . The Subdivision Standards waived by the Board provide: 10.3.1.11. Subdivisions containing fifteen (15) lots or more shall have at least two street connections with existing public streets or streets shown on the Official Map as such exists, or streets on an approved Subdivision Plan for which a bond has been filed. 10.3.2. The following design standards apply according to street classification: . . . Minimum Pavement width [for collector streets is] 32' . . . Sidewalk width [for collector streets is] 5' . . . 10.3.4. Dead-end Streets. . . .[D]ead-end streets shall be constructed to provide a cul-de-sac turn-around . . . . . . . 10.3.5.1. Grades of all streets shall conform in general to the terrain, and shall not be . . . more than . . . 6 percent for collector streets, or 6 percent for minor streets in residential zones . . . . Ogunquit, Me., Standards for Reviewing Land Subdivisions and Other Projects §§ 10.3.1.11, 10.3.2, 10.3.4, 10.3.5.1 (Apr. 3, 2000). The road width requirement also has a corresponding provision in the Ogunquit Zoning Ordinance itself which provides, "All collector streets shall be designed and constructed in accordance with the specifications for local residential streets, except that paved traveled surface shall be at least 32 feet in width." Ogunquit, Me., Ogunquit Zoning Ordinance § 10.2(B)(3) (Apr. 5, 1999). {4} . The waivers included: (1) a waiver of the six percent maximum road grade to seven percent in order to make an intersection safer by providing a grade platform, decrease soil disturbance, allow a wider vegetative buffer, and reduce the noise and time of construction; (2) a waiver of the street width from thirty-two feet to twenty-four feet in order to allow increased storm water absorption and retention, decrease storm water runoff, maximize natural storm water treatment, decrease impact on clam beds, decrease flooding potential, decrease overall environmental impact, decrease disturbance to soil and vegetation, allow more vegetative buffers to decrease noise and increase privacy, preserve the small town character of the area, reduce vehicle speed and make the area safer, and increase wetland and plant protection; (3) a waiver of the public street connection requirement from two connections to one in order to discourage traffic and thereby increase safety and leave natural features undisturbed; (4) a waiver of sidewalk width from five to four feet in one 250-foot area in order to permit installation of a sidewalk where it would otherwise be too narrow, decrease disturbance to existing traffic lanes, and allow placement of a sidewalk otherwise impossible to build along stonewalls and gardens; and (5) a waiver of the cul-de-sac street design in favor of a hammerhead or "T-shaped" street end on two streets to leave natural features and wetlands undisturbed while still allowing emergency vehicles to access those streets. {5} . Direct appeal of a Planning Board decision to the Superior Court is permissible only if so provided in the municipal zoning ordinance. 30-A M.R.S.A. § 4353(1) (1996). The Ogunquit Zoning Ordinance does provide for such direct appeals. Ogunquit, Me., Ogunquit Zoning Ordinance § 6.5 (Apr. 5, 1999). See Perkins v. Town of Ogunquit, 1998 ME 42, ¶ 5 n.5, 709 A.2d 106, 107-08 n.5. {6} . Young contends that the plaintiffs lack standing as well. As abutters who have participated in the Board meetings and demonstrated the potential for particularized injury as a result of the approval of Young's plan, the plaintiffs clearly have standing to appeal the Board's decision. See Sproul, 2000 ME 30, ¶ 7, 746 A.2d at 372. {7} . General variances may be granted only upon a finding of "undue hardship," defined as: A. The land in question can not yield a reasonable return unless a variance is granted; B. The need for a variance is due to the unique circumstances of the property and not to the general conditions in the neighborhood; C. The granting of a variance will not alter the essential character of the locality; and D. The hardship is not the result of action taken by the applicant or a prior owner. 