Fitanides v. Lambert

STATE OF MAINE SUPERIOR COURT

CIVIL ACTION

YORK, ss. DOCKET NO. AP-03-070

eA R- Ynr 3) Of 2 aL

FRED FITANIDES,

Plaintiff _

ve ORDER

CORALD Gece

RICHARD LAMBERT, et al., LAL Le

Defendants

APR 23 2004

Before this court is Plaintiff, Fred Fitanides’ Motions for Trial of the Facts and

Motion to request that this Court specify the future course of proceedings, pursuant to

M. R. Civ. P. 80B(d) and (i). Following hearing, the Motions are Denied.

FACTS

On May 7, 2002, Defendant, Saco Planning Board (“Planning Board”) held the

first hearing regarding Defendant, H. Paul Deshaies’ (“Deshaies”) application for three

permits to divide a parcel of land and construct a condominium development on the

property. On June 11, 2002, the Planning Board granted the site plan and conditional

use approval. Conversely, however, on August 5, 2002, Defendant, Saco Zoning Board

of Appeals (“ZBA”) reversed the conditional use approval. Thereafter, Defendant

Deshaies applied for a second conditional use approval, which was granted on August

27, 2002. The ZBA, however, reversed the second conditional use approval on October

28, 2002. Accordingly, on November 12, 2002, the Planning Board granted approval of a

third conditional use and an amendment of the site plan to Defendant Deshaies.

Plaintiff Fitanides appealed the third conditional use approval to the ZBA, which

was affirmed. Consequently, Plaintiff Fitanides appealed several of these approvals to

the York County Superior Court. These actions were consolidated and the decisions

were affirmed by the York County Superior Court. Subsequently, Plaintiff Fitanides

appealed the decision of the York County Superior Court to the Law Court.’

On October 27, 2003, Defendant Deshaies filed a letter requesting a six-month

extension of the conditional use and site plan approval, granted by the Planning Board

of November 12, 2002. Plaintiff Fitanides was notified of a hearing regarding the

request to be held on November 4, 2003. Plaintiff Fitanides attended the hearing, but

was not allowed to present evidence, because the Planning Board did not open the

hearing to the public. At the conclusion of the hearing, the Planning Board decided to

approve Defendant Deshaies’ extension request.

On December 3, 2003, based on these events, Plaintiff Fitanides appealed the

decision of the Planning Board to the York County Superior Court, pursuant to M. R.

Civ. P. 80B.

ARGUMENT

Plaintiff Fitanides argues that the failure of the Planning Board open the

November 4, 2003, hearing to the public was in violation of § 1111 of the City of Saco

Zoning Ordinance. Plaintiff Fitanides asserts that if the Planning Board had opened the

hearing up to the public he would have presented evidence requiring the Board to deny

the extension request. (See Plaintiff Fitanides Memorandum of Law In Support of

Motion For Trial of Facts at 2-9.) Thus, Plaintiff Fitanides seeks a trial of the facts and

specification as to the future course of proceedings in regard to the independent claims

he asserts in his Complaint.

i On March 8, 2004, the Law Court ordered a remand to the Planning Board for further

proceedings. Decision 2004 Me. 32.

Conversely, however, Defendants Deshaies and the City of Saco (“Saco”)

contend that there is sufficient evidence available in the record to support the Planning

Board’s decision. Accordingly, they argue, a trial of the facts is not necessary.

Moreover, Defendants Deshaies and Saco assert that Plaintiff Fitanides Motion to

Specify the Future Course of Proceedings should be denied, because his alleged

independent claims can be disposed of through his Rule 80B appeal.

DISCUSSION

In Rule 80B appeals, the court must decide whether there was an abuse of

discretion, erroneous interpretation of the law or findings not supported by substantial

evidence in the record. Senders v. Town of Columbia Falls, 647 A.2d 93, 94 (Me. 1994);

Grant’s Farm Assoc. Inc. v. Town of Kittery, 554 A.2d 799, 801 (Me. 1989). The board’s

decision will be affirmed unless it is unlawful, arbitrary, capricious, or unreasonable.

Senders v. Town of Columbia Falls, 647 A.2d at 94. 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).

1. Plaintiff’s Rule 80B(d) Motion

Plaintiff Fitanides argues that he is entitled to a trial of the facts, because he was

denied an opportunity by the Planning Board to present relevant evidence regarding

the site plan approval and extension. Specifically, Plaintiff Fitanides asserts that the

Planning Board refused to open the hearing to take evidence in regard to § 1111 of the

City of Saco Zoning Ordinance.

