The opinion
STATE OF MAINE SUPERIOR COURT
CUMBERLAND, ss. -
.
: - CIVIL ACTION
DOCKET NO. CV-04-784
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BRETT MCMILLAN, JOHN DAY,
JOANNE KENNEDY, and DEBRA
KEENAN
ORDER ON DECLARATORY
JUDGMENT ACTION
THE CITY OF PORTLAND, MAINE
Defendant, and
PACKARD DEVELOPMENT, LLC,
On November 15 and 16,2005, a jury-waived trial was held on Comts, I, 11,
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and 111of Plaintiffs' complaint. These counts request a declaratory iudment that a
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conditional zoning contract approved by the City Council of City of Portland
("City Council") on November 29, 2004, rezoning approximately 20 acres of land
in Morrill's Comer, ("Site") (I) violates Portland's Land Use Ordinance §§14-60 to
14-62, (11) is inconsistent with Portland's Comprehensive Plan, and (ID) violates the
requirements of 30-A M.R.S.A. 5 4352(8). In an opinion dated May, 9 2005, tlus
court granted Party-in-Interest Packard Development, LLC's ("Packard") motion
to dismiss counts IV through IX of Plaintiffs1complaint.
BACKGROUND
The named plaintiffs ("Plaintiffs") are residents of neighborhoods adjacent
to the Site. One of the plaintiffs, Ms. Kennedy, abuts the Site, and the other two
plaintiffs live on streets off of Allen Avenue in the immediate vicinity of the Site.
Plaintiffs express concern mainly with traffic safety on Allen Avenue if the Site is
developed on the scale proposed by Packard. Plaintiffs also express concern with
a lack of buffering between the residential area and the Site, operations noise from
the Site, and future attempts to access the development from the adjacent
residential area rather than the designated access point.
The Site is comprised of several contiguous parcels of land, bounded on the
South by the Guilford Rail Line, on the East by industrial warehouses, and on the
North by established single-family residences. It has street frontage to the West on
Allen Avenue north of the confluence of Forest, Stevens and Allen Avenues, all of
whch are heavily-trafficked streets, and one of whch, Forest Avenue, is a major
Portland arterial. Packard's plan creates a single access point to the proposed
development from its frontage on Allen Avenue.' This access point is 300 feet
from the Guilford railway. Trains cross this railway approximately four times a
day and several times during the night.
Packard's plan is for a "mixed-use" development that includes a 65,000
square-foot anchor store to be occupied by a Stop-and-Shop supermarket, several
smaller retail establishments, a limited amount of office space, three and a half
acres of dedicated green space with a pedestrian/bicycle trail, and approximately
31 residential units. The total development proposed on the Site has a footprint of
approximately 130,000 square feet. The traffic engineers hred by Packard have
estimated that the development will generate an additional 525 vehcle trips per
how through Allen Avenue to the Site on weekdays, up from 85 trips per hour
currently.
'The plan also calls for a one-way access into the Site from the Northeast corner, through Morrill
Street in the residential neighborhood.
Prior to rezoning, approximately 80% of the Site had been designated as an
J-L, or industrial low-impact zone, with the remaining 20% of the site zoned as R-5
residential and B-2 commercial. The Site is currently mostly developed, with a
strip of woods on the northern edge of the site adjacent to the residential
community. Many of the structures on the Site, whch are warehouse-like, have
been vacated, and the area has fallen prey to weeds and brush growth, vandalism,
and dumping. The Site also contains five residential units that will be demolished.
Packard's plans for development of the Site began in 2002. Initially, the
plan was to create a solely commeraal development. However, after a failed
attempt to purchase two parcels on the Site owned by the City, Packard revised its
proposal to include residential, office, and green spaces as well, and reduced the
size of the planned supermarket from 75,000 square feet to 65,000 square feet.
Even after the revision of its plans, the City's Planning Board failed to recommend
the development and the conhtional zone, returning a vote of 3-3 to the City
Council. Notwithstanding t h s input, on November 29, 2004, after a public
hearing, the City Counal voted 9-0 to approve Order # 98-04/05, authorizing a
conditional rezone of the Site for the development proposed by Packard.
