Rioux v. Blagojevic

STATE OF MAINE SUPERIOR COURT

PENOBSCOT, SS. CIVIL ACTION

TeredD

SORT

Christopher Rioux,

Plaintiff/Appellee

| PENOBSCOT COUNTY

Vv. Order on Appeal

DONALD L. GARBRECHT

LAW LIBRARY

Milos Blagojevic et al.,

Defendants/Appellees JUL 30 2003

Pursuant to TOWN OF ORQNO, MAINE LAND USE ORDINANCE § 18-179

(Ordinance) and M.R.Civ.P. 80B, Christopher Rioux appeals from a decision of the

Orono Planning Board (the Board) approving a plan for establishment of a subdivision

filed by defendants Milos Blagojevic and Bonnie Blagojevic (collectively, Blagojevic).

Rioux also has filed three independent claims against Blagojevic. Blagojevic has filed a

motion to dismiss the three independent counts, and that motion to dismiss is addressed

in a separate order.

Rioux owns real estate located in Orono that abuts the site of Blagojevic’s

proposed subdivision, which would consist of 8 parcels and cover roughly 22 acres of the

103 parcel that Blagojevic owns there. In August 2001, Blagojevic filed an application

for approval of the subdivision, along with a sketch plan for the proposed subdivision,

with the Town’s Planning Board. The Board held a preapplication conference in

September. See R. 8 (transcript); Ordinance (R-1), § 18-205. Because the proposed

development was to consist of at least five lots and included the construction of a road,

the Board concluded that it was a “major subdivision” as the Town’s ordinance defines

that term, see Ordinance, § 18-31, and that the road was a “minor road,” id. See R. 8 at 5,

9. Because the subdivision was “major,” it was subject to the standards set out in section

18-210 of the ordinance. During that meeting, several members of the Board concluded

that in addition to the sketch that Blagojevic had filed with his initial application, he was

required to file a second sketch plan showing a planned unit development (PUD) because

the subdivision was a major one. See Ordinance, § 18-205(a). Blagojevic responded that

although he did not intend to create a planned unit development, he was willing to do file

the second sketch. See R. 8 at 6, 7.

Blagojevic then filed a preliminary plan for the proposed subdivision, and the

Board held a public hearing on that plan on March 20, 2002. See R. 12 (transcript);

Ordinance, § 18-206. Blagojevic and an engineer whom Blagojevic retained to design

the subdivision made direct presentations to the Board. Additionally, Rioux and several

other opponents to the development attended the hearing and aired their concerns. Of the

several issues generated by the proposal, water drainage and runoff was the focus of the

greatest attention. Blagojevic’s engineer explained the drainage scheme to the Board.

Rioux himself advised the Board that his property was often quite wet because it is lower

than the other land in the area. See R. 12 at p. 9-10. Additionally, Rioux expressed

concerns that the increased volume of traffic created by the expanded neighborhood

population could create safety problems where the road into the subdivision intersected

with the existing town road. Rioux further noted his understanding that under the

ordinance, Blagojevic was required to post a performance bond. Jd. at 10. Rioux also

commented that based on his own consultations with a wildlife biologist, he felt that the

subdivision plan adequately protected the deer wintering yard that exists in the area. Jd.

After the public hearing was closed, the Board members questioned Blagojevic

and the engineer about these issues. The Board advised Blagojevic to obtain written

confirmation from the Department of Inland Fisheries and Wildlife that, in its view, the

deer wintering area would not be damaged. See R. 12 at p. 20. The Board also raised the

issue of the PUD sketch. Blagojevic told the Board, as he did at the September 2001

preapplication conference, that he did not intend to create a planned unit development.

Two of the Board members stated that they agreed that the site of the proposed

subdivision was not suited to that type of development. Jd. at 22. The Board also noted

that under the ordinance, Blagojevic was required to obtain a performance bond. Id. at

27. Ultimately, the Board voted to approve the preliminary plan, id. at 28, although that

approval was subject to a recommendation that a streetlight be installed at the traffic

intersection, id. at 29. Under the ordinance, this action constituted “the expression of

approval of the design submitted on the preliminary plan as a guide to the preparation of

the final plan.” Ordinance at § 18-206(c)(3). This set the stage for Blagojevic to prepare

and submit a final plan, which he did in April.

The final plan was the subject of two public hearings. The first was held on April

17, 2002. See R. 22 (transcript). Rioux’ attorney was present at the meeting and actively

participated in the proceedings. Though counsel, Rioux raised two issues. First, he

argued that the creation of the subdivision required approval from the Department of

Environmental Protection, pursuant to the terms under which the area was first developed

in 1978. See id. at pp. 4-5. Additionally, Rioux expressed the position that a proposed

detention pond, included as part of the drainage system in the subdivision, encroached on

his right of way that provided access to his parcel and that the detention pond would

amount to a non-natural collection of water that could not be emptied lawfully onto his

property in the absence of a drainage easement. Jd. at pp. 6-8. During the hearing, a

wildlife biologist, Kel Kemper, spoke to ask the Board to pay particular attention to the

effects of the proposed development on the deer wintering area located on Blagojevic’s

property. Jd. at pp. 9, 28-29. A review of the transcript of this public hearing reveals

that Kemper’s comments were quite ambiguous. Kemper stated that he largely agreed

with the assessment of another wildlife biologist that the subdivision would have only a

minimal impact on the deer’s winter habitat and that, overall, that the plan was

“congruent with what we would have liked to have seen.” Id. at pp. 29, 31. However,

Kemper also advised the Board that the plan’s impact was “not quite” minimal. Id. at p.

30.

The Board concluded the April 17 hearing without a final vote on the subdivision

plan, in order to give Blagojevic an opportunity to make some revisions to his plan in

response to the issues raised at that meeting. Specifically, he was asked to change the

location of the detention pond that encroached on Rioux’ right of way, to establish

whether DEP approval was needed for the development as a result of the 1978 plan, to

confirm in writing that the road into the subdivision would be dedicated to the Town and

to secure an improvement guarantee. Additionally, the Board expressed an intention to

ask the Town’s attorney to provide guidance on a provision of the ordinance relating to

the drainage criterion. Id. at pp. 34-36.

Following the Board’s April meeting, in May, Blagojevic filed an amended final

subdivision plan, which was designed in part to address issues regarding water runoff and

drainage. See R. 34. He and the town manager also executed an improvement guarantee

escrow agreement, supported by several other documents, despite the concerns expressed

by the Town’s attorney regarding the sufficiency of the guarantee’s terms. See R. 29-33.

The Board’s public hearing on the subdivision application resumed and was

completed on July 17, 2002. See R. 43 (transcript). Rioux appeared and was heard both

directly and through counsel. Rioux’ presentation focused entirely on the development’s

effects on the flow of water onto his property. Indeed, toward the beginning of the

hearing, during a lengthy comment that Rioux’ counsel made to the Board on the

drainage issue, the chair of the Board asked counsel, “Mr. Miller, is there, other than

drainage, is there, are there any other issues?” The chair continued,

Because what we’re going to do is we’re going to drill down through this thing

and we’re really going to take it apart and make sure that we understand the

impact and get a good understanding of exactly what is being proposed; and if we

can, if we feel that it meets the ordinance, you know, based on our understanding

of the ordinance, and based on our understanding of what our attorney has told us,

is there another issue beside drainage?

Counsel replied, “No, but I’d like to finish because number one we’re building a record,

and number two, I’d like to just, I have a few more photographs to go through, I want to

talk.” R. 43, p. 6. Rioux’ attorney then completed his remarks about water drainage onto

Rioux’ property. Later during the hearing, Rioux’ counsel spoke again on the same issue.

Id. at p. 21.

After the parties’ presentations were completed and the public hearing was closed,

the Board’s chair systematically identified each of the separate standards that, under the

ordinance, must be satisfied to secure the Board’s approval of the proposed development.

See Ordinance at § 18-210. For all but one of those criteria, Board members had the

opportunity to express their thoughts, although they did not actually do so for each point.

When the chair reached the standard germane to water drainage, he said, ““We’ ve had

plenty of debate upon it... .We’re going to debate that ina just amoment.” R. 43 at p.

28. He then went on to the next standard in the ordinance. When he completed his

identification of the standards as set out in section 18-210, however, neither he nor any

other Board member sought to return to a discussion or “debate” on the question of

whether the subdivision plan satisfied the water drainage criteria established in section

18-210(c). Rather, the chair solicited a motion and then himself moved to approve

Blagojevic’s subdivision plan. Without any further substantive discussion, the Board

then voted to approve the final subdivision plan by a vote of 5 to 1.

Rioux filed a timely appeal of that decision to this court. See Ordinance at § 18-

179 (allowing direct appeal of the Board’s decisions to the Superior Court). On this

appeal, he makes a number of arguments: that Blagojevic failed to file a sketch required

by the Town’s land use ordinance as part of the subdivision approval process; that the

financial guarantee tendered by Blagojevic failed to satisfy the ordinance’s requirements;

that Blagojevic has not obtained necessary approval for the development from the state

Board of Environmental Protection, which Rioux argues is required because of the fact of

the development proposal itself and because of the subdivision’s impact on a nearby deer

wintering area; and that the subdivision proposal itself does not comply with the

requirements established in the ordinance for water drainage, sidewalks and culverts.

Rioux also contends that the Board failed to issue adequate findings of fact and

conclusions sufficient to satisfy the applicable statutory requirement and to allow

meaningful review on appeal.

A. Preservation of challenges to the Board’s decision

In defending the Board’s decision on this appeal, the Town and Blagojevic argue

that Rioux has failed to preserve several of the issues which form the basis for his

challenge to that decision. On this basis, they argue that he has waived those challenges.

In particular, they claim that during the administrative process Rioux did not make

sufficient objections to the arguments he pursues here regarding the sufficiency of the

sketch plans, the deer wintering area, any need for BEP approval, sidewalks and culverts,

and the improvement guarantee.

In order to preserve an issue for appellate review, a party must bring that issue to

the attention of the lower tribunal. Otherwise, any subsequent contention on appeal is

waived. Berry v. Board of Trustees, 663 A.2d 14, 18 (Me. 1995). In this way, that

municipal decision-maker is given the opportunity to pass on the issue in contention, and

the appellate court in fact functions in review of the decision made below. See Oliver v.

City of Rockland, 1998 ME 88, J 7, 710 A.2d 905, 907. This principle is also one of

fairness because it requires that issues must be brought to the attention of the initial

decision-makers. Berry, 663 A.2d at 18. “An issue is considered raised and preserved

for appeal if there is sufficient basis in the record to alert the court and any opposing

party to the existence of that issue.” Wells v. Portland Yacht Club, 2001 ME 20, { 5, 771

A.2d 371, 373. This requirement applies even to appellate arguments of appellate

dimension. Maine Real Estate Comm’n v. Kelby, 360 A.2d 528, 530 (Me. 1976).

