The opinion
STATE OF MAINE SUPERIOR COURT
CUMBERLAND, SS DOCKET NO. AP-05-034
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SEAFORTH HOUSING, LLC
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Plaintiff
VS. ORDER ON 80B APPEAL
CITY OF PORTLAND
Defendant
and
WATERVIEW DEVELOPMENT, LLC
Party-in-interest
Before the court is Plaintiff Seaforth Housing, LLC's ("Seaforth") appeal,
pursuant to M.R.Civ.P. 80B, of the City of Portland Planning Board's ("Board")
approval of party-in-interest Waterview Development, LLC's ("Waterview")
application for development of a condominium building.
BACKGROUND
Seaforth owns Back Bay Tower, a fifteen-story condominium building in
Portland situated on Cumberland Avenue, across Mechanic Street from the
Waterview development site. The Waterview development, as approved by the
Board, will have twelve stories, 94 residential units, and 144,000 square feet of
space. On February 28, 2005, Waterview submitted an application to the Board
for final site plan and subdivision approval, which was approved by the Board
after a public hearing, in a decision dated May 10, 2005. On June 8, 2005,
Seaforth filed an appeal from this decision, and on June 28, 2005, filed a motion
for a stay, which was denied. The court now considers Seaforth's appeal.
On appeal, Seaforth contends that the Board erred with respect to its final
site plan and subdivision approval in finding that (1)Waterview has adequate
financial capacity to complete the proposed development, (2) the project
minimizes, to the extent feasible, any substantial diminution in the value or
utility to Back Bay Tower ( 3 ) Waterview's application satisfied traffic
requirements (4) Waterview complied with the parlung space requirement and
(5) the proposal would not cause significant wind impact.
In addition, Seaforth maintains in its appeal briefs that it did not receive
notice of any of the proceedings before the Portland City Council. These
proceedings resulted in the City Council's approval of a Contract Zone
Agreement, a necessary step in \VaterviewJs process of obtaining final site plan
and development approval from the Board. However, in its motion to strike
certain portions of the appeal record submitted by Waterview, Seaforth also
maintains that it "is only appealing the [May 101 decision on the February 28,
2005 application. Plaintiff is not seeking to challenge the Contract Zone
Agreement between the City and Waterview." Plaintiff's Motion to Strike
Portions of "Record" with Incorporated Memorandum of Law at 2. Thus, by
Seaforth's own admission, the Contract Zone Agreement is not challenged, and
any question of adequate notice with respect to hearings held on the Contract
Zone is waived. Accordingly, Seaforth's claims that it did not receive notice of
these hearings will not be reviewed.
DISCUSSION
I. The Board's Findings Concerfiing the Adequacy of Waterview's
Proposal
The Board's site plan and subdivision approval is governed by state
statute and by the provisions of the City of Portland 1,and Use Ordinance
("Ordinance"). 30-A M.R.S.A. § 4404. The court reviews the Board's decision for
errors ~f law, abuse of discretion, c; findings of fact not supported by substantial
evidence in the record. Sre York v. Town of Ogz~rzyuit,2001 IvlE 53, 6, 769 A.2d
172, 175.
A. Fina/tcinl Capacity
Seaforth claims that Waterview did not meet the requirements of
Ordinance 5 14-525(c)(9).' Waterview had submitted to the Board a letter from
Key Bank stating that it has a strong interest in proceeding with financing the
project in the amount of $20,000f000. In addition, Waterview submitted a cover
letter to the Planning Board describing the scale of the project and stating that the
estimated construction cost is $17,000,000. These submissions appear to cover
the statutory requirement under 5 14-525(c)(9). Although 5 14-525(c)(9)requires
a letter from a responsible financial institution stating that it "would seriously
consider findncing" the development and Key Bank's letter states that it has a
"strong interest" In financing the development, these phrases indicate sirnilar
levels of interest. Thus, the substance of 5 14-525(c)(9)'srequirement is met.
' Ordinance 14--525(c)(9)states:
[For] all site plans . . . the applicant shall . . . provide written statements containing the following:
(9) evidence of financial and technical capacity to undertake and complete the development
including, but not limited to, a letter from a responsible financial institution stating that it has
reviewed the planned development dnd would seriously consider financing it when approved, ii
requested to do so.