Subsequently, the City Council also approved sale of its Site parcels to Packard.
Plaintiffs brought ths action for declaratory relief subsequent to the City Council's
approval of the Site's conditional zone.
DISCUSSION
I. Procedure and Standard of Review
The court's charge in h s action seelung declaratory relief is to assess
whether the City Council's vote to approve the conditional zone is valid under the
1aw governing condtional zones.
30-A M.R.S.A. § 4351 et seq. provides express limitations on municipal
home rule authority. 5 4352(8) imposes conditions on a municipality's grant of
conditional and contract rezoning. T h s section states in pertinent part:
A zoning ordinance may include provisions for conditional or
contract zoning. All rezoning under h s subsection must:
A. Be consistent with the local growth management program
adopted under h s chapter;
B. Establish rezoned areas that are consistent with the existing and
permitted uses w i h n the orignal zones;
In addition to these limitations, Portland's Zoning Ordinance §§ 14-60 to 14-
62 states that the City Council has authority to rezone a parcel of property if, due
to "the unusual nature or uiliyue location of the development proposed, the city
council finds it necessary or appropriate to impose, by agreement with the
property owner or otherwise, certain conditions or restrictions in order to ensure
that the rezoning is consistent with the city's comprehensive plan."
The parties agree that, under h s law, the questions presented to the court
are whether the City Council correctly determined that the conditional zone is
consistent with the existing and permitted uses withn the original zones as well as
with the City's comprehensive plan ("Comprehensive Plan.")
The Comprehensive Plan is a compilation of policy directives and goals for
the development of the City, developed by various departments w i h n the City
government. Among other h n g s , the policies address infrastructure,
transportation resources, industry and commerce, residential housing, and the
development of recreational open spaces.
It is the job of the City Council to integrate and balance these policies when
it is faced with a proposal for a conditional zone. See Adelman v. Tou~nof Baldwin,
2000 ME 91, ql 24; 750 A.2d 577, 585; La Bonta v. City of Waterville, 528 A.2d 1262,
1264 (Me. 1987). The court's assessment of the City Council's action in adopting a
conditional zone is limited to reviewing the record evidence presented to the City
Council in order to determine if it supports the Council's conclusion that the
conditional zone is consistent with the Comprehensive 131an and with the existing
and permitted uses w i h n the original zones. See Adelman, 2000 ME 91 at <n 24;
Vella v. Town ofcamden, 677 A.2d 1051,1053 (Me. 1996); La Bonta, 528 A.2d at 1264.
The parties proceeded to a jury-waived trial in h s action, which trial
presented in a vivid, interactive format largely the same information that was
presented to the Gty Council at its November 2004 conditional rezone hearing.
However, because of the task before the court, the evidence presented at trial can
have no significance independent of what the parties have established was
presented to the City Council. T h s is because the City Council's action is either
lawful or unlawful with respect solely to the information it had before it.2 See
LaBonta, 528 A.2d at 1265. Zoning is a legislative function, Benjamin v. Hou.le, 431
A.2d 48,49 (Me. 1981), and it would violate the separation of powers if the court
were to act as a super-legislature, and take independent evidence on the
substantive zoning issue before the City Council. Cf:Adelman, 2000 ME 91 at ¶ 22;
LaBonta, 528 A.2d at 1265.
Thus, even- though the caption of h s action is one for "declaratory
judgment," the action is essentially an appeal, and differs from an action under
2
This is not a case in which the plaintiffs have due process or bias claims. Plaintiffs were
afforded all of the process that was due with regard to participation in the City Council's
decision, and there is no allegation that any members of the City Council were compromised.
M.R.Civ.P. 80B only to the extent the decision appealed from is one based in the
City's decision in its legslative capacity, rather than in its administrative or quasi-
judicial capacity. Under 8ClB, the parties present a record on appeal to the court,
and the court's review is limited to the record except under special circumstances.
Such should also be the case in an action for a declaratory judgment that a
municipality has legislated in derogation of the law. In such an action, a motion
for summary judgment would function in the same capacity as an BOB appeal and
would be the proper procedure for obtaining review of the record by the court.
