# Windward Development v. Cummings Road Business Park Association

> Superior Court of Maine · November 14, 2005

URL: https://www.frixlaw.com/law-library/cases/10808260

## Case

- **Court:** Superior Court of Maine
- **Decided:** November 14, 2005
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Judges:** Thomas D. Warren
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

STATE OF MAINE SUPERIOR COURT
CUMBERLAND, ss. CIVIL ACTION
Docket No. CV-04-63
1 ,i 0 f!~;~,d/ 65
WINDWARD DEVELOPMENT, LLC,
et al.,

Plaintiffs,

ORDER

CUMMINGS ROAD BUSINESS PARK
ASSOCIATION,

Defendant.

In h s action plaintiffs Windward Development LLC and Edward Rowe seek a

declaratory judgment with respect to a controversy between them and defendant

Cummings Road Business Park Association over the development of Lot 14 in the

Cummings Road Business Park. Based on the evidence at trial, the court makes the

following findings of fact and conclusions of law. Most of the factual findings are

contained in the section entitled findings of fact, although a few are set forth in the

course of the legal discussion that follows.

FINDINGS OF FACT

1. Windward Development, LLC, is the owner of Lot 14 in the Cummings

Road Business Park. The owner and principal of Windward Development is Edward

Rowe.

2. Cummings Road Business Park is a commercial subdivision containing 23

lots located off Cummings Road in South Portland. The Cummings Road Business Park

Association is an association of lot owners which is authorized to enforce the covenants
applicable to the Park, to oversee certain common areas and improvements w i h n the

Park, and to maintain the landscaped portion of the Park.

3. On October 21, 2002 Rowe came to a meeting of the Board of the

Cummings Road Business Park Association to present buildng plans for approval.

4. Under the First Amended and Restated Declaration of Covenants and

Performance Standards applicable to the Park (Trial Exhbit 1 - hereafter

"Declaration"), a prospective purchaser, lot owner, or tenant is required to submit

conceptual plans to the Cummings Road Business Park Design Review Committee prior

to the construction of any buildings. The Design Review Committee initially was

intended to consist of one representative appointed by the owner of Lot 2, one

representative appointed by the owner of Lot 16,' and three members to be appointed

by the developer of the business park. Once the developer no longer owned any lots in

the park, the three members previously appointed by the developer were to be elected

by the members of the Association.

5. As of October 21, 2002 the developer still owned a lot in the park. At the

time the Cummings Road Business Park Association Board consisted of a representative

of the developer (Florinda Franklin), a representative of Anthem BCBS (Michael

Gagnon), a representative of Blethen Publishing (Christopher Ambrosini), and two lot

owners (Lola Kampf and Dirk Thomas).

6. Although the foregoing individuals had been designated as the

Cummings Road Business Park Association Board, they had not been designated as the

"Design Review Committee," the entity named in the Declaration.

-

Anthem BCBS is the owner of Lot 2, and Blethen Publishing is the owner of Lot 16. Anthem and
Blethen are the two anchor tenants of the business park.
7. When he appeared before the Board on October 21, 2002, Rowe had not

closed on Lot 14, but he had signed a purchase and sale agreement. Rowe was

accompanied on October 2lStby James Thbodeau, an engineer who was worlung as a

consultant for Rowe in connection with the development of Lot 14. In a prior job

Thbodeau had done some design review for the developer of the Park.

8. Rowe had devised a plan to turn Lot 14 into a condominium with nine

units or "pods". Rowe's business (HVAC Products, Inc.) was to occupy one "pod" or

building2 Other pods were to be subsequently developed and. occupied by other

businesses who would become members of Rowe's condominium.

9. As of the summer of 2002 Rowe and Thbodeau were aware that the South

Portland Planning Board was going to require subdivision review if multiple buildings

were going to be constructed on Lot 14. They decided to initially submit only Rowe's

building to the South Portland Planning Board for approval and seek subdivision

approval at a later time. During the proceedings before the Planning Board, a

representative of the city expressed the view that if the Rowe building was part of a

phased project, it should be labeled as such. Thbodeau drafted a response stating that

the project was "not phased at h s time. The applicant does intend to discuss future

possibi1it.L for subdividing this parcel into separate industrial condominium sites."

Trial Exhbit 8A (emphasis added). See Trial Exhbit 6.

10. At that time Rowe was unaware of the need to obtain approval from the

Association's Design Review Committee. He only learned of that requirement in

September of 2002 and asked to be placed on the agenda of the upcoming October 2lSt

meeting. Rowe had not been represented by legal counsel in connection with h s

This was referred to at various times as building number eight.