Seaforth claims, however, that Waterview was also required to present
evidence cf the actual costs of completing the project, for comparison against the
amount the financial institution svould be willing to finance. Bruk el. Town of
Georgetowrz, cited by Seaforth to support this assertion, is inapposite. See 436
A.2d 894, 897 (hie. 1981). In Bri~k,the court was considering whether a Board's
denial of a proposed subdivision xvas supported by substantial evidence in the
record. The Law Court upheld the Board's decision in part because it was
supported by its finding that the developer had not tallied costs associated with
the project in a way that satisfied the Board that the developer had adequate
financial capacity to cover those costs. See id., n. 5. This opinion merely reaffirms
that a planning board has broad discretion to make factual findings, and that the
findings svill not be overturned by the court on appeal if they are supported by
substantial evidence in the record. See id. This opinion does not add to the
minlmum requirements for approval as stated in 30-A M.R.S. 5 4404(10)2and
Ordinance 5 14-525(c)(9). Under these requirements, the Board xvas entitled to
find, based on Waterview's presentation of the scale and total estimated cost of
the project, as well as the letter of strong interest from Key Bank, that Waterview
had demonstrated adequate financial capacity to complete the development. See
id.
B. Dirnint~tioliIn I7alueor Utility to Neigliboving Structzlres
30-A 1LI.R.S.A. s4404(10) states:
When adopting any subdivision regulations and when reviewing a n y
subdivision for approval, the municipal reviewing authority shall consider the
following criteri'l and, before granting approval, mu:jt determine that:
(10) the subdivider has adequate financial and technical capacitjf to meet the
requirements ot this section;
Seaforth claims that Waterview did not satisfactorily demonstrate that its
development had minimized, to the extent feasible, any substantial diminution
in the value or utility to neighboring structures. See Ordinance § 14-526(a)(4).3
The Board's Decision includes a detailed explanation for its finding that the
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meet this reqiiirernent. 'IA4ithoutreprinting the
entire text of this explanation, the Board noted, significantly:
Con~mentswere received on behalf of Seaforth, w h c h asserted that
the Project's height 2nd mass will cause a $1.4 million diminution
of value to its property. Seaforth failed to present any
documentation or rational analysis to support this statement.
Board Decision at 8. Seaforth asserts that its testimony before the Board was
supported by rational analysis, and points to its written submission to the Board
as well as the testimony of its financial director, Caskie Collett. Ms. Collett stated
that Seaforth has received to date seven notices to vacate units, and that Seaforth
has re-leased five of those spaces, at an average decrease in rent of about $300.
See R. at 21. The Board, horvever, found this evidence unpersuasive. The Board
di.d not abuse its discretion in choosing to believe that the asserted diminution in
value was either not related to the proposed development, or not proven to be
substantial. Moreover, the Board was well within its discretion to weigh
Seaforth's assertions against what it considered to be the "high quality" and
"attractive design" of Waterview, which "would actually enhance local property
values." S r e Board Decision at 8. Accordingly, the Board did not err in
concluding that the Waterview Development minimizes, to the extent feasible,
3
Ordinance 5 14-526(a)(4)states:
The Planning Board . . . shall not approve a site plan unless . .. (3) The bulk, location or height of
proposed buildings and structure minimizes, to the extent feasible, any substantial diminution in
the value or utility to nrighboring structures under different ownership and not subject to a legal
servitude in favor of the site being developed;
any substantial diminution in the value or utility to neighboring structures. See
Twigg z1. Tozivl ofKe!r?lebu?zk,662 A.2d at 916 (stating that a board's decision is not
wrong because the record is inconsistent or 1' different conclusion could be
drawn from it.)
P
L. T I . c ~ R~q~~i'i'eiiie~iis
~;~c
Before approving a site plan application, the Planning Board must find
that the Project will not cause "unreasonable hghway or public road congestion
or unsafe conditions with respect to use of the highway or public roads existing
or proposed." Ordinance 5 14-497(a)(5). In addition, the Board must find that
the incremental volume of traffic will not create or aggravate any significant
hazard to safety, at or to and including intersections in any direction where
traffic could be expected to be impacted. Ordinance 5 14-526(a)(l).
The record shows that the Board had before it a detailed traffic study
issued by lvatervie~v'sexpert, Gorrill-Palmer Consulting Engineers, Inc.; reviews
of the Gorrill-Palmer study, by- the City's Consulting Traffic Engineer, Thomas
Errico; a Plannlng Board Iieport prepared by City Planner Barbara Barhydt,
discussing Mr. Errico's conclusions on traffic; a ~ a~presentation
d by William J.
Bray, Seavle~v'straffic expert, critiquing the Gorrill-Palmer study. From these
various sources of information, the Board may accept some expert opinions and
reject others. Sre iVfack v. hiIuniclpa1 Officers of Touln of Cape Eliznbeth, -163 A.2d
717, 729 (Me. 1983). Seaview's assertion that the Board was required to analyze
all of Mr. Bray's comments in order to make the required findings under the
Ordinance is mistaken. Se.e id., see also Glasser zl. Northport, ,589 A.2d 1280, 1283
(Me. 1991). The Board had more than enough evidence to conclude that the plan
before it would not result in unsafe traffic conditions or aggravate any hazard to
safety, and it was not rccjuired to address in its Decision all of the contradictory
evidence put before it in order to come to its conclusion. See id.