Because the purpose of this requirement is to ensure that issues subsequently raised on

appeal in fact were decided by the municipal body, then it should make no difference

whether the appellant (here, Rioux) or some other party raised the issue or made the

argument during the course of the administrative process. So long as someone raised the

issue, the issue has been preserved for appellate consideration, because there is the

assurance that the matter was brought expressly to the Board’s attention and that the

Board thus considered its merits. Consequently, an argument that Rioux makes here is in

order for appellate consideration if he or some other person raised that issue during the

municipal process. But see State v. Brown, 410 A.2d 1033, 1036 (Me. 1980). The court

rejects any argument that Rioux’ fingerprints must be on each argument he makes here.

On this basis, the court considers the defendants’ contentions that several of the

issues that the plaintiff raises on this appeal were not properly preserved.

(1) PUD sketches

The Town’s Ordinance requires that a prospective subdivider of a major

subdivision, such as the one at issue here, file two sketch plans: one with the dimensional

requirements set out in the ordinance, and a PUD sketch. Ordinance at § 18-205(a).

Ultimately, although the Board may recommend which of the sketches should form the

basis for the formal application, the applicant is entitled to make the “final decision on

which sketch plan to follow as a guide to prepare and submit a formal application.” Jd. at

§ 18-205(e). Here, Blagojevic filed a sketch plan, which depicts the lots in conformity

with the dimensional requirements applicable to the zoning district where the subdivision

was to be established. This satisfied the requirements of one of the two sketch types. See

id. at § 18-205(a)(1). However, Blagojevic did not submit a sketch showing a PUD, as

section 18-205(a)(2) requires.’ At the September 2001 preapplication conference, the

Board reminded Blagojevic that the ordinance required him to file the PUD sketch. At

the next meeting, which Rioux attended, the issue came up again. There, it was noted

that Blagojevic had not filed a PUD sketch. After Blagojevic repeated his position that

he was not interested in a PUD project, several of the Board members noted that there

was no point in requiring Blagojevic to submit a PUD sketch. Subsequent to that

meeting, Blagojevic submitted a formal application for the major subdivision, and the

PUD issue was not raised again.

Rioux has not preserved Blagojevic’s failure to submit a PUD sketch for appellate

review here. Although the issue was raised at several early meetings, the record reveals

that at least several Board members considered the requirement to be senseless in this

case because Blagojevic had no intention to create a PUD. Thus, irrespective of whether

the Board had recommended to Blagojevic that the final plan constitute a PUD, nothing

in this record supports a contention that he would have acceded to such a suggestion.

Rioux did not press the manner in which the Board appears to have resolved this issue,

and in fact his subsequent express waiver of any challenge to any issue other than the

water drainage must be seen to encompass the PUD sketch claim. Therefore, even if a

developer’s failure to file a PUD sketch pursuant to section 18-205 can vitiate a Board’s

subsequent approval of a conventional major subdivision, that argument cannot be

considered here.

(2) Improvement guarantee

Section 18-209 of the ordinance requires an applicant for a major subdivision,

such as Blagojevic, to file an improvement guarantee with the Town to provide the

municipality with the independent financial means to complete the construction of

‘Tn his written argument, Blagojevic asserts that he in fact submitted a PUD sketch to the

Board. From the court’s review of the record, this assertion does not appear to be correct.

* One Board member remarked, “J think that whole thing was kind of ridiculous to

require it [the PUD sketch] and yet he [Blagojevic] makes the final decision on which

one he wants to pursue.” R. 12 at p.22.

improvements if the developer does not do so pursuant to the approved subdivision plan.

Some of the terms of such a guarantee are specified in section 18-209. Here, Rioux

argues that the improvement guarantee that Blagojevic provided to the Town did not

satisfy the ordinance’s requirements. The defendants respond in part that Rioux did not

preserve this issue for appellate review.

The improvement guarantee was discussed at the preapplication conference held

in September 2001 and at the first public hearing after the final plan was filed, in March

2002. At both of these meetings, the Board advised Blagojevic of the need for him to

provide the guarantee. See R. 8 at pp. 9, 27; R. 22 at p. 35-36. By letter dated April 8, a

representative of Merrill Lynch wrote to the town manager, advising that Bonnie

Blagojevic had cash of $75,000 on account there. See R. 29. From the parties’

arguments, the court infers that this confirmation of account supported a draft escrow

agreement that, when signed, appears in the record as exhibit 32. At nearly the same

time, Blagojevic’s engineer provided Blagojevic with a written estimate for the costs of

constructing the proposed subdivision. See R. 30. That cost would be nearly $75,000 ~

within the amount of Bonnie Blagojevic’s Merrill Lynch account. In apparent response,

the Town’s attorney expressed his view that the agreement, based on the funds at Merrill

Lynch, was flawed in several respects. See R. 31. Nonetheless, Blagojevic and the Town

executed the escrow agreement as supported by an irrevocable letter of credit issued bya

local bank. See R. 32-33. To the extent that the Town’s attorney has raised issues that

are cognizable here, then those issues are in a posture for appellate scrutiny.

However, the ordinance vests the Board with very little decision-making authority

resulting from the improvement guarantee. Under the procedure prescribed by section

18-209, the developer must file the proposed guarantee with the town manager.

Ordinance at § 18-209(b). The town manager then decides whether the proposed

guarantee is “sufficient.” Jd. If the town manager concludes that it is not, then the

developer is advised of that decision. Jd. On the other hand, the town manager notifies

the Board if he concludes that the proposed guarantee is sufficient. “The Planning Board

shall not grant final approval until is has received such notification from the Town

Manager.” Jd. Thus, the Board has no authority to independently assess the terms of the

guarantee and its sufficiency under the standards set out in section 18-209. Here, the

letter of the Town’s attorney was directed to the town manager and its CEO, presumably

as part of the process when the former evaluated the proposed guarantee. That the town

manager signed the guarantee, see R. 32, shows that he approved its terms.

Subsequently, the Board’s sole consideration was whether the town manager has notified

it of his approval of the guarantee.

Because the Board is expressly excluded from the process of evaluating the

sufficiency of the guarantee, the only issue that can be addressed on this appeal from the

Board’s ultimate decision is whether proper notification was provided. The record

supports an inference that it was, because the agreement was signed on June 2, 2002, well

over a month prior to the date of the Board’s decision to approve the subdivision.

Consequently, Rioux’ challenges to the guarantee are not the kind of challenges that are

cognizable here, because under the terms of the ordinance, the sufficiency of the

guarantee — which is the basis for Rioux’ contentions — is not within the Board’s

authority to consider. Therefore, even assuming that the specific questions raised in

counsel’s May 10 letter would be preserved for review here, Rioux has not preserved the

only issue that he could raise on this appeal regarding the guarantee, which is the issue of

whether the town manager approved it and advised the Board of that decision.

(3) BEP approval for further development

The land that is the subject of the subdivision was also the subject of a site

location order issued by the Department of Environmental Protection in 1978. See R. 3.

As a term of the DEP’s approval of the 1978 development, “{a]ny proposed development

of lot #8 [now Blagojevic’s lot] shall be submitted for review and approval by the Board

[of Environmental Protection].” Id. Rioux argues here that BEP approval for the

proposed subdivision was not secured and that the Town’s Board erred in approving the

proposed subdivision because until the BEP itself approved the plan, the subdivision

could not conform to “all pertinent State” laws. See ordinance at § 18-210(a)(1).

This condition affecting further development was discussed at the April 2002

meeting, when Rioux’ attorney acknowledged that DEP may have waived any such

requirement. See R. 22 at p. 4. This comment have been based on the April 24, 2002,

letter sent by a DEP representative to Blagojevic, see R. 34, and to Blagojevic’s own

statement, made earlier during that hearing, when he said that he has consulted with DEP

and that “they are not interested here. . .we are below their radar.” Jd. at p.2. Then, at

the July 2002 hearing, Blagojevic advised the Board that he “had clarified some issues

with DEP, and got a letter from them in regards to a certain site location order [the 1978

order], which, uh, could have been interpreted as a stop to any further development. But

I think it’s clearly, uh, letter from them clearly lifts the curse of that site location order in

regards to future development.” R. 43 at p. 1. Blagojevic had submitted a copy of this

letter prior to the July meeting. See R. 34.’ After Blagojevic made some other

preliminary comments, Rioux’ attorney then made his lengthy statement, including his

comment that he objected to the proposed development on the sole ground that, in his

view, it did not satisfy the ordinance’s requirements for water drainage. By then, the

Board had been advised that due to statutory changes subsequent to 1978, the BEP did

not need to approve the subdivision. Rioux never made an argument to the contrary in

the face of this prsentation. Thus, in this context, Rioux’ failure to identify any predicate

DEP/BEP approval as a basis for his objection to the proposed subdivision amounts to a

waiver of that issue for appellate purposes.*

(4) Impact on deer wintering area

Section 18-210(d)(3) of the Town’s ordinance provides that a subdivision

applicant must demonstrate the absence of a significant adverse effect on a wildlife

habitat and the deer supported by that habitat, if any part of the proposed subdivision is

within 250 feet of an area “identified and mapped by the Department of Inland Fisheries

and Wildlife as a high or moderate value deer wintering area or travel corridor.” That iS

the case here. In order to satisfy the burden created by section 18-210(d)(3), the

applicant may submit a report written “by a wildlife biologist with demonstrated

* From the record, it is not clear when the letter was filed with the Board or when it

became available to the participants at the hearing.

* Even if this issue had been preserved, it would not entitle Rioux to relief on this appeal

because the record, see, e.g., R. 34, provided the Board with a basis on which to conclude

that DEP approval was not necessary to allow the Board, in turn, to approve Blagojevic’s

subdivision application. York v. Town of Ogunquit, 2001 ME 53, ] 6, 769 A.2d 172, 175

(municipal’s board’s decision is for findings not supported by substantial evidence).

10

experience with the wildlife resource being impacted. ...” Jd. The ordinance goes on to

identify the contents of such a report.

Here, at the March 20 meeting, Rioux himself commented to the Board that he

had reviewed the preliminary subdivision plans and that, with respect to the

development’s effects on the deer wintering area, “those plans are well done.” See R. 12

at p. 9. Subsequently, at the April 17 meeting, the deer wintering area issue was raised

by Kel Kemper, a regional biologist with IFW. Kemper made some comments regarding

a report that had been prepared by Lyman Feero, a certified wildlife biologist, and that

Blagojevic had filed with the Board.’ See R. 34. In that report, Feero concluded that

“[t]he proposed subdivision will have minimal impact on the deer wintering habitat... .”