3
purchase of Lot 14, and he was not aware of the covenants and performance standards

applicable to the lot until he was already under contract.

11. Rowe and Thbodeau did not take the requirement of approval by the

Design Review Committee very seriously. Thbodeau expected that approval by the

Design Review Committee would be a foregone conclusion, and the court will infer that

he so advised Rowe. Although Rowe recalls that h s closing was postponed to make

sure that he obtained Design Review Committee approval, the documents show that

there was a dfferent reason that h s closing was postponed - to allow Rowe to complete

a "like-kind" exchange for tax purposes. See Trial Exhbit 12A.

12. Rowe and Thbodeau did not make a formal submittal of their conceptual

plans at or before the October 21, 2002 meeting. No transmittal letter was sent. No

express or implied request for approval of a multi-unit condominium proposal was

communicated at the meeting. There is considerable uncertainty as to what plans were

shown to the Board members who attended the October 21" session (Franklin, Gagnon,

Ambrosini and Kampf). No copies of any plans were retained by any members of the

Board or by Kathy Nickerson, who attended the meeting as a representative of Dirigo

Management Company.

13. The court finds that Rowe's multi-unit condominium proposal was not

approved at the October 21, 2002 meeting. Franklin, Gagnon, Ambrosini, and Kampf

were never informed that approval was being sought at that time for a condominium

proposal. Conceptual plans for a condominium proposal were not submitted at the

meeting. Discussion focused on the plans for Rowe's own building, which was the only

structure that had actually been designed and was ready to be constructed. After the
Board had approved plans for that buildingI3there was some discussion at the end of

the meeting about Rowe's future intent to pursue a condominium concept. That

discussion was at best inconclusive and did not occur under circumstances where

Franklin, Arnbrosini, Gagnon and Kampf had reason to know that the condominium

concept was currently being presented to them for approval.

14. To the extent that Rowe and Thbodeau testified that there was a clear

submission and request for approval of the condominium concept on October 21" and

that express approval of that concept was given, the court does not credit their

testimony. Rowe's memory was incorrect as to the presence of Ron Ward at the

meeting and was colored in general by h s anger over what he perceived as rude and

duplicitous treatment by the Board. Thibodeau's memory was colored by h s affiliation

with Rowe and by the fact that it was part of his job to obtain approval. Moreover,

Thibodeau's unconvincing testimony with respect to the existence of other violations of

the development covenants (see Tr. 569-89) cast doubt on lus credibility as a whole.

15. Some of the memories of defendants' witnesses with respect to the

October 21, 2002 meeting may also have been colored by their desired outcome of the

case. Notably, however, Florinda Franklin, described by plaintiffs as a "neutral"

witnessJ4 testified that the discussion of the condominium concept only came after

Rowe's own building was approved and that no approval for a multi-unit concept was

sought on October 21,2002.

Although the minutes of the meeting simply state that Rowe's building plans were unanimously
approved (Exhibit 13), the evidence demonstrated that the Board actually requested Rowe to make a
further submission showing the color of his building and roof. Rowe made a further submission with
respect to colors and exterior finishes on May 12,2003, and the colors and exterior finish for his building
were approved the same day.

See Plaintiffs' Post Trial Brief, dated February 16, 2005, at 9.
16. Following the meeting of October 21, 2002, Rowe incorrectly believed

either that he had received sufficient clearance for h s condominium concept or that

when he sought future approval, it would be forthcoming. He proceeded to act on that

belief by proceeding to install certain infrastructure for the multi-unit ~ o n c e p t . ~

17. The next meeting of the Board after October 21, 2002 was on March 6,

2003. On that date the Board minutes stated that the prior minutes were approved but

went on to note that more information was needed.

18. On May 12, 2003 Rowe appeared before the Board and presented

information as to the exterior finishes and colors that would be used for h s building.

Those were approved. No questions were asked and no information was provided as to

Rowe's condominium concept at that meeting.

19. In September 2003 Rowe transferred ownershp of Lot 14 to Windward

Development LLC.

20. On October 14, 2003 Rowe appeared before the South Portland Planning

Board seelung preliminary subdivision approval for h s plan for the remainder of Lot

14. Trial Exhibit 22. As described to the South Portland Planning Board, Rowe was

seelung to subdivide Lot 14 into nine individual development pods, and Lot 14 was to

become the "Windward Way Business Park located w i h n the Cummings Road

Business Park." Id.

