The opinion
STATE OF MAINE SUPERIOR COURT
CIVIL ACTION
KENNEBEC, ss. DOCKET NO. AP-03-52
(DRM ek 4 lp4fa OO
DAVID A. LEONARD
And CATHY J. LEONARD,
Plaintiffs
V. DECISION AND ORDER
TOWN OF WINTHROP, et ai., oN
Defendants
NOW 5 ann
This matter is before the court on complaint for review of governmental action in
accordance with MLR. Civ. P. 80B. This case springs from a good faith attempt by the
Town of Winthrop (“Winthrop”) to resolve a dispute between neighbors regarding
access to a lot just outside of an approved subdivision. In an attempt to resolve this
matter, the Winthrop Planning Board (“Board”) amended the subdivision ordinance,
adding a lot and extending and reclassifying a driveway. Plaintiffs challenge the
actions of Winthrop, the effects of these actions and the constitutionality of the
ordinance itself.
The five lot Vista Heights Subdivision was approved by Winthrop’s Board on
October 17, 1988. This subdivision included lots designated on Winthrop’s tax map as
23, 23A-1, 23A-2, 20 and 21. Pertinent to this matter are lots 23A-1, 23A-2 and lot 19A
which was not a part of the original subdivision, but has been added by the Board
decision under review.!
According to the 1988 plan, access to lot 23A-2 was via deeded right of way
across lot 23A-1 considered by all to be a driveway. Some time after the subdivision
' Plaintiffs own lot 1 of the subdivision, above described as lot 23A-1.
was approved, Richard Calcagni acquired a fifty-foot wide easement over lots 23A-1
and 23A-2 and built a road continuing the driveway from lot 23A-1, across lot 23A-2 to
access a house he built on lot 19A and sold to defendants Gregory and Ronda
Strumfeld.
Beginning in 1994, Winthrop began correspondence with Mr. Calcagni
concerning access to the lot 19A via this easement. In 2000, Winthrop informed Mr.
Calcagni that the right-of-way he had constructed over lot 2 (apparently lot 23A-2) is
not shown on the approved subdivision plan and should not be used to access any
other houses he was building on his land on lot 19. Winthrop noted that it did not
intend to revoke the building permit for the house on lot 19A, which was already
occupied, as it would be “unduly harsh.”
In 2001, Mr. Calcagni applied to the Winthrop Board for an after-the-fact
amendment to the subdivision plan. Before final action on Mr. Calcagni’s application,
defendants James and Deborah Remley (owners of lot 23A-2) submitted an application
that was essentially a compromise proposal on February 24, 2003. This proposal would
add lot 19A in the Vista Heights Subdivision and to allow access to lot 19A via Mr.
Calcagni’s easement but not to allow access to any lots beyond the Strumfeld lot (19A).
On the same night, August 6, 2003, the Board turned down Mr. Calcagni’s, application
and approved the Remley’s application. A “request for waiver” of road standards
contained in the subdivision ordinance was submitted by the Remleys on May 26, 2003,
requesting that two hundred and twenty seven feet of their driveway be deemed a
“private minor road” and left in its present condition, was also approved on the
recommendation of the Town Manager on August 6, 2003.
As there is no avenue of appeal from a decision of the Winthrop Planning Board
under the Winthrop Subdivision Ordinance, see Subdivision Ordinance of the Town of
3
Winthrop, Article VI(E), R. page 36, plaintiffs timely filed an 80B complaint in this court.
Following a number of enlargements of time, an amended complaint, adding the
owners of lots 23-A (the Remleys), lot 19A (the Strumfelds) and the owner of lot 19 and
the easement (Mr. Calcagni) was filed on November 14, 2003, seeking vacation of the
Board’s decision of August 6, 2003, amending the Vista Heights Subdivision Plan’ and
such further relief as the court deems appropriate.
Plaintiffs timely filed a brief on December 5, 2003, and Winthrop timely filed its
brief on January 7, 2004. Parties in interest Gregory and Ronda Strumfeld adopted the
brief filed by Winthrop.