Id. Kemper advised the Board that he had little disagreement with that conclusion,

although he also suggested that the development was “not quite there,” meaning that its

impact would not quite be minimal. See R. 22 at p. 29-31. However, Kemper’s concern

was less with the development proposal before the Board than with further development.

Id. at 30. Kemper also told the Board that Feero is “a wildlife biologist in good standing

with this State.” Jd. at p. 32.

Consequently, prior to Rioux’ counsel’s comments at the July 17 meeting where

he disclaimed any arguments other than ones relating to water drainage, the compliance

of Blagojevic’s subdivision proposal with section 18-210(d)(3) had been raised. No

person had argued that Feero’s letter fell short of the showing that Blagojevic was

required to make. In light of this, Rioux has not preserved this substantive issue for

appeal.°

° The date of that submission is not made clear in the record, and the report itself is

undated. However, Kemper discussed that report at the April meeting, so one can infer

that it was submitted prior to that meeting.

° Rioux may be seen to argue in part that the Board failed to issue adequate findings on

this point. Unlike the drainage issue discussed below, the Board’s decision on the

wildlife habitat effects was a binary one. Either the Board was satisfied that Blagojevic

had shown the absence of a significant adverse impact on the deer wintering yard, or it

was not satisfied with that aspect of the proposed subdivision. Because the Board

approved Blagojevic’s application, it had to have been persuaded by Blagojevic’s

presentation on this issue, which rested entirely on Feero’s report. Thus, although the

11

(5) Sidewalks and culverts

Rioux challenges the Board’s decision that the subdivision plan fully conformed

to the requirements of section 18-210(e)(1)(i). That provision sets out minimum design

standards for streets and sidewalks. Item 15 controls sidewalks, and item 20 controls

culverts. Rioux argues that the proposed subdivision does not satisfy these two

requirements.

First, item 15 specifies certain features for sidewalks along roadways. In fact, the

road into Blagojevic’s subdivision would not have any sidewalks. Because of this, at the

July 17 meeting, Blagojevic requested the Board to grant him a waiver of that

requirement. See R. 43 at p. 32. Under the ordinance, the Board may waive any of the

requirements attendant to a subdivision if it finds that “strict compliance” with those

mandates would create an “extraordinary and unnecessary hardship” or if “special

circumstances” warrant such a waiver. Ordinance at § 18-82(a). When the Board grants

such a waiver, it “shall require such conditions as will, in its judgment, secure

substantially the objectives of the requirements so waived.” Id. Here, despite

Blagojevic’s express request for a waiver of the requirements relating to the sidewalks,

the Board did not act on it.

The manner in which this issue was raised before the Board is sufficient to

preserve it for appellate review. Blagojevic himself brought up the issue in a manner that

was reasonably designed and sufficient to prompt the Board’s consideration of the

request. Further, the matter arose subsequent to the time when Rioux, through counsel,

affirmatively limited his objection to the drainage issue. Therefore, because the Board

was asked to address the need for sidewalks as an element of the road system in the

subdivision, and because the issue was not subsequently disclaimed, it has been

preserved.

As part of his argument under section 18-210(e)(1)(i), Rioux also argues that the

Board erred in its apparent finding that the culverts in the subdivision satisfied the

requirements imposed by item 20. This provision relates directly to the question of

whether the water drainage system planned for the subdivision meets the ordinance’s

absence of comprehensive findings by the Board is problematic in the ways discussed

below, that is not the case on this point.

12

standards. Rioux clearly has preserved his arguments associated with this general issue,

and the court therefore finds that this claim is preserved.

B. Standing

The defendants have also argued that Rioux does not have standing to pursue

some of the issues he has raised on this appeal. The defendants do not raise this

argument regarding Rioux’ objections that focus on water drainage. The remaining issue

that is subject to appellate review here is the approval granted by the Board without a

finding that Blagojevic is not required to comply with the requirements for a sidewalk.

The defendants argue that Rioux does not have standing to raise this issue.

The defendants examine the requirement of standing too narrowly. In order to

establish standing to challenge municipal action in court, the appellant “must (1) have

appeared before the [municipal] board. . .; and (2) be able to demonstrate a particularized

injury as a result of the board’s action.” Sproul v. Town of Boothbay Harbor, 2000 ME

30, 1 6, 746 A.2d 368, 371 (punctuation and citation omitted). The defendants’ standing

analysis rests not on the outcome of the Board’s decision and the impact of that decision

on Rioux, but on the specific nature of Rioux’ argument on appeal: if Rioux is not

affected by the specific ground on which he challenges the Board’s decision, they argue,

then he may not challenge the ultimate decision itself. However, the standing inquiry is

not limited to an examination of the reasons for the municipality’s actions and the

relationship between the appellant and those reasons. Rather, the test of standing

examines whether the appellant has suffered an injury as a result of the decision itself.

Further and more fundamentally, as it has been examined in federal authorities,

the concept of standing is both constitutional and prudential in origin. The participation

of a party with standing ensures that a court will be presented with a "case and

controversy," in satisfaction with the constitutional element of jurisdiction. In that way,

advocacy by a party with standing provides assurance that that party will be motivated to

address the contested issue with seriousness and maturity, because that party has a real

interest at stake. See generally Clinton v. City of New York, 524 U.S. 417, 429, 141

L.Ed.2d 393, 408 (1998). See also Students Challenging Regulatory Agency Procedures,

412 US. 669, 687, 37 L.Ed.2d 254, 269 (1973) ("... .[T]he party seeking review [must]

13

be himself among the injured, for it is this requirement that gives a litigant a direct stake

in the controversy and prevents the judicial process from becoming no more than a

vehicle for the vindication of the value interests of concerned bystanders."); Baker v.

Carr, 369 U.S. 186, 204, 7 L.Ed.2d 663 (1962) (to have standing, a party must allege

"such a personal stake in the outcome of the controversy as to assure that concerted

adverseness which sharpens the presentation of issues upon which the court so largely

depends for illumination of difficult constitutional questions.").

Here, the record establishes that Rioux is exposed to a particularized injury by the

Board’s approval of Blagojevic’s subdivision application. Because his relationship to

that municipal decision and its effects on him provides assurance that he is sufficiently

and legitimately motivated to press his challenge to it, and because Rioux has standing to

raise these issues based on the conventional formulation of the standing requirement, the

court is satisfied that he has legal standing to do so.

C. Sufficiency of the Board’s findings

There remain two issues that Rioux may pursue on this appeal: the Board’s

implied conclusion that the proposed subdivision satisfies the ordinance’s requirements

for water drainage, and its implied conclusion that Blagojevic is exempt for the sidewalk

requirements associated with roadway layout and construction. The next issue to address

here is whether the Board issued adequate and sufficient findings on these issues. The

court concludes that it did not.

The parties do not dispute a municipality’s general responsibility to issue findings

in support of its decision. That obligation is based on statute, see, e.g., 30-A M.R.S.A. §

4403(6) (municipal reviewing authority’s decisions on subdivision applications); 1

M.R:S.A. § 407, and on caselaw, see, e.g., Widewaters Stillwater Co., LLC v. Bangor

Area Citizens Organized for Responsible Development, 2002 ME 27, 790 A.2d 597;

Christian Fellowship and Renewal Center v. Town of Limington, 2001 ME 16, 769 A.2d

834. In addition to the fact that the statutes noted above require the issuance of such

findings, such findings are essential to meaningful appellate review because, in the

absence of such findings, the parties and the court on appeal will have difficulty

identifying the basis for the decision and the subject of that appellate analysis. Christian

14

Fellowship, 2001 ME 16, J 15, 769 A.2d at 839. Further, constitutional interests may be

at stake. Id., 17, 769 A.2d at 839. Municipal decision-makers are required to issue

such findings on their own initiative because, unlike court procedures, there is no

mechanism for the parties to request and obtain an articulation of the reasons for the

lower decision. Jd. [ 18, 769 A.2d at 840.

Here, after the public hearing on Blagojevic’s application was closed, the Board’s

chair recited the standards that Blagojevic’s proposal was required to satisfy under the

Town’s ordinance. The Board then voted to approve that application. There was,

however, no deliberative discussion whatsoever among the Board members on the

question of whether the application complied with the Town’s standards for drainage.

Further, notwithstanding the absence of any sidewalks on the road design, there was no

discussion of whether in the Board’s judgment, Blagojevic qualified for a waiver of that

requirement. Thus, on these issues, the Board did not issue express findings.

The defendants argue that, from the Board’s decision to approve the subdivision

application, the court may infer that the Board decided those issues favorably to

Blagojevic. Even if, in light of the Law Court’s strong, recent trend toward an insistence

on an explicit rendition of an agency’s findings, a court is still permitted to attempt to

rely on assumed findings if they are obvious or can be inferred from “stated conclusory

facts,” Chapel Road Associates, LLC v. Town of Wells, 2001 ME 178, J 12, 787 A.2d

137, 140, in the case at bar, such findings cannot be assumed from the mere fact that the

Board approved Blagojevic’s application. If it is assumed that that Board in fact actually

decided favorably to Blagojevic on the two particular remaining issues (drainage and

sidewalks), then there are several ways the Board might have decided to reach those

conclusion. With respect to drainage, the express terms of the ordinance require the

Board to consider changes in the rate of water flow occasioned by the creation of the

subdivision. Ordinance at § 18-210(c)(2). However, beyond this, the Town’s attorney

advised the Board that under section 18-210(c)(1), its ultimate decision on the adequacy

of the drainage system could also take into account any changes in the volume of water

resulting from the development. See R. 24. Similarly, section 18-210(c)(3) may allow

consideration of factors beyond those specifically noted in section 18-210(c) generally.

Further, as the Town’s counsel pointed out, 30-A M.R.S.A. § 4404(16) requires a

15

municipal reviewing authority to consider whether “[tJhe proposed subdivision will

provide for adequate storm water management. ...” See id. In the proceedings below,

considerable attention was paid to the water issues generated by the proposed

development. That attention, however, took the form of interchanges between some

Board members, interested parties and members of the public. The Board’s decision to

approve the application does not shed light on the factual basis for any implied finding

that that drainage system met all of the applicable requirements. Rather, the particular

drainage analysis that a Board might follow in a case such as this is not straightforward:

there are several issues that the Board might — or might not — consider, depending on the

nature of its predicate factual findings.

Similarly, even if it is assumed that the Board found cause to grant a waiver of the

sidewalk requirement,’ the parties and the court are entitled to an explanation for such a

waiver in order that the matter can be considered properly on appeal. The record does

not disclose a basis for Blagojevic’s request for the waiver; the Board did not discuss it;

and that issue was not put to a vote. There is no basis on which to infer the Board’s

reasoning in support of any such waiver, and there is no record from which those reasons

are so obvious that express findings would be superfluous.

