The opinion
STATE OF MAINE SUPERIOR COURT
CIVIL ACTION
KENNEBEC, ss. DOCKET NO. AP-02-59
OK = Yosh / Dey
LYNN GERARD,
Plaintiff OONALD L. GAP ERE Cy
Ww LiSRARY
Vv. DECISION ON
RULE 80B APPEAL MAY 28 D005
CITY OF GARDINER, et al.,
Defendants
* ee
This matter comes before the court on the appeal of plaintiff Lynn Gerard
pursuant to MLR. Civ. P. 80B, from a decision of the City of Gardiner Zoning Board of
Appeals (“ZBA”). The decision of the ZBA came following its review of a previous
decision by the Gardiner Planning Board which denied a conditional use application by
the Apostolic Faith Ministry for the new use of part of an existing building. The appeal
will be granted.
Background
On January 24, 2002, defendant Theresa Henderson of the Apostolic Faith
Ministry filed an application for a conditional use permit to allow her church to use the
first floor of a building located at 8 Gary Street in Gardiner as a “place of worship and
other related religious structures.” The building in question, a/k/a The Carriage
House, is a two-story residential structure located on a dead-end street, immediately
adjacent to Ms. Gerard’s residence. The Code Enforcement Officer investigated the
application and recommended to the Planning Board that the application be approved
with four conditions. The application was first taken up at the Planning Board’s
meeting of February 13, 2002. After comments by several members of the public who
reside in the neighborhood and discussion of their concerns, the Board tabled the
application to allow the applicant to address certain issues which had been raised. The
application was taken up again at the Planning Board meeting of April 10, 2002. Several
neighbors again expressed their reservations concerning the proposed new use of the
property. The Board eventually voted unanimously to deny the application based on
findings which are cause for denial pursuant to the Gardiner Zoning Ordinance, §
3204(H)(3)(d)(1).
The Hendersons appealed the Planning Board decision to the ZBA. During its
proceedings, the ZBA remanded the matter to the Planning Board for clarification of the
factual basis for the Planning Board’s decision. On July 10, 2002, the Planning Board
issued a further written decision, upholding its original decision but identifying specific
facts as found by the Planning Board which formed the basis for its denial of the permit.
The ZBA went on to reverse the Planning Board by a 3-2 vote and directed issuance of
the permit. The present appeal to this court followed.
Discussion
When the decision of a governmental body is appealed pursuant to Rule 80B, this
court independently examines the record and reviews the decision for abuse of
discretion, errors of law, or findings unsupported by substantial evidence. Ranco v. Cit
of Bangor, 1997 ME 65, ] 6, 691 A.2d 1238, 1239. The substantial evidence standard
requires the court to examine the entire record “to determine whether on the basis of all
the testimony and exhibits before the [bloard it could fairly and reasonably find the
facts as it did.” Ryan v. Town of Camden, 582 A.2d 973, 975 (Me. 1990). The court is not
permitted to “make findings independent of those explicitly or implicitly found by the
[governmental body] or [to] substitute its judgment for that of the [government body].”
Perrin v. Town of Kittery, 591 A.2d 861, 863. “The [government body’s] decision is not
wrong because the record is inconsistent or a different conclusion could be drawn from
it.” Twigg v. Town of Kennebunk, 662 A.2d 914, 916 (Me. 1995).
Applying the standards of review set forth above to this case, since the ZBA was
acting as an appellate body,’ the court will review the Planning Board’s decision
directly to determine whether there was such error of law, abuse of discretion or flaw in
the evidence.
After considering the Planning Board’s decision and the basis for that decision,
the court finds no abuse of discretion or error of law. The Hendersons were given full
opportunity to present their position and information — as were others with an interest
in the project — and an Opportunity to further address the Board’s concerns at the
second hearing. The Hendersons may disagree with the Board’s decision, but
disagreement with a decision does not mean there was an abuse of discretion. The
decision of the board turned on its findings of fact rather than conclusions of law, and
the court finds no legal error in the deliberations or decision.
The final consideration on appeal is whether the Planning Board’s findings were
supported by substantial evidence in the record as a whole. It is not necessary that the
appellate body agrees with the analysis or would have made the same decision based
on the facts. Review is limited to whether there is support in the record. The Planning
Board made three key findings leading to its denial of the application.. First, concerned
, Ordinarily municipal zoning boards of appeals are required to conduct a de novo review of planning
board decisions. See 30-A M.RS.A. § 2691(3)(D). However, a municipality may provide by local
appeals. See section 3204(H)(2)(c)(2)(a). The ordinance goes on to state the ZBA’s limited scope as
follows: “In the event that the Board of Appeals finds that the planning board... misapplied the
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the creation of “noise, vibrations, fumes, odors, dust, dirt, fly ash, glare, vapors, gases,
smoke, litter, or excessive lighting, beyond the lot line of the proposed use.” The Board
found that the proposed use would cause increased auto traffic, spilling into the
surrounding neighborhood, and create significant dust because the parking lot was
made of gravel. See Record at 134. There is more than adequate record evidence that
the Planning Board considered the testimony of the public and that it considered the
Possibility that traffic would increase as the church grew. See Record at 199-203.
