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STATE OF MAINE oy hd &
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29, 88, SUPERIOR COURT
SOE TICE Civil Action
Docket No. AP-99-093 j
20 Pl =Tep- Cum~o @fa00
|
J. & J. WEST TRUST
(Carmen T. Smith, trustee) and
ATLANTIC NATIONAL TRUST, LLC
Plaintiffs / Appellees
Vv. DECISION and ORDER
ON APPEAL
CITY OF PORTLAND and
PROPRIETORS OF CUSTOM
HOUSE WHARF,
Defendants/ Appellants
I, BACKGROUND
Appellant J. & J. West Trust (West) owns property located at number 50
Portland Pier. Appellant Atlantic National Trust LLC (Atlantic) is a tenant
occupying the fourth floor of 50 Portland Pier.
Appellee Proprietors of Custom Wharf (Custom House) is a corporation that
owns property adjacent to Portland Pier.
This ia an action pursuant to M.R.Civ.P. 80B contesting the City of Portland
Planning Board’s (Planning Board) approval of a Site Plan Application submitted by
Custom House to construct a 21,000 square foot, three-story commercial building on
Custom House Wharf, the pier immediately opposite West's Portland Pier. A public
hearing was held at which the Planning Board approved Custom House's site plan
application. West and Atlantic appeal the decision on three grounds. 1
First, appellants maintain that Custom House did not submit site plans for
the entire site and that the Planning Board failed to consider the impact of the
proposed new building. They contend that the area is already highly congested and
dangerously overrun with vehicular and pedestrian traffic. Specifically, appellants
contend that §§ 14-522, 14-525(b)(2)(g), 14-526(a)(4) & (17) and 14-314(1)(u) of the
Portland Code were violated. They appeal the Planning Board’s approval of the site
plan based on the alleged code violations and ask for a reversal.
Second, they claim that the Planning Board abused its discretion in approving
the stacked parking because stacked parking is allegedly prohibited by the zoning
ordinance. 2
Third, in connection with the site plan review application of Custom House,
that the City zoning administrator determined that the proposed site plan met the
height requirements of the code.
West appealed the decision to the Portland Board of Appeals (PBA). The
PBA unanimously denied the appeal and upheld the zoning administrator’s
decision. Appellants maintain that the PBA incorrectly interpreted and applied the
definition of building height in the code as well as incorrectly calculated the number
of parking spaces required for the building. They appeal the PBA’s decision and ask
1 In its brief Custom House also raised the issue of standing and asserted that the appellees
were not in a position to challenge the Planning Board and PBA decisions except as to the height of the
building. The court determines that standing is present, that the appellants appeared in opposition
before the Planning Board and PBA and they are abutters, albiet their properties are not contiguous.
We are dealing with wharfs which jutt out as fingers into Portland harbor. The unique nature of the
property here should not defeat appellants’ ability to be heard.
2 It should be noted that the term “stacked parking,” is not defined by either party.
for a reversal.
II. STANDARD OF REVIEW
This Court independently examines the record and reviews the decision of
the Planning Board and the PBA for abuse of discretion, error of law, or findings
unsupported by substantial evidence in the record. Cumberland Farms v. Town of
Scarborough, 1997 ME 11, { 3, 688 A.2d 914, 915. The substantial evidence standard
requires the court to examine the entire record “to determine whether on the basis
of all the testimony and exhibits before the [board] it could fairly and reasonably find
the facts as it did.” Ryan v. Town of Camden, 582 A.2d 973, 975 (Me. 1990) (quoting
Seven Islands Land Co. v. Maine Land Use Regulation Comm., 450 A2d 475, 479
(Me. 1982)). As such, the court is not permitted to make findings independent of
those explicitly or implicitly found by the Board, or substitute its judgment for that
of the Board. Perrin v. Town of Kittery, 591 A.2d 861, 863 (Me. 1991).
In reviewing the Planning Board’s and the PBA’s approval of the site plan
submitted by Custom House, the court must affirm the decisions, unless such
decisions were unlawful, arbitrary, capricious or unreasonable with respect to issues
litigated before the municipal body. Juliano v. Town of Poland, 1999 ME 42, {5, 725
A.2d 545, 547. Also, the fact that the record contains inconsistent evidence or that
inconsistent conclusions could be drawn from the record does not prevent the
[board's] findings from being sustained if there is substantial evidence to support
them. Ryan v. Town of Camden, at 975. The Board’s decision is not wrong because
the record is inconsistent or a different conclusion could be drawn from it. Twigg v.
Town of Kennebunk, 662 A.2d 914, 916 (Me. 1995). In addition, appellants bear the
burden of establishing that the Planning Board and the PBA committed either an
abuse of discretion, an error of law or reached conclusions unsupported by
competent evidence in the record. Kosalka v. Town of Georgetown, 2000 ME 106,
410, 752 A.2d 183, 186. They must establish that the evidence compels a contrary
conclusion. Herrick v. Town of Mechanic Falls, 673 A.2d 1348, 1349 (Me. 1996).
_ IIL DISCUSSION
West and Atlantic first claim that appellees failed to comply with the
submission requirements for adequate site plan review pursuant to the Portland
code. They argue that only a small portion of the site was depicted and that the
absence of the contiguous areas from the site plan caused the Planning Board to
discredit the impact of the proposed development on parking, pedestrian safety and
automobile traffic. Second, they claim that the Planning Board abused its discretion
in approving the stacked parking because stacked parking is allegedly prohibited by
the zoning ordinance. Third, they maintain that the Planning Board’s failure to
impose a change in the overall height of the building as a condition of approval was
an abuse of discretion due to legal error. °
Appellants have failed to meet their burden of proof that either the Planning
Board or the PBA committed an abuse of discretion, an error of law or reached
3 Appellants submitted to the Planning Board that the market value of the 4th floor of 50
Portland Pier would be substantially diminished by the obstruction of its view from the harbor and
that a 4’ 3” reduction would have been sufficient to minimize any adverse effect. The maximum height
allotted for the building pursuant to the zoning ordinance is 35’. :
The zoning administrator calculated the height of the building at 30.5’. The PBA unanimously
affirmed the city zoning administrator’s methodology used in determining the building’s height. The
zoning administrator determined that the dormers did not occupy a substantial portion of the roof. As
such, the PBA concluded that she had properly measured the roof from the grade to the eave, as
opposed to from the grade to the dormer. Appellants, however, contend that the dormers on the
proposed building constitute a substantial portion of the roof and that the building height for zoning
purposes should have been calculated at more than 38’.
conclusions unsupported by competent evidence in the record. Contrary to their
technical arguments surrounding the parking and height requirements, Appellants
do not establish that the Planning Board’s or the PBA’s interpretation of the
Portland code resulted in an abuse of discretion with respect to the height of the
proposed building or the proposed stacked parking arrangement. They have not
adequately established that the evidence contained in the record would compel a
contrary conclusion. Furthermore, the schematic site plan and associated materials
submitted by appellees are sufficient for both the Planning Board and the PBA to
have made an informed and meaningful decision in accordance with the Portland
code.
IV. DECISION
The clerk will make the following entry as the Judgment of the court:
Appeal Denied.
So Ordered.
March 8, 2001
Thomas &, Delatanty II
Justice, Superior Court
CUMBERLAND
( Date Filed __10-28~-99
: County
Action APPEAL - 80(b)
CARMEN T, SMITH, TRUSTEE oF THE
J & J WEST TRUST
ATLANTIC NATIONAL TRUST, LLC
Plaintiff's Attorney
DAVID A, LOURIE, ESQ 799-4922
189 SPURWINK AVE., CAPE ELIZABETH ME 04107
Docket No. __ AP_ 99-93
THE CITY OF PORTLAND
THE PROPRIETORS OF CUSTOM HOUSE
WHARF
Defendant’ s Attorney
JAY MEYER ESQ (PROP. OF C H W)
PO BOX 447, PM 04112 774-7600
CHARLES A. LANE ESQ,
389 CONGRESS STREET
PORTLAND, MAINE” 04101
874-8480
(CITY OF PTLD)