21. Rowe's concept for the nine pods was that each pod would be a separately

designated building envelope whch would constitute a condominium unit. Each unit

The court finds that it is likely that Rowe would have taken certain of the actions in question even if it
had been clear to him that the condominium concept had not been acted on. For instance, while there
was testimony that Rowe installed a larger water main than needed for one building (Tr. 93-95), it would
have been logical to order a larger water main even without approval in hand if he later foresaw the need
for a larger main - otherwise the small main would have to be dug up and replaced. It also bears
emphasis that at this time Rowe did not have subdivision approval from South Portland, although he
anticipated that such approval would be forthcoming.
would own a fractional interest in all the common elements of the project. Each unit

could be mortgaged, taxed, sold or otherwise transferred independently of all other

units in the project. Each unit could also be separately foreclosed upon. Trial Exhbit

30. Every unit owner would have the exclusive right to develop h s or her pod, and the

boundaries of each pod could be traced on the face of the earth. Tr. 279,561-62.

22. Rowe's October 14, 2003 presentation to the South Portland Planning

Board attracted the attention of certain lot owners, who brought the issue to the

attention of the Board. Some of those lot owners expressed their opposition to the

Board at that time. On October 31, 2003 the Board met and decided to invite Rowe to a

meeting to present h s plan to the Board. Trial Exhbit 27.

23. On November 7, 2003 a letter was sent to Rowe inviting h m to a meeting

on November 10, 2003, and noting that the Board's review of Rowe's pending

application before the South Portland Planning Board "strongly suggests violation of

our covenants." Exhbit 28.

24. No meeting could be held on November 10, and a meeting was instead

scheduled for November 24,2003.

25. In the meantime, the annual meeting of the Cummings Road Business

Park Association was held on November 17, 2003. At that meeting, w h c h was

attended by Rowe, the existing Board members (Ambrosini, Gagnon, Kampf, Dirk

Thomas, and Alan Fishman) were nominated and elected. No election was held for

members of a "Design Review Committee", but there is an entry in the minutes that the

representative of one lot owner "brought up discussion of Ed Rowels proposed project

to the Association's Design and Review Committee." Trial Exhbit 29A. The minutes

further recount that Rowe then discussed h s proposed nine-pod concept and that

Ambrosini "reported that nine buildings were unacceptable to the Committee and that
Ron Ward, Esq., from Drurnmond Woodsom & MacMahan was counseling the

committee members." a.
26. On November 18,2003Thbodeau wrote a letter addressed to:

Cummings Road Business Park Association
c/o Chris Arnbrosini
Chairman Design Review Committee

That letter submitted the design for Rowe's multi-unit site plan development of Lot 14.

The letter described Rowe's condominium plan and stated, contrary to the tack taken by

Rowe and Thbodeau before the South Portland Planning Board, that the project "does

not include any proposal for subdivision of h s lot." Trial Exhibit 30 (emphasis in
original). Thbodeau's letter did not state or suggest that in h s view the Board or the

Design Review Committee had previously approved the project.

27. On November 24, 2003 there was a meeting attended by Rowe and

Thbodeau for Windward Development LLC, and Ambrosini, Gagnon, Kampf, and

Alan Fishman for the Board. Attorney Larry Clough (representing Rowe), Attorney

Ron Wood (representing the Association), and Kathy Nickerson of Dirigo Management

also were present. At that meeting Rowe and Thbodeau presented a slightly scaled

down condominium plan with a total of eight development pods, including Rowe's

existing building, to be called "Windward Circle Business Park." Thbodeau began the

meeting with a suggestion that a multi-unit plan had been before the Board before, a

statement that elicited disagreement from Ambrosini. That issue was not mentioned

again.

28. After that meeting, a written decision was issued by the Board in a

document dated December 2, 2003 issued under the name of the "Board of
Directors/ Design Review Committee" and received by counsel for Rowe on December

3, 2003.6 Trial Exhbit 34. That decision denied Rowe's application on three grounds:

(1) that in violation of the Declaration, Rowe had not filed his
conceptual plans with the Design Review Committee prior to
submitting them to the South Portland Planning Board;

(2) that the proposed plan was inconsistent with the Declaration's
stated requirement of a "harmonious, well-integrated campus-like
environment"; and

(3) that the proposed development also violated the Declaration
because the eight individual pods would not meet the minimum lot
size requirement or the minimum street frontage requirement set
forth in Article IV of the Declaration.

