Libby v. Town of Limington

STATE OF MAINE | . SUPERIOR COURT

CIVIL ACTION

YORK, ss. DOCKET NO. AP-01-042

far - YoR- afie ROOL,

SHERWOOD LIBBY and

J. LORRAINE LIBBY,

DONALD L. GARBRECHT

Plaintiffs LAW LIBRARY

ORDER

: AnD FEB ei 2002

DECISION

TOWN OF LIMINGTON, et al.,

Defendants

The plaintiffs own property in Limington in the Resource Conservation

District in the Sawyer’s Mountain area. They have owned property there since the

forties and are very devoted to the ecological well being of the area.

The Resource Conservation District has a number of additional restrictions

and requirements designed to protect a largely undeveloped area in Limington.

Included in the restrictions are limits on the slope of roads.

Defendant Michael Hanson owns property in the Sawyer’s Mountain area

and has obtained a conditional use permit from the Limington Planning Board,

over the plaintiffs objection, to build a home and access road. The plaintiffs

appealed the Planning Board decision to the Limington Board of Appeals while Mr.

Hanson sought a variance from the Board of Appeals. A variance was granted to

reduce the width of a road and to eliminate some road construction requirements.

The plaintiffs’ appeal was dismissed for lack of standing. The plaintiffs have now

‘appealed, see Section 10.7 of the Zoning Ordinance of the Town of Limington, from

the dismissal of their appeal and the granting of the variance.

The central issue in the current appeal to the Superior Court is whether the

plaintiffs, who participated or attempted to participate in all municipal proceedings,

have standing despite the fact that they are not abutters.

Sawyer’s Mountain and the surrounding area is part of a special Resource

Conservation District in Limington with special standards designed to restrict but

permit some additional development. The plaintiffs have indicated that they have

owned and used their property in the District since 1944, that there are very few

residences there, and that they have a long standing attachment to and concern for

the area.

There are a significant number of opinions from the Maine Supreme Judicial

Court indicating when a person or entity has enough of a stake in any issue to

permit the person or entity to have “standing” to participate in the administrative :

or judicial proceeding. Wells v. Portland Yacht Club, 2001 ME 20 94, 771 A.2d 371, 3

found that abutters who had appeared before the local board of appeals had been able

to “demonstrate a particularized injury as a result of the board’s action” concerning ~

traffic, noise and aesthetics. The case of Sproul v. Town of Boothby Harbor, 2000 ME

30 16-7, 746 A.2d 368, 371-2 involved an abutter and the holding at, 371-2 and 7,

that, “The threshold requirement for an abutter to have standing is minimal.

Because of the abutter’s proximate location, a minor adverse consequence affecting

the party’s property, pecuniary or personal rights is all that is required for the

abutting landowner to have standing.” Sproul also used the “particularized injury”

standard.

Rowe v. City of South Portland, 1999 ME 81 43-4, 730 A.2d 673, 74-5 also

involved an abutter, the standard of a “particularized injury” and a finding that

standing existed. The same result existed in Brooks v. Cumberland Farms, Inc., 1997

ME 203, 498-11, 703 A.2d 844, 7 involving an abutter who was directly across the

street from the proposed store. Also see Christy’s Realty Limited Partnership v.

Town of Kittery, 663 A.2d 59, 61-2 (Me. 1995), Forester v. City of Westbrook, 604 A.2d

31,2 (Me. 1992), Pearson v. Town of Kennebunk, 590 A.2d 535, 537 (Me. 1991), and

Harrington v. City of Biddeford, 583 A2d 695, 696 (Me. 1990) for cases involving

either abutters or, in Harrington, a lot on the same side of the street separated by

only one lot. Standing was found to exist in all of these cases.

A more extensive discussion of standing exists in the opinion in Anderson v.

