The opinion
fate gb Ue
UMBERL BRL Se
STATE OF MAINE oA CR KID OFT jOE SUPERIOR COURT
CUMBERLAND, ss. CIVIL ACTION
Qcer 4 123 PH ‘00 DOCKET NO. ord
LESLIE E. THOMAS,
Plaintiff
vs. DECISION AND ORDER
CITY OF SOUTH PORTLAND, DONALD L. GAPBRECHT
et al., LAW LIBRA
Defendants “°T 14 9000
The plaintiff appeals the City of South Portland Planning Board’s 10/26/99
approval of the Stop ‘n Shoppe Fuel Mart, Inc.’s (SNS) site plan application, which
resulted in changes to the plaintiff’s leasehold estate. See SPA-28; SP-6; Transcript
of 10/26/99 Meeting at 27-29. The Planning Board subsequently voted against
reconsidering the 10/26/99 approval. see Transcript © of 11/9/99 Meeting at 14. The
plaintiff argues that the SNS did not show sufficient right, title, and interest to the
property to obtain the site plan approval. For the following reasons, the appeal is
granted.
SNS submitted contracts for the. purchase by SOPO Realty Trust of Yarmouth,
Maine of lots 145, 146, 149, and 150 as-a statement of its right, title, and interest. See
SPA-4. The plaintiff is a subtenant under a written lease with Frank W. Patten, Jr.
for a lot shown as parcel E (lot 146). See SP-3. Although not provided as part of the
record, the lease and a letter from plaintiff's attorney regarding the plaintiff's status
and intent to remain as a tenant was sent to corporation counsel for the City of
QOD
South Portland and to the attorney for SNS. See Ex. E, attached to Plaintiff's Rule
80B Complaint; Transcript of 11/9/99 Meeting at 4. Neither the plaintiff nor his
attorney attended the 10/26/99 Planning Board meeting. The existence of the lease
was discussed briefly at the Planning Board meeting. See Transcript of 10/26/99
Meeting at 18.
The plaintiff has standing to appeal the Board’s decisions. See Department of
Envtl. Protection v. Town of Otis, 1998 ME 214, 8, 716 A.2d 1023, 1025; Lucarelli v.
City of South Portland, 1998 ME 239, { 3, 719 A.2d 534, 535.
Pursuant to the South Portland Zoning Ordinance, the applicant for a site
plan permit is required to submit a complete application; an application will not be
reviewed by the Board until the application is complete. See SOUTH PORTLAND, ME.,
CODE § 27-144 (1992).! Among other things, the applicant is required to submit
evidence of title, right, or interest in the site, a general summary of the existing
burdens on the property, and copies of all relevant documents relating to such
burdens. Seeid. § 27-144(1)(c) & (f). SNS is the applicant for the site plan
application. See SPA-3. All documents submitted regarding right, title, or interest
are in the name of SOPO Realty Trust. See SPA-4; Transcript of 11/9/99 Meeting at
2. There is no relationship, on this record, between the applicant and SOPO Realty
Trust. See Southridge Corp. v. Board of Envtl. Protection, 655 A.2d 345, 348 (Me.
1995). Further, the applicant did not include any description of the petitioner’s lease
1The zoning ordinance was attached to the respondents’ memorandum.
2
and did not include a copy of that lease, which was recorded. See SPA-4; Transcript
of 11/9/99 Meeting at 2.
At the 11/9/99 meeting, a Board member stated that “[i]f we had this
information [regarding the Thomas lease] that night [10/26/99], it may have been
different. It may not have been different.” Transcript of 11/9/99 Meeting at 4; see
also Transcript of 11/9/99 Meeting at 6 (“... I think we made a good decision based
on the information we had, but I am not sure we had all the information.”). The
focus of the subsequent discussion at the 11/9/99 meeting was Mr. Thomas’s failure
to attend the 10/26/99 meeting, as opposed to the applicant’s failure to submit a
complete application. The respondents continue this focus in their memorandum,
in which they argue that
[t]he documents and the issue [Mr. Thomas’s lease] were therefore not
a part of the record before the Planning Board and cannot be considered
after the fact by this Court. The Planning Board made its decision based
on the information contained in the record, and this Court must
review the Board’s decision based solely upon the information before
the Board on October 26, 1999.
Respondents’ Memorandum at 7. In other words, if an applicant fails to subimit the
documents required for a site plan application, that failure will be rewarded because
potential issues will be eliminated on appeal. Even in light of the standard of
review in these cases, this argument is unfair to the petitioner, who took reasonable
steps to protect his interests by advising counsel for the respondents and SNS about
his lease. See Juliano v. Town of Poland, 1999 ME 42, 7 5, 725 A.2d 545, 547; see also
Town of Otis, 1998 ME 214, ¥ 8, 716 A.2d at 1025. _
The Planning Board’s finding that the applicant had submitted proof of
“right, title and interest” is not supported by substantial evidence in the record. See
Richert v. City of South Portland, 1999 ME 179, ] 6, 740 A.2d 1000, 1002; City of South
Portland Planning Board Findings of Fact and Decision at 4?
The entry is
The Appeal is SUSTAINED.
This case is REMANDED to the City of South Portland
Planning Board for further proceedings consistent with
this Decision and Order.
Date: October 4 , 2000
Nancy Mills LY,
Justice, Superior Court
2The Planning Board’s decision was attached to the respondents’ memorandum.
4
Date Filed ___11-24-99 CUMBERLAND
Docket No. __AP 99-109
County
Action APPEAL -— 80(B)
LESLIE E. THOMAS
OCT 11 2000
VS.
CITY OF SOUTH PORTLAND
CITY OF SOUTH PORTLAND PLANNING BOARD
25
Plaintiff’s Attorney
JOSEPH R. MAZZIOTTI, ESQ 775-3148
PO BOX 3589, PORTLAND ME 04104
Date of |
Defendant’s Attorney
MARY KAHL, ESQ 767-7605 (ALL)
PO BOX 9422 SO. PORTLAND, ME 04106