Therefore, this case must be remanded to the Planning Board to allow it to issue

findings of fact on those aspects of Blagojevic’s subdivision application relating to

drainage facilities and sidewalks. “When the Superior Court remands to an administrative

board or agency for the purpose of having it take further action reviewable by the

Superior Court, the court should retain jurisdiction awaiting the outcome of those further

administrative board or agency proceedings.” Valdastri v. City of Bath, 521 A.2d 691,

692-93 (Me. 1987). Therefore, despite the pendency of Rioux’ independent claims

against Blagojevic, this case may be remanded to the Planning Board without the need to

await a final judgment on counts 2-4. The remand order on count 1 would not amount to

’ This assumption would be weak because the Board appears to have completely passed

over Blagojevic’s express request that the Board grant him that waiver. There was

simply no meaningful discussion of the issue at all. Also, the Board did not discuss or

impose any separate conditions to substitute for any waived requirements. See Ordinance

at § 18-82(a). From the record, it cannot be concluded with any assurance that in fact the

Board gave the request any thought.

16

a final judgment under Valdastri. Accordingly, there is no reason to wait for a final

disposition of Rioux’ claims in the remaining counts, prior to the time when the Board

should have the opportunity to formulate and issue adequate findings.

The entry shall be:

Order issued on count 1 of the complaint, seeking relief under M.R.Civ.P. 80B.

That part of the case relating to the plaintiff’s appeal from the decision of the Town of

Orono Planning Board is remanded to the Board for further findings of fact consistent

with this order. Due to the pendency of the independent claims set out in counts 2-4 of

the complaint, this case shall otherwise remain _ pending in the Superior Court.

Vf

Dated: June 23, 2003 | Vh/,

Justice. M sine Superior Court

Jeffrey L. Hjqlm

17

STATE OF MAINE SUPERIOR COURT

PENOBSCOT, SS. CIVIL ACTION

Docket No. AP-02-24

YLH- PE fir bs ADE Ber}

FILED 2 ENTERED a .

SUPERIOR COURT DONALD L. GARBRECHT

Christopher Rioux, 9 LAW LIB!

Plaintiff/A ppellant SUN 3 0 2003

JUL 20 2003

PENOBSCOT COUNTY u

V. Order (Motion to Dismiss)

Milos Blagojevic et al.,

Defendants/Appellees

Pending before the court is the motion of Milos Blagojevic and Bonnie Blagojevic

(collectively, Blagojevic) to dismiss counts 2, 3 and 4 of the plaintiff’s complaint as

amended.’ In this action, the plaintiff pursues an appeal pursuant to M.R.Civ.P. 80B

from a decision of the Town of Orono Planning Board, approving Blagojevic’s

application for a subdivision development. The merits of that appeal have been

addressed in a separate order. In addition to that appeal, the plaintiff has asserted three

independent claims against Blagojevic: in count 2, he alleges that the proposed

subdivision is prohibited by one or more orders issued by the State of Maine Department

of Environmental Protection; in count 3, he alleges that the subdivision is in violation of

the Town’s land use ordinances; and in the final count, he alleges the common law tort of

trespass. In the motion at bar, Blagojevic seeks to dismiss each of these independent

claims on the ground that they do not allege a basis for relief under Maine law. See

M.R.Civ.P. 12(b)(6).

‘In response to the pending motion, the plaintiff filed a motion to the complaint. That

motion was granted without objection. In Blagojevic’s response to the plaintiff’s motion

to amend, he contends that the amendments to the complaint do not affect the merits of

his motion to dismiss and that he does not wish to be heard further on the legal effects of

the amendments.

“A motion to dismiss tests the legal sufficiency of the complaint.” McAfee v.

Cole, 637 A.2d 463, 465 (Me. 1994). Ona motion to dismiss, the complaint must be

examined "in the light most favorable to the plaintiff to determine whether it sets forth

elements of a cause of action or alleges facts that would entitle the plaintiff to relief

pursuant to some legal theory.” Jd. A dismissal is proper “only when it appears beyond

doubt that a plaintiff is entitled to no relief under any set of facts that he might prove in

support of his claim.” Hall v. Board of Environmental Protection, 498 A.2d 260, 266

(Me. 1985). The motion at bar invokes an examination and analysis of the complaint (as

amended) within its four corners. Consequently, except as is noted below, the court

cannot and does not consider the nature of evidence that the parties might present in

support of their respective positions on the merits of the plaintiff’s claims, although that

evidence in part may consist of some of the data that are included in the record on appeal.

See Baker’s Table, Inc. v. City of Portland, 2001 ME 7, q 14, 743 A.2d 237, 242.

In his complaint as amended, the plaintiff alleges that Blagojevic applied for and

obtained approval for an 8 lot subdivision in Orono. Complaint at 7] 6, 9. During the

Planning Board proceedings resulting in that approval, the plaintiff objected to the

proposed development because the drainage plan for the subdivision would cause storm

water to drain onto property that he owns. Id. at J 9. Rioux alleges the property that

would be the site of the subdivision is subject to two site location orders that were issued

by the Board of Environmental Protection and that as a result of those orders, the

property may not be developed in the absence of BEP approval. Id. at Jf 13-14. Rioux

claims that Blagojevic in fact engaged in excavation and other groundwork without first

obtaining BEP approval. Id. at [J 16-17. He also claims that Blagojevic in fact began

site work prior to the time the Town’s Planning Board approved the subdivision

application, thereby violating the Town’s land use ordinance. Jd. at {¥ 20-21. He finally

alleges that the plans for the proposed subdivision include “an artificial storm water

drainage system” that would “artificially impound” and then discharge water onto his

property without an easement, thereby constituting a trespass. Id. at [Jf 24-26, 29.

A. Count 1 (violation of site plan order)

Blagojevic argues that there is no private right of action flowing from an alleged

violation of a site location order issued by the BEP. Both Blagojevic’s analysis and the

plaintiff’s response to the motion are based on an examination of whether the provisions

of 38 MLR.S.A. § 347-A et seq. create a private cause of action that would allow the

plaintiff to proceed with his claim in count 2. As is noted above, Blagojevic’s motion

tests only the sufficiency of the allegations. The complaint does not include or

incorporate copies of the site location orders, and thus the terms of those orders and

perhaps even it basis are not defined in the pleadings. However, the parties have

proceeded on the premise that the statutory provisions noted above apply to their

arguments on this motion. While, strictly speaking, the limited record on this motion

would not allow consideration of this extrinsic material, the parties to this motion have

advanced their positions based on the conclusion that the site location orders are subject

to the statute. The court thus accepts this predicate as well.

As the parties have framed the issue, the BEP’s authority to issue the site location

orders is found in 38 M.R.S.A. § 341-A et seq. See, €.g., 38 M.R.S.A. §§341-B, 341-D.

Sections 347-A, 348 and 349 establish the procedures for actions designed to enforce the

Board’s orders. The express terms of these enforcement statutes extend only to actions

taken by the agency itself or the Attorney General. Nonetheless, the plaintiff argues that

there exists a private right of action that gives him, as a private citizen, the authority to

obtain relief for violations of a BEP order. Historically, “when the Legislature deemed it

essential that a private party have a right of action, it has expressly created one.”

Larrabee v. Penobscot Frozen Foods, 486 A.2d 97, 101 (Me. 1984). In the absence of

any express creation of a private right of action, one can only be implied. Id.; In re Wage

Payment Litigation, 2000 ME 162, [ 7, 759 A.2d 217, 222. Here, the comprehensive

legislative structure found in the enforcement provisions does not reveal an intention by

the Legislature that, on top of those processes, there is also a private right of action.

Under section 347-A, it is the DEP commissioner who has the authority to initiate

an enforcement action, 38 M.R.S.A. § 347-A(1)(A), although the Attorney General also

has the power to enforce a DEP order, id., § 347-A(5). Before the commissioner may

take any action, however, the commissioner must provide the prospective respondent

with a notice of violation, which includes a description of proposed remedial measures.

Id., § 347-A(1)(B). If the commissioner is not Satisfied with the response, then an

enforcement action may be commenced in the one of the four ways specified in section

347-A(1)(A). The statute goes on to establish the procedures for the administrative

hearing. Id., § 347-A(2). Section 348 governs judicial enforcement proceedings, which

include actions for injunctive relief and for civil or criminal penalties. Such actions are to

be commenced by the Attorney General. Id., § 348(1). Under section 349, the court is

authorized to impose both criminal and civil monetary penalties.

These mechanisms for enforcement of BEP orders are both comprehensive and

administrative in nature. The Legislature has carefully established a process by which

alleged violators may be brought into compliance with those orders and penalized for

their transgressions. It is difficult to imagine that, in the face of these detailed

procedures, the Legislature also intended that a private citizen would have the right to

pursue a violation in a conventional and independent action. Consequently, the court

cannot conclude that the Legislature intended to create a private right of action to

supplement the enforcement and remedial mechanisms found in the relevant statutes.

The plaintiff also argues, in Opposing the motion to dismiss count 2, that the

BEP’s order is a restrictive covenant and thus one that he can enforce privately. A

restrictive covenant is a contract. Whiting v. Seavey, 159 Me. 61, 68 (1963). It arises

“out of an agreement between private parties who may, in the exercise of their

constitutional right of freedom of contract, impose whatever restrictions upon the use of

their lands that they desire, such covenants being enforceable only by those in whose

favor they run.” Id. at 66. A zoning ordinance or land use regulation, on the other hand,

is a manifestation of governmental police power and “is entirely divorced in concept,

creation, enforcement and administration” of restrictive covenants. Id.

The plaintiff’s allegations in count 2 do not arise from contractual concepts of

restrictive covenants. Rather, the plaintiff plainly seeks to enforce an administrative

order governing the use and development of some of the land at issue. Even with liberal

notions governing the construction of pleadings, he has not stated a cause of action that

ultimately rests on the enforcement of a privately created covenant. Therefore, count 2

cannot be sustained as a claim that Blagojevic has violated a restrictive covenant.

B. Count 3 (violation of Town land use ordinance)

In count 3, the plaintiff seeks damages based on a claim that Blagojevic

commenced construction on the proposed development prior to the time the Board

approved the subdivision application. The plaintiff is not entitled to relief on this theory.

In the complaint, he alleges that the Planning Board in fact approved the subdivision

application. See complaint at J 9. This, of course, allowed Blagojevic to perform the

work that, in count 3, the plaintiff alleges that Blagojevic performed anyway. In count 3,

the plaintiff has not alleged any damages that he would not have sustained if Blagojevic

had delayed commencement of those site activities until after the Planning Board

approved the application, and no such damage can be implied from the pleadings.