Swanson, 534 A.2d 1286, 1287-8 (Me. 1987) where an appeal was taken by owners of

“adjacent” property. The Law Court affirmed the use of the previously established

“particularized injury” standard, which had been defined as an adverse and direct

effect on a person’s property, pecuniary or personal rights. See New En gland Herald

Development Group v. Falmouth, 521 Ald 693, 5 (Me. 1987) which did not require a

high degree of proof of a particularized injury. In Anderson the potential that the

construction would block a view of Biddeford Pool and lower the property value

was sufficient to confer standing on the owners of an “adjacent property”.

Another important standing case is Grand Beach Association, Inc. v. Town of

Old Orchard Beach, 516 A.2d 551, 553-4 (Me.1986). This case involved one abutter

and an association of owners of nearby properties concerned about traffic,

shadowing on the beach and the claimed incompatibility of the project with the

community. The Grand Beach opinion referred to the earlier opinion in Lake

Environmental Association v. Town of Naples, 486 A.2d 91,3 (Me. 1984). Lake

Environmental concerned a non-profit corporation which had some members who

owned property on Long Lake where a campground was proposed to be built.

The Lake Environmental case does not suggest that standing was contested

perhaps because a member of the Association was an abutter. The association and

the individual member who was an abutter argued that the high density of the

proposed campground “could harm the owners of land ‘near the campground.” See

page 93.

Other cases using the “particularized injury” standard and involving abutters

or close by property owners include Leadbetter v. Ferris, 485 A.2d 225, 7 (Me. 1984),

Harrington v. Inhabitants of the Town of Kennebunk, 459 A.2d 557, 559-60 (Me.

1983) (where an abutter was denied standing for lack of sufficient record evidence of

a particularized injury) and Singal v. City of Bangor, 440 A.2d 1048, 1050-1 (Me. 1982)

involving a property owner who apparently owned land within 100 feet of the

boundary of the proposed store.

There is only one other Maine case that needs to be examined. In Fitzgerald

v. Baxter State Park Authority, 385 A.2d 189 (Me. 1978) several Maine citizens and

users of Baxter State Park sought to restrain the Baxter State Park Authority

(Authority) from certain methods of timber cutting and land management. Their

standing is discussed, starting at page 194, in the context of charitable trusts, the

conflict of interest of the Attorney General as the enforcer of charitable trusts and a

member of the Authority, and a challenge to the acts of a state agency. The Law

Court found that since the plaintiffs had hiked, camped or otherwise made use of

Baxter State Park on a regular basis, they had standing. Fitzgerald ends its standing

discussion by requiring a “particularized injury”.

A well known case of the Supreme Court of the United States addressed

standing using the test of “injury in fact”, see Sierra Club v. Morton , 405 US. 727, ©

734 (1972), and is cited at some length in Fitzgerald. Sierra Club also mentions

“allegations of individualized injury”, at 736.

The plaintiffs have a long term genuine interest in the general Sawyer’s

Mountain area. They are not abutters and there is no evidence that they would see

Mr. Hanson’s home or even routinely pass by it. There is no evidence that are

geographically close like the numerous abutters and near abutters in the many cited

cases.

In reading the Law Court decisions the requirement of a particularized injury

is always there. In this case the potential injury to the plaintiffs is too remote

geographically and the long term effects on them are too speculative to confer

standing. The case poses difficult issues of exactly where the boundaries of standing

are. The plaintiffs are slightly beyond the range and scope of those who have a

“particularized injury”. Since the plaintiffs, despite their willingness to act as

guardians of Sawyer’s Mountain, do not have standing to undertake tasks more

properly conferred on local governmental officials, the entry is:

Appeal dismissed.

Dated: February 12, 2002

PLAINTIFFS:

MAXINE PAUL POURAVELIS ESQ

120 EXCHANGE ST

PORTLAND ME 04101-5066

DEFENDANT: TOWN OF LIMINGTON

JAMES B HADDOW ESQ

PETRUCCELLI & MARTIN

PO BOX 9733

PORTLAND ME 04104-5033

DEFENDANT: MICHAEL G HANSON

JOHN W SAWYER ESQ

_ SAWYER SAWYER & MINOTT

PO BOX 58

GORHAM ME 04038

(/ Bel Coty phe

Paul A. Fritzsche

Justice, Superior Court