The opinion
STATE OF MAINE SUPERIOR COURT
PENOBSCOT, ss CIVIL ACTION
DOCKET # AP-0208
EEN a PAE Ut e027
GARY A. DRINKWATER, Sua é RIOR G OUR,
Plaintiff ) : RT
) APR 18 2003 DONALD L. Gare
v. ) DECISION AND LAW Lihacy
PENOBSCO’ ER
TOWN OF MILFORD, et. al.-——} F COUN APR 29 2005
Defendants )
Pending before the Court is Gary A. Drinkwater’s (the “Plaintiff”) appeal,
pursuant to M.R. Civ. P. 80(B), from the Milford Planning Board’s (the “Board’’)
decision granting Me. Chips’s permit application. For the following reasons the Court
denies the Plaintiff’s appeal.
Background
Thomas Thornton, Vice President of Defendant Me. Chips, informed the Board
that he would be seeking its permission to use a portion of their property, identified as
Lot 69 on the Milford Assessor’s Tax Map, as an “‘automotive repair and office in 4,000
square foot building”. Mr. Thornton, at some point in time, filed a sketch plan showing
the location of the proposed use. The Board informed Mr. Thornton that he would need to
file a written application before they could consider the merits of his request. On January
9, 2002, Mr. Thornton filed an application for a site review with the Milford Code
Enforcement Officer. On February 5, 2002, the Board held a public hearing on Mr.
Thornton’s application. Mr. Thornton described the primary use of the property as a
truck/trailer facility along with Me. Chips’ main office. The Board determined that the
Milford Land Use Ordinance authorized the use and approved the application.’ The
' The Board submitted a Notice of Decision after the Plaintiff filed the present action.
Plaintiff appealed the Board’s decision to the Zoning Board of Appeals (the “ZBA”).
After a hearing the ZBA denied the Plaintiff's appeal and issued a Notice of Decision.
The Plaintiff then filed the present complaint.
Discussion
Courts review a municipality’s decision for errors of law, abuse of discretion, or
findings not supported by substantial evidence in the record. Griffin v. Town of Dedham,
2002 ME 105, 6, 799 A.2d 1239. Courts review the operative municipality decision.
Stewart v. Town of Sedgwick, 2000 ME 157, 4, 757 A.2d 773. In situations where the
ZBA acts in an appellate capacity the Court reviews the decision of the previous tribunal.
Id. If however, the ZBA has conducted a hearing de novo the Court will examine the
ZBA’s decision. Id. “When a [ZBA] conducts a hearing de novo, it does not examine
evidence presented to the decision maker or tribunal below, nor does it review the
procedure below except to assure that the matter is properly before it. Instead, it looks at
the substantive issues afresh, undertakes its own credibility determinations, evaluates the
evidence presented, and draws its own conclusions.” Id at {7.
In the present matter the ZBA held a hearing and reviewed the Board’s findings,
found that the Plaintiff did not meet his burden of proof in proving the Board’s decision
improper, and found that the Board did not commit any significant administrative or
interpretive errors. The ZBA was clearly acting in an appellate capacity and did not
engage in new examination of the substantive issues. Further, section VI (L)(1) of
Milford’s municipal code, describing the ZBA’s appellate function, provides that:
The [ZBA] shall hear and decide appeals where it is alleged that there is any error
in any order, requirement, decision, or determination made by, or failure to act by,
the Code Enforcement Officer or the Planning Board in the administration of this
Ordinance. When errors of administrative procedures or interpretation are found,
the case shall be remanded to the Code Enforcement Officer or Planning Board
for correction.
Therefore, the Court will review the Board’s decision.
However, the Defendant claims the Plaintiff does not have standing to appeal the
Board’s decision. In order for a party to have standing to appeal a board’s decision he
must demonstrate that (1) he appeared before the board; and (2) he has suffered a
particularized injury as a result of the board’s actions. Lloyd Wells et al. v. Portland
Yacht Club et al., 2001 ME 20, 94, 771 A.2d 371.” In municipal land use cases a plaintiff
demonstrates “particularized injury” when he is able to prove that the judgment adversely
and directly affects his property, pecuniary or personal rights. Charlton v. Town of
Oxford, 2001 ME 104, 30, 774 A.2d 366.
