The opinion
> STATE OF MAINE SUPERIOR COURT
PISCATAQUIS, SS. ons Docket No. AP-99-8
, BONEL LBL CARGRECHT JLH-Pis- b [pelscee
. : LAY RAR ay
Niles McBreairty et al., *)
- Plaintiffs *) UN 23 000
)
)
Vv i). ORDER ON APPEAL (Count 1)
)
)
Town of Greenville, )
Defendant )
Pending before the court is the plaintiffs' appeal, pursuant to
M.R.Civ.P. 80B, of the defendant's denial of their application to eliminate a
requirement that a portion of a subdivision road be paved. The plaintiffs’
complaint sets out other claims for relief against the defendant. Those
> claims are subject to a separate scheduling order and are not addressed
here.
In 1989, the plaintiffs. sought approval from the Greenville Planning
Board ("the board") for creation of a subdivision. The proposed plan
expressly provided that the main road through the development would be
"28' WIDE (INCLUDING SHOULDERS) AND PAVED 1,300' FROM LILY BAY
ROAD." The plan also pictorially depicted a "typical roadway cross section,"
demonstrating the nature of the construction for both paved and gravel
sections of road. In March 1989, the board made an endorsement on that
written plan, that "the subdivision shown by this plan meets all the criteria
set forth and therefore the subdivision is approved." (Emphasis added.)
The minutes of the board's March meeting reflect that a board member
moved to "accept plan as filed." (Emphasis added.) That motion was
D RECEIVED & FILED
JUIN 9A onan
PISCATAQUIS COUNTY —
Clerk's Office
approved unanimously. No appeal was filed from the board's action. It
thus became final. See Crosby v. Town of Belgrade, 562 A.2d 1228, 1230
(Me. 1989).
In 1991, the plaintiff appears to have applied for a modification of
the 1989 plan. The proposed modification related only to the location of
the lots and the road that provided access to the lots within the
subdivision. The board approved that modification in 1991, although the
resulting permit itself may not have been issued until 1993. See R.8. As
far as the present record reveals, the application and proposed plan
submitted in 1991 or 1993 provide no information about the nature of the
road's surface: that material does not provide either a written or schematic
description of the road, as is found in the 1989 application. Further, there
is nothing in the present record to suggest that the plaintiffs otherwise
raised an issue in 1991 or 1993 about the surface of the road.
In 1999, the plaintiffs submitted an application to further "modify"
the subdivision plan, to eliminate the condition that a portion of the road
be paved. Plaintiffs' counsel noted in a letter to the board that the 1989
application had included a proposal for pavement over a part of the road
because of an "oversight" by the plaintiffs’ engineers. At a November 1999
meeting, the board reviewed the application and concluded that the
plaintiffs had "offered no new substantial evidence to the Board that
convinced the Board that the paving condition should be removed from the
approved subdivision.” From this disposition, the plaintiffs filed a timely
appeal.
The board's 1989 decision to approve the plaintiffs’ subdivision
application became final when none of the parties pursued an appeal.
Thus, the question presented here is whether the board erred, not in its
1989 decision approving the subdivision, but in its 1999 decision that
declined to remove the requirement that part of the subdivision road be
paved. The plaintiffs contend here that the paving requirement did not
constitute a condition of the 1989 subdivision approval and that the board
exceeded its powers in imposing such a requirement in 1989.
First, the court concludes that the board in fact approved the
subdivision application which included, as one of its elements, a paving
condition. It was the plaintiffs themselves who incorporated that paving
component into their overall proposal. In two ways, the written plan
clearly manifested the plaintiffs’ evident intention to pave a portion of the
road: the plan included a conspicuous written description of the location of
the paved road, and the plan prominently included a schematic drawing of
the construction of a paved roadway. See R.5. The board's notation on the
plaintiffs' plan indicates its approval of "the subdivision shown by this
plan. . . ." (Emphasis added.) Additionally, the minutes of the 1989 meeting
reveal that the board accepted that proposal "as filed." (Emphasis added.)
The plaintiffs argue that they are not subject to this requirement because
the board did not independently make it an express condition of the
approval. However, the board's approved the plan in the form submitted
by the plaintiffs. In rendering that approval, the board conditioned its
order on the plaintiffs’ compliance with all of the elements of that plan,
including a partially paved road.
Further, the absence of any express reference to paving in the
board's approval does not remove that requirement from the approved
plan. Here, the board did not impose any express conditions of approval.
If the board's failure to make specific note of the paving requirement
means that paving is not required, then the same can be said of any other
component of the plaintiffs’ plan, and the plan and board's approval are
rendered meaningless.
City of Portland v. Grace Baptist Church, 552 A.2d 533 (Me. 1988)
does not lead to a different conclusion. There, the city contended that the
church exceeded the terms of the plan it had approved when the church
cleared a wooded area that the city characterized as "screening." The Court
found that the wooded area was not necessarily "screening." Jd. at 535.
Here, the pavement proposal was clear and unambiguous. Additionally, in
City of Portland, the Law Court found that the plan itself did not clearly
designate the location of areas designated for certain purposes. Here,
however, the location of the paved road is expressly identified, and the
plaintiff's own proposal provides detailed information about how that
paved road would be constructed. Thus, the board's action here does not
suffer from the lack of clarity noted by the Law Court in City of Portland.!
Thus, the court construes the 1989 subdivision approval as requiring
the plaintiffs to comply with the plan as the plaintiffs themselves proposed
it, in all respects. The board's approval was conditioned on the
requirement, proposed by the plaintiffs, that a section of the road be
1The terms of the board's approval of the subdivision is not unlike Justice
Hornby's prediction that, in light of the majority's opinion in City of Portland,
“planning boards will in the future presumably make all elements of a site plan
express conditions of their approval.” 522 A.2d at 537 (Hornby, J., dissenting). In
effect, the board did that here: it adopted all of the components of the plan as
conditions of approval.
paved.
Finally, because the board's 1989 action became final upon the
absence of any appeal, the plaintiffs cannot now argue that the board was
without authority to impose a paving requirement as a condition to
subdivision approval.?
The entry will be:
Upon entry of a final judgment in this matter, on count 1 of the
complaint the appeal is denied.
\
Dated: June 14, 2000
qilhw=
JUSTICE, SUPERIOR COURT
2The modification of the subdivision*plan in 1991 or 1993 cannot be fairly
treated as an elimination of the paving requirement. It is true that the plaintiffs’
application to reconfigure the subdivision did not include a paving requirement, and
the board's endorsement of that proposal also did not include such a requirement.
However, the documents associated with the plaintiffs’ application identified the
nature of the changes they sought, and they made no mention of a proposal to
eliminate the requirement of a paved road. Further, nothing in this record suggests
that this issue was ever brought to the board's attention. Therefore, because the
board appears not to have ever addressed the paving issue in connection with the
proposed modification, the board's action at that time has no bearing on its previous
decision to require paving.
3Even, however, if the plaintiffs were entitled to raise this issue now, their
argument would be fatally weakened by the provision in the Subdivision Regulations
for the Town of Greenville that authorized the board to include “such terms and
conditions as it [the board] may deem advisable to satisfy the criteria contained in
these regulations and. in Title 30-A, M.R.S.A. § 4404, and to preserve the public's
health, safety and general welfare." See Subdivision Regulations for the Town of
Greenville § 4(K)(2). Some of the purposes the board is required to promote relate to
environmental issues, erosion and traffic safety. Jd. at § 1. Promotion of these
purposes could clearly warrant a requirement that roads must be paved, as the
plaintiffs originally proposed.