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Crispin v. Town of Scarborough
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	1999 ME 112
Docket:	Cum-98-463
Argued:	June 9, 1999
Decided:	July 16, 1999

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




ROBERT W. CRISPIN et al. v. TOWN OF SCARBOROUGH et al.


SAUFLEY, J.

	[¶1]  Robert Crispin and other plaintiffs{1} appeal from a judgment of
the Superior Court (Cumberland County, Mills, J.) involving a challenge to a
proposed development in the Town of Scarborough.  Although the Crispins
raise multiple issues on appeal, we address only those issues meriting
discussion, and affirm the judgment of the Superior Court.
I. BACKGROUND
	[¶2]  Robert and Kathleen Crispin own a parcel of shorefront property,
containing a single residence, near the Higgins Beach community in the
Town of Scarborough.  Maine Life Care Retirement Community, Inc., is a
nonprofit corporation that owns an option to purchase a large parcel of
property surrounding the Crispins' property.  Maine Life Care plans to
construct a retirement community on that parcel.  The property to be
developed consists of approximately 138 acres.  Approximately 42 of those
acres would be developed, and 96 would remain open land.  According to
Maine Life Care, the development will be a continuing care retirement
facility.  It is intended to serve the housing, healthcare, and financial
security needs of its elderly residents.  It will include 160 independent
living apartments, 20 assisted living units, and 40 skilled nursing rooms, as
well as an additional 40 independent living units in the proposed "cottage
area" of the development.  The development will also include a hairdressing
shop, an automated teller machine, and a small convenience store, all of
which are intended for the use of the residents only.  
	[¶3]  The property on which Maine Life Care plans to construct this
development was, under the Scarborough Zoning Ordinance, in part within a
Rural Residence and Farming District (R-F), in part within a Residential
District (R-3), and in part within a Resource Protection District (R-P). 
Because the existing zoning ordinances would not have allowed all of the
proposed facility to be placed on the subject property, Maine Life Care
sought a contract zoning agreement with the Town.  The retirement
community project and its proposed contract zoning agreement received
the support of some residents of the Town, but was met by opposition from
other residents, including the Crispins.
	[¶4]  After multiple hearings, the Scarborough Planning Board gave a
favorable recommendation to the Town Council, concluding that the
contract zoning agreement was a reasonable use of the land, and tentatively
gave its approval to the planned subdivision.  It conditioned its approval on
the final approval of the proposed contract zoning by the Scarborough Town
Council and on the Council's determination that the rezoning was consistent
with the Town's comprehensive plan.  The Town Council ultimately gave
final approval to the contract zoning, thereby satisfying the conditions set
forth by the Planning Board for its final approval.  The Crispins and other
residents of Scarborough filed an appeal pursuant to M.R. Civ. P. 80B,
making several claims that the Planning Board had illegally approved Maine
Life Care's proposal.
	[¶5]  The Crispins also claimed in a second complaint, which was later
joined by other residents of Scarborough, that they were denied due process
of law and other statutory rights by the Scarborough Town Council when it
considered and ultimately approved Maine Life Care's proposal.{2}  The
Crispins would later add to this action a claim that the Town of Scarborough
committed an unconstitutional taking when it approved the contract zoning
agreement with Maine Life Care.  Maine Life Care filed a counterclaim,
seeking declaratory judgment that it had the right to use the property as
planned and, in a separate count, seeking to quiet title to the private
roadway.{3}  The Crispins then filed a separate complaint alleging that Maine
Life Care's proposed use of the land adjacent to the Crispins' parcel would
constitute an illegal trespass on the Crispins' right to use a private road
traversing that land, and that Maine Life Care had slandered the Crispins'
title to their property.{4}  All of these actions were ultimately consolidated by
the Superior Court.
	[¶6]  The Superior Court disposed of a number of the issues at the
summary judgment stage of the proceedings.  It entered summary judgment
in favor of the Town on the Crispins' unconstitutional taking claim, as well
as on those portions of their due process claim in which it was alleged that a
member of the Town Council was biased and that the contract zoning was
inconsistent with the Town's comprehensive plan.  It also entered summary
judgment in favor of Maine Life Care on the Crispins' slander of title claim.
	[¶7]  On the Crispins' appeal under Rule 80B, the Superior Court, after
argument, affirmed the decisions of the Town of Scarborough.  While the
remaining proceedings were pending, however, the Scarborough Planning