Further, the plaintiff does not argue that his rule 80B appeal from the decision of the

Planning Board triggers a stay of Blagojevic’s right to begin development activities at the

site. Thus, any work that Blagojevic has performed is work that was or would have been

authorized upon approval of the plan by municipal board.

Blagojevic argues alternatively that the plaintiff does not have a private right of

action to bring suit for violations of the land use ordinance. The Law Court has reached a

similar conclusion in several cases. See, e.g., Charlton v. Town of Oxford, 2001 ME 104,

774 A.2d 366; Herrle v. Town of Waterboro, 2001 ME 1, 763 A.2d 1159. The Court’s

analyses in those two cases, however, rested on the particular provisions of the municipal

ordinances at issue. Here, the ordinance is not part of the pleadings, and the motion at

bar is not one for summary judgment, where extrinsic evidence may be considered.

Therefore, on the limited record on this motion, it is not possible to determine whether a

right of enforcement or remedial action is reserved to a private party. The court cannot

and does not reach this argument. However, for the separate reasons noted above, count

3 does not provide a basis for relief to the plaintiff, and it is subject to dismissal.

C. Count 4 (trespass)

Finally, Blagojevic contends that Maine’s trespass law does not entitle the

plaintiff to relief based on claims of water runoff and drainage from the subdivision. The

plaintiff has alleged specifically that under the drainage plan, Blagojevic would create

“artificial retention ponds” on his (Blagojevic’s) property and that the water collected in

those bodies would then flow, by means of an “artificial drainage system,” onto the

plaintiff’s land. See complaint (as amended) at J 27-28.

Under Maine law, a landowner cannot be held liable “merely from the

obstruction, or diversion, of the natural drainage of surface water.” ? Johnson vy. Whitten,

384 A.2d 698, 700 (Me. 1978). See also id. at 701; Pettengill v. Turo, 159 Me. 350, 355

(1963) (“obstructing the flow of surface water” is not actionable); Morrison v. Bucksport

& Bangor Railroad Co., 67 Me. 353, 356 (1877). This situation, however, is

distinguished from one where the landowner “artificially collected water on his own land

which was discharged upon the land of plaintiffs where it would not otherwise naturally

have fallen.” Johnson, 384 A.2d at 700. See also McRae v. Camden & Rockland Water

Co., 138 Me 110, 112-13 (1941). As the affirmed judgment in McRae demonstrates, a

landowner is liable for damages resulting from discharge of water under those

circumstances.

Additionally, a landowner may be found liable if he has “stopped up or diverted”

a watercourse and thereby caused damaged to another. Johnson, 384 A.2d at 701. See

also Pettengill, 159 A.2d at 355 (“obstructing a watercourse” is tortious conduct);

Morrison, 67 Me. at 356 (“A water course cannot be stopped up or diverted to the injury

of other proprietors.”),

The allegations in the complaint are sufficient to bring the plaintiff’s claim in

count 4 outside of the parameters of nonactionable conduct. The plaintiff has alleged that

the drainage system designed by Blagojevic will include an artificial reservoir and that

the collected water will then be released onto the plaintiff’s property. If the discharged

water “would not otherwise naturally have” ended up on the plaintiff's property, see

Johnson, 384 A.2d at 700, then that discharge is a form of trespass. The plaintiff’ s

allegations do not preclude such a showing. Although this element is not specifically

alleged in the complaint, it may be fairly inferred from the nature of the claim, including

its explicit designation as a “trespass action.” See complaint (as amended), { 29.

* This appears to be a departure from the law as viewed elsewhere. Under the

Restatement, a landowner may be liable under a nuisance theory when he interferes with

the flow of surface water across his land and the land owned by another is damaged as a

result, either because water backs up on the neighbor’s land, or the rate of flow is

affected, or the direction or velocity of that flow is changed. See RESTATEMENT

(SECOND) OF TorTs § 833 (1979). Johnson and McRae appear to definitively foreclose

any such liability.

Beyond this, the plaintiff appears to argue that if the water discharged through

Blagojevic’s drainage system creates a watercourse, then Blagojevic is liable for any

damage caused by the watercourse. The Law Court’s holdings in Johnson, Pettengill and

Morrison do not support this view of the law. Those cases hold that changes to an

existing watercourse, resulting in damage, can constitute the basis for civil liability.

Conversely, those cases do not hold that if a landowner reconfigures the drainage patterns

in a way that creates a new watercourse, the landowner is liable. The fundamental

principle underlying these cases is that due to his proprietary rights in his land, a

landowner is free to make wholesale changes in the flow and dispersal of surface water

from his property, without regard to the effects of those changes on his neighbor’s land.

However, if those changes result in drainage onto the neighbor’s property of surface

water that otherwise would not have ended up there, then the landowner is exposed to

liability. Further, because of the interest held by the public and property owners in a

watercourse, if the landowner affects that watercourse, then that party is liable.

Here, the plaintiff has not alleged that the defendant has obstructed or otherwise

affected an existing watercourse, and such an allegation cannot be inferred fairly from the

express allegations. Consequently, Blagojevic could not be found liable on this basis.

However, the pleadings are adequate to articulate a claim that the drainage system that

Blagojevic intends to construct would result in the introduction of water onto the

plaintiff’s property that otherwise would not flow there. For this reason, the allegations

in count 4 state a claim on which relief could be granted.

The entry shall be:

For the foregoing reasons, the motion to dismiss filed by defendants Milos

Blagojevic and Bonnie Blagojevic is granted in part and denied in part. Counts 2 and 3

of the complaint are dismissed. The motion to dismiss count 4 is denied.

Dated: June 27, 2003 A Va

—% j :

Justice, Maine Superior Court

Jeffrey L. Hjeim

Date Filed 08/13/2002 Penobscot Docket No. AP-2002-24

County TITLE TO REAL ESTATE IS INVOLVEI

Action _Rule 80B Appeal 6/30/03 COUNTS 2 & 3 DISMISSED.

ASSIGNED TO JUSTICE JEFFREY L. HJELM

MILOS BLAGOJEVIC

BONNIE BLAGOJEVIC and

CHRISTOPHER RIOUX vs NHABITANTS OF THE TOWN OF ORONO

Plaintiff’s Attorney Defendant’s Attorney

Robert Miller Esq GRIFFIN & JORDAN, LLC

P O Box 414 68 MAIN ST - P O BOX 220

Old Town ME 04468-0414 ORONO, ME 04473

BY: CHRIS RUGE, ESQ.,

MICHAEL H. GRIFFIN, ESQ.

FOR: MILOS & BONNIE BLAGOJEVIC

FARRELL, ROSENBLATT & RUSSELL

61 MAIN ST — P O BOX 738

BANGOR, ME. 04402-0738

Date of BY: THOMAS A. RUSSELL, ESQ.

Entry FOR: INHABITANTS OF THE TOWN OF ORONO

8/13/02 Complaint (Title to Real Estate Involved) filed.

8/13/02 Notice and Briefing Schedule 80B Appeal of Governmental Actions forwarded

to attorney for Plaintiff and to Defendants at address on Summary Sheet.

8/14/02 Notice of Assigned Justice filed. Pursuant to Administrative Order, Singl

Justice Assignment of Civil Cases, Docket No. SJC-323, the above reference

case is specialy assigned to Justice Jeffrey L Hjelm. Copy forwarded to

attorney of record. :

8/16/02 Motion For an Order to Specify the Future Course of Proceedings and

Incorporated Memorandum filed by Plaintiff. (attachments attached)

8/16/02 Affidavit of Christopher Rioux in Support of Motion to Specify the Future

Course of Proceedings filed by Plaintiff.

8/16/02 Request for Hearing filed by Plaintiff on Motion to Strike Appearance,

non-testimonial, good faith estimate of one-quarter hour.

8/20/02 Acceptance of Service as to Defendant Inhabitants of the Town of

Orono filed by Defendant, Town of Orono. (s.d. 8/16/02 by

Thomas Russell, Esq.)

8/20/02 Acceptance of Service as to Orono Planning Board filed by Defendant

Town of Orono. (s.d. 8/16/02 by Thomas Russell, Esq.)

8/21/02 |Request for Hearing on Plaintiff's Motion for an Order to Specify the

Future Course of Proceedings filed by Plaintiff.

8/22/02 Clerk's Certificate filed. (Attested copy forwarded to Plaintiff's

Attorney.)

STATE OF MAINE SUPERIOR COURT

PENOBSCOT, SS. CIVIL ACTION

Docket No. OT 4

JL REA - 1/1/2003

eT a oe we ~ Pe crn ak the sno ep

DONALD L. GARBREC LED 2 ENTERED |

Christopher Rioux, LAW SUPERIOR COURT

Plaintiff/Appell UL 0

aintiff/A ppellant yuL 20. 2008 JUL O1 2903

PENOBSCOT COUNTY

y Order, ed

Milos Blagojevic et al.,

Defendants/Appellees

On the court’s own motion, the caption of the Order on Appeal dated June 23,

2003, is corrected to identify Christopher Rioux as the appellant.

Dated: June 30, 2003 (i\ | bof

Justice, Maine uperior Court

Jeffrey L. Hjelm

STATE OF MAINE SUPERIOR COURT

PENOBSCOT, SS. CIVIL ACTION ~

Docket No. AP-02-24 LL ry

: or fel, fT200%

OLR bj 77200"

é

Christopher Rioux,

Plaintiff/Appellant

JUN TL anne

Vv. Order on Appeal

FILED & ENTERED

SUPERIOR COURT

Milos Blagojevic et al., JUN 07 2004

Defendants/Appellees

PENOBSCOT COUNTY

In July 2002, the Town of Orono Planning Board approved the proposed plan of

Milos Blagojevic and Bonnie Blagojevic (collectively, Blagojevic) to develop a

residential subdivision in that municipality. Christopher Rioux, an abutter of the site of

the proposed subdivision, filed an appeal of the Board’s decision to this court. Ina

decision issued in June 2003, the court remanded the proceeding to the Board to allow the

Board to address explicitly and issue findings on two aspects of the subdivision plan,

namely, whether Blagojevic’s plan justified a waiver of the Town’s ordinances requiring

a sidewalk and whether the plan complied with the ordinances’ standards for water

drainage. The court retained jurisdiction over this case pending that remand, which

allowed the parties at bar to proceed contemporaneously with Rioux’ independent claim

for relief.’ In August and September 2003, the Board held two public hearings. After the

second of those hearings, the Board issued findings on the two matters that the court

* Shortly after this case was remanded to the Board in June 2003, the court granted the

defendants’ motion to dismiss two of the plaintiff’s three independent claims, which

sought relief on the grounds that the proposed subdivision would violate orders issued by

a state agency and that it would violate the Town’s land use ordinance. Subsequently, the

court entered summary judgment in favor of the defendants on the remaining count,

which alleged the tort of trespass. Thus, Rioux’ appeal from the Board’s decision is the

only outstanding issue in this case.

resubmitted to it. The parties then filed a supplemental record on appeal, consisting of

material generated by the post-remand municipal proceedings, and the parties filed

written argument. The court has considered this material.

