The opinion
STATE OF MAINE SUPERIOR COURT
CIVIL ACTIONS
YORK, ss. DOCKET NOS. AP-02-46
= pen 8p 7 '4 eop¢ AP-02-60
SRE DR T8074
AP-02-77
AP-03-08
FRED FITANIDES,
Plaintiff
v. JUDGMENT oe
CITY OF SACO, et al, AUG & 2003
Defendants
This is a M.R.Civ.P., Rule 80B appeai from a decision of the Saco Zoning Board of
Appeals authorizing Properties by the Sea to develop a multi-unit residential project on
property located on Route 1 in Saco. Following hearing and review of the record, the
appeal is Denied.
Procedural History
Mr. Fitanides appeals from the approval of a multi-unit, residential project along
the Route 1 Corridor in Saco, Maine. The current action consolidates five separate Rule
80B appeals. Mr. Fitanides filed Separate Rule 80B actions from each decision of the
Planning Board and or ZBA as this Project moved through the permitting process. Mr.
Fitanides contends that the Planning Board and the ZBA were in error procedurally in
approving the: development project and relied upon unconstitutional “applicability
preambles” added to the Route 1 Corridor Zoning Amendments. Mr. Fitanides also
seeks judicial review of the interpretation and application of Saco’s Zoning Ordinances
to certain aspects of the proposed development.
Factual Background
Paul Deshaies is the principal of Properties by the Sea, L.L.C. (hereafter
collectively Deshaies). In the fall of 2001, he began a series of meetings with city
planning officials toward the goal of developing a ten-acre parcel on Route 1 into a
multi-unit residential project. He prepared various survey, engineering and
architectural plans for review by city officials, who indicated the project was generally
in compliance with city ordinances. However, at the same time the city was
undertaking a review of its comprehensive plan which resulted in proposed
modifications to the zoning ordinance which would prohibit the proposed
development. Faced with this dilemma, Mr. Deshaies proposed, and the city council
approved after public hearing, an “applicability preamble”. The effect of this local
legislation was to “grandfather” the Deshaies development proposal from the revised
ordinances.
Mr. Deshaies then proceeded to apply to the planning board for subdivision
approval, site plan approval and conditional use permits. Mr. Fitanides appeared and
contested the development plans at each stage. As various aspects of the project gained
approval, Mr. Fitanides appealed the decisions both to the ZBA and the Superior Court
pursuant to Rule 80B. The Superior Court actions were stayed pending final action at
the local level.
As part of the local appeals procedure, Mr. Deshaies modified his plans to
accommodate concerns raised both by Mr. Fitanides and the ZBA. After a series of local
appeals and modifications to the plans, the ZBA granted the development final
approval in January 2003. That approval, along with the consolidated cases, is now
before this court.
Standard of Appeal
In a Rule 80B action the burden of persuasion rests with the party seeking to
overturn the local decision. The court reviews the local decision for error of law, abuse
of discretion or findings not supported by substantial evidence in the record. The court
may not substitute its judgments for that of the local board on issues of fact and accords
them a measure of deference on interpretation of local ordinances. Mack v. Municipal
Officers of the Town of Cape Elizabeth, 463 A.2d 717, 720 (Me. 1983).
Discussion
Mr. Fitanides argues that as the plans were reviewed and modified during the
local review / appeal process the various approvals were not based upon a single plan or
design. He seems to argue that each time a Rule 80B appeal was filed, the plans were
frozen and not subject to modification and a new application was required. However,
the filing of a Rule 80B appeal does not stay an action at the local level. Cobbosee
Development Group v. Town of Winthrop, 585 A.2d 190 (Me. 1991), Indeed, it is desirable
to permit interested parties to resolve disputes through revisions at the local level rather
than through piecemeal litigation.
Mr. Fitanides also argues that the “applicability preambles” approved by the city
council were unconstitutional. Assuming, without deciding,’ that Mr. Fitanides can
challenge the city council’s action in this Rule 80B appeal, nevertheless, the council’s
action was constitutionally within its power.
In essence, Mr. Fitanides argues that the “applicability preamble” violates 1
M.R.S.A. §302 because it permits the proposed development to be evaluated under the
t The Defendants argue that the city council’s legislative decision to enact the “applicability
preamble” was Properly subject to a Separate declaratory judgment action or an independent claim
within this action, but not a straight Rule 80B appeal. FS. Plumber v. Cape Elizabeth, 612 A.2d 856 (Me.
former zoning ordinance rather than the newly enacted ordinance even though it was
not “pending” when the new ordinance took effect. However, 1 M.RS.A. §302 is a rule
of construction and not a rule of substantive law. City of Portland v. Fisherman’s Wharf
Associates II, 541 A.2d 160 (Me. 1988). The city council was authorized to enact the
“applicability preamble” if it chose to do so.
Mr. Fitanides also argues that this amounted to special legislation and thus was
invalid. However, the fact that a zoning amendment benefits a single property does not
automatically render such an amendment illegal spot zoning. Vella v.Town of Camden,
677 A.2d 1051 (Me. 1996). The court reviews the city council’s action to determine if the
evidence before the council supported the determination that the re-zoning was in basic
harmony with the comprehensive plan. LaBonte v. City of Waterville, 508 A.2d 1262, 1265
(Me. 1987). The court should defer to the council’s judgment on this issue provided the
decision is supported by the record evidence. Here it was.
Other challenges relating to the “spot zoning” issue and compliance with the
“applicability preamble” are without merit.
The entry is:
Appeal Denied.
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Dated: July 9, 2003 Bhd) Sob rozas. . T?
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Justicé, Superior Court
PLAINTIFF:
FRED FITANIDES - PRO SE
911 PORTLAND RD
SACO ME 04072
DEFENDANTS: H. PAUL’ DESHAIES & PROPERTIES BY THE SEA
CHRISTOPHER L, VANIOTIS, ESQ.
BERNSTEIN SHUR SAWYER & NELSON
PO BOX 9729
PORTLAND ME 04112-5029
DEFENDANTS: CITY OF SACO, BULLDING INSPECTOR, MAYOR, CITY COUNCIL & BOARD OF APPEALS
TIMOTHY s. MURPHY, ESQ.
PRESCOTT LEMOINE JAMIESON & NELSON
PO BOX 1190
SACO ME 04072