On appeal, this court independently examines the record and reviews the
decision of the municipality for “error of law, abuse of discretion, or findings not
supported by substantial evidence in the record.” Yates v. Town of Southwest Harbor,
2001 ME 2, { 10, 763 A.2d 1168, 1171 (citing Sproul v. Town of Boothbay Harbor, 2000 ME
30,8, 746 A.2d 368, 372. 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 [board] it could fairly and reasonably find the facts as it did.” Ryan v. Town of
Camden, 582. A.2d 973, 975 (Me. 1990) (quoting Seven Islands Land Co. v. Maine Land Use
Regulation Comm., 450 A.2d 475, 479 (Me. 1982)).
The court is not permitted to “make findings independent of those explicitly or
implicitly found by the Board or [to] substitute its judgment for that of the Board.”
Perrin v. Town of Kittery, 591 A.2d 861, 863 (Me. 1991). “The Board’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). To prevail, the plaintiff
> The complaint does not specifically request that this court vacate the Town Manager’s approval of the Remleys'
waiver request.
4
must show “not only that the board’s findings are unsupported by record evidence, but
also that the record compels contrary findings.” Total Quality v. Town of Scarborough,
588 A.2d 283, 284 (Me. 1991).
Plaintiffs advance four principal arguments for vacating the decision of the
Winthrop Board. First they assert that the ordinance itself is unconstitutional. Second,
plaintiffs assert that the Board erred, as a matter of law, when it designated the right-of-
way over plaintiffs’ lot as a “private street.” Third, plaintiffs assert that the Board
decision made their lot into an undersized illegal lot. Finally, plaintiffs assert that the
Board’s “no environmental impact” finding is not supported by the record, is an abuse
of discretion and an error of law.
Plaintiffs characterize the Board’s renaming of the driveway on lots 23A-1 and
23A-2 as a “private street” a charade and a ruse. In order to accomplish this renaming
the Board had to grant a variance from the street construction requirements contained
in § VII of the amended Subdivision Ordinance & Road and Street Construction,
Ordinance #21. The provision of this ordinance that plaintiff attacks as vague and an
unconstitutional delegation of authority reads:
Where the Town Council finds extraordinary and unnecessary hardships
may result from the strict compliance with these standards or where there
are special circumstances of a particular application, it may vary these
standards upon recommendation of the Town Manager so that substantial
justice may be done and the pubic interest served.
Subdivision Ordinance & Road and Street Construction, Ordinance #21 § VITI(A).
Plaintiffs cite a 1993 Law Court ruling discussing legislative delegation and
quotes that court as setting “impermissible legislative delegation of authority” as a
standard for finding an ordinance unconstitutional. Gorham v. Town of Cape Elizabeth,
625 A.2d 898, 900 (Me. 1993).
Plaintiffs next cite a more recent Law Court decision that held a provision in a
Shoreland Ordinance requiring that developments “conserve natural beauty”
unconstitutionally vague and an impermissible delegation of the legislative authority
and a violation of the due process clause. Kosalka v. Town of Georgetown, 2000 ME 106
{ 17, 752 A.2d 183, 187.
Finally plaintiffs cite a 1972 Law Court ruling striking down a zoning ordinance
that permitted extension of a use if it “shall meet the approval of the Zoning Board of
Appeals.” Stuck v. Plavin, 291 A.2d 508, 509-510 (Me. 1972). The Stucki court described
a “governing rule” in these matters:
The governing rule, constitutionally mandated, may be simply stated as
that in delegating power to an administrative agency, the legislative body
must spell out its policies in sufficient detail to furnish a guide which will
enable those to whom the law is to be applied to reasonably determine
their rights thereunder, and so that the determination of those rights will
not be left to the purely arbitrary discretion of the administrator.
Id. at 510.
Plaintiffs assert then that the Winthrop ordinance’s language allowing variance
upon a recommendation of the Town Manager to avoid “extraordinary and
unnecessary hardships” and in “special circumstances of a particular application” is an
unconstitutional delegation of legislative authority and an unconstitutionally vague
standard.