The Saco Zoning Ordinance provides, in relevant part:

[i]f substantial construction is not commenced within twelve (12)

months of the Planning Board’s approval of a site plan, the site plan

approval shall be null and void. Substantial construction shall mean the

completion of a foundation, addition or other evidence satisfactory to the

Planning Department. The deadline may be extended for one additional

six (6) month period by the Planning Board upon the written request of

the applicant. The written request for an extension must be submitted

before the date of expiration of the site plan approval. After the site plan

approval has expired or extension denied by the Planning Board, the

applicant may reapply for site plan review at any time without prejudice.

The Planning Board shall approve the request for an extension unless the —

Board has become aware of one of the following:

a. additional information that indicates that the plan does not

meet the standards of the zoning ordinance;

b. failure to meet a condition of approval;

Cc. an amendment in the zoning ordinance that prohibits or

alters the proposed site plan.

(Saco Zoning Ordinance § 1111.) Here, Defendant Deshaies requested an extension

with the Saco Planning Board. In regard to this request, the Planning Board notified

Plaintiff Fitanides that a hearing would be held. Accordingly, on November 4, 2003, the

Planning Board decided to grant Defendant Deshaies request, without a public hearing.

Although Plaintiff Fitanides argues that there exists substantial evidence that

was not presented to the Planning Board in regard to this decision to grant Defendant

Deshaies request, this court disagrees. The record contains the applicable zoning

ordinance sections, the record of the hearing before the Planning Board, the Planning

Boards decision, on which the court can make an educated decision regarding the legal

issues presented in this case. In addition, the zoning ordinance does not entitle the

public to comment on the factors regarding the extension. Therefore, this court finds

that there exists substantial evidence available in the record to decide the issues

presented. See Baker’s Table, Inc. v. City of Portland, 2000 ME 7, J 9, 743 A.2d 237, 240-

41. (holding that “the purpose of Rule 80B(d) is to allow the parties to an appeal of a

governmental action to augment the record presented to the reviewing court with those

facts relevant to the court's appellate review of agency action. Rule 80B(d) is not

intended to allow the reviewing court to retry the facts that were presented to the

governmental decision maker, nor does it apply to any independent civil claims

contained in the complaint. Rather, it is intended to allow the reviewing court to obtain

facts not in the record that are necessary to the appeal before the court.”) (citation

omitted).

Additionally, this court notes that Plaintiff Fitanides argument that he was not

provided an opportunity to speak at the hearing regarding Defendant Deshaies’ site

plan approval does not constitute a denial of his procedural due process rights.

Although we have reviewed municipalities’ zoning procedures under

constitutional standards, see Vella v. Town of Camden, 677 A.2d 1051, 1054 (Me.

1996) (finding "no evidence . . . that public notice was constitutionally deficient”);

F.S. Plummer Co., 612 A.2d at 861-62 (finding that "the notice provided was

constitutionally sufficient"), we have never explicitly extended a specific right to

procedural due process to an abutting landowner adversely affected by a zoning

ordinance.

Crispin v. Town of Scarborough, 1999 ME 112, 7 18, 736 A.2d 241, 241 n.7. In the case at

bar, Plaintiff Fitanides was given an opportunity to speak at every hearing regarding

the Defendant Deshaies’ site plan approval. Also, Defendant City did notify Plaintiff

Fitanides, even though it was not required to do so, of the November 4, 2003 meeting

regarding the extension request. Consequently, this court finds that Plaintiff Fitanides’

procedural due process rights have not been abridged.

2. Plaintiff’ Rule 80B(i) Motion

Next, Plaintiff Fitanides asserts that since his Complaint contains an independent

basis for relief (Count III), he should be entitled to have this court specify the future

course of proceedings, pursuant to M. R. Civ. P. 80B(i).

In Count III Plaintiff Fitanides requests declaratory relief from this court, and

argues that the Defendant Deshaies site plan permit is null and void under § 1111 of the

cmt

Saco Zoning Ordinance. The relief Plaintiff Fitanides seeks, however, can be addressed

and is fully available to him on direct appeal, pursuant to M. R. Civ. P. 80B. See

Fitanides v. Perry, 537 A.2d 1139, 1141 (Me. 1988) (hoiding that “[wjnatever relief

Fitanides seeks in the declaratory judgment action was fully available to him on direct

appeal.”) Accordingly, this court denies Plaintiff Fitanides’ request to specify the future

course of proceedings.

ORDER

WHEREFORE, this court DENIES Plaintiff, Fred Fitanides’ Motions for Trial of

The Facts and Motion to Request That This Court Specify The Future Course of

Proceedings, pursuant to M. R. Civ. P. 80B(d) and (i).

Dated: March 10, 2004

LE Ss

/ G. Arti tur Brennan

Justice, Superior Court.

/ P

Fred Fitanides - PL - pro se

_ Christopher L. Vaniotis, Esq. - DEFS. H. PAUL DESHAIES & PROPERTIES BY THE SEA, LLC

Timothy Murphy, Esq. — DEFS. CITY OF SACO et als