Although either party might move for summary judgment, presentation of a
record of the public hearing and the evidence presented to the law-malung body in
such cases remains the plaintiff's burden. T h s limitation on the court's ability to
take independent evidence is necessary to preserve both the role of the court and
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the legislative power delegated to the City Council in the area of zoning.
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Additionally, as h s is a review of legislative action and not of quasi-
judicial or administrative action, the court's standard of review is different than in
an 80B appeal. The City Council is not charged by law, as is a Planning Board or a
Zoning Board of Appeds, with making specific findings of fact x ~ concl~sions
d of
law. See e.g. Carroll v. Town of Rockport, 2003 ME 135, ¶¶ 26 - 31; 837 A.2d 148,156-
157; see also 30-A M.R.S.A. 2691(3)(E). Related to h s , there is also no provision
whereby t h ~ scourt may remand the City Council's decision for further findings of
fact or conclusions of law. See M.R.Civ.P. 80B(c). Thus, the sole province of the
court in h s action is to determine whether the Clty Council could rationally have
adopted the conditional zone in light of the evidence presented to it, the various
policies articulated in the Comprehensive Plan, and the statutory charge under 30-
A M.R.S.A. 5 4352(8) that the zone be consistent with existing and permitted uses
s v i h n the original zones. Finally, under this standard, it is the Plaintiffs' burden
to prove inconsistency, i.e. that the condrtional zone is not consistent with any
rational view of the Comprehensive Plan or of the existing and permitted uses
w i h n the original zones. See City of Old Town v.Dimoulas, 2002 ME 133, ¶ 18; 803
A.2d 1018, 1023; Adelman, 2000 ME 91 at 9 22; LaBon ta, 528 A.2d at 1265.
The parties have stipulated that the evidence contained in Joint Exhbits 9,
12,13, 14,67,68,69,80, and 81, and City Edubits 1 and 2 constitute the universe of
evidence presented to the City Council for the conditional zone hearing. In
malung its determination as to the City Council's action, the court will confine
itself to a consideration of h s evidence.
11. Was the City Council's Approval of the Conditional Zone Lawful?
The parues agree that, from the cases and dictionary definitions,
"consistent" means "in basic harmony with," Dimoulas, 2002 ME 133 at q[ 18;
Adelman, 2000 ME 91 at 9 22; LaBonta, 528 A.2d at 1265, or more expansively,
"coexisting and showing no noteworthy opposing, conflicting, inharmonious, or
contradictory qualities or trends." Webster's Thrd New International Dictionary
(1986). The City Council's approval of the conditional rezoning is lawful if the
zoning is consistent with the comprehensive plan and if the rezoned area is
consistent with the existing and permitted uses w i h n the original zones.
(a) Consistency w i t h the Comprehensive Plan
A stated goal of the Comprehensive Plan, found in Housing: Sustaining
Portland's Future, is:
Portland's Comprehensive Plan encourages a manageable level of
growth that will sustain the city as a healthy urban center in whch
to live and work and to a h e v e a shared vision for Portland.
Portland should encourage sustainable development patterns and
opportunities w i h n the city by promoting efficient land use,
conservation of natural resources, and easy access to public
transportation, services and public amenities.
Evidence was presented to the City Council that Packard's revised development
plan would be consistent with the goal of sustaining the city as a healthy urban
center in which to live and work. It contains both residential and green spaces as
well as commercial development, and is located next to a major Portland arterial,
Forest Avenue, whch is regularly serviced by public transportation. The City
Council also had information that bus service would be brought into the
development. The City Counal was also presented with evidence that h s area
was constrained on one side by the railroad and on the other by a residential area,
with minimal street access to Allen Avenue, and that, in spite of an earlier
solicitation by the City for bids for redevelopment, the Site had remained
unimproved for decades. The Gty Council could rationally have determined that
h s conditional zone provides an appropriate solution for promoting efficient land
use in h s complex area of the city.