Defendants reply that the ordinance is “chock-full of standards” providing
details of road construction but that it also recognizes that one size does not fit all and
therefore provides waivers as a means of flexibility.
Defendants rely heavily on a recent law court ruling vacating a Superior Court
decision affirming the Ogunquit Planning Board's approval of a final subdivision plan.
York v. Town of Ogunquit, 2001 ME 53, 769 A.2d 172. While it is true that the court
upheld the town’s authority to grant waivers, id. at { 10, there was no constitutional
issue raised in that appeal and none was addressed by the court.
Even given the deference granted municipalities in drafting and interpreting
their ordinances, it is impossible for this court to discern a standard in § VII(A) of
Winthrop’s ordinance. The Town relies upon the design standard as to right-of-way
width, pavement width, roadway crown, etc. as the standards which are at issue from
the plaintiffs’ challenge. Unfortunately, those are not the standards that are to be
sought for purposes of determination of improper legislative authority. The standards
to be provided by the zoning ordinance and the subdivision ordinance are the criteria
wherein the Board, and by implication the Town Manager, would find “extraordinary
and unnecessary hardships” and “special circumstances of a particular application.”
Clearly, the language comes from York v. Town of Ogunquit, 769 A.2d at 177.
The requirement goes on to state that the town must find that the variations will
not have the effect of nullifying the intent and purpose of the zoning ordinance or the
comprehensive plan and that the local planning agency must find, that due to special
circumstances of a particular plan, the required improvements are not requisite in the
interest of public health, safety and general welfare or is inappropriate because of
inadequacy or lack of connecting facilities adjacent or in proximity to the proposed
subdivision. Further, the court approved the waiver provided it was subject to
appropriate conditions which result in meeting the purposes and intent of the
requirements.
The issue is not which construction standards or design standards are necessary
for an acceptable road and street in the Town of Winthrop but under what
circumstances a property owner may determine that he or she is entitled to the waiver.
The lack of a standard also puts the Board’s decision-making authority well into the
zone wherein unconstitutional legislative authority lies.
In their argument, defendants espouse that, “special circumstances” must be case
specific and almost impossible to predict. They use the following example: “In one
case the ‘special circumstances’ may be topography, in another - economics, in another -
soil types, in another - the shape of the parcel being developed, in another pre-existing
conditions in the vicinity of the proposed road.” If that is the case, it was incumbent
upon the legislative authority to define the characteristics of those special circumstances
in order to provide a standard and to avoid an improper delegation of legislative
authority with language too general to expect a member of the public to be able to
comply.
Plaintiffs assert that in attempting to solve the problem of allowing a driveway to
serve as access to three lots by designating that driveway a “private street” at the point
it crosses lot 23A-1 and keeping the rest of the road (the portions on lots 23A-2 and 19A)
a “driveway,” it created a legal conundrum. Plaintiffs point out that the term “private
street” is not contained in the ordinance and a “private road” is defined as “road
serving three or more lots, which is not a municipal road.” Subdivision ordinance, Art.
XII. Since this road serves only plaintiffs lot it cannot, according to plaintiffs, be a
“private road” and must remain a driveway.
Defendants reply to this definitional argument by conceding that neither the
term “street” nor “road” are defined in the ordinance. Defendants review the
definitions of “driveway” and “private road” and argue that nothing in the ordinance
compels a conclusion that the Board cannot classify a road segment that serves only one
house a street or road rather than a driveway. Defendants note that the law court has
8
stated that “weight” should be given to an administrative agency’s interpretation of an
ordinance. Griffin v. Town of Dedham, 2002 ME 105 ¥ 7, 799 A.2d 1239, 1242.
Plaintiffs, in their reply brief, note that further on the Griffin court stated that
“la]n agency’s construction, however, is not conclusive or binding on us” and that
interpretation should be done “by first looking at the plain meaning of the language to
give effect to legislative intent.” Id. This court notes that still further on, however, the
law court stated “the terms or expressions in an ordinance are to be construed
reasonably with regard to both the objectives sought to be obtained and the general
structure of the ordinance as a whole.” Id. (quoting, 589 A.2d 1272, 1274 (Me. 1991)).