Seaview contends that Mr. Errico never approved the Gorrill-Palmer
study%s stated in the Hoard's Decision; however, the Board may logically
conclude that the comments Mr. Errico did make about the study after stating
that he had reviewed the site plan and supporting traffic and p a r h n g
information, set forth the only difficulties or disagreements he had with it. See
Exhibit 22, attachment F. It appears from the Hoard's Decision that all of Mr.
Errico's comments except two were fully dealt with by the Board. Without
acting capriciously and based on substantial support in the record, the Board
concluded Mr. Errico had "opined that the applicant's traffic management plan
and proposed improvements meet aii of the City standards, subject to certain
conditions.'" Board Decision at 2.
The two points in hfr. Errico's commentary that are left unaddressed by
the Board are as follows:
(3) Bituminous stamped crosswalks are proposed across the
project's driveway. Specifications of the method to be used should
be reviewed and approved by me and Eric Labelle
(4) The underground p a r h n g garage will be very tight for vans
entering and exiting the designated areas. The applicant should
provide information that documents the ability to make the
required parlung maneuvers.
The Study, for its part, concludes clearly that the proposed construction presents no traffic
problems: the Executive Summary of the Study notes, "It is the opinion of Gorrill-Palmer
Consulting Engineers, Inc. that the local roadway network can accommodate the additional
traffic generated by the proposed Waterview ~ p a r t m e n t sand that the proposed parking supply
is adequate."
Although these comnlents were undoubtedly intended by Mr. Errico to increase
the traffic-related safety of the development, it was within the Board's discretion
under the Ordinance to find that, if these particular points were left
unaddressed, the plan as proposed would still co~nplywith the Ordinance's
traific recluirements. The Board is charged by the Ordinance with finding that
the project will not create unsafe conditions with respect to use of public roads.
Ordinance 5 14-497(a)(5). The difficulty with the parlung garage does not relate
to an unsafe condition with respect to use of public roads. Rather, it seems to
relate to a potential liability on the part of Waterview, which the Board could
reasonably have anticipated Waterview would address without the Board
issuing an instruction to do so. Likewise, a recommendation that Mr. Errico and
Mr. Labelle review the method of stamping a cross~valkcan be reasonably
understood by the Board as not pertaining to unsafe conditions with respect to
use of public roads, but rather as a suggestioll by Mr. Errico that Waterview
consult with him for its own benefit. Accordingly, the Board's finding that the
project xvill not cause unreasonable highway or public road congestion or unsafe
conditions with respect to the use of the highway or public roads, subject to
conditions as outlined in the Board Decision, is reasonable and based on
substantial evidence in the record.
D. Payking Space Requirement
The Conditional Zone for Waterview's 96 units, established by the Board
prior to the May 10, 2005 meeting, requires a minimum of 119 spaces. Ordinance
5 14-526(a). Seaforth does not contest the adequacy of this number as an
acceptable ratio of parking spaces-to-dwelling units. Rather, Seaforth contends
that Waterview had not adequately demonstrated that it in fact has acquired the
required number of spaces under the Conditional Zone, and that the Board
exceeded its authority in granting final site plan and subdivision approval
without first holding Waterview to the parlung requirement established by the
Conditional Zone.
The Board Decision states, "In addition to the 9 spaces on-site, the
Applicant recently acquired an option to purchase the Gateway Garage and is
proposing to provide all of the 110 required parking spaces within this
structure." Waterview had submitted a copy of the option to purchase Gateway
Garage, which indicates that Waterview has an unconditional option to purchase
the Gateway Garage.
Seaforth maintains, however, that the Board tacitly acknowledged that
Waterview had not met the parlung requirement by imposing the additional
condition that, post-construction and prior to the City's issuance of a certificate
of occupancy, Waterview would be required to present additional evidence that
the required parking spaces are available. This is one plausible interpretation of
this requirement. Another, equally plausible interpretation is that the Board was
satisfied that Waterview had met the parlung requirement but that it considered
it prudent to impose further requirements on the applicant, to be met at future
. -
' Ordinance § 14-526(a) states in part:
(1)The Planning Board . . . shall not approve a site plan unless it meets the . . . provisions for parlung.