Board approved several amendments to the subdivision plan submitted by
Maine Life Care.  The Superior Court allowed the Crispins to consolidate the
appeal from that decision with the pending proceedings.  The Superior
Court then affirmed the decision of the Town on the second of the Crispins'
appeals under Rule 80B.{5}
	[¶8]  A nonjury trial was then held on the issues that remained before
the Superior Court.  The Superior Court entered judgment in favor of the
defendants with respect to all of those remaining issues, and, after
resolution of a number of post-judgment motions, the Crispins appealed.
	[¶9]  The Crispins have raised several issues on appeal.  We address
only the following:  (1) the separate responsibilities of the Planning Board
and the Town Council when both contract zoning and subdivision approval
are sought by an applicant; (2) the public's opportunity for notice and
hearing when the Town is considering a proposal for contract zoning; and
(3) the Crispins' individual claims regarding their property rights in an
easement over the parcel to be owned by Maine Life Care.
II. RESPONSIBILITIES OF THE PLANNING BOARD AND TOWN COUNCIL
	[¶10]  The Crispins, on appeal of the Superior Court's resolution of
their 80B action, argue that the Planning Board failed to satisfy its obligation,
set out at 30-A M.R.S.A. § 4404(9) (1996), to decide whether Maine Life
Care's proposed subdivision was consistent with the Town's comprehensive
plan.  Because the Superior Court acted as an intermediate appellate court,
we review the Board's decision directly for an abuse of discretion, error of
law, or findings unsupported by substantial evidence in the record.  See
Herrick v. Town of Mechanic Falls, 673 A.2d 1348, 1349 (Me. 1996).
	[¶11]  In its review of any application for a proposed subdivision, the
Scarborough Planning Board is required to find, inter alia, that "[t]he
proposed subdivision conforms with [the Town's] duly adopted . . .
comprehensive plan."  30-A M.R.S.A. § 4404(9).  See 30-A M.R.S.A.
§ 4403(5), (6) (1996); accord Scarborough, Me., Subdivision Regulations
§ 3(I) (1994) (requiring the Planning Board, "in evaluating any proposed
subdivision of land within the Town of Scarborough" to determine that the
subdivision "[i]s in conformance with . . . the [Town's] Comprehensive
Plan").  The Planning Board also has the general responsibility under the
Town's zoning ordinance to "review all requests for amendments or changes
[to the zoning ordinance] and [to] make its recommendations to the Town
Council regarding the land use implications of the request."  Scarborough,
Me., Zoning Ordinance § II(G)(6) (1996).  This particular proposal required
the Planning Board to consider both Maine Life Care's subdivision
application and the accompanying request for a zone change of the subject
property.
	[¶12]  The request for a zone change in this case was to be
accomplished through the "contract zoning" provisions in the Town's
zoning ordinance.  Under those provisions, the Planning Board was required
to conduct a public hearing on Maine Life Care's proposed contract zoning
agreement, and to provide notice of this hearing to the public and to
neighboring landowners.  See id. § II(I)(1); accord 30-A M.R.S.A. § 4352(8)
(Supp. 1998).  At the public hearing, the Board was permitted to
simultaneously consider Maine Life Care's subdivision application and the
proposed contract zoning agreement.  See id. § II(I)(3).  With regard to the
proposed contract zoning agreement, as with any proposed zoning
amendment, the Planning Board's responsibility was to make a
recommendation to the Town Council regarding the land use implications of
the proposed rezoning.  See id. § II(G)(6).  The Town Council, however, was
charged with the ultimate authority to decide whether or not to rezone.  See
id. § II(I)(5).  In order to approve the proposed contract zoning agreement,
the Town Council was required to find that the rezoning would remain
consistent with the Town's comprehensive plan.  See id. § II(I).
	[¶13]  The members of the Planning Board understood that the Town
Council had the ultimate authority to approve a contract zoning agreement
and that the Council was required to determine whether the rezoning was
consistent with the Town's comprehensive plan.  Certain language of
exclusivity in the Scarborough Zoning Ordinance created some initial
uncertainty on the part of the Board concerning its role in the factfinding
process:
Contract zoning . . . is authorized for zoning map changes when
the Town Council, exercising its sole and exclusive judgment . . . 
determines that it is appropriate to change the zoning district
classification of a parcel of land [to] allow reasonable uses of the
land . . . which remain consistent with the Town of Scarborough
Comprehensive Plan.
Id. § II(I) (emphasis added).  The Board interpreted this language in the
zoning ordinance to mean that the Town Council had the primary
responsibility of making findings on whether the proposed project would be
consistent with the Town's comprehensive plan--a finding which was also
