Springborn v. Town of Falmouth

STATE OF MAINE J gtors i Be SUPERIOR COURT

CUMBERLAND, ss. eo ETE CIVIL ACTION

DOCKET NO, AP-O101

. . OW? “ aa

ROBERT J. SPRINGBORN ang, 5 | 33 fll Ul Re - CUA De

WENDY P. SPRINGBORN, HS

Plaintiffs

iy, DECISION AND ORDER

TOWN OF FALMOUTH and

FAIRWAY VILLAS, INC.,

Defendants |

FACTUAL BACKGROUND

In 1986 and 1987, Defendant Fairway Villas, Inc. (“Fairway”)! purchased

property in Falmouth and developed the northern portion into a subdivision

known as “The Woodlands.”2 Alexander v. Fairway Villas, Inc., 1998 ME 226, { 2,

719 A.2d 103, 104. Plaintiffs Robert and Wendy Springborn are residents of The

Woodlands subdivision. Record (“R.”) at 34.

*on April 6, 1999, the Town of Falmouth granted preliminary subdivision

approval for a 68 unit subdivision known as “The Villas” located south of and

adjacent to The Woodlands. Id. at 68. Fairway divided its development of The

Villas into two phases. Springborn v. Town of Falmouth, 2001 ME 57, { 5, 769 A.2d

852, 854. Phase I contained 28 units on the west side and Phase II contained 40 units

on the east side. Id. Phase II was further divided into Phases II and II.

1 Fairway was created by the merger of Golf Development Corporation (“GDC”) and Fairway

Villas, Inc.. Springborn v. Town of Falmouth, 2001 ME 57, q 3, 769 A.2d 852, 854. Fairway- -GDC was

also formerly known as “The Woodlands Corporation.” R. at 163.

2 The Woodlands subdivision was actually developed by GDC. Springborn, 2001 ME 57, q 3, 769

A.2d at 854.

7

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Fairway received final approval for Phase I in December, 1999. R. at 165. This

final approval was affirmed by the Law Court on appeal. Springborn, 2001 ME 57,

1, 769 A.2d at 853. In May, 2000, Fairway applied for final subdivision approval of

Phases II and III. R. at 479, 765. The application was amended on October 16, 2000 to

request both final subdivision and site plan approval for both phases. Id. at 765.

The final plan for Phases II and III contains a number of modifications from

the preliminary plan that were made in response to comments from the Falmouth

Planning Board (“Board”) and the public at the preliminary approval stage. Id. at

124. These alterations include: (1) decreasing the number of dwellings in both

Phases from 40 to 28; (2) reducing the number of units in the area of the 15th and

16th fairways from 15 to 9; (3) changing the plan west of the cul de sac from 19 units

comprised of 3 single-family residences and 8 duplexes to 14 units located in 7

multiplex buildings; (4) decreasing the total number of multiplex units in both

Phases from 15 to 7; (5) restructuring the previously even distribution of duplexes °

and single-family units throughout both Phases so that all 7 duplexes are located in

Phase II and all single-family units are located in Phase III; and (6) revising the road

system to add a new street called Fairway Lane, providing a common driveway to

serve the units in Phase II and altering the layout for the extension of Old Oak Way.

Id. at 15, 39-40, 71, 96, 124, 766.

The Springborns ,objected to the application for final approval, contending

that (1) the final plan did not substantially conform to the preliminary plan; (2)

pursuant to the Falmouth Land Subdivision Ordinance (“Ordinance”), the final

plan could not be altered in any way without resubmitting the plan for further

Board review and approval; and (3) preliminary approval had lapsed under the

terms of the Ordinance because more than six months had passed. Id. at 15, 34-38,

42-45.

On January 2, 2001, the Board granted final subdivision and site plan approval

for Phases II and III. Id. at 135. The Board specifically found that the progression of

preliminary and final applications for all phases of the project complied with the

Ordinance, the final plan for Phases II and III substantially conformed to the

preliminary subdivision Blan and Fairway’s plans meet all applicable codes and

ordinances of the Town of Falmouth. Id. at 275; Defs.’ Ex. A.

\ . DISCUSSION

I. Substantial Conformity

Interpretation of a zoning ordinance is a question of law. Springborn, 2001

ME 27, { 8, 769 A.2d at 855. When interpreting an ordinance, the Court must

examine the plain meaning of the language and reasonably construe the terms with

regard to the objectives sought to be obtained as well as the general structure of the

ordinance as a whole. Id.

The Ordinance provides that the final plan must “conform substantially” to

the preliminary plan. Falmouth, Me., Land Subdivision Ordinance (hereinafter

cited as “Ordinance”) § 7(E)(6) (August, 2000). Because the Ordinance does not

define this phrase, it must be given its plain and ordinary meaning. “Substantial” is

defined as “being largely but not wholly that which is specified.” WEBSTER‘S. NINTH

NEW COLLEGIATE DICTIONARY 1176 (9th ed. 1984). “Conform” is defined as “to be

similar or identical.” Id. at 276. By its plain and ordinary meaning, then, the phrase

“conform substantially,” requires the final plan to be largely similar, but not

identical, to the preliminary plan. The record reveals that the Board applied an

identical interpretation of the phrase. See R. at 70-71, 88.