The City Council also had evidence before it that the Morrill's Corner area
is particularly problematic in terms of traffic congestion, and that the conditional
zone would allow for a development that would increase seven-fold the number
of daily t i p s through the area. The Portland Industry and Commerce Plan
Recommendations Report (June 1994), incorporated into the Comprehensive
Plan, stated, "with the exception of a few isolated locations, . .. there is adequate
capacity to handle additional traffic at acceptable operating levels on all Portland
arterials. The isolated locations include Morrills Corner." However, Plaintiffs
have pointed to nothng in the Comprehensive Plan that states that when a
proposed conditional zone would exacerbate already congested traffic the ability
to weigh the relative importance of the many goals articulated w i h n the
Comprehensive Plan is taken out of the hands of the City Council. Nor does the
Comprehensive Plan require the City Council to find that Packard's proposal is the
best possible use of the Site. It is merely required to find that the proposed
condtional zone is consistent with the Comprehensive Plan.
Upon review, it is apparent from the evidence presented to the City Council
that its determination that the conditional zone is consistent with the
comprehensive plan was rational. Moreover, that the City Council did in fad
consider the various parts of the Comprehensive Plan and weigh them together in
a responsible and rational manner is underscored by the Gty Council's preamble
to its conditional zone contract with Packard, which states in part:
"The purpose of h s contract rezoning is to provide for a
mixed use development, including a community shopping center,
residential units, offices and a boxing and fitness facility.. .
Substantial public improvem&ts will be requirLd to support
any redevelopment of the property, including but not limited to
traffic improvements in Morrill's Corner.. .
Packard has developed a traffic improvement plan, whch
plan has been reviewed by the City...
The City, by and through its City Council has determined that
said rezoning would be and is pursuant to and consistent with the
City's comprehensive land use plan and will establish uses that are
consistent with the uses in the original zones and the surrounding
areas. . .
The City has determined that the proposed development will
be designed and operated so that it will prevent undue adverse
environmental impacts, substantial diminution of the value or utility
of neighboring structures, or sigmficant hazards to the health or
safety of neighboring residents by controlling noise levels, emissions,
traffic, lighting, odors, and any other potential negative impacts of
the proposal through the design and implementation of significant
public traffic improvements, stormwater drainage improvements,
landscaping and buffering.. .
The City has determined that because of the unusual nature
and unique location of the proposed development and the need for
significant public improvements it is necessary and appropriate to
have imposed the following conditions and restrictions in order to
ensure that the rezoning is consistent with the City comprehensive
land use plan..."
@) Consistency with "Existing and Permitted Uses" Under 30-A
M.R.S.A. 9 4352(8)
5 4352(8) states in part: "All conditional zoning must establish.. . rezoned
areas that are consistent with the existing and permitted uses witlun the orignal
zones." Ths requirement does not prohbit the introduction of new uses in an
area. As the court already stated in its May 9, 2005 opinion, this section cannot be
construed to prohbit, for example, the rezoning of an I-L zone to a B-2 zone, for
such a reading would render the zoning amendment process superfluous. Rather,
t h ~ ssubsection requires only that the legslative body consider whether any
rezoning would be in basic harmony with existing and permitted uses w i h n the
area to be rezoned.
Here, the contract zone contains two existing and permitted establishments,
a restaurant and a boxing club. The City Council could rationally have concluded
on the evidence presented to it that the proposed mixed-use
commercial/residential development for which they were approving the
conchtional zone would be in harmony with these existing and permitted uses.
Moreover, to the extent § 4352(8) requires the legslative body to look
outside the boundaries of the proposed conditional zone, the City Council had
evidence before it that the development w i h n the zone would adequately buffer
the sensitive residential area to the north by placing landscaping and a walkway,
and multi-family residences between the commercial development and the
existing single-f amily residences outside of the zone. Where traffic congestion and
safety issues were concerned, the City Council could rationally have concluded
that the proposed contract zone would be consistent with existing and permitted
uses based on the peer review, commissioned by the City Council, of Packard's
traffic study, whch concluded that "the Packard Development project at Morrill's
Corner. . . can satisfy requirements for the issuance of a MaineDOT Traffic
Movement Permit."
The entry is:
The court declares that the City of Portlmd Council's Order #
98-04/05 is valid and consistent with applicable law governing
conditional zones.
Dated at Portland, Maine this 2/ull day of / I ! ,2005.
J
Justice, Superior Court
MORRILL'S CORNER NEIGHBORHOOD ASSOC-DISMISSED - PLAINTIFF SUPERIOR COURT
BRETT MCMILLAN - PLAINTIFF CUMBERLAND, s s .
