The opinion
STATE OF MAINE SUPERIOR COURT
CIVIL ACTION
KENNEBEC, ss. DOCKET NO. AP-00-031
SKS “KEAM | | a3/Q00}
PETER BRAGDON, et al.,
Plaintiffs
Vv. ORDER
TOWN OF VASSALBORO
and C & C DISTRIBUTORS, INC.,1
Defendants
This matter is before the court pursuant to M.R. Civ. P. 80B on appeal of the
decision of Planning Board (Board) of the Town of Vassalboro approving the
application of C & C Distributors, Inc. (C & C) for a site permit to construct a new
facility. The application was reviewed pursuant to the Vassalboro Site Review
Ordinance. The parties have stipulated a record of the proceedings and have
submitted both written and oral arguments.
1C &C Distributors, Inc., the applicant for the permit whose approval is at issue, was not
originally a party to this matter. It was not until the Town raised in its brief the question of whether
C & C Distributors was an indispensable party, that an agreed to motion to add C&C asa third party
was filed with the court. This motion was granted on September 15, 2000, with the conditions that the
plaintiffs would serve C & C with the pétition, record and all briefs; and that C & C would file its
answer on or before October 6, 2000, and any brief it wished to file by November 3, 2000. Although
Edward Cullivan, president of C & C Distributors, Inc., acknowledged receipt of the motion and related
documents, the only response from the corporation by Mr. Cullivan filed October 17, 2000, reads: “C & C
Distributors, Inc. adopts the arguments set forth in the Town of Vassalboro’s Memorandum in opposition
to the Plaintiffs’ appeal.” There is no indication that Mr. Cullivan is a member of the Maine bar,
however assuming that there are five or fewer shareholders in C & C Distributors, Inc., an officer of the
corporation would be authorized to defend a civil action without being a lawyer. 4 M.R.S.A.§
807(3)J). Whether Mr. Cullivan’s filing of October 17, 2000, should be considered an answer is moot in
light of the result of the court’s review.
Background
Plaintiffs Bragdon and Ellis are residents and property owners in the Town of
Vassalboro. Both reside on the Hannaford Hill Road and use their property for
agricultural purposes. On April 4, 2000, C & C submitted a site plan for construction
of a light aluminum manufacturing facility to be built in the open hay field adjacent
to the Bragdon farm and directly across the street from the Ellis home. The Board
scheduled a public hearing for April 25, 2000, to be held or begun at the proposed
site. C & C did not yet own the property on which it proposed to build and, for
reasons not stated in the record, the then current owner of the property refused to
allow plaintiffs and their attorney onto the property. However, the plaintiffs were
not without representation. As described in the minutes of the April 25, 2000
Planning Board meeting, “The Planning Board first met on the site of the proposed
development on the Hannaford Hill Road to walk the site. Present at the site were
the Planning Board, the Code Enforcement Officer, Mary Grow, Robert Browne,
Robert Farrell, the hydrogeologist representing Peter Bragdon, and several interested
residents.” (Emphasis provided). Following the site visit, the public meeting
adjourned to the town office, where the application was discussed in detail as set
forth in the minutes. According to the Board’s minutes, both the parties’
hydrogeologist, Robert Farrell, and their attorney, John Nale, were present and
given the opportunity to comment during this portion of the hearing. In the end,
the Board voted unanimously to approve C & C’s application. The plaintiffs filed
this timely appeal pursuant to M.R. Civ. P. 80C.
Discussion
When the decision of a governmental body is appealed pursuant to Rule 80B,
this court independently examines the record and reviews the decision for abuse of
discretion, errors of law, or findings unsupported by substantial evidence. Ranco v.
City of Bangor, 1997 ME 65, J 6, 691 A.2d 1238, 1239. The plaintiffs advance three
general arguments on appeal. First, they assert the Board violated their right to due
process of law and seek relief pursuant to 42 US.C. §§ 1983, 1988. Second, plaintiffs
argue that the Town’s Site Review Ordinance is invalid. Finally, plaintiffs argue
that the applicant failed to meet the performance standards as set forth in the
Town’s ordinance. These arguments will be discussed separately below.
]. Due Process Claim.
The plaintiffs predicate their due process claim on two factual bases. First,
they argue that due process was denied because the Board failed to make findings of
fact in its decision to approve the Site Permit Application. Plaintiffs argue that
omission of factual findings constitutes a violation of 30-A M.RS.A. § 4303(6).
However, plaintiffs also acknowledge that this statute addresses subdivision
approval as opposed to site review ordinances and is not applicable. None of the
cases cited by the plaintiffs support their proposition that in the absence of a
statutory duty to provide findings of fact, failure to do so constitutes proof of a
constitutional violation.
Plaintiffs have failed to specifically identify their liberty or property interests
or what process is due in light of those interests. Board of Regents v. Roth, 408 U.S.
564 (1972). Assuming the necessary property interests exist, the plaintiffs have still
failed to establish why they are entitled to any process in this case beyond a basic
right to notice and an opportunity to be heard, which they received. Assuming the
necessary interests and right to findings, the Board’s detailed minutes contain both
express and implicit findings sufficient to explain its decision and for this appellate
review.
The second factual base concerns the site visit which preceded or formed the
first portion of the public hearing on C & C’s application, from which the plaintiffs
were refused by the property owner. The record is barren of any mention of an
objection by the plaintiffs at that time or during the continuation of the meeting at
the town office, raising a question of whether they should now be barred from
raising that issue. If not barred, the court nevertheless finds that the plaintiffs’
opportunity to be heard at the town office neutralizes of any deprivation of due
process from being excluded from the site visit.