required for approval of Maine Life Care's subdivision application.  Members
of the Board repeatedly voiced their concern that they should not intrude
into the decision-making process of the Council, which they recognized as a
separate and distinct factfinder.
	[¶14]  Nonetheless, the Planning Board also had a responsibility to
determine whether the proposed subdivision was consistent with the
comprehensive plan.  The Board, therefore, ultimately approved the plan for
Maine Life Care's proposed subdivision, but conditioned its approval of the
plan on the Town Council's decision.  Specifically, with respect to Maine
Life Care's subdivision proposal, the Board voted to find that,
if the Contract Zoning Agreement is approved by the Town
Council, the subdivision will be in conformance with the
Comprehensive Plan, the Zoning Ordinance and the subdivision
regulations.
(Emphasis added.)  By granting conditional approval on these terms, the
Board fulfilled its obligation to find that the subdivision was consistent with
the comprehensive plan.  See 30-A M.R.S.A. § 4403(5)(C) (allowing the
Board to grant conditional approval to a subdivision application).  
	[¶15]  The Board's interpretation of the Town's subdivision
regulations, its zoning ordinance, and the applicable statutes was not
unreasonable, and its actions were designed to comply with all three.  The
Board and the Town Council balanced their responsibilities in a reasonable
manner:  both ultimately fulfilled their obligations to find that the proposed
development complied with the Town's comprehensive plan.  Contrary to
the Crispins' argument, therefore, the Planning Board did not fail to fulfill
its obligation to make this finding.{6}
	[¶16]  Furthermore, we find no error in either the Town Council or
the Planning Board's finding that the proposed development was, in fact,
consistent with the Town's comprehensive plan.  The Scarborough
Comprehensive Plan was adopted by the Planning Board and the Town
Council in 1994, and comprises approximately 300 pages of documents,
complete with detailed maps and diagrams.  It sets forth many policies and
goals for land use in the Town:  for example, the Town should "maintain
and, where possible enhance, a mix of village, suburban and rural lands," and
"there should be ample opportunity for economic development and
expansion of jobs for both the local and regional populations."  Scarborough,
Me., Comprehensive Plan 16-1 (1994).  The Town Council specifically found
that the proposed development would be consistent with many of the
comprehensive plan's goals, including those of fostering and accommodating
a diverse population in the Town, see id. at 15-1, promoting a pattern of
land use that respects the Town's natural resources, see id. at 15-5, and
assuring open spaces needed for the protection of wildlife and natural
systems, see id. at 15-12.  These findings are not clearly erroneous, and are
sufficient to support the conclusions of the Town Council and the Planning
Board.  See Ogunquit Sewer Dist. v. Town of Ogunquit, 1997 ME 33, ¶ 13,
691 A.2d 654, 658; LaBonta v. City of Waterville, 528 A.2d 1262, 1264-65
(Me. 1987).
III. NOTICE AND OPPORTUNITY TO BE HEARD
	[¶17]  The Crispins argue that the procedure by which the
Scarborough Town Council approved the rezoning for Maine Life Care's
proposed development unfairly denied them notice and an opportunity to be
heard.  The Superior Court, after a trial on the merits, held that the
procedures followed by the Town Council did not violate the Crispins'
constitutional or statutory rights.  We review the Superior Court's factual
findings for clear error, see Calaska Partners Ltd. v. Corson, 672 A.2d 1099,
1104 (Me. 1996), and review its legal conclusions de novo, see Collins v.
Trius, Inc., 663 A.2d 570, 572 (Me. 1995).
	[¶18]  The Crispins first assert that contract zoning is a "quasi-
judicial" act, entitling them to enhanced procedural protection under the
state and federal constitutions.  We have held, however, that "[z]oning is a
legislative act."  See F.S. Plummer Co. v. Town of Cape Elizabeth, 612 A.2d
856, 861 (Me. 1992) (quoting Benjamin v. Houle, 431 A.2d 48, 49 (Me.
1981)).  Moreover, the Legislature has explicitly allowed zoning ordinances
to "include provisions for conditional or contract zoning."  30-A M.R.S.A.
§ 4352(8) (Supp. 1998).  Generally, members of the public are not entitled
to protection under the Due Process Clause when their property rights are
adversely affected by the legislative acts of government.  See id. (citing
Bi-Metallic Inv. Co. v.  State Bd. of Equalization, 239 U.S. 441, 445 (1915)). 
The Legislature has nonetheless required that the public be "given an
adequate opportunity to be heard in the preparation of a zoning ordinance,"
30-A M.R.S.A. § 4352(1) (1996), and be "given [notice of a public
proceeding] in ample time to allow public attendance," 1 M.R.S.A. § 406
(1989).  Because the protections afforded by these statutes exceed any level
of procedural protection that would be required by either constitution, we
need not address the Crispins' constitutional claims.{7}