A. Preliminary matters

Several of the parties’ submissions have spawned motions that relate to the scope

of the record and the timeliness of written argument. First, Blagojevic has move to strike

Rioux’ reply brief because that brief was filed one day late. Pursuant to the December 3,

2003, scheduling order, Rioux was to file any reply within 10 days of the filing date of

the defendant’s written argument on appeal. Both defendants filed their written argument

on February 27, which created a deadline of March 8 for Rioux’ reply. In fact, it was

filed on March 9. Blagojevic filed his motion to strike the very next day. The court

denies Blagojevic’s motion and grants Rioux’ responsive motion to enlarge, because

Rioux’ counsel’s personal circumstances justify that one day extension. An enlargement

of one day has not disrupted the appellate process. Further, the process for submitting

briefs on appeal is unlike the more regimented process governing summary judgment

motions that resulted in the court’s order granting Blagojevic’s summary judgment

motion because Rioux’ objection was filed late.

Additionally, Rioux has moved to exclude six items that Blagojevic submitted as

additional elements of the record on appeal, accompanying his written argument on this

appeal. Those items consist of video and audiotaped recordings of the Board’s meetings

in August and September 2003 (which are the post-remand hearings) (R. 59(a) — (e)), and

Blagojevic’s final subdivision map plans dated April 2002 (R. 34(a)).? The court treats

these items as proper parts of the record and denies Rioux’ motion.

First, when counsel communicated with each other regarding the composition of

the record on appeal, the defendants specifically requested Rioux to include Blagojevic’s

final subdivision map plan in that record. This is revealed in Attorney Russell’s letter

dated October 9, 2002, which incorporated a list of exhibits that included the one at issue

here (number 21 on that list), and by Attorney Ruge’s letter dated October 11, 2003,

* Blagojevic also submitted a copy of the Board’s minutes from a meeting held in

October 2003, filed as R. 67. Rioux has not objected to that addition to the record on

appeal.

adopting Attorney Russell’s request. For some reason not apparent here, Rioux failed to

include that map in the record. However, also for some reason not apparent here, the

defendants’ attorneys failed to raise any issue concerning the contents of the record in the

manner prescribed by rule 80B(e). Thus, responsibility for this omission is shared among

all counsel. The affidavit of the custodian of the Board’s records reveals that the final

plan was an exhibit included in the municipal proceedings. When this circumstance is

combined with Rioux’ opportunity to address any issues generated by the exhibit in his

reply brief (filed after Blagojevic unilaterally submitted that exhibit along with his

written argument), the court can only conclude that Rioux is not exposed to any unfair

prejudice by the inclusion of the map as part of the record.

Second, the Board’s written decision incorporates the electronic recording (audio

and visual) of its proceedings. The record on appeal, as originally filed, includes

transcripts from the two post-remand hearings. Nonetheless, because the Board made the

audio and videotapes part of its decision, their inclusion in the record is mandatory. See

M.R.Civ.P. 80B(e). Rioux should have included them in the record, although defendant’s

counsel failed to take any action in response to their omission. Ricex points to no

prejudice occasioned by the integration of these tapes into the record. Under these

circumstances, the court treats them as part of the record.

B. Merits of the appeal

In presenting the merits of his appeal, Rioux contends that the Board issued

inadequate post-remand findings; that the evidence did not support the Board’s findings

that Blagojevic’s proposed subdivision warranted a waiver of the sidewalk requirement,

and that the development plan does not satisfy the ordinance’s requirements governing

the discharge of water.. The court addresses Rioux’ arguments regarding the sufficiency

of the Board’s findings in connections with his substantive arguments on the sidewalk

and water discharge issues.

1. Waiver of the sidewalk requirement

Blagojevic’s proposed development includes a road that would run from Forest

Avenue and provide access to the houselots within the subdivision. This road would be a

“minor street.” See R. 8 at 5. Table 7.4 in section 18-210(e)(1) of the Town’s land use

ordinance requires streets in a subdivision to include a sidewalk that meets certain

Uo

standards for size and construction. See R. 1. Blagojevic’s plan does not provide for a

sidewalk, and at a Board meeting held on July 17, 2002, he requested that the Board grant

waiver from the sidewalk requirement. Such a waiver is permissible if the Board finds

that the requirement would create an “extraordinary and unnecessary hardship” or,

alternatively, if “special circumstances” justified the waiver. See id. at § 18-82(a).

Ultimately, in 2002 the Board approved Blagojevic’s subdivision plan, but it did not

expressly act on his waiver request, and it did not offer any findings to support a decision

to grant such a waiver. Rioux had preserved his appellate challenge to this issue.

Because a waiver can be granted on the basis of two independent reasons and because the

Board failed to articulate the ground for its implied acquiescence to Blagojevic’s request

for that waiver, the court remanded the matter to the Board to allow it to express the

reason why it apparently agreed that a waiver of the sidewalk requirement was proper.

When the Board initially considered Blagojevic’s proposal on remand, it first

decided to reopen the record to allow the parties and others to present additional evidence

that would supplement the existing record. The Board made this decision over

Blagojevic ‘s objection but with Rioux’ support. During the first post-remand hearing,

on August 20, 2003, the Board entertained the parties’ presentations on the sidewalk

issue and, to a more limited extent, on the issue of the subdivision’s water discharge

features. When the Board resumed the hearing, on September 17, 2003, it first

considered (and allowed further presentations on) Blagojevic’s request for a waiver of the

sidewalk requirement. After the Board members asked questions of the presenters and

discussed the issue among themselves, by a unanimous vote’ they found that the sidewalk

waiver was warranted.

> At the beginning of the August and September 2003 hearings, the Board’s chair

announced that only those Board members who were present at the 2002 hearings could

vote on matters raised by the remand order. There were four such members. However,

when it came time for the Board to vote on the sidewalk waiver issue, a fifth member,

Eric Landis, voted. The written notice of decision issued by the Board correctly noted a

5-0 vote. See R. 59. Although it is less clear from the record, it also appears that Landis

voted on the water drainage issues. Rioux makes a passing argument that it was improper

for Landis to have voted. However, because the vote was unanimous, Rioux has not

shown that any impropriety was material. At least as importantly, Rioux did not object or

otherwise raise the issue of whether Landis should vote, even though he could have done

so at a time when any error could have been remedied. In support of his argument that

4

In October 2003, the Board issued a written notice of its decision to Blagojevic.

As it pertained to the sidewalk issue, the written notice merely stated that “the Board

deliberated on the application and voted 5-0 to grant the waiver of the sidewalk

requirement....” See R.59. The written notice did not identify which of the two

provisions of the waiver ordinance justified the waiver, and it did not set out any factual

findings to support that conclusion. Rather, the written notice provided: “For the Board's

specific actions on the sidewalk waiver. . .and the Board’s findings and reasons relative

thereto, reference may be had to the minutes of the August 20" and September 17”

meetings, which minutes, the audio and video recordings of the meetings, and the

exhibits presented to the Board are incorporated herein by reference.” Id.

An oral expression of a municipal agency’s findings is proper if it otherwise

achieves the purposes that such findings are required to serve, that is, that they are

sufficiently clear and comprehensive to reveal the basis for municipal action and allow

meaningful appellate review. See Carroll v. Town of Rockport, 2003 ME 135, 7] 27-28,

837 A.2d 148, 156. There is a danger inherent in a format where a written decision

merely incorporates the ora! statements of the decision-makers, because the ultimate

findings, to be proper, must reflect the basis for a board’s action rather than “the views of

the individual members” of that board. See id., [ 28, 837 A.2d at 156. In other words,

the oral statements that appear in a transcript or other memorialization of a hearing must

reveal the “collective judgment of the fact-finding agency” rather than its members’

“individual opinions.” Id.,] 29, 837 A.2d at 157. A written expression of the factual

basis underlying a decision is more likely to set out a unified explanation for that decision

Landis’ participation was improper, he cites authority that the voting members must have

been present when the evidence was presented. In its written argument, the Town

suggests that Landis in fact watched the videotapes of the 2002 hearings, when much of

the evidence was presented. The court does not treat the Town’s assertions as a matter of

record, because the record is silent on this issue. However, as the Town explains, if

Rioux had objected to Landis’ inclusion in the group of Board members who voted at the

September 2003 meeting, that objection could have been countered by the information

that the Town advances here. Thus, had Rioux raised the issue in a more timely way,

either the error (if it was one) could have been corrected, or the reasons for Landis’

decision to vote could have been developed on the record. Under these circumstances,

the court can only conclude that Rioux has waived any challenge to the voting process.

Oliver v. City of Rockland, 1998 ME 218, [ 7, 710 A.2d 905, 907.

and is less likely to run the risk associated with individual statements of individual board

members, expressed ‘at a hearing itself.

Here, at the August 20 meeting, Blagojevic told the Board that his waiver request

was not based on a contention that the requirement would create “extraordinary and

unnecessary hardship,” which is the first of the two alternative circumstances that, under

section 18-82(a), would justify such a waiver. See R. 30 at p. 4. Similarly, at the

September 17 hearing, Blagojevic’s attorney argued that the sidewalk requirement should

be waived because of special circumstances: the remoteness of the subdivision’s location,

the absence of any other sidewalks in the area that could be connected to a sidewalk in

the development; the limited width of the right-of-way where the road itself would be

located; and the nature of the shoulders of the road, which would accommodate

pedestrian traffic. See R. 61 at p. 5. After hearing the parties’ presentations, the five

voting Board members expressed their positions and announced their votes. Eric Landis

said that in his view, the sidewalk requirement would not create a hardship but that the

waiver was warranted because of special circumstances, namely, the combination of

“seography and topology.” Id. at p. 16. David Sewell agreed with Landis, but also

added that a sidewalk is “not feasible” at that location. Jd. Next, Christa Schwintzer

“agree[d]” that there were special circumstances because the area was remote, the volume

of vehicular traffic would be low, and the shoulders would provide a place for people to

walk safely. Id. David Thompson and then Michael Tuell then agreed, and Tuell

specifically cited the rural setting of the subdivision. Id. at pp. 16-17. Then, without any

explicit discussion of the issue, the Board members unanimously concluded that the

effect of the waiver would not nullify the purposes of the ordinance. Id. at p. 17.