30-A M.R.S.A. § 4353(4) (Supp. 2000). {8} . The statute relevant to Perkins' claim has since been amended to include a new section for dimensional variances: 4-C. Variance from dimensional standards. A municipality may adopt an ordinance that permits the board [of appeals] to grant a variance from the dimensional standards of a zoning ordinance when strict application of the ordinance to the petitioner and the petitioner's property would cause a practical difficulty and when the following conditions exist: . . . As used in this subsection, "dimensional standards" means and is limited to ordinance provisions relating to lot area, lot coverage, frontage and setback requirements. 30-A M.R.S.A. § 4353(4-C) (Supp. 2000). Thus, the lot frontage requirement at issue in Perkins is now specifically subject to this "practical difficulty" inquiry rather than the "undue hardship" standard in the general variance. {9} . The power of a municipality to grant such power to the Board is conferred by 30-A M.R.S.A. § 3001 (1996): Any municipality, by the adoption, amendment or repeal of ordinances or bylaws, may exercise any power or function which the Legislature has power to confer upon it, which is not denied either expressly or by clear implication, and exercise any power or function granted to the municipality by the Constitution of Maine, general law or charter. 30-A M.R.S.A. § 3001 (1996). The Town of Ogunquit has indeed granted such power to the Planning Board in its Subdivision Standards, which state in pertinent part: 12.1. Where the Planning Board finds that extraordinary and necessary hardships may result from strict compliance with these standards or where there are special circumstances of a particular Plan, it may vary these standards so that substantial justice may be done and the public interest secure; provided that such variations will not have the effect of nullifying the intent and purpose of the Official Map, the Comprehensive Plan, or the Zoning Ordinance, where such exist. 12.2. Where the Planning Board finds that, due to special circumstances of a particular Plan, the provision of certain required improvements is not requisite in the interest of public health, safety, and general welfare, or is inappropriate because of inadequacy or lack of connecting facilities adjacent or in proximity to the proposed subdivision, it may waive such requirements, subject to appropriate conditions. Ogunquit, Me., Standards for Reviewing Land Subdivisions and Other Projects §§ 12.1, 12.2 (Apr. 3, 2000). Therefore, pursuant to these two authorities, the Ogunquit Planning Board is permitted to waive non-Ordinance Subdivision Standards. {10} . We also note that to the extent that the Ogunquit Zoning Ordinance's thirty-two- foot road width requirement is greater than the width of any existing road in Ogunquit, Ogunquit remains free to amend that requirement to a more narrow width or to eliminate it altogether. {11} . The Board is required to consider nineteen factors such as water supply, traffic, pollution, and sewage disposal before approving any subdivision plans pursuant to 30 M.R.S.A. § 4404 (1996 & Supp. 2000). {12} . Specifically, 1 M.R.S.A. § 407(1) (1989) provides in pertinent part: 1. Conditional approval or denial. Every agency shall make a written record of every decision involving the conditional approval or denial of an application, license, certificate or any other type of permit. The agency shall set forth in the record the reason or reasons for its decision and make finding of the fact, in writing, sufficient to appraise the applicant and any interested member of the public of the basis for the decision. {13} . The Subdivision Standards provide, "There shall be submitted to the board with the Final Plan . . . [a] performance bond to secure completion of all improvements required by the board and written evidence that the Municipal Officers are satisfied with the sufficiency of such bond." Ogunquit, Me., Standards for Reviewing Land Subdivisions and Other Projects § 7.3.2. (Apr. 3, 2000). In addition, the Subdivision Standards provide: Before the Planning Board grants approval of the Final Plan, the subdivider shall, in an amount set by the Planning Board, either, file with the Municipal Treasurer a certified check to cover the full cost of the required improvements or the subdivider shall file with the Municipal Treasurer a performance bond to cover the full cost of required improvements. . . . The applicant shall present, as part of his complete application, a copy of the receipt from the Town Treasurer. Ogunquit, Me., Standards for Reviewing Land Subdivisions and Other Projects § 7.1.7. (Apr. 3, 2000).