A.  Opportunity to be Heard

	[¶19]  The Crispins' primary complaint is that they were not afforded
sufficient opportunity to be heard at the full public hearing before the Town
Council on October 29, 1997, when the proposed contract zoning
agreement with Maine Life Care was considered.  At that meeting, any
person wishing to address the Town Council, either for or against the zoning
change, was given three minutes to make initial comments, and was allowed
a second chance to speak after everyone present had been given an
opportunity to speak once.
	[¶20]  Municipalities must give the public an "adequate opportunity to
be heard in the preparation of a zoning ordinance."  30-A M.R.S.A.
§ 4352(1).  The public, therefore, had a right to address the Scarborough
Town Council at the public hearing on the proposed contract zoning
agreement.  This statutory right, however, was not unlimited.  Even when
the opportunity to be heard has constitutional dimensions, "[t]here must be
a limit to individual argument in such matters if government is to go on." 
Bi-Metallic, 239 U.S. at 445.  Here, the circumstances required the Town
Council to strike a fair and reasonable balance between its interest in
efficiency and the public's right to speak.
	[¶21]  The Superior Court did not err in concluding that the record of
the municipal proceedings demonstrated that the Crispins were provided
with an adequate opportunity to be heard at the October 29 meeting.  In
light of the number of people who wished to address the Town Council, both
for and against the project, the Council's decision to limit initial comments
to three minutes represented a reasonable balancing of the interests of the
public.  Any deficiency in the initial opportunity provided to the Crispins was
cured by the offer of the Town Council to allow their attorney to speak,
essentially without limit, after each person who wanted to speak had been
heard.{8}  In addition, the Crispins were allowed to submit abundant written
material to the Town Council, which the Town Council reviewed in advance
of the hearing and considered during its deliberations.  Viewed in context,
the Crispins were given a substantial opportunity to speak directly to the
Council before its vote on the proposed contract zoning agreement.  
	[¶22]  The Crispins also argue that they were denied their right to be
heard before the Town Council at its November 17 meeting, at which the
Council took final action on a motion to reconsider its prior approval of the
contract zoning agreement with Maine Life Care.  They did not, however,
have a "right" to be heard at the November 17 meeting.  They had been
given a substantial opportunity to be heard on the original motion to approve
the contract zoning agreement and had participated throughout the approval
process, presenting the Town Council with copious information in
opposition to the rezoning.  Under the Town Council's procedural rules, the
Crispins were not entitled to an additional opportunity to be heard on a
council member's motion to reconsider.  See Rules and Orders of the Town
Council of the Town of Scarborough, Maine, §§ 19, 31(1) (Feb. 4, 1970).{9} 
The Town Council already had before it the entirety of the evidence
presented throughout the process by the Crispins.  Neither the applicable
statute nor the Town's rules required the Town Council to provide the
Crispins with an additional chance to be heard before the Town Council's
vote on this motion.  See 30-A M.R.S.A. § 4352(1).