This record clearly reveals the bases for the Board’s decision: a waiver was

warranted because of “special circumstances,” and that those circumstances consisted of

the remote location of the development, the correspondingly light vehicular flow and the

availability of safe walking areas for pedestrians and others who would use sidewalks

otherwise. The Board members referred to the prior comments made by their colleagues

during the deliberation and voting process, thus creating an internal harmony among their

views.’ Thus, here, the dangers that can affect oral findings that consist of the collected

comments of individual decision-makers were not realized.

Further, the Board members explicitly found that a sidewalk waiver would not

compromise the larger objectives of the ordinance. The discussion preceding the vote

focused on the safety of pedestrians in the absence of a sidewalk. Safety is a goal (and

the only one of relevance in this context) that the Town’s land use ordinance is intended

to promote. See R. 1 at § 18-3. Indeed, Rioux’ attorney argued to the Board that

sidewalks were important to provide safe passage to pedestrians. See R. 61 at p. 13.

Blagojevic presented evidence that in this setting, the absence of a sidewalk would not

have safety implications. See id. at pp. 6 (safety data), 9-10 (comments of an engineer

regarding the suitability of the shoulders for walking). Thus, by finding that the absence

of sidewalks would not compromise the goals of the ordinance, it is manifest that the

Board also found that — as they had discussed — that sidewalks were not necessary to

create a safe environment for pedestrians. .

The next question is whether the evidence warranted the Board in reaching these

conclusions. Plainly, it did. Among other things, the Board heard evidence that the site

of the subdivision is not proximate to developed area, thus reducing the volume of

pedestrian traffic because there are no nearby locations where pedestrians are likely to

come or go. There are no other adjacent or nearby sidewalks that otherwise would

promote pedestrian traffic. The houselots within the subdivision would be located a

considerable distance from the beginning of the interior road, which intersects with

Forest Avenue, a more frequently traveled way. This means that pedestrians would be

more isolated from that through traffic. And, in response to a keen interest of the Board

members, Blagojevic presented detailed evidence regarding the adequacy of the

shoulders of the road for use by pedestrians. This evidence was a sufficient basis for the

members’ conclusion that those shoulders would allow pedestrians to proceed safely.

Based on this evidence, the Board was entitled to conclude that special

circumstances, namely, ones unique to the particular setting for the proposed

4 Sewell appears to have found both special circumstances and a hardship. See R. 61 at p.

16. In light of the former, the latter is superfluous and does not undermine the common

reasoning among the members.

~

development, alleviated the need for a sidewalk and that the goals of the ordinance would

not be undermined. See Kurlanski v. Portland Yacht Club, 2001 ME 147, 7, 782 A.2d

783, 784 (sufficiency of the evidence presented to municipal board).

2. Water drainage

Rioux makes five separate arguments to support his contention that the Board

erred in finding that Blagojevic’s subdivision plan satisfies the Town’s land use

ordinances governing water drainage: the Board’s findings are insufficient; the recorded

plan information regarding the drainage systems is inadequate; the downstream drainage

system is not adequate; the Board did not properly account for drainage easements; and

the Board could not have approved the plan in an informed way because it would be

supplemented by modifications that would be filed sometime in the future

(a) Sufficiency of the Board’s findings

At the Board’s September 17 hearing, after it had approved Blagojevic’s request

for the sidewalk waiver, the Board considered the water drainage issue. As is noted

above, the Board chose to re-open the hearing to allow submission of additional

evidence. After entertaining additional evidence from Blagojevic and Rioux (including

presentations by their attorneys, and the consideration of documentary evidence from

engineers representing the interests of Blagojevic, Rioux and the Town itself), the Board

closed the hearing to further evidence. It then individually addressed the six distinct

provisions of the Town’s ordinance governing drainage facility design (section 18-

210(c)), as well as the pertinent statute (30-A M.R.S.A. § 4404(16)).° After the Town’s

chair identified one of those provisions, a Board member would make a motion

(seconded in each instance) that the Board find that Blagojevic’s plan satisfied the

particular requirement embodied in that respective law. The chair then opened the matter

for discussion. In all but one instance, there was at least some discussion. The

discussion would be closed after full opportunity for such discussion. Ultimately, in each

instance, the Board voted unanimously to approve the separate motions that the proposed

plan satisfied the legal requirement at issue.

> The framework for this analysis was suggested by the Town’s attorney in a

memorandum he submitted to the Board members (with copies to the parties’ attorneys)

prior to the meeting. See R. 51. The Board adopted the approach recommended by

counsel, not only with regard to the drainage issue but also to the sidewalk waiver.

With the exception of section 18-210(c)(4), each of the pertinent provisions of the

land use ordinance are framed in terms of factual propositions rather than qualitative or

judgmental assessments. Thus, by finding that the proposed subdivision satisfied the

criteria set out in the five other sections, the Board manifestly made the factual findings

embodied in those standards. Those findings are therefore clear on the record, are

adequate for appellate review, and otherwise accomplish the objectives of such findings.

As to the remaining provision, section 18-210(c)(4) appears to apply only to

developments in “floodplains.” Under the Town’s ordinances, however, “floodplains”

consist of specifically defined areas in the Town. See generally section 18-231 et seq.

Blagojevic’s proposed subdivision is not located within a floodplain. Unlike the other

five provisions within section 18-210(c), section 18-210(c)(4) would require the Board to

exercise some level of judgment in assessing whether life is protected and losses are

“minimized” in the face of flood hazards. If this provision were applicable, the Board

might be required to articulate the basis for its evaluative conclusion. However, because

this section does not apply, no such findings were necessary.

For these reasons, the court concludes that the Board’s up-cr-down vote on the

factual propositions embodied in the applicable sections of section 18-210(c) made clear

the findings for its decision that the proposed subdivision satisfied this portion of the

ordinance.

(b) Plan information

Rioux argues that the final plan of the subdivision omits information that is

required by the ordinance and enumerated in table 7.2 of section 18-207(c)(2). Earlier in

this order, the court has allowed the record on appeal to be supplemented by exhibit 34

(a), which is the set of final subdivision plans that include the requisite information. In

his reply brief, Rioux argues that the record does not clearly show that this document was

presented to and considered by the Board. The affidavit of the Town’s custodian of

records, submitted by Blagojevic in support of his argument that exhibit 34(a) should be

part of the record, indicates that this material in fact was submitted to the Board. Even,

however, if the use of that affidavit is limited to the procedural question of whether

exhibit 34(a) should be part of the record on appeal, the undisputed portion of the record

(specifically, R. 46) includes the first sheet of substantive information from exhibit 34(a),

which is designated “Sheet 1 of 6.” This suggests that it was only one page from a larger

package. In the absence of a more persuasive argument that Blagojevic did not present

the Board with the full set of drawings, the court is willing to infer that the Board

received the entire set, thus satisfying section 18-207(c)(2).

Rioux also argues that Blagojevic failed to record the final subdivision plan,

setting out all of the information required by table 7.2, with the Registry of Deeds. Rioux

made the same argument, virtually verbatim, when this case was first before the court in

2003. None of the parties (including Rioux) appears to provide a specific reference to the

provision of the ordinance governing the Registry filing. In the absence of such

direction, from the substance of Rioux’ argument, the court assumes that it flows from

the terms of section 18-207(b)(2)(c). That section of the ordinance requires that “[t]he

subdivider shall file a signed subdivision plan at the County Registry of Deeds within 90

days of the date of approval.” Blagojevic, in his written argument, does not contend that

he recorded the entire final plan as approved by the Board. Rather, Blagojevic argues

that the items listed in table 7.2 must be included in a final “submission,” as distinguished

from a final “plan.” This argument is undermined by the crdinance’s description of table

7.2, namely, “CONTENTS OF FINAL PLAN.” (Emphasis added.)

Nonetheless, the court concludes that in the circumstances of this case, the

omission of part of the final plans is not material and fatal to the development. The

evident purpose of the recording requirement is to place the world on notice of the

prospective development. By filing the page with the designated lot locations, road

locations and drainage easements, the developer has satisfied that central objective.

Here, the omitted pages show the stormwater and erosion control design for the land

within the subdivision and in the immediately adjacent area, and they show the pre- and

post-development drainage pattern. The only other page with substantive information

depicts construction detail, such as spillway and crosscut cross-sections. The page filed

by Blagojevic makes reference to the existence of other pages, which are the other pages

included in exhibit 34(a). Therefore, even if section 18-207(b)(2)(c) required Blagojevic

to file the complete plan drawings as approved by the Board, the court concludes that

when he filed the page showing the location of the lots, the road and the drainage

10

easements, he substantially satisfied the provisions of the ordinance to a degree sufficient

to accomplish its objectives.

(c) Downstream drainage facilities

Rioux challenges the sufficiency of the evidence that the Board considered when

it concluded that the proposed development satisfied the criteria set out in sections 18-

210(c)(2)(a) and (b) and section 18-210(c)(3). His argument on this point is precise: a

culvert located on the plaintiff’s property, running under his driveway, is not adequate to

carry the runoff that will be created by the development, which is located upstream of his

land. Rioux argues that this drainage dynamic means that the subdivision’s drainage

facility will not accommodate water runoff, thus violating section 18-210(c)(2)(a). For

the same reason, he urges that section 18-210(c)(2)(b) is implicated because the water

drainage plan for the subdivision will not sufficiently manage stormwater. Finally, he

argues that the “existing downstream drainage facility” (namely, his culvert) will be

overloaded, in violation of section 18-210(c)(3).

The Board, however, was presented with evidence that the subdivision drainage

design will actually reduce the flow of water from the subdivision site onto Rioux’

property. This evidence was presented by Blagojevic’s engineer, who calculated

projected runoff for 2, 10 and 25 year events, which are the reference points for the

ordinance’s requirements. See R. 57. The engineer retained by the Town to evaluate

Blagojevic’s development plans and then to monitor actual construction agreed that the

rate of waterflow from the subdivision site onto Rioux’ land would not increase. See R.

61 at pp. 32-33. From this and other similar evidence, the Board was warranted in

concluding that the drainage design in fact would manage and accommodate water runoff

as required by sections 18-210(c)(2)(a) and (b) of the ordinance.

Further, the Board was entitled to conclude that the drainage design satisfied

section 18-210(c)(3). That provision requires the Board to deny a subdivision plan when

“additional runoff incident to the development of the subdivision will overload and

existing downstream drainage facility during a storm up to a 25-year event. .. .”

