The opinion
STATE OF MAINE SUPERIOR COURT
CIVIL ACTION
YORK, ss. DOCKET NO. APO3-046-
OAR bs
RAYMOND E. CRONKITE,
Plaintiff
v. ORDER
CITY OF BIDDEFORD, et al,
Defendants we
Before this court is Plaintiff, Raymond E. Cronkite’s (“Cronkite”) Rule 80B
appeal.
FACTS
In October 2001, Defendant, City of Biddeford (“City”) established a Land Use
Regulation known as the “ ‘Institutional Master Plan,” which was approved by the
Biddeford City Council. The Institutional Zone Provides that future construction
within said zone must be consistent with a Master Plan and individual site plan review
and approval in accordance with Defendant City’s Zoning Ordinance.
In March 2003, Intervenor Defendant, the University of New England (“UNE”)
submitted a five-year Master Plan (the “Plan”). Upon receipt of this Plan, Defendant
City’ s Planning Office provided written input to Intervenor Defendant UNE. In
addition, Defendant City’s Planning Board (“Planning Board”) held a public hearing
regarding the Plan. Plaintiff Cronkite, a resident of Hills Beach, submitted written
comments, after the hearing, Opposing the Plan. Specifically, Plaintiff Cronkite
complained about traffic impacis of the Plan.
Despite Plaintiff Cronkite’s objections, on May 8, 2003, the Planning Board issued
a Notice of Decision approving Intervenor Defendant UNE’s Plan. Following this
approval, Plaintiff Cronkite, filed a Notice of Appeal with Defendant City’s Zoning
Board of Appeals (the “ZBA”). Plaintiff Cronkite raised four issues before the ZBA.
These issues included: that the Planning Board erred by failing to obtain an
independent traffic study, by not taking adequate measures to remedy existing traffic
dangers, by approving brick dormitories, and by excluding public Participation.
On October 7, 2003, the ZBA issued a written decision affirming the Planning
Board’s decision. Accordingly, on August 8, 2003, Plaintiff Cronkite appealed the
ZBA’s decision to the York County Superior Court.
DISCUSSION
This court, acting in an intermediate appellate capacity, will review the Board’s
decision “directly for errors of law, abuse of discretion, or findings not supported by
substantial evidence in the record.” Priestly v. Town of Hermon, 2003 ME 9, F 6, 814
A.2d 995, 997. The Superior Court will affirm the Board’s decision unless it is unlawful,
arbitrary, capricious, or unreasonable. Senders v. Town of Columbia Falls, 647 A.2d 93,
94 (Me. 1994). The Board’s findings will not be disturbed if supported by substantial
evidence contained in the record. Palesky v. Town of Topsham, 614 A.2d 1307, 1309
(Me. 1992). “Substantial evidence js such relevant evidence as a reasonable mind might
accept as adequate to support the conclusion.” Id.
In addition, the Law Court has held that interpretation of an ordinance is a
question of law that the court reviews de novo. Isis Dev., LLC v. Town of Wells, 2003
ME 149, 7 3, 836 A.2d 1285, 1287 (citations omitted). In construing the language of a
Zoning ordinance, the court takes into consideration “both the objectives sought to be
obtained and the general structure of the ordinance as a whole.” Id. (citations and
internal quotations Omitted).
A. Which Decision To Review?
To determine which decision to review, the Law Court has said that:
li]f the Board of Appeals acted as a tribunal of original jurisdiction, that is,
as factfinder and decision maker, we review its decision directly. If,
however, the Board acted only in an appellate capacity, we review directly
the decision of the Planning Board, or other previous tribunal, not the
Board of Appeals.
Yates v. Town of Southwest Harbor, 2001 ME 2, 1 10, 763 A.2d 1168, 1171 (citing
Stewart v. Town of Sedgwick, 2000 ME 157, | 4, 757 A.2d 773, 775.) To determine the
proper role of the ZBA, this court must look to the statute authorizing municipalities to
establish Boards of Appeals and to Defendant City’s own ordinances. Yates, 2001 ME 2,
{ 11, 763 A.2d at 1171 (citation omitted).
Title 30-A M.R.S.A. § 2691 establishes hearing procedures to be followed by the
ZBA. This statute provides:
[t]he board [of appeals] may receive any oral or documentary evidence but
shall provide as a matter of policy for the exclusion of irrelevant, immaterial
or unduly repetitious evidence. Every party has the right to present the
party's case or defense by oral or documentary evidence, to submit rebuttal
evidence and to conduct any cross-examination that is required for a full
and true disclosure of the facts.
30-A MRSA. § 2691(3)(D). This language, the Law Court has found, is characteristic of
a fact-finding body and requires a ZBA to conduct hearings de novo, unless the
municipal ordinance "explicitly directs otherwise." Stewart, 2000 ME 157, 7,757 A.2d
at 776; Yates, 2001 ME 2, { 11, 763 A.2d at 1171. A municipality, however, may create
so
an appellate role for its ZBA though an ordinance which establishes the appellate
function of the ZBA in “explicit terms.” Stewart, 2000 ME 157, 1 7, 757 A.2d at 776.
