Skip Maine state header navigation

Agencies | Online Services | Help
Adelman v. Tn. of Baldwin, attorneys & footnotes.

Attorney for plaintiffs:

John C. Bannon, Esq., (orally)
Murray, Plumb & Murray
P O Box 9785
Portland, ME 04104-5085

Attorneys for defendants:

Catherine R. Connors, Esq., (orally)
Matthew D. Manahan, Esq.
Pierce Atwood
One Monument Square
Portland, ME 04101-1110
(for WMTW Holding Corp.)

David A. Lourie, Esq., (orally)
189 Spurwink Avenue
Cape Elizabeth, ME 04107
(for Town of Baldwin)
FOOTNOTES******************************** {1} . There are eleven appellants: Thomas G. Adelman, George Anderson, Nancy Anderson, Daniel Billings, Laurie Downey, Clare Husvar, Joseph Husvar, Charles Locke, Mark Miller, Lillian Rines, and Sylvia L. Thompson. Our reference to Adelman indicates all ten other appellants. {2} . Article IX § 3 of the Baldwin Land Use Ordinance outlines the requirements for a conditional use permit: A conditional use may be granted by the Planning Board only in the event that the applicant has established to the satisfaction of the Planning Board that: (1) Neither the proposed use nor the proposed site upon which the use will be located is of such a character that the use will have significant adverse impact upon the value or quiet possession of surrounding properties greater than would normally occur from such a use in the district. In reaching a determination on this standard, the Planning Board shall consider: (a) the size of the proposed use compared with surrounding uses; (b) the intensity of the proposed use, including amount and type of traffic to be generated, hours of operation, expanse of pavement, and similar measures of intensity of use, compared with surrounding uses; (c) the potential generation of noise, dust, odor, vibration, glare, smoke, litter and other nuisances; (d) unusual physical characteristics of the site, including size of the lot, shape of the lot, topography, and soils, which may tend to aggravate adverse impacts upon surrounding properties; (e) the degree to which landscaping, fencing, and other design elements have been incorporated to mitigate adverse impacts on surrounding properties. (2) Municipal or other facilities serving the proposed use will not be overburdened or hazards created because of inadequate facilities. In reaching a determination on this standard, the Board shall consider: (a) the ability of traffic to safely move into and out of the site at the proposed location; (b) the presence of facilities to assure the safety of pedestrians passing by or through the site; (c) the capacity of the street network to accommodate the proposed use; (d) the capacity of the storm drainage system to accommodate the proposed use; (e) the ability of the town to provide necessary fire protection services to the site and development (3) The natural characteristics of the site, including topography, drainage, and relationship to ground and surface waters and flood plains, shall not be such that the proposed use when placed on the site will cause undue harm to the environment or to neighboring properties. Baldwin Land Use Ordinance, art. XI, § 3(1) & (3). {3} . The Tower Amendment added the following definition to the conditional uses permitted in the highlands and rural districts: "Communications Tower-a structure for the support of antennas and reflectors used in broadcast, point-to-point and relay communications, including but not limited to television, radio, cellular, utility, PCS, MMDS and community repeaters." {4} . Section 2605 of Title 30-A states in pertinent part: Certain proceedings of municipalities, counties and quasi-municipal corporations and their officials are voidable and actionable according to the following provisions. 1. Voting. The vote of a body is voidable when any official in an official position votes on any question in which that official has a direct or an indirect pecuniary interest. * * * 4. Direct or indirect pecuniary interest. In the absence of actual fraud, an official of a body of the municipality, county government or a quasi-municipal corporation involved in a question or in the negotiation or award of a contract is deemed to have a direct or indirect pecuniary interest in a question or in a contract where the official is an officer, director, partner, associate, employee or stockholder of a private corporation, business or other economic entity to which the question relates or with which the unit of municipal, county government or the quasi-municipal corporation contracts only where the official is directly or indirectly the owner of at least 10% of the stock of the private corporation or owns at least a 10% interest in the business or other economic entity. When an official is deemed to have a direct or indirect pecuniary interest, the vote on the question or the contract is not voidable and actionable if the official makes full disclosure of interest before any action is taken and if the official abstains from voting, from the negotiation or award of the contract and from otherwise attempting to influence a decision in which that official has an interest. The official's disclosure and a notice of abstention from taking part in a decision in which the official has an interest shall be recorded with the clerk or secretary of the municipal or county government or the quasi-municipal corporation. 30-A M.R.S.A. § 2605 (1996). {5} . Adelman attempted to augment the record and establish bias with a Rule 80B(d) motion, but the facts alleged in his motion failed to establish a claim of bias with sufficient particularity. See Baker's Table, ¶ 9, 743 A.2d at 241. {6} . The appellants do not challenge the Board's findings regarding sections 3(1)(b) or 3(1)(d). We, therefore, do not discuss the record evidence concerning these criteria. {7} . Adelman also argues that the tower would cause excessive bird kill and that such bird kill would constitute a sufficient nuisance to reject the conditional use application. Evidence was presented regarding bird kill caused by other towers. This evidence does not require the Board to find that such a destruction of aviary life would constitute a nuisance to the surrounding property owners. See Sproul, ¶ 9, 746 A.2d at 372 (stating that Planning Board must weigh evidence and make its own determination as to credibility). The tower will be set on 322 acres of land. Moreover, the ordinance does not require the Board to consider the protection of wildlife in its consideration of the conditional use application.

Back to this Opinion.

Back to the Opinions page.