B.  Notice

	[¶23]  The Crispins next argue that some members of the public were
given insufficient notice of a final administrative hearing before the Town
Council.  The record reflects that official bodies of the Town met at least
twenty-two times over the course of a year to consider Maine Life Care's
proposed development.  The Crispins' complaint regarding notice addresses
only the final meeting of the Town Council on November 17, 1997, at which
the Council considered, for the second time, a motion to reconsider its
original decision to approve the contract zoning proposal.
	[¶24]  Despite their claims that they were given insufficient notice,
many of the appellants, including the Crispins themselves, were present for
the Town Council's November 17 meeting.  These parties cannot now
complain that they were not given adequate notice of the meeting.  The
Superior Court correctly concluded that those appellants who were present
at the November 17 meeting had waived any objection to the sufficiency of
the notice that was provided.  Cf. Tryba v. Town of Old Orchard Beach, 1998
ME 10, ¶ 3, 704 A.2d 403, 404. 
	[¶25]  The remaining appellants argue that they were effectively given
only one day's notice of the November 17 meeting, and that one day's notice
was insufficient under the Freedom of Access Act, 1 M.R.S.A. §§ 401-410
(1989 & Supp. 1998).  See 1 M.R.S.A. § 406.  The agenda for the
November 17 meeting of the Town Council was posted in the Scarborough
Town Hall on November 14, but the Town Hall was closed to the public on
November 15 and 16.  In addition, a notice concerning the meeting was
published in the Portland Press Herald on November 17.  
	[¶26]  To be sufficient under the Freedom of Access Act, notice of the
Town Council meeting must have been "given in ample time to allow public
attendance and . . . disseminated in a manner reasonably calculated to notify
the general public in the jurisdiction served" by the Town Council.  Id.; see
also 30-A M.R.S.A. § 4352(1) (requiring the opportunity for public
participation in the preparation of a zoning ordinance).  This standard
required the Town Council to provide notice that was sufficient to give the
public a reasonable opportunity under the circumstances to be present 
during the Town Council's deliberations.
	[¶27]  Notwithstanding the short time provided by the notice for the
November 17 meeting, the Superior Court did not err in finding that the
notice that was provided to the appellants of this meeting of the Town
Council was sufficient under the applicable statutes.  See 1 M.R.S.A. § 406;
30-A M.R.S.A. § 4352(1); see also F.S. Plummer Co., 612 A.2d at 862
(holding notice sufficient under 30-A M.R.S.A. § 4352(1)).  Under the
circumstances of this case, where the appellants had been very involved
throughout the hearing process, where there had been ample notice and
opportunity to be heard at prior public hearings, where most appellants
actually attended the meeting, and where the process had been ongoing for
many months, the notice was provided in sufficient time to allow the public
a reasonable opportunity to be present during the proceedings.

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