This interpretation is consistent with the rationale behind requiring both

preliminary and final Board approval. Approval of a preliminary plan is merely the

Board’s expression of approval of the plan’s design and is intended as a guide for

preparing the final plan. Ordinance § 7(C)(4). When approving a preliminary plan,

the Board must identify any required changes to be made in the final plan. Id. §

7(C)(3). The Board may require additional changes as a result of information

obtained during public hearings. Id. § 7(C)(4). These provisions reveal the flexibility

of the Ordinance in permitting modifications to the preliminary plan.

, The Springborns argue that the Board improperly compared the final plan for

Phases II and III with the final plan for Phase I rather than the preliminary plan for

Phases II and III. The basis for this argument is not supported by the record,

however. The minutes from the September 5, 2000 meeting reflect that three of the

four Board members considered the final plan to be substantially similar to the

previously submitted preliminary plan. R. at 89. None of the four Board members

mention the final plan for Phase I in stating their conclusions. Id.

The Springborns argue that the changes to the final plan for Phases II and III

materially altered the preliminary plan. The record supports the Board’s factual

determination that the final plan substantially conforms with the preliminary plan.

See Springborn, 2001 ME 57, J 11, 769 A.2d at 856 (examining whether the evidence .

supported the Board’s factual determination that the proposed subdivision is a

“mixed use development” within the meaning of the Town ordinance); Goldman

v. Town of Lovell, 592 A.2d 165, 168 (Me. 1991) (stating “whether or not the

proposed structure or use meets the definition in the application thereof may bea

matter of fact. ..”). Although the final plan contains changes in the number of

units, the layout and the road design, it does substantially conform to the

preliminary plan. The character of the two Phases has not changed substantially:

the final plan reflects a residential subdivision containing a mixture of single family

and duplex unis.

II. Approval of the Preliminary Plans

Section 7(E)(1) of the Ordinance provides:

. If approved by the Planning Board, the developer may present a section

of the Preliminary Plan for approval, provided such section contains at

least 25% of the total number of lots as shown on the Preliminary Plan.

The remainder of the Preliminary Plan, as approved by the Board, shall

not be altered in any way without further review and approval by the

Board.

The Springborns argue that this provision requires Fairway to resubmit the

plan for further preliminary review and approval if any changes are made. The first

sentence of this provision allows for phasing: the developer may present the

preliminary plan for a phase of the project if that phase contains the minimum

percentage of the total lots. A reasonable interpretation of the second sentence, and

the interpretation adopted by the Board, is that “final subdivision approval of an

initial phase of a project does not mean that the remainder of the project is exempt

from final subdivision plan review.” R. at 79. This interpretation is consistent with

the provision’s placement in the Ordinance under the “Final Plan Procedures”

heading. Id. at 291. Accordingly, Fairway was not required to resubmit its plan for

further preliminary review.

IV. Application for Final Approval

The Springborns argue that Fairway was not entitled to receive final Board

approval because it failed to apply for that approval within 6 months of the

preliminary,approval. The Ordinance provides:

The subdivider shall, within six (6) months after the approval of the

Preliminary Plan, file with the Planning Board an application for

approval of the Final Subdivision Plan in the form described herein. If

the Final Plan is not submitted to the Planning Board within six (6)

months after the approval of the Preliminary Plan, the Planning Board

, may refuse without prejudice to act on the Final Plan and require

resubmission of the Preliminary Plan.

r

Ordinance § 7(E)(1).

Although the Springborns contend that the Board failed to recognize that this

provision applied to Fairway, the record establishes otherwise. The Board

interpreted this provision to require Fairway to file the application for approval of

the final plan for the initial phase of the project, not all three phases, within 6

months after the approval of the preliminary plan. R. at 70, 89. This interpretation

is reasonable in light of the language requiring only “an application,” as opposed to

all applications, be submitted for approval within 6 months. To interpret this

provision otherwise would undermine the concept of phasing.

Even if this was not a reasonable interpretation, the Ordinance gives the

Board discretion to either accept or reject an application for final subdivision

approval filed after the six month deadline.

The entry is

The Springborns’ 80B appeal is DENIED.

Dated at Portland, Maine this 5th day of July, 2001.

LLM Mk

‘ Robert E. Crowley ———

‘, Justice, Superior Court

we

Date Filed _O01-03-01 Cumberland Docket No. AP-01-01

County

Action _Rule 80B Appeal

Robert J. Springborn Town of Falmouth and

Fairway Villas, Inc.

VS.

Plaintiff’s Attorney Defendant’s Attorney

CATHERINE R. CONNORS, ESQ.

John Bannon, Esq. ONE MONUMENT SQUARE (Fairway Villas, Inc

P. O. Box 9785 PORTLAND, MAINE 04101

Portland, Maine 04104 791-1100

AMY K. TCHAO, ESQ.

P.O. BOX 9781 (Town of Falmouth)

PORTLAND, MAINE 04104-5081

YL 772-1941