Neither the zoning ordinance nor the subdivision ordinance nor ordinance no. 21
as an amendment to the subdivision ordinance tell us what a “street” is nor, for that
matter, the definition of a “road.” While ordinance no. 21 does add the words “and
streets” to subsection B(13) of Article VIII of the subdivision ordinance, it mandates that
roads shall be planned and constructed in accordance with ordinance no. 21. Nothing
in the ordinances under review show a desire or command from the legislative body
that roads must contain more than a single home. While there is a limitation of two
houses to a driveway, there is no similar mandate of two plus homes to aroad. The
defendants can call the right-of-way easement anything they want, but by definition in
the prevailing municipal law in this town, a driveway must be a road serving no more
than two lots and a private road must be a road serving three or more lots which is not
a municipal road (whatever that is). Even the Town Manager, in his recommendation
of June 30, 2003, refers to the “private minor road” which, by definition within the
ordinance, must serve three or more lots.’ If a private road, by definition, serves three
or more lots and the “road” or “street” is not a private road, what is it?
Plaintiffs are arguing that by reclassifying his driveway as a road the Board has
reduced his lot size to below the minimum 80,000 square feet* required by the Winthrop
Zoning Ordinance. See, Winthrop, Me., Zoning Ordinance § 3.6(E). Plaintiffs assert that
by creating a nonconforming lot the Board has abused its discretion and committed an
error of law. Defendants do not dispute plaintiffs’ position or calculations regarding lot
size.
It is undisputed that the zoning ordinance requires the plaintiffs’ lot to contain a
lot area of 80,000 square feet. The lot area is defined in the zoning ordinance as:
The area of land enclosed within the boundary lines of the lot, minus land
below the normal high water line of a water body or upland edge of a
wetland and areas beneath roads serving more than two lots.
The decision of the Winthrop Planning Board is that the right-of-way going
across plaintiffs’ lot is a “private street” (undefined) and that the portion of the right-of-
way transvering the defendants’ lots transvering into defendants’ lots is a “private
driveway.” If the defendants rely upon definitions within its own ordinance but feel
free to utilize terms not defined in the ordinance, it is impossible to determine whether
the plaintiffs’ lot is conforming or nonconforming. If the “private road,” as a matter of
fact, serves plaintiffs and two defendants’ lots, it must be subtracted from plaintiffs’ lot
area in order to determine conformance. If that is the case, it is agreed by the parties,
the plaintiffs’ lot becomes nonconforming by some 7,143 feet.
> Furthermore, the Town Manager says since the “private road” will serve only one home, no turnaround
is necessary. This is in direct contradiction to the definition of private road under the subdivision
ordinance by its very terms.
* Plaintiffs assert that the lot will equal 72,857 once the 421 foot by 50 foot easement is designated a road.
. 10
Plaintiffs maintain that the Board, in approving the amendment to the
subdivision ordinance, failed to address § VII(B)(4) of the ordinance requiring an
applicant to submit a storm water management plan and a “TR-55 analysis.”
Defendants have stated in | 9 of the August 6, 2003 decision that “because no new
construction or changes to the existing road are proposed, the Board finds .. . no
environmental impact.” Decision of Winthrop Planning Board, August 6, 2003, at page
2,7 9.
Because this court is satisfied that the waiver granted by the Board upon the
recommendation of the Town Manager is an improper delegation of legislative
authority, it does not address the issue of storm water management plan.
The proposal by the defendants in compromise and the action by the Winthrop
Planning Board can only be characterized as an honest and good faith attempt to
resolve an unusual situation. However, when a municipality deviates from the
requirements of its own ordinances or takes actions based upon considerations not
within the ordinances, it is disregarding the rights of all of its citizens and particularly
those immediately affected, to expect the community to rely upon appropriately
established standards. Definitions are important because they put a community on
notice as to the characteristic and legal consequences attendant to required provisions
of municipal law. Unfortunately, in an attempt to resolve this situation, defendants
have created an undefined precedent not consistent with the requirements of law.