Therefore, it is necessary for this court to examine Defendant City’s ordinance to
determine which decision it should review.
Defendant City’s ordinance provides that the ZBA has the power to “hear and
decide appeals where it is alleged there is a zoning violation or error in any order,
requirement, decision, or determination made by the building inspector or planning
board in the enforcement of this ordinance.” (UNE Ex. 2 at 3.) Here, the ZBA did not
take any additional evidence. Accordingly, the ZBA was acting in an appellate role
when it reviewed the decision of the Planning Board. Thus, this court should review
the decision of the Planning Board.
B. Did the Planning Board Commit Errors of Law in Approving UNE’s Plan?
Plaintiff Cronkite contends that the Planning Board approved Intervenor
Defendant UNE’s Plan without taking into consideration the adverse affects that the
“massive development” would cause on the surrounding residential community.
The Plan is a long-term planning tool designed to meet the needs of Intervenor
Defendant UNE balanced against the needs of the surrounding properties. Nothing
contained in the Plan, however, provides permission or approval to undertake any
construction activity within the Institutiona! zone. “In fact, Defendant City’s zoning
ordinance specifically provides that it will be necessary for Intervenor Defendant UNE
to apply for necessary individual site review approvals, prior to construction, for each
project it undertakes. (City of Biddeford Zoning Ordinance Art. V, § 11 C.)
In addition, the sole basis of review of the Planning Board’s approval of the Plan
is whether the standards contained in section J of the Defendant City’s Zoning
Ordinance were met. Section J specifically provides:
1. The activities and facilities proposed in the master plan are
consistent with the institution’s mission statement.
2. The facilities conform to the requirements of the institutional zone
and other applicable provisions of the zoning ordinance.
3. There is a reasonable expectation that individual projects carried
out in accordance with the institutional master plan will be able to
be designed so that they comply with the site plan review
standards of Article XI.
4. The activities and facilities will be designed in a manner that will
not unreasonably increase adverse impacts on adjacent residential
neighborhoods or the facilities or services of the City of Biddeford.
5. The City Council and UNE shall establish a scholarship and
community grant program, within the first six months of the
acceptance of the University’s master plan.
(City of Biddeford Zoning Ordinance Art. V § 10 J.)
In this case, the Planning Board specifically found that the above standards were
met. (See May 8, 2003 Planning Board Decision.) The record supports these conclusions
of the Planning Board. Plaintiff Cronkite, however, does not argue that the above
criteria were not met. Instead, Plaintiff Cronkite contends that the Planning Board
failed to adequately consider the traffic impact of Intervenor Defendant UNE’s Plan,
and argues that the Planning Board should have hired an independent traffic expert to
examine the impacts on the Hills Beach area. :
The record, however, includes an expert traffic study prepared by Eaton Traffic
Engineering, indicating that the traffic impact would not be harmful to the surrounding
community. The record also contains evidence that the Department of Transportation
concurred with the findings of the expert traffic study. (Planning Board Meeting
Minutes of April 23, 2003 at 14-15.) In addition, Plaintiff Cronkite failed to raise his
request for an independent traffic study before the Planning Board. See Wells v.
Portland Yacht, 2000 ME 20, {{ 5-6, 771 A.2d 371, 373. Consequently, Plaintiff Cronkite
has failed to carry his burden of demonstrating that there is no competent evidence to
support the Planning Board’s findings.
Moreover, Plaintiff Cronkite’s objections to the Plan, specifically his objections
regarding traffic and other issues, are not yet ripe for review. Intervenor Defendant
UNE has not yet sought a building permit or Planning Board approval for projects
continued in the Plan.
C. Which Zoning Regulations to Apply?
Plaintiff Cronkite also argues that had the Planning Board adhered to the prior
zoning regulations of Defendant City, it would have been required to deny Intervenor
Defendant UNE’s Plan.
This displeasure with the current zoning ordinance is not properly raised on this
appeal. The Planning Board properly applied the Institutional Zoning Ordinance in
evaluating Intervenor Defendant UNE’s Plan, and imposed proper conditions to ensure
compliance with these conditions.
WHEREFORE, Plaintiff Cronkite’s Rule 80B appeal is Denied.
‘Dated: July 6, 2004
PLAINTIFF: /]
Pro Se 7> -
125 Hills Beach Rd . Arthur Brennan
Biddeford Me 04005 Justice, Superior Court
DEFENDANT: City of Biddeford
Aaron Burns, Esq.
SMITH ELLIOTT SMITH AND GARMEY
PO Box 1179
Saco Me 04072
INTERVENOR DEFENDANT: University of New England
Elizabeth Butler, Esq.
PIERCE ATWOOD
One Monument Square
Portland Me 04101-1110