Docket No PORSC-CV-2004-00784
Attorney for: BRETT MCMILLAN
PEGGY MCGEHEE - RETAINED 12/30/2004
PERKINS THOMPSON HINKLEY & KEDDY DOCKET RECORD
ONE CANAL PLAZA
PO BOX 426
PORTLAND ME 04112-0426
Attorney for: BRETT MCMILLAN
DAVID MCCONNELL - RETAINED 09/01/2005
PERKINS THOMPSON HINKLEY & KEDDY
ONE CANAL PLAZA
PO BOX 426
PORTLAND ME 04112-0426
JOHN DAY - PLAINTIFF
Attorney for: JOHN DAY
PEGGY MCGEHEE - RETAINED 12/30/2004
PERKINS THOMPSON HINKLEY & KEDDY
ONE CANAL PLAZA
PO BOX 426
PORTLAND ME 04112-0426
Attorney for: JOHN DAY
DAVID MCCONNELL - RETAINED 09/01/2005
PERKINS THOMPSON HINKLEY & KEDDY
ONE CANAL PLAZA
PO BOX 426
PORTLAND ME 04112-0426
JOANNE KENNEDY - PLAINTIFF
Attorney for: JOANNE KENNEDY
PEGGY MCGEHEE - RETAINED 12/30/2004
PERKINS THOMPSON HINKLEY & KEDDY
ONE CANAL PLAZA
PO BOX 426
PORTLAND ME C4112-0426
Attorney for: JOANNE KENNEDY
DAVID MCCONNELL - RETAINED 09/01/2005
PERKINS THOMPSON HINKLEY & KEDDY
ONE CANAL PLAZA
PO BOX 426
PORTLAND ME 04112-0426
DEBRA KEENAN - PLAINTIFF
Attorney for: DEBRA KEENAN
PEGGY MCGEHEE - RETAINED 12/30/2004
PERKINS THOMPSON HINKLEY & KEDDY
ONE CANAL PLAZA
PO BOX 426
Page 1 of 10 Printed on: 11/28/2005
PORSC-CV-2004-00784
DOCKET RECORD
PORTLAND ME 04112-0426
Attorney for: DEBRA KEENAN
DAVID MCCONNELL - RETAINED 09/01/2005
PERKINS THOMPSON HINKLEY & KEDDY
ONE CANAL PLAZA
PO BOX 4 2 6
PORTLAND ME 04112-0426
VS
THE CITY OF PORTLAND, MAINE - DEFENDANT
Attorney for: THE CITY OF PORTLAND, MAINE
GARY C WOOD - RETAINED 01/25/2005
OFFICE OF CORPORATION COUNSEL
389 CONGRESS STREET
PORTLAND ME 04 101
Attorney for: THE CITY OF PORTLAND, MAINE
PENNY LITTELL - RETAINED 01/25/2005
CITY OF PORTLAND
389 CONGRESS STREET
PORTLAND ME 04101
PACKARE DEVELOPMENT. LLC - PARTIES IN INTEREST
Attorney for: PACKARE DEVELOPMENT, LLC
ROY PIERCE - RETAINED 02/10/2005
PRETI FLAHERTY BELIVEAU PACHIOS & HALEY
ONE CITY CENTER
PO BOX 9546
PORTLAND ME 04112-9546
Attorney for: PACKARD DEVELOPMENT, LLC
MATTHEW B GILDART - RETAINED 02/10/2005
PRETI FLAKERTY BELIVEAii PACBIOS & HALEY
ONE CITY CENTER
PO BOX 9546
PORTLAND ME 04112-9546
Filing Document: COMPLAINT Minor Case Type: DECLARATORY JUDGMENT
Filing Date: 12/29/2004
Docket Events:
12/30/2004 FILING DOCUMENT - COMPLAINT FILED ON 12/29/2004
12/30/2004 Party(s): BRETT MCMILLAN
ATTORNEY - RETAINED ENTERED ON 12/30/2004
Plaintiff's Attorney: PEGGY MCGEHEE
Party(s): JOHN DAY
Page 2 of 10 Printed on: 11/28/2005