IL. Invalidity of Ordinance.
The plaintiffs’ second issue concern their position that the Town Site Review
Ordinance is invalid. The nexus of this argument is that the Town failed to
implement a comprehensive plan as a precursor to its ordinance or a “real” zoning
ordinance under State statutes governing land use regulation. 30-A M.R.S.A. § 4351
et seq. The plaintiffs also argue that the ordinance itself is void for vagueness.
Kosalka v. Town of Georgetown, 2000 ME 106, { 11, 752 A.2d 183, 186.
The fatal flaw in the plaintiffs’ first argument is their misapprehension that
the statutory scheme on which they rely is mandatory upon the municipalities.
This is simply wrong. A growth management program adopted in 1989 required
local planning and zoning to be undertaken. 30-A M.R.S.A. §§ 4301-4349. The 1989
legislation grew out of research that concluded that the pace of development was
such that continued reliance on enabling legislation was no longer adequate.
However, on December 23, 1991, as the result ofan ongoing budgetary crisis coupled
with State constitutional requirements for a balanced budget, the State legislature
adopted Chapter 622, Laws of Maine, 115th Legislature. This measure, among other
things, removed financial support for local comprehensive planning assistance and
also repealed or modified all of the mandatory and timetable provisions of the 1989
legislation. . Municipalities continued to be encouraged to develop comprehensive
plans and plan implementation strategies, but were no longer required to do so.
Municipalities now rely on enabling legislation and home rule powers to do as little
or as much in the area of planning as their sense of need and fiscal capacity dictate.
Orlando E. Delogu, Maine Land Use Control Law, 760 (1997). Therefore, the Town’s
ordinance does not fail because of statutory mandate.
With regard to the degree of specificity of the ordinance language, unlike the
requirement to “conserve natural beauty” held too vague in Kosalka, the provisions
of the Town’s ordinance provide reasonably quantifiable standards to satisfy the due
process requirements.
Ta. Failure to Meet Performance Standards.
Finally, plaintiffs argue that C & C’s application fails to meet the performance
standards set forth in the Site Review Ordinance. The minutes of the board meeting
indicate that each of the performance standards was discussed at length and voted
upon individually. This court is not permitted to “make findings independent of
those explicitly or implicitly found by the Board or [to] substitute its judgment for
that of the Board.” Perrin v. Town of Kittery, 591 A.2d 861, 863 (Me. 1991). “The
Board’s decision is not wrong because the record is inconsistent or a different
conclusion could have been drawn from it.” Twigg v. Town of Kennebunkport, 662
A.2d 914, 916 (Me. 1995). The court finds sufficient evidence in the record to support
the Board’s findings with regard to each performance standard, regardless of
whether the court would have made the same decision itself.
For the reasons stated above, all three of the appellate’s argument fail. The
court finds no abuse of discretion, error of law, or findings unsupported by
substantial evidence. Therefore, the entry will be:
Appeal DENIED. Decision of the Planning Board is AFFIRMED.
Dated: January 23 , 2001 Mid boa
S. Kirk Studstrup Vv
Justice, Superior Court
Date Filed__5/24/00 Kennebec Docket No. __AP00-31
, County
Action Petition for Review J. STUDSTRUP
80B
Peter Bragdon & Stephen Ellis vs. Town of Vassalboro
Plaintiff's Attorney . Defendant’s Attorney
John E. Nale, Esq. , Alton C. Stevens, Esq. (6/2/00)
P.O. Box 2611 44 Elm Street
Waterville, Maine 04903-2611 P.O. Box 708
Waterville, Maine 04903-0708
Date of
Entry
5/25/00 Complaint Seeking review of Governmental Agency Action, M.R.Civ.P.80B
and for Declaratory Relief M.R.Civ.P.80B(i), filed. s/Nale, Esq. (filed 5/24/0C
5/25/00 Briefing schedule mailed to atty and Town.
6/1/00 Original summons with return service on Town of Vassalboro on May 25, 2000
filed.
6/6/00 Answer, filed. s/Stevens, Esq. (filed 6/2/00)
7/3/00 Joint Motion for Extension of Time to File Plaintiff's Brief and Record,
filed. s/Nale, Esq.
7/5/00 JOINT MOTION FOR EXTENSION OF TIME, Studstrup, J.
All filing deadlines extended 14 days.
Copies mailed to attys of record.
7/20/00 Plaintiffs’ Brief with attached exhibits A,B, filed. s/Nale, Esq.(filed 7/19/0C
Stipulated Record of Proceedings M.R.Civ.P. 80-B, filed. s/Nale, Esq.
8/22/00 Defendant's Brief, filed. s/Stevens, Esq.
Defendant's Motion to Extend Time to File Brief, files. s/Stevens, Esq.
Proposed Order, filed.
8/24/00 ORDER ON MOTION TO EXTEND TIME,Studstrup, J.
Defendant's brief is due is extended to August 25, 2000.
Copies mailed to attys of record.
9/11/00 Agreed Motion to Add 3rd Party, filed. s/Nale, Esq.
Proposed Order, filed.
wee enn Plaintiff's Reply Brief, filed. on 9/8/00, Nale, Esq.
9/15/00 MOTION TO ADD 3RD PARTY, Studstrup, J.
C & C shall file its answer on or before 10/6/00. Plaintiff shall serve C & C
with the petition, record and all briefs. C & C shall file its brief by
” 11/3/00.
Copies mailed to attys.
a