Opinion

Bragdon v. Town of Vassalboro

Court
Superior Court of Maine
Filed
Jan 23, 2001
Status
Unpublished
On the bench
S. Kirk Studstrup
Cited by
0 cases
Authority
More cited than 34.1%

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

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

A word about cookies

We need a few to keep you signed in and the library working. The rest help us see which pages people use and where they get stuck. They stay off unless you say yes.