29. As noted above, the October 21, 2002 meeting had been held at a time

when the developer still owned a lot in the Park. At the October 21, 2002 meeting the

Board acted as the Design Review C~mrnittee.~Sometime after that meeting, the

developer delivered the deed to its last remaining lot to the Association. At that point,

according to the Declaration, the Design Review Committee was supposed to consist of

representatives of Lots 2 and 16 plus three other members elected by the Association.

However, no election was held, and the Board continued to function as the Design

Review Committee on May 12, 2003. Trial Exhbit 16. Previous to that time Alan

Fishman had replaced Franklin, who had been the developer's representative, on the

Board. See Trial Exhbit 14. Fishman, however, was elected by the other Board

members, not by the Association. Id. By the time of the November 24th meeting,

The Declaration provides that if the Design Review Committee fails to respond witlun 10 business days
of the submission of conceptual plans, the failure to respond will constitute approval. December 31d was
the lothbusiness day after submission of Rowe's plans on November 18'~.
' There was testimony that one member of the Board, Lola Kampf, had not realized she was on the
Design Review Committee until she was elected as a Board officer at the end of the October 21,2002
Board meeting. See Trial Exhibit 13. The other three Board members who attended the October 21''
meeting knew they were functioning as the Design Review Committee. In any event, no argument is
being made in this case that on October 21,2002 (as opposed to December 2,2003) the Board was not
authorized to act as the Design Review Committee.
however, the Board had been elected by the Association (see Trial Exhbit 29A). No

separate election for a "Design Review Committee" had been held. Instead, the Board

continued to function as a de facto Design Review Committee.'

30. On June 21, 2004, after the commencement of h s action, Rowe sent a

letter to Nickerson at Dirigo Management complaining that various other lot owners

were in violation of various covenants of the Cummings Road Business Park. The

purported violations involved such h n g s as the position of loading docks, the location

of dumpsters, and the use of pre-engineered structures. Plaintiffs also presented

evidence as to these alleged violations at trial based on testimony of Rowe and

Thbodeau. As amply demonstrated during the cross examination of Thbodeau, these

complaints either were unfounded, were de minimis, were based on speculation, or

otherwise could not be proven at trial.9 Tr. 569-89, 591-92. None of the purported

violations asserted by plaintiffs bore any relationshp to the approval or disapproval of

Rowe's development plan for Lot 14. Rowe complained about those violations, not

because he thought they were well founded or because he cared about them, but

because he was angry at the Association. Tr. 285.

31. The site plan for Rowe's proposed condominium project, as submitted on

November 18, 2003, is depicted on Trial Exlubit 31. A map of the Cummings Road

Business Park is set forth on Trial Exhbit 1B. The evidence in h s case included a view

by the court of the Business Park and of Lot 14 from Gannett Drive. The Park lies to the

west of Cummings Road and is traversed by Gannett Drive. Located on the left at the

south end of Gannett Drive is a large multi-storied office buildng housing the corporate

The evidence suggests that from October 21,2002 through November 24,2003 only one other project
besides Rowe's was submitted for Design Review - a proposal for Lot 15, which was conditionally
approved on May 12,2003. Exhibit 16.

Indeed, Thibodeau's testimony on this issue was so unconvincing as to cast doubt on the credibility of
his testimony on other issues.
headquarters of Anthem. To the north along Gannett Drive are several mechum-sized

one-story office buildings, mostly with brick facades, each with its own parlung area.

At the north end of the park on the left are some smaller and more eclectic builchngs,

notably the Cumberland County Gymnastics Center, the building on Lot 13,, and

Rowe's own building. The latter is unobtrusive and faces away from Gannett Drive.

On the right as one exits the north end of Gannett Drive is the very large, mostly

windowless builchng of Portland Newspapers, whch is on hgher ground than the

remainder of the buildings at the north end of the park and whch is very noticeable

from Cummings Road.

CONCLUSIONS OF LAW

1. Alle~edApproval of Condominium Concept on October 21,2002

The findings of fact set forth above lead to rejection of plaintiffs' claim that their

multi-unit condominium concept was approved at the October 21,2002 meeting. To the

extent that plaintiffs are suggesting that the condominum concept was approved

because it was discussed on October 21,2002 and not responded to witlun 10 days, this

is refuted by the findings that plaintiffs did not let the Board know they were

requesting approval of the condominium concept on October 21,2002 and that none of

the board members knew or had reason to know that the condominium concept was

being presented for approval at that time. A discussion of possible future

condominium plans -- after Rowe's own building had been approