Conservation Law Found., Inc. v. Town of Lincolnville

STATE OF MAINE SUPERIOR COURT

WALDO, SS. Docket No. AP-00-3

La = are ape [deol

Conservation Law Foundation, Inc. et al. STATE OF MAINE

Waldo County Superis; Court

Vv. ORDER Fe8 28 2801,

REC'D AND FILED

Town of Lincolnville et al. Joyce M. Page, Clerk

Pending before the court is the motion for summary judgment filed

by defendants James Munroe and Richard Nightingale (collectively,

"Munroe"). In his motion, Munroe contends that, as a matter of law,

neither plaintiff has standing to pursue their appeal from a decision of the

Lincolnville Planning Board, approving the movants' application for a

proposed subdivision on Route 1 in Lincolnville.!

A. Procedural posture of motion for summary judgment

None of the parties’ submissions on the pending motion satisfies the

requirements of M.R.Civ.P. 7(d) and 56. Munroe's rule 7(d) statement of

material fact merely incorporates by reference interrogatory answers

submitted by each of the two plaintiffs. His statement of material fact thus

falls short of the requirement governing the contents of such a filing.

Further, the plaintiffs’ submission does not even include a statement of

material fact, despite the clear requirements of the rules governing

1The movants had also filed a motion for trial on the facts. See M.R.Civ.P.

80B(c). The issue that Munroe seeks to try is whether the plaintiffs have standing to

bring this appeal under M.R.Civ.P. 80B. At oral argument on the motion for summary

judgment, however, Munroe withdrew his motion for that trial. Thus, the summary

judgment motion alone remains pending.

summary judgment motion practice. Rather, the plaintiffs have attempted

to supplement the record on summary judgment with an affidavit of their |

attorney, to which is appended a lengthy document relating to the nature

and purposes of plaintiff Conservation Law Foundation, Inc. ("CLF").

Despite these procedural shortcomings, the court will proceed to a

consideration of the merits of the motion. Neither party contests the

other's formulation of the evidence, and Munroe has withdrawn his motion

for trial of the facts pertinent to the plaintiffs’ standing. Consequently, in

combined effect, the parties have submitted the standing issue on a

stipulated record. Ordinarily, a decision on the question of standing is

considered as part of the final decision on the merits of the appeal. See,

e.g.. Rowe v. City of South Portland, 1999 ME 81, 730 A.2d 673.

Submission of the standing issue alone thus represents a de facto

bifurcation of that question from the merits, Neither party has challenged

this approach as part of the pending motion.* Thus, in this order, the court

will address the question of whether, on this factual record, the plaintiffs

have standing to pursue their rule 80B appeal.

Additionally, although the parties did not raise the issue, Munroe's

motion requires consideration of whether, as part of a rule 80B appeal, it is

proper for the parties to present evidence on the question of standing.

Here, Munroe does not seek to present evidence in support of an

independent claim for relief, (Indeed, Munroe is the appellee in this

proceeding.) See Baker's Table. Inc. v. City of Portland, 2000 ME 7, { 9, 743

2In their objection to the now-withdrawn motion for trial of the facts, the

plaintiffs did not oppose the concept of establishing some type of record that would

allow the development of facts, although they advocated an alternative to a

conventional trial.

A.2d 237, 240-41. However, "subsidiary claims" to an appeal are subject

to evidential development in the Superior Court. Id.; see, e.g., Boisvert_v.

King, 618 A.2d 211, 214 (Me. 1992) (a trial on the facts was permitted on

the timeliness of an appeal).

In order to establish standing to challenge municipal action in court,

the appellant "must have participated in the hearing and must

demonstrate a particularized injury caused by" the municipality's decision.

Rowe v. City of South Portland, 1999 ME 81, J 3, 730 A.2d 673, 674. While

an appellant's participation in the administrative proceeding is generally

revealed by a conventional record on appeal, that party's particularized

injury may not be apparent from the record. Here, for example, under the

Town's ordinance, a member of the public did not have to establish

“particularized injury" in order to participate in the municipal proceeding.

Rather, it appears that the Board's hearing was open to any member of the

public. See TOWN OF LINCOLNVILLE SUBDIVISION ORDINANCE § IV(A) (1999).

Thus, the factual basis for a party's standing need not appear in the record,

and it therefore appears to be a proper area for evidential development in

the Superior Court.

Summary judgment motions and fact-grounded adjudications are not

appropriate vehicles for the resolution of issues on appeal. Martin v.

Unemployment Insurance Commission, 1998 ME 271, § 10, 723 A.2d 412,

416. In the case at bar, however, Munroe's challenge to the plaintiff's

standing requires the court to act in two capacities: as a fact-finder to

determine, as a factual matter, whether the plaintiffs do have standing to

pursue this challenge to the Town's decision; and, if the plaintiffs have

standing, as an appellate entity to review the municipality's action. To the

extent that the parties call on the court to determine the question of

standing, the procedures associated with its fact-finding role -- including

the summary judgment motion practice -- should be available.

B. Record on summary judgment

Plaintiff Christopher W. Osgood ("Osgood") has been a resident of

Lincolnville since 1974. Osgood's property does not abut the Munroe

parcel that is the subject of the proposed subdivision. Between 1985 and

1987, he was a member of the "Lincolnville Route 1 Citizens' Committee,”

which was a group of residents who lived on Route 1 in Lincolnville. That

committee "provided input" to the Maine Department of Transportation

regarding the state's plans to reconstruct that road. Osgood also

participated in a "Local Action Committee" comprised of residents of

nearby municipalities, which addressed issues also relating to Route 1.

Beginning in 1995, he served on a formal municipal committee (the

"Lincolnville Route 1 Committee"), established under the Town's

ordinances, that was responsible for working with local residents and

governmental representatives in designing the Route 1 corridor through

Lincolnville. The committee's work included “particular focus" on

maintaining the Town's scenic and historical qualities. At least in part as a

result of the committee's work, agencies responsible for the redesign of

Route 1 deviated from their standard model to accommodate "the unique

and outstanding visual aspects" of the Munroe property. The Town created

access to allow pedestrians, bicyclists and motorists to "enjoy the scenic

qualities" created by the parcel.

Osgood has been a member of the municipal committee responsible

for the promulgation of a comprehensive plan. In that capacity, his duties

included the creation of an inventory and map of "scenic assets” in the

Town, to allow those areas particular treatment and protection in the

Towns’ zoning ordinances. The Munroe property was identified and

included as one of those assets.

Osgood was a member of the Town's Land Use Committee between

1993 and 2000. Among other things, that committee proposed ordinances

that assisted governmental agencies in their roadway design approach

noted above.

Further, Osgood participated in efforts to raise public and private

funds that could be used specifically to purchase the Munroe property.

Osgood further contends that, during his regular trips on Route 1 past

the Munroe property, he benefits personally from the scenic views

associated with it because of his appreciation of the "scenic and natural

beauties of the coastline and waters" and the "scenic views and natural

beauty of Munroe's Field... ."

Osgood argues that municipal approval of the subdivision has injured

his past efforts to protect the local natural environment. He also has

expressed concern that approval of the subdivision violates the Town's

agreement with the state Department of Transportation that the Town

would continue to protect the area surrounding Route 1.3 He also

expresses concern that the value of his own property will diminish if the

subdivision is approved, because that approval -- in his view -- violated

the local zoning ordinances.

3The record contains little or no independent evidence of an agreement

between the Town and DOT. Munson, however, does not challenge the admissibility,

see M.R.Civ.P. 56(e), of Osgood's hearsay narrative regarding this issue. Thus, the

court considers this fact.

The other plaintiff in this action, CLF, is a Massachusetts corporation.

It relies entirely on the notion of associational standing as a basis for its

participation in this proceeding. In support of this theory of standing, it

relies on the separate standing of Osgood and of another individual,

Corelyn Senn. Senn is a Lincolnville resident. At oral argument, the

parties stipulated that she lives more than one-half. mile from the Munroe

property. She decided to take up residence in Lincolnville and open a

business there in part because of the local views of Penobscot Bay,

including the view associated with the Munroe property. As with Osgood,

Senn regularly drives by the parcel. Senn finds the view of and over the

Munroe property to be "critical to her spiritual and emotional well being."

She holds concerns that the subdivision would change the Town's

character, which in turn could persuade her to move to-another location.

She also is concerned that the proposed development will hurt her

business (a boarding facility for cats) because the area would be less

appealing for actual and prospective customers. Senn is involved in

several environmental organizations.

CLF is a New England environmental law organization that was

founded in 1966. One of its interests is "protecting the scenic

characteristics of the Maine coast and the public's rights of visual access to

those resources."

Both Osgood and Senn attended and participated at many of the

Town's Planning Board meetings where the subdivision application was

considered. In their complaint, the plaintiffs allege that the Board

ultimately approved the application on January 26, 2000. Osgood and

Senn first became members of CLF on February 11, 2000.

C. Standing of plaintiff Christopher W. Osgood

The Town's ordinance provides that "[a]ny aggrieved party having

proper standing may appeal any decision of the Planning Board under this

ordinance to the Superior Court of Waldo County, within thirty (30) days.”

TOWN OF LINCOLNVILLE SUBDIVISION ORDINANCE § XI. For purposes of appeals in

zoning cases, a "party" “'must have participated before the board and must

make a showing of a particularized injury."" Rowe, 1999 ME 81, J 3, 730

A.2d at 674 (citation omitted) (construing 30-A M.R.S.A. § 2691, which

governs appeals from municipal zoning boards of appeals).

A comparable concept that governs standing of a party who seeks

judicial review of administrative action under the Administrative

Procedures Act, 5 M.R.S.A. § 11001 et seq., requires a showing that the

governmental action "must actually operate prejudicially and directly upon

a party's property, pecuniary or personal rights." -Storer_v. Department of

Environmental Protection, 656 A.2d 1191, 1192 (Me. 1995). A

“particularized injury" is one that is “in fact distinct from the harm

experienced by the public at large." Ricci_v. Superintendent, Bureau of

Banking, 485 A.2d 645, 646 (Me. 1984) (APA). "Particularized injury for

abutting landowners can be satisfied by a showing of ‘the proximate

location of the abutter's property, together with a relatively minor adverse

consequence if the requested variance were granted.'" Rowe, 1999 ME 81,

q 4, 730 A.2d at 674 (citation omitted). However, non-abutters are not

required to present "a high degree of proof of a particularized injury" in

order to establish standing. Grand Beach Association. Inc. v. Town of Old

Orchard Beach, 516 A.2d 551, 553 (Me. 1986).4

Munroe argues here that Osgood has not demonstrated a

"particularized injury” sufficient to give him standing to pursue this

appeal.

As abstract and general as injury to the environment may

seem, it is well settled that such injury is sufficient to support

Standing as to any plaintiff who used the affected environment. The

Supreme Court first went out of its way to recognize such standing in

dictum, and then confirmed it by the decisions in Sierra Club v.

Morton [405 U.S. 727, 31 L.Ed.2d 636 (1972)] and United States v.

Students Challenging Regulatory Agency Procedures [412 U.S. 669, 37

L.Ed.2d 254 (1973)]. Later cases have reconfirmed the conclusion

that standing is easily available both to protect the natural

environment, even against injuries that seem remote and slight, and

to protect the urban environment against changes in its physical or

demographic composition. To be sure, a few cases can be found that

deny standing for failure to show any injury whatever, or for failure

to show that any injury was caused by the challenged act... .

Nonetheless, standing to protect the environment is thoroughly

entrenched. ...

13 WRIGHT, MILLER & COOPER, FEDERAL PRACTICE AND PROCEDURE, § 3531.8 at pp.

527-31 (2d ed. 1984) (footnotes omitted).

Maine law is consistent with this approach. In Fitzgerald v. Baxter

State Park Authority, 385 A.2d 189 (Me. 1978), the plaintiffs brought suit

to prevent the Baxter State Park Authority from cleaning a portion of the

4The plaintiffs in Grand Beach Association were Oscar Pluznick, who owned

land that abutted the site of the proposed development, and Grand Beach Association,

Inc. itself. 516 A.2d at 552. The members of the organization were residents or

landowners on the beach, which was the proposed site. Id. None of those members,

however, was an abutter. Id. While the Law Court appeal was pending, Pluznick died.

In light of this, the Court held that the Association's standing was sufficient to allow

the case to go forward. Id. at 554, n.1. Thus, the legal principle relating to the degree

of proof needed to establish standing must be seen to apply to the non-abutter

members of the Association.

Park where a timber blowdown had occurred. To establish their standing,

each of the five individual plaintiffs alleged that he regularly used the

park for recreational and perhaps professional pursuits, and that he

intended to continue that activity. Id. at 195. The Law Court considered

two independent grounds for Standing: the interest of citizens to enforce

the terms of a charitable public trust, and the plaintiffs' particular use of

the Park. Leaning heavily on the Supreme Court's analysis in Sierra Club v.

Morton, the Law Court found that the Fitzgerald plaintiffs had standing

because "of their use and enjoyment of Baxter State Park and its

resources.” Id. at 197. This constituted "a direct and personal injury by

the plaintiffs to their interest in Baxter State Park which, although not an

economic interest in the sense of involving their livelihood or financial

liability, is nonetheless worthy of the protection of the law." Id.

Munroe argues that Fitzgerald is inapposite because in that case the

land at issue was public in nature. However, this contention is weakened

by the basis for the Court's holding: rather than resting on the charitable

public trust, the Court held that the plaintiffs had standing because of their

use and enjoyment of the resource. Thus, the Court's analysis focused on

the land's significance in the lives of the plaintiffs, rather than its public

nature. If the Court's conclusion rested on the trust, then Munroe's

argument would be more persuasive, because his property interests here

are not subject to limitations on that basis.

Further, the federal notion of standing, on which Fitzgerald rests, is

not limited to public lands or lands with public access. See, e.g., Students

Challenging Regulatory Agency Procedures, 412 U.S. at 686-87, 37 L.Ed.2d

at 269-70 (railway rate increase would allegedly cause decrease in use of

/

recycled goods and therefore deplete natural resources (presumably the

result of private commercial activity), affecting plaintiff's enjoyment of

environment); National Wildlife Federation v. Agricultural Stabilization and

Conservation Service, 955 F.2d 1199, 1203-05 (8th Cir. 1992) (plaintiffs,

who lived four miles from the site at issue, had standing to challenge

permit that allowed farmers to drain wetlands, when plaintiffs hunted on

the wetlands and enjoyed the "aesthetic beauty" of the site); Neighborhood

Development Corp. v. Advisory Council on Historic Preservation, 632 F.2d

21, 23-24 (6th Cir. 1980) (plaintiffs' "use" of the aesthetic and architectural

features of commercial buildings was sufficient to create standing to

challenge demolition permit); Port of Astoria v. Hodel, 595 F.2d 467, 476

(9th Cir. 1979) (residents who live, work and "spend leisure time" in area

affected by construction of power plant had standing to challenge

contract); Concerned About Trident v. Rumsfeld, 555 F.2d 817, 822 n.10

(D.C. Cir. 1977) (party who had an "aesthetic, conservational and

recreational” interest in nuclear submarine system site had standing to

challenge location of the site); Coalition for the Environment v. Volpe, 504

F.2d 156, 167-68 (8th Cir. 1974) (parties had standing to challenge private

development which allegedly would affect open views and the "aesthetic

and psychological benefit" of the land's existing condition).

Osgood's interest in this case and the nature of his alleged injuries

are sufficient to establish his standing. He argues that he has a strong

aesthetic and environmental interest in the Munroe property. This

contention is supported by a history of participation in efforts to protect

the views associated with that land, to enhance those benefits and, in fact,

to acquire the property so that it could be dedicated to public use. The

10

record shows that Osgood has used the land by actively appreciating its

aesthetic benefits. He did so individually and also as a municipal

representative through his efforts to enhance public access, by means of

pedestrian and bicycle ways, that would allow others to enjoy the

environmental features created by the Munroe property. Osgood's

concerns about the effect of the proposed subdivision on the value of his

Own property appears speculative. However, the aesthetic and

environmental value he demonstrably has attached to the property goes

materially beyond a “general policy interest" that, by itself, is inadequate

to establish standing. See Penobscot Area Housing Development Corp._v.

City of Brewer, 434 A.2d 14, 18 (Me. 1981). The court concludes that the

potential injury alleged by Osgood meets the threshold needed for

Standing.

Munroe further argues that any aesthetic injury sustained by Osgood

is not "particularized," because it is one to which all members of the public

would be exposed. ". . .[S]tanding is not to be denied simply because many

people suffer the same injury .... To deny standing to persons who are in

fact injured simply because many others are injured, would mean that the

most injurious and widespread Government action could be questioned by

nobody." Students Challenging Regulatory Agency Procedures, 412 U.S. at

687-88, 37 L.Ed.2d at 270, See also Sierra Club, 405 U.S. at 738, 31 L.Ed.2d

at 645 (recognizing a trend "discarding the notion that an injury that is

widely shared is ipso facto not an injury sufficient to provide the basis for

judicial review. . . . Aesthetic and environmental well-being, like economic

well-being, are important ingredients of the quality of life in our society,

and the fact that particular environmental interests are ‘shared by the

11

many rather than the few does not make them less deserving of legal

protection through the judicial process."). Further, from this record, the

court cannot and does not infer that all persons would be injured as Osgood

and Senn (through CLF) allege. Rather, they allege that the proposed

development would expose them to, in effect, particularized injury because

of the importance they allege the Munroe property has to them. Thus, that

some others may be affected in the manner that Osgood alleges for himself

is not a basis to deny him standing in the circumstances of this case.

D. Standing of Conservation Law Foundation, Inc.

If Osgood has standing to proceed as a party in this action, then the

question of CLF's standing loses significance. See Bowen v. Kendrick, 487

U.S. 589, 620 n.15, 101 L.Ed.2d 520, 548 (1988). Nonetheless, as an

alternative to the question of Osgood's standing, the court addresses

Munroe's challenge to CLF's allegation of standing.