(Emphasis added.) The plain language of this provision requires the Board to focus on

the incremental effect that the development will have on downstream drainage. Both the

terms of section 18-210(c)(3) and a common sense construction of the ordinance lead to

11

the conclusion that if the downstream drainage facility is inadequate even prior to the

creation of the subdivision, an otherwise adequate drainage system integral to the

subdivision is not deemed to be flawed. The ordinances at issue require an assessment of

whether the subdivision’s drainage system is adequate and, more specifically, whether it

will avoid any increased burden on the downhill facilities and properties. Here, by

finding that the drainage system comported with section 18-210(c)(3), the Board

concluded that the drainage system for the development would not adversely affect the

existing drainage conditions affecting Rioux’ property. The evidence warranted this

finding.

(d) Public drainage facilities

Section 18-210(c)(5) requires that “easements for public drainage facilities be

turned over to the Town.” In fact, Blagojevic stated his intention to do so, and the Board

accepted that proposal in the form of a requirement, in order to satisfy the ordinance’s

mandate. Here, Rioux contends, first, that the Board failed to determine whether

Blagojevic was obligated to obtain easements in order to allow the discharge of water

onto his (Rioux’) property, and, second, that if Blagojevic was required by law to do so,

the Board did not require Blagojevic to obtain those easement rights.

This ordinance does not impose a requirement that a developer obtain easements

for public drainage facilities. It merely requires that any such interests be conveyed to

the Town. There can be no argument on this record that the Board failed to ensure this

prospective arrangement.

Rioux’ argument seems to be that the proposed drainage system will create a

burden on his property that would necessitate the owner of the dominant estate (the

subdivision property) to first obtain an easement from him. Even if the ordinance

obligated the Board to sort out the legal issues arising from these private property

interests (an analysis that the court rejects here), it is a contention that has been resolved

in this case already. In count 4 of his complaint, Rioux asserted an independent and

direct claim against Blagojevic, alleging that the water discharge system included in the

subdivision plan would amount to an improper discharge of water onto Rioux’ property

(complaint as amended at {[ 26), that the “artificial drainage system will result in an

illegal entry of water onto [Rioux’] property” causing damage to that property (id. at J

12

28), that the proposed drainage system would constitute a trespass (id. at J 29), and that

Blagojevic do not have an easement that would give him the right to create that drainage

pattern (id. at { 25). After the court denied Blagojevic’s motion to dismiss count 4,

Blagojevic filed a motion for summary judgment on that count. The parties presented

legal argument on the substantive point raised here by Rioux (arguments which were

identical to the presentations on the motion to dismiss). The court granted Blagojevic’s

motion, and summary judgment was entered on count 4° With the entry of an adverse

judgment (although it is not a final one because the count under rule 80B remains

pending, see M.R.Civ.P. 54(b)), Rioux cannot now argue the merits of a claim that has

been addressed and dispositively resolved adversely to him.

Therefore, even if the Board had been required to consider and adjudicate the

merits of Rioux’ easement argument, as opposed to simply requiring that Blagojevic

convey any relevant easement to the Town, Rioux is barred from contending that

Blagojevic needs to obtain an easement from him as a condition to obtaining plan

~ approval from the Board.

(e) Future submission of plans

Finally, Rioux argues that the Board approved a plan that was subject to future

modification and, in effect, gave Blagojevic carte blanche on some aspects of the

development. While the portion of the Board’s hearing relevant to this issue lost some

degree of clarity, the court concludes that the plan to be submitted in the future actually

will be a plan of the development as constructed rather than the plan it approved.

While this case has been on appeal and on remand, Blagojevic has proceeded with

construction of the development. Close in time to the September 2003 Board hearing,

Rioux’ engineer, the Town’s engineer, and Blagojevic’s engineer visited the site to

inspect the progress of construction. All noted some deviation between the subdivision

plans as set out on paper and the actual construction. This led to some discussion among

Board members and other participants about whether the Board’s function was to approve

the design plans as shown in the application or whether its decision should be based on

the implementation of those plans on the ground. See, e.g., R. 61 at pp. 20-21, 28

6 .

Summary judgment was granted because Rioux’ opposition to the motion was not

timely. This, however, does not affect that result.

13

(comments of Town’s attorney), p. 21 (comments of Town’s CEO), p. 25-27 (comments

of Town’s engineer). Although Rioux urged the Board to take into account the site

inspection information, the Board concluded that any departure from the plans during the

construction process were enforcement issues within the province of the municipal code

enforcement officer. Instead, it viewed its role as evaluating the proposed subdivision as

revealed in the application and deciding on that basis whether the plan conformed to the

ordinance.’ Then, when the Board proceeded to its deliberations, the discussion among

the Board members was limited to the plans themselves. This further demonstrates that

the Board issued its ultimate approval and its subsidiary facts based on Blagojevic’s

proposal rather than based on the actual construction.

Thus, the environment of the Board’s decision reveals that it approved the

development as shown in the plans and that the Board was not passing judgment on the

construction itself. This approach was proper, because the Board’s adjudicative powers

do not extend to questions of enforcement, which fall within the CEO’s jurisdiction. See

R. 1 at §§ 18-41, 18-42.

However, after the Board concluded its voting on the development design, the

Town’s attorney suggested that the Board also require Blagojevic to submit “a new

plan. . showing the conditions that were outlined” in a report submitted by the Town’s

engineer. See R. 61 at p. 36. That report followed a site inspection that the engineer had

conducted the day prior to the September 17 meeting. In that report, the engineer noted

several departures from the design plans. See R. 56. This recommendation prompted a

discussion about the nature of the “new plan,” including the specific question of whether

it would show the development as built (what the Town’s engineer described as a “record

drawing,” see R. 61 at p. 37) or whether it would constitute a new design. That

discussion wound down with comments from a Board member that the submission would

be a “record of what’s on site... .” Id. at p. 39. Blagojevic’s engineer understood it to be

a filing that would be “part of the inspection. . [showing] the small, small changes that

are being made.” Jd. In the end, the Board unanimously agreed to require Blagojevic to

7 . . .

owing the discussion of the Board’s role, the chair inquired of the Board members

w net er any of them felt that “we need to get into enforcement of the actual, what’s

actually on the ground there. . .” None of the members responded to this invitation.

14

“submit a revised plan showing the matters outlined in. . .[the Town engineer’ s] report

dated September 16, 2003. . . ”

The court does not construe this discussion and resolution to change the terms of

the approval that the Board had just given to Blagojevic’s plans as shown on paper. The

Board had been advised that Blagojevic, through his engineer and contractors, had

departed from the plans. The Town’s engineer told the Board that some departures are

immaterial, and both the CEO and the Town’s attorney noted that problems on site can be

addressed in several different ways (for example, by initiating a violation proceeding, or

by the Town’s decision not to accept a dedication of the roadway). Thus, the terms of the

concluding discussion, particularly when seen in light of the Board’s apparent agreement

earlier in the meeting to evaluate the plan as it was proposed (rather than as built),

suggest that the Board imposed on Blagojevic a requirement to file plans of the actually

constructed subdivision in order to assist the appropriate municipal officials in their task

of evaluating the implementation of the plan. Against this background, the court rejects

Rioux’ position that the Board approved the development plan even before the final plan

was fully presented to the Board.

The entry shall be:

For the foregoing reasons, Blagojevic’s motion to strike is denied. Rioux’ motion

to enlarge i is granted, and his reply brief is deemed timely. Rioux’ motion to exclude

proposed exhibits is denied. The decision of the Town of Orono Planning Board is

affirmed.

Dated: June 4, 2004 ‘hi i v WZ

Justice! Maine Supeljor Court

*j

15

Action _Rule_ 80B Appeal

Date Filed 08/13/2002 Penobscot Docket No. AP-2002-24

County TITLE TO REAL ESTATE IS INVOLVED

6/30/03 COUNTS 2 & 3 DISMISSED.

10/24/03 COUNT 4 - SUMMARY JUDGMENT

ASSIGNED TO JUSTICE JEFFREY L. HJELM ENTERED FOR DEFENDANTS BLAGOJEVI

MILOS BLAGOJEVIC

BONNIE BLAGOJEVIC and

CHRISTOPHER RIOUX ys ENHABITANTS OF THE TOWN OF ORONO

Plaintiff’s Attorney Defendant’s Attorney

Robert Miller Esq GRIFFIN & JORDAN, LLC

P O Box 414 68 MAIN ST -— P O BOX 220

Old Town ME 04468-0414 ORONO, ME 04473

BY: CHRIS RUGE, ESQ.,

MICHAEL H. GRIFFIN, ESQ.

FOR: MILOS & BONNIE BLAGOJEVIC

FARRELL, ROSENBLATT & RUSSELL

61 MAIN ST - P O BOX 738

BANGOR, ME. 04402-0738

Date of BY: THOMAS A. RUSSELL, ESQ.

Entry FOR: INHABITANTS OF THE TOWN OF ORONO

8/13/02 Complaint (Title to Real Estate Involved) filed.

8/13/02 Notice and Briefing Schedule 80B Appeal of Governmental Actions forwarded

to attorney for Plaintiff and to Defendants at address on Summary Sheet.

8/14/02 Notice of Assigned Justice filed. Pursuant to Administrative Order, Singl

Justice Assignment of Civil Cases, Docket No. SJC-323, the above reference

case is specialy assigned to Justice Jeffrey L Hjelm. Copy forwarded to

attorney of record.

8/16/02 Motion For an Order to Specify the Future Course of Proceedings and

Incorporated Memorandum filed by Plaintiff. (attachments attached)

8/16/02 Affidavit of Christopher Rioux in Support of Motion to Specify the Future

Course of Proceedings filed by Plaintiff.

8/16/02 Request for Hearing filed by Plaintiff on Motion to Strike Appearance,

non-testimonial, good faith estimate of one-quarter hour.

8/20/02 Acceptance of Service as to Defendant Inhabitants of the Town of

Orono filed by Defendant, Town of Orono. (s.d. 8/16/02 by

Thomas Russell, Esq.)

8/20/02 Acceptance of Service as to Orono Planning Board filed by Defendant

Town of Orono. (s.d. 8/16/02 by Thomas Russell, Esq.)

8/21/02 |Request for Hearing on Plaintiff's Motion for an Order to Specify the

Future Course of Proceedings filed by Plaintiff.

8/22/02 Clerk's Certificate filed. (Attested copy forwarded to Plaintiff's

Attorney.)

STATE OF MAINE - DEFENDANT

Attorney for: STATE OF MAINE

DENNIS HARNISH

OFFICE OF THE ATTORNEY GENERAL

6 STATE HOUSE STATION

AUGUSTA ME 04333-0006

t: COMPLAINT

Minor Case Type: QUIET TITLE

PORSC-RE-2002-00014

DOCKET RECORD