Further, applicants offered rough traffic estimates that may or may not be consistent
with the proposed use, and based on a church membership estimate that could change
over time. Id. at 54.
Regarding the second key finding, that “the provision for vehicular loading and
unloading, parking and/or vehicular and pedestrian circulation on the site and onto
adjacent public streets will create hazards to safety,” the Planning Board determined
that the increased traffic on a narrow, dead-end street would create safety hazards
during vehicular loading and unloading. See Record at 134, 135. Again, the Planning
Board considered the information before it, such as a likelihood that the proposed use
and traffic may expand over time, and the Planning Board’s own experiences with
church parking in other areas of the city. The Planning Board also determined that the
applicants failed to present a sufficient plan as to traffic flow and parking. Id. at 135.
The fact that applicants would reach a different conclusion than the Planning Board
does not itself justify a finding that the Board committed error in denying the permit.
See Sproul v. Town of Boothbay Harbor, 2000 ME 30, I 8, 746 A.2d 368, 372.
The third key finding concerned incompatibility with the surrounding
neighborhood. Here, the Planning Board reiterated that the neighborhood in question
was quiet; there are only five houses on the street, and the street is a dead-end road.
4
Applicants requested a permit to hold up to seven events per week with any where
from three to eight cars per event (not including traffic to drop off and pick up children)
and many events on evenings and Sundays. See Record at 54, 72 and 155. The Board
concluded that traffic will likely increase and the hours of operation would not be
consistent with the present neighborhood. The Board also made site visits to the
property and were familiar with the residential character of the street.
In summary, the court, applying the appellate standard of review applicable
under Rule 80B, finds no error of law or abuse of discretion by the Planning Board, and
finds that the Board’s findings are supported by substantial evidence in the record
despite the fact that the evidence could be considered conflicting on various points.
Therefore, the entry will be:
Decision of the Gardiner Zoning Board of Appeals is REVERSED
and REMANDED. The decision of the Gardner Planning Board denying
the conditional use permit is AFFIRMED.
Dated: April / B , 2003
S. Kirk Studstrup [
Justice, Superior Court °
8/30/02 —__ Kennebec : Docket No. __ ApQ?—59
Date Filed
County
Action Rule 80B Complaint
Lynn Gerard VS. City of Gardiner, et als
Plaintiff's Attorney Defendant’s Attorney
James I. Cohen, Esq.
Scott D. Anderson, Esq.
One Portland Square 167 Park Row
Portland, Maine 04112-0586 PO Box 9
William Ferdinand, Esq. (City of Gardiner
Erik Stumpfel, Esq. Gard, Zoning Bd
& Gardiner Plann.
Brunswick, Maine 04011
- Thomas Watson, Esq. (Apostolic Faith &
P.O. Box 710 ' Henderson)
Bath, Maine 04530
Date of
Entry
8/30/02 Rule 80B Complaint, filed. s/Cohen, Esq.
9/3/02 Notice of briefing schedule mailed to attys of record.
9/9/02 Letter entering appearance, filed. s/Watson, Esq.
Acknowledgment and Acceptance of Service, filed. s/Watson, Esq.
9/11/02 Acknowledgment and Acceptance of Service, filed. s/Watson, Esq.
Acknowlegement and Acceptance of Service, filed. s/Ferdinand, Jr., Esq.
10/9/02 Plaintiff's Brief in Support of Rule 80B Complaint, filed. s/Anderson, Esq.
RAKKKK 80B Record, filed..
11/6/02 Defendant Apostolic Faith Ministry's Brief in Opposition to Rule 80B
Complaint, filed. s/Watson, Esq.
11/8/02 Brief of Defendant City of Gardiner, filed. s/Stumpfel, Esq.
Certificate of Service, filed. s/Stumpfel, Esq.
11/19/02 Plaintiff's Reply Brief in Support of Rule 80B Complaint, filed.
s/Cohen, Esq.
1. /23/03 Letter from attorney Stumpfel indicating he will not participate in the
oral arguments scheduled for 2/5/03.
2/5/03 ORAL ARGUMENTS, Hon. Kirk Studstrup, Presiding (no courtroom clerk)
Case taken under advisement.
4/22/03
DECISION ON RULE 80B APPEAL, Studstrup, J. (dated 4/18/03)
Decision of the Gardiner Zoning Board of Appeals is REVERSED and RE-
MANDED. The decisionof the Gardner Planning Board denying the conditional
use permit is AFFIRMED,
Copies mailed to attys of record.
Copies mailed to Deborah Firestone, Garbrecht Library and Goss.
Notice of removal of record mailed to attys.