In the complaint, CLF alleges that it has "associational standing” to

pursue the appeal from the Town's decision and that it does so on behalf of

it members who are residents of Lincolnville, who participated at the

municipal hearings and who will suffer particularized injury as a result of

the Town's actions. See amended complaint at q 2. The record on

‘summary judgment establishes that CLF's standing is predicated on the

interests of two members, Osgood and Senn. Osgood, however, is a party to

this action in his own right. CLF has not provided authority or persuasive

argument to justify any associational standing on behalf of Osgood, when

Osgood is a participant in this action and is thus in a position to assert his

claims and protect his interests directly. Thus, the question presented

here is whether CLF may proceed in its capacity as a representative of

12

Senn's interests.

As a general matter, "[a]n association has standing to bring suit on

behalf of its members when its members would otherwise have standing

to sue in their own right, the interests at stake are germane to the

organization's purpose, and neither the claim asserted nor the relief

requested requires the participation of individual members in the lawsuit.”

See Friends of the Earth, Inc. v. Laidlaw Environmental Services, Inc., 528

U.S. 167, 180, 145 L.Ed.2d 610, 627 (2000).°

Munroe contends that because Senn did not become a member of CLF

until after the municipal proceedings had been completed, CLF cannot now

proceed on her behalf because the associational relationship did not exist

at the time when one of the elements of standing (active participation at

the municipal level) must be established.© The parties have cited no

authority dispositive of this narrow and unique issue, and the court's

research has revealed no such authority on point.

A party's standing is determined on the basis of the circumstances

that exist when suit is commenced. See Sims v. State of Florida, 862 F.2d

1449, 1458 (11th Cir. 1989). For example, an organization does not have

associational standing if the purportedly represented persons do not

SSeparate from associational or representative standing, an organization may

also bring suit in its own right based on injuries that it would sustain itself. In that

circumstance, the organization must satisfy the same requirements of standing that

apply to individuals. See Havens Realty Corp. v. Coleman, 455 U.S. 363, 378-79, 71

L.Ed.2d 214 (1982). Here, CLF does not purport to establish standing on this

independent basis.

6Munroe makes the same argument with respect to associational standing

based on Osgood's interests. The court does not address this aspect of Munroe's

contention because, for the reasons noted in the text, CLF may not proceed as a

representative of Osgood, because Osgood himself is a party.

13

become members until after the period of limitations expires, even if the

organization itself commenced the action in a timely way. Petro-Chem

Processing, Inc. v. Environmental Protection Agency, 866 F.2d 433, 436-37

(D.C. Cir. 1989); see also American Petroleum Institute _v. Environmental

Protection Agency, 216 F.3d 50, 64 (D.C. Cir. 2000); but see Newark Branch.

National Association for the Advancement of Colored People v. City of

Clifton, Civ. A. No. 89-3238, 1990 WL 238665, at *4 (D.N.J. Dec. 27, 1990)

(an organization that lacks Standing when the action is commenced may

subsequently attain standing by recruiting members who confer standing

on the organization).

Sims is procedurally distinctive from the case at bar because it did

not involve an appeal from an administrative proceeding. Rather, that case

was a direct challenge to the constitutionality of a statute. However, this

distinction does not lead to a different result. Munroe argues that CLF does

not have standing here because of the absence of any relationship between

the organization and Senn when Senn participated in the municipal

proceedings. However, associational standing is not grounded on the

association's independent Standing. Instead, it is derivative of the

member's standing: under the Friends of the Earth formulation, the

organization is not required to demonstrate that its Own interests are at

Stake. Rather, at least one member must be able to establish standing just

as if that member proceeded individually, and the representative

association must have some connection to the issues to be addressed in the

judicial proceeding.

Further, the question of Standing is raised only as part of the judicial

proceeding. The municipal board's public hearing allows participation

14

/

both by persons who would have standing in court and also by those who

would not have such standing. So long as the represented member

participates at the municipal level (and also demonstrates particularized

injury), the association need not do so. Rather, the association's standing in

court will rise and fall with the member's own standing.

Thus, the court is persuaded that even where, as here, the judicial

proceeding constitutes an appeal from governmental action, associational

standing must be established at the time that lawsuit is commenced. As

examined in federal authorities, the concept of standing is both

constitutional and prudential in origin. The participation of a party with

standing ensures that a court will be presented with a "case and

controversy," in satisfaction with the constitutional element of jurisdiction.

In that way, advocacy by a party with standing provides assurance that

that party will be motivated to address the contested issue with

seriousness and maturity, because that party has a real interest at stake.

See generally Clinton v. City of New York, 524 U.S. 417, 429, 141 L.Ed.2d

393, 408 (1998). See also Students Challenging Regulatory Agency

Procedures, 412 U.S. at 687, 37 L.Ed.2d at 269 (".. . .[T]he party seeking

review [must] be himself among the injured, for it is this’ requirement that

gives a litigant a direct stake in the controversy and prevents the judicial

process from becoming no more than a vehicle for the vindication of the

value interests of concerned bystanders."); Baker v. Carr, 369 U.S. 186,

204, 7 L.Ed.2d 663, (1962) (to have standing, a party must allege "such a

personal stake in the outcome of the controversy as to assure that

concerted adverseness which sharpens the presentation of issues upon

which the court so largely depends for illumination of difficult

15

constitutional questions.").

The purposes underlying the notion of standing are satisfied when an

organization represents the cause of a member who would have standing

as an individual, even if that membership relationship did not exist when

the dispute originated or when the member laid the pre-suit groundwork

for eventual litigation. If the member herself participated in the

underlying proceeding and is exposed to particularized injury, then the

formation of the representative relationship at some later date, but prior

to the commencement of legal action, will not compromise the purposes of

the standing requirement.

Therefore, to determine whether CLF has standing, the court must

consider whether Senn herself would have standing.’ The standing .

analysis applicable to her is governed by the principles of law discussed in

-connection with Osgood's allegation of standing. The court reaches a

similar result. The Present record demonstrates that Senn, a Lincolnville

resident, "uses" the property because she passes by it regularly and

because its unique physical characteristics are "critical" to her spiritual and

emotional fulfillment. The importance of the property is further revealed

by its role in her decision to move to Lincolnville from some other location.

Although Senn has not been involved in public activity geared toward the

preservation and protection of the Munroe property as Osgood has, her

allegation of particularized injury bears sufficient support in the present

7Munroe does not challenge CLF's Standing on basis of the remaining two

elements under Friends of the Earth. Thus, the court does not address whether Senn's

interests are germane to CLF's underlying purposes and whether the relief sought by

CLF would not require Senn to Participate individually in this action, see id., 528 U.S,

at 180, 145 L.Ed.2d at 627, except to note that these two elements appear to be satisfied

here.

16

record to establish her standing, if she were to proceed in her individual

capacity.8 Her theoretical standing therefore confers actual standing on

the representative organization, CLF.

The entry shall be:

For the reasons set out in the order dated February 26, 2001, the

motion for summary judgment filed by defendants Munroe and

Nightingale are denied. Their motion for trial of the facts is withdrawn.

The court finds that plaintiffs Osgood and CLF have standing.

Pursuant to the scheduling order dated June 30, 2000, the

defendants shall file their brief on appeal within 20 days.

Dated: February 26, 2001 cd hue

JUSTICE, SUPERIOR COURT

8In concluding that Senn would have standing if she proceeded individually

in this actino, the court does not rely on her speculation that her business interests

would be compromised if the Munroe property were developed.

17

SS

a

Date Filed foeph

11, 2000

CHRISTOPHER W. OSGOOD

Plaintiff's Attorney

Waldo Docket No. AP-00-003

County

Action 80B Appeal

JAMES MUNROE and RICHARD NIGHTINGALE,

added as Defts. 3/6/2000

CONSERVATION LAW FOUNDATION, INC. and

THE TOWN OF LINCOLNVILLE and THE

vs LINCOLNVILLE PLANNING BOARD

594-8107

Peter Shelley, Esq. and

Carol A. Blasi, Esq.

120 Tillson Avenue

Rockland, Maine 04841-3416

Defendant's Attorney

Wayne R. Crandall, Esq. for Munroe and

P.O. Box 664 and Nightingale

Rockland, Me. 04841-0664

594-4421

Terry W. Calderwood, Esq. for Lincolnvi

P.O. Box 616

Date of

Entry

Camden, Maine 04843

236-3325

02/11/00

02/11/00

02/15/00

02/25/00

03/03/00

03/03/00

03/06/00

03/10/00

03/13/00

03/22/00

03/27/00

03/29/00

Complaint dtd. Feb. 11, 2000, filed.

Summary Sheet, filed.

Notice and Briefing Schedule to attys. Shelley and Blasi.

Amended Complaint dtd. Feb. 15, 2000, filed. Summary Sheet, filed.

Summons dtd. Feb. 15, 2000 with Acknowledgement of Receipt of Summons

and Amended Complaint by Joshua Day, Town Administrator on Feb. 22,

2000, filed. ( Acceptance on behalf of Town of Lincolnville and

another on behalf of Lincolnville Planning Board.)

Written Consent of atty. Wayne R. Crandall, Esq. to/ Fat pended complai

dtd. March 2, 2000, filed.

: amend the

Written Consent of atty. Terry W. Calderwood, Esq. to/first amended

complaint dtd. March 2, 2000, filed.

Second Amended Complaint dtd. March 2, 2000, filed.

Wayne R. Crandall, Esq. enters his appearance for Defts. James Munroe an

Richard Nightingale.

Copy Briefing Schedule to atty. Crandall.

Answer, Affirmative Defenses to Plffs' First Amended Complaint and Secor

Amended Complaint dtd. March 10, 2000, filed.

Copy Briefing Schedule to atty. Calderwood.

Record and Brief, filed by Plffs. (Record includes maps)

Motion for Limited Discovery and Shortened Response Time on Issue of

Standing (Rule 80B(j) dtd. March 24, 2000, filed by defts. Munroe and

Nightingale.

Summons dtd. March 7, 2000 showing service of Second Amended Complaint

an Tee Af Tinnantinytille on March 13. 2000, filed.

STATE OF MAINE SUPERIOR COURT

WALDO, SS. Docket No. AP -00-3

CONSERVATION LAW )

FOUNDATION, INC., et als., )

Appellants, )

)

)

Vv ) DECISION AND es}

og

)

TOWN OF LINCOLNVILLE, ) ann}

et als., ) 200)

Respondents. )

REC'D AND FILED

Joyce M. Page, Clerk

In this Rule 80B Complaint, Appellants seek the remand of this

matter to the Town of Lincolnville Planning Board for further hearing on

the requirements of Section I(H) of the Town of Lincolnville Subdivision

Ordinance.! The Record reflects that the Planning Board granted final

subdivision plan approval on January 26, 2000 to the subdivision being

developed by Respondents Munroe and Nightingale. The Appellants fault

the process in the following particulars: that the proposed development

does have an undue adverse effect on the view over Munroe Field and the

“view corridor” does not change this result; that the Planning Board lacks

evidence in the record to support its findings; that the developers did not

negotiate the easement as required by the Planning Board’s edict; that the

Planning Board failed to reconcile its Ordinance with its Comprehensive

Plan by not preserving the unique views available from Munroe’s Field:

that the Board failed to require evidence of the effect of the development

on the view; that the Board failed to hold adequate public hearings on the

issues. Further, the constitutionality of the Section I(H) and 30-A MRSA

§4404(8) have been discussed as a collateral issue to these proceedings.

' - Subsection I(H) provides that any subdivision “...not have an

undue adverse effect on the scenic or natural beauty of the area,

aesthetics, historic sites or rare and irreplaceable natural areas or any

public rights for physical of visual access the shoreline.”

Appellate review in this matter is complicated to a degree by the fact

that the final approval uses the language: “...the...easement... mitigates the

undue adverse effect of the proposed development on the view...”

(emphasis in original). This sentence seems to presuppose that an undue

adverse effect on the view continues despite being mitigated to some

degree. If this is the case, the proposed plan should not (and could not)

have been approved. However, a closer look suggests that the use of the

word “mitigated” was simply an unartful choice of words.

Ordinarily, mitigate means to lessen severity. It does not necessarily

suggest that the severity of the condition is completely eliminated -

although that could be the case. In this matter, when the problematic

paragraph is read? in conjunction with the preceding one, it is clear that

the Planning Board is using the word “mitigate” in the sense of eliminating,

not simply reducing, any undue adverse effect.

The record establishes that an enormous amount of evidence was

received as part of the approval hearing process. A “scenic impact

analysis” was undertaken in some fashion as part the deliberative process.

Appellants suggest that some manner of expert testimony was required on

this scenic impact analysis as a sine qua non of the subdivision approval

process. While it is feasible that an engineer, landscaper, or artist might

testify regarding their opinion of how the view might appear after

construction, and how the view from the road is obstructed, this court does

not perceive their testimony as a mandatory part of the hearing process.

Members of the Planning Board received a number of charts,

exhibits, and photographs which allow them to project how the final view

will appear. Given this fact, and the fact that the members have taken a

view and are otherwise well familiar with the property, the court is

satisfied that they are well qualified to make this judgment call with or

without expert testimony.

A review of the record establishes that evidence exists to support the

findings made by the Planning Board in its final approval. The Appellants

attack various aspects of the evidence and suggest that the probative value

of the evidence was of little or no value. Without reciting the evidence,

item by item, the court is satisfied that Record contains evidence which is

2 - See Tab 83, pages 4-5 of the Record.

more than sufficient to support the Board’s findings. The findings are

sufficiently developed and clear as to allow appellate review.

The court perceives no conflict between the Town’s Comprehensive

Plan and Subdivision Ordinance. The use of an easement to preserve views

where development is undertaken is anticipated by both documents.

A public hearing was held on September 9, 1988. Evidence was

taken. Parties were permitted to speak. After the denial of the plan was

appealed to the Superior Court, a remand sent the case back to the

Planning Board to reconsider. The remand did not require additional

hearings. Indeed, it suggests that the reconsideration be upon the existing

record. However, public comment was accepted at the December, 1999,

reconsideration. The Planning Board did not fail to allow appropriate public

hearing and comment.

It is not clear to the court whether any true “negotiation” took place

regarding the view corridor easement. Indeed, it is not clear precisely

who was to be negotiating. In this instance, the developers proposed the

subject view corridor as an easement to the Town, and the Town elected to

accept it (subject to public referendum). It can be credibly argued that this

State of affairs satisfied the self-imposed requirement of “negotiation,” and

the court declines to conclude otherwise.

The court is satisfied that the Lincolnville Subdivision Ordinance and

30-A MRSA §4404(8) do not run afoul of state or federal constitutional

mandates of clarity. In this matter, the fact that the subject property has

unique and valuable visual properties is uncontroverted. Likewise, the

parties agree that constructing structures near the shoreline will impede

some lines of sight. Accordingly, the issue is not so much the subjective

aesthetics of the situation (as in those cases where ordinances have been

held unconstitutionally vague), as the availability of an unobstructed view

of the vista. The Ordinance and statutory provisions are not

unconsitutionally vague.

Upon these circumstances, the court affirms the issuance of final

subdivision approval by the Planning Board.

The Clerk is directed to incorporate this Order into the

docket by reference pursuant to M.R.Civ.P Rule 79 (a).

Dated: June 22, 2001 (1) U4

CH HIEF JUSTICE,SUPERIOR COURT

Date Filed Feb. 11, 2000 Waldo

Docket No. AP-00-003

County

Action 80B Appeal

JAMES MUNROE and RICHARD NIGHTINGALE,

added as Defts. 3/6/2000

CONSERVATION LAW FOUNDATION, INC. and THE TOWN OF LINCOLNVILLE and THE

CHRISTOPHER W. OSGOOD vs LINCOLNVILLE PLANNING BOARD

Plaintiff's Attorney Defendant's Attorney

Peter Shelley, Esq. and Wayne R. Crandall, Esq. for Munroe and

Carol A. Blasi, Esq. P.O. Box 664 and Nightingale

120 Tillson Avenue Rockland, Me. 04841-0664

Rockland, Maine 04841-3416 594-4421

594-8107

Terry W. Calderwood, Esq. for Lincolnvill

P.O. Box 616

Camden, Maine 04843

Date of 236-3325

Entry

02/11/00 | Complaint dtd. Feb. 11, 2000, filed.

Summary Sheet, filed.

02/11/00 | Notice:and Briefing, Schedule to attys. Shelley and Blasi.

02/15/00 Amended Complaint dtd. Feb. 15, 2000, filed. Summary Sheet, filed.

02/25/00.) Summons dtd. Feb. 15, 2000 with Acknowledgement. of Receipt of Summons

and Amended Complaint by Joshua Day, Town Administrator on Feb. 22,

2000, filed. ( Acceptance on behalf of Town of Lincolnville and

another on behalf of Lincolnville Planning Board.)

03/03/00 | Written Consent of atty. Wayne R. Crandall, Esq. to/ Pent pended complaint

dtd. March 2, 2000, filed.

amend the

03/03/00 | Written Consent of atty. Terry W. Calderwood, Esq. to/first amended

complaint dtd. March 2, 2000, filed.

03/06/00 Second Amended Complaint dtd. March 2, 2000, filed.

03/10/00 Wayne R. Crandall, Esq. enters his appearance for Defts. James Munroe and

Richard Nightingale.

Copy Briefing Schedule to atty. Crandall.

03/13/00 Answer, Affirmative Defenses to Plffs' First Amended Complaint and Second

Amended Complaint dtd. March 10, 2000, filed.

Copy Briefing Schedule to atty. Calderwood

03/22/00 Record:and Brief, filed by Plffs. (Record includes maps)

03/27/00 Motion for Limited Discovery and Shortened Response Time on Issue of

Standing (Rule 80B(j) dtd. March 24, 2000, filed by defts. Munroe and

Nightingale.

03/29/00 Summons dtd. March 7, 2000 showing service of Second Amended Complaint

on Town of Lincolnville on March 13, 2000, filed.

Summons dtd. March 7, 2000 showing service of Second Amended Complaint

on James Munroe on March 28, 2000, filed.

Summons dtd. March 7, 2000 showing service of Second Amended Complaint

on Richard Nightingale on March 28, 2000, filed.