° A TR-55 is a storm water flow modeling system commonly used by municipalities and other pollution control
regulators.
Technical Release 55 (TR-55) presents simplified procedures to calculate storm runoff volume,
peak rate of discharge, hydrographs, and storage volumes required for floodwater reservoirs,
These procedures are applicable in small watersheds, especially urbanizing watersheds, in the
United States. Limits: NRCS type distributions, 24-hour duration rainfall, 10 subwatersheds,
minimum 0.1 hour and maximum 10-hour time of concentration.
United States Dept. of Agriculture, NRCS Technical Tools, at
http:/ / www.nrcs.usda.gov/technical/techtools/
11
The entry will be:
The decision of the Winthrop Planning Board regarding requests of
James and Deborah Remley to amend the plan of Vista Heights
Subdivision dated August 6, 2003, is VACATED,
Dated: September_ 2“ _, 2004 C
Donald H. Marden
Justice, Superior Court
Date Filed
9/5/03
Kennebec Docket No.__APO3-52.
County
: (Strumfiel
Action Petition for Review -Keith R. Varner, Esq.
80B 227 Water Street
POB 1051
(Richard Calcagni) Augusta, Me. 04332). MARDEN
ohn Bobrowiecki, Esq
~ James & Deborah Remley, Pro Se
PO Box 120 20 Vista Heights
Gardi » ME 04345 :
areaner Winthrop, Maine 04364
David A. & Cathy J. Leonard VS. Town of Winthrop & Planning Rd. of Town
Plaintiff's Attorney
Jed Davis, Esq.
86 Winthrop Street
Defendant’s Attorney Winthrop
Lee K. Bragg, Esq.
P.O. Box 5057
Augusta, Maine 04330
- Gregory J. Ferris, Esq.
Augusta, Maine 04432-5057
Sean M. Farris, Esq. + Christopher L. Vaniotis, Esq.
251 Water Street
P.O. Box 120, Gardiner, Me. 04345
Date of
Entry
100 Middle Street
P.O. Box 9729
Portland, Maine 04104-5029
9/5/03
9/8/03
10/3/03
10/7/03
10/17/03
10/30/03
10/31/03
11/14/03
11/20/03
12/1/03
Complaint, filed. s/Davis, Esq.
Notice of briefing schedule mailed to atty.
Plaintiffs' Motion for Extension of Time,
filed. s/Davis, Esq.
Proposed Order, filed.
ORDER, Marden, J. (dated 10/6/03)
The deadline shall be extended until October 30, 2003, and the deadline f
filing briefs extended until 11/17/03.
Copy mailed to atty.
Acceptance of Service, filed. s/Brage, Esq.
Entry of Appearance, filed. s/Vaniotis, Esq.
Plaintiffs' Motion for Extension of Time, filed. s/Feeney, Esq.
Proposed Order, filed.
ORDER, Marden, J.
Plaintiff's motion for extension of time for filing a Motion for Trial on
Facts is GRANTED. Time extended until November 7, 2003.
Copies mailed to attys of record.
Motion for Leave to Amend Complaint, filed. s/Davis, Esq.
Proposed Order, filed.
Amended Complaint, filed. s/Davis, Esq.
Plaintiffs' Motion for Enlargement of Time, filed. s/Davis, Esq.
Proposed Order, filed.
MOTION FOR ENLARGEMENT OF TIME, Marden, J. (dated 11/18/03)
Time to file briefs enlarged to December 1, 2003.
Copies mailed to attys of record.
MOTION FOR LEAVE TO AMEND COMPLAINT, Marden, J. (dated 11/28/03)
Plaintiff's mtoion for leave to amend complaint is granted.
Copies mailed to attys of record.
Plaintiffs' Motion for Enlargement of Time, filed. s/Davis, Esq.
Proposed Order, filed.