(2)(b) \,Vhere construction is proposed of new structures having a total floor area in excess of fifty
thousand (50,000) square feet, the Planning Board shall establish the parlung requirement for
such structurr?~.The parking requirement shall be determined based upon a parking analysis
submitted by the applicant, which shall be reviewed by the city traffic engineer, and upon the
recorninendation of the city traffic engineer.
dates when the projections made by various persons involved in the project
would c a n e to fruition. SuckL is the case with the Board's requirement that the
applicant monitor the intersection at hlechanic Street and Cumberland Avenue
post-development, and, in the event the already-implemented traffic
improvements Ivere not sufficient, that Waterview provide up to $25,000 in
additional improvements. As a matter of law, the court cannot say that the
Board's post-development requirement that Waterview provide additional
evidence of parlung is any different than its post-development traffic-monitoring
requirement.
I:. Wild lnipact
Finally, Seaforth claims that the Board lacked sufficient evidence to
conclude that the Waterview developnlent would not cause a significant wind
impact, and appears to argue that the Board abused its discretion in not ordering
a wind impact study. Ordinance 5 14-526(a).~A review of the record establishes
that t h s contention is without merit. The Ordinance allows the Board to order a
wind impact study, but does not require such a study in every instance. 5 14-
525(a).7 Only when the Board, in its discretion, finds that it is reasonably
6
Ordinance 14-526(a) states in part:
The Planning Board . . . shall not approve a site plan unless it meets the following criteria: . . .
(3) The bulk, location or height of proposed buildings and structures and the proposed uses
thereof will not cause health or safety problems a s to existing uses in the neighborhood,
including without limitation health or safety problems resulting from any substantial reduction
in light and air, any significant wind impact, and any significant s n o w loading o n any
neighboring structure, where setbacks from property lines are not required by article 111.
7
Ordinance 5 14-525(a) states in part:
Notwithstandi~ngthe submission of a complete application,, any applicant shall delineate on the
plan or supply such other information, studies or reports from qualified professionals when
determined b!. the Planning B o x d or the planning authority to be reasonably necessary to make
any of the determinations required by this article, or to impose or effectuate conditions which
may be imposed pursuant to section 14-526 including, without limitation: . . . an analysis of wind
impacts on surrounding properties.
necessary to make a determination about the wind impacts will it order such a
study. Id. The court ~vi!! not second-guess the Board's decision not to order a
wind impact study or its conclusion that the Waterview development would not
cause significant wind impacts where there is record evidence to support that
decision. S1.e Tzuisg u.Town of Kcn~zebt~irk,
662 A.2d at 916.
The record shows that the Board was presented with evidence of the
Waterview development's faqade variation and breakup as a means of reducing
wind impact, R. at 24-5; that wind nuisance to pedestrians is related mainly to
the ability to open doors around negative wind pressure, which is greatest at the
corners of buildings, and that, consequently, all doors in the Waterview are
located in the center of the building, R. at 25; and that the building's designers
confined the size of the building they were designing in an attempt to address
wind impacts. Id. In addition, the Boarci was aware that the \Vaterview, a 12-
story building, was being built next door to an existing 15-story building. The
information provided by the City's downtown urban guidelines, presented by
Seaforth as a reason that the Board should have required a wind impact study,
seems just as likely to reassure the Board that none was necessary in h i s case. It
states:
In general., the taller the building, the stronger the wind potential is
at the building's base. Monolithic buildings, those that do not
change shape with height, almost invariably will be windy at their
base when they are significantly taller than most of the
surrounding buildings. When there are a lot of buildings of similar
height in an area, the buildings tend to shelter one another.
Based on the above-related evidence, the Board determined that "the project
building is to be located near the existing Back Bay Towers building and may
actually lessen wind impacts associated with that currently single tall structure."
This finding is based on substantial evidence in the record, and the Board did not
abuse its discretion in ficding that no additional evidence in the form of a wind-
impact study was required in order for it to make this determination.
Therefore the entry is:
The Portland Plannning Board's approval of Waterview
Development LLC'S Application for Site Plan and Subdivision
Approval is AFFIRMED.
Dated at Portland, Maine this /?+ay of ,2005.
~ h b e rE.
t Crowley .
Justice, Superior court
ate ~ i l k d JUNE 8 2005 CUMBERLAND
County
Action 80B APPEAL
SEAFORTH HOUSING, LLC c I m OF PORTLAND
WATERVIEW DEVELOPMENT, LLC
Plaintiff's Attorney Defendant's Attorney
I DAVID M HIRSHON ESQ PENNY LITTELL ESQ (CITY OF PORTLAND)
MARSHALL J TINKLE ESQ 389 CONGRESS STREET
3 CANAL PLAZA PORTLAND MAINE 04101
PO BOX 15060 (207)874-8480
PORTLAND MAINE 04112-5060 Patrick Scully, Esq. (PI1 Waterview)
(207)874-6700 100 Middle Street
PO Box 9729
Portland, ME 04104-5029
774-1200
Date of
Entry