The Plaintiff claims that his parent’s property, where he also works, abuts the
property in question. However, this does not qualify the Plaintiff as an abutter and
therefore the minimal threshold requirement for abutters does not apply. See Lloyd
Wells, 2001 ME at 4 (citing Sproul v. Town of Boothbay Harbor, 2000 ME 30, 6-7,
746 A.2d 368, 371) (“the threshold requirement for an abutter to have standing is
minimal” he “need only allege a potential for particularized injury to satisfy standing.”)
Although a plaintiff need not demonstrate a high degree of proof of a particularized
injury to establish standing, the record before this Court reveals that the Plaintiff has not
demonstrated any “particularized injury” as a result of the Board’s decision. The Plaintiff
claims in his brief that he has a future interest in his parent’s property and that the
proposed use could adversely affect the property’s value. The record does not reveal any
evidence that supports the Plaintiff’s contention that he has a future interest in the
* The Defendant does not contest the fact that the Plaintiff appeared before the Board.
property or his claim that the proposed use would adversely affect the value of the
property.” Based on the record before the Court the Plaintiff has not demonstrated that
the decision “adversely and directly affects his property, pecuniary or personal rights.”
THE DOCKET ENTRY IS:
The Petitioner’s appeal is hereby denied.
The clerk is ordered to incorporate this decision into the docket by reference.
3-09
DATED: -\ / Ni J
Taste, Superior Court \
Andtew M. Mead
> The Court notes that the record does not contain a transcript of the proceedings before the
Board. It is the Plaintiff's burden to insure the preparation and submission of the record the Court
is toreview. MLR. Civ. P. 80(B)(e).
Date Filed_April 10, 2002 PENOBSCOT Docket No. __AP=2002-8
County
Action 80B - Governmental Body ADR Exempt
ASSIGNED TO JUSTICE ANDREW M. MEAD
ME. CHIPS, INC. (added 9/25/02)
GARY A. DRINKWATER vs. TOWN OF MILFORD
Plaintiff's Attorney Defendant’s Attorney
GARY A. DRINKWATER, Pro se ROBERT E. MILLER, ESQ.
26 EMERALD DRIVE PO BOX 414
MILFORD, ME 04461 OLD TOWN, ME. 04468-0414
EATON PEABODY
PO BOX 1210
BANGOR, ME. 04402-1210
BY: WILLIAM B DEVOE, ESQ.
FOR: ME. CHIP NC.
Date of Ss INC
Entry
4/10/02 Complaint Rule 80B and Declaratory Judgment filed. (attachment attached)
4/11/02 Notice and Briefing Schedule 80B Appeal of Governmental Actions filed.
Copy forwarded to Pro se Plaintiff. (Gary A. Drinkwater, 26 Emerald
Drive, Milford, ME. 04461)
4/23/02 Entry of Appearance filed on behalf of Town of Milford.
4/23/02 Motions to Dismiss filed by Defendant.
4/23/02 Memorandum of Law in Support of Motions to Dismiss filed by Defendant.
4/23/02 Affidavit of Cynthia A. Grant filed by Defendant.
4/23/02 Request for Hearing filed by Defendant.
4/24/02 | Copy of Notice and Briefing Schedule 80B Appeal of Governmental Actions
forwarded to counsel for the Defendant.
4/25/02 Defendant's Answer to Plaintiff's Complaint filed.
5/1/02 Plaintiff's Memorandum in Opposition to Defendant's Memorandum of
Lawand Motion to Dismiss filed.
5/1/02 Request for Expedited Hearing on Defendant's Motions to Dismiss filed
byPlaintiff, Pro Se.
5/1/02 Land Use Ordinance of the Town of Milford Maine filed by Plaintiff,
Pro Se.
5/1/02 Return of Service as to Defendant filed. (s.d. 4/11/02 service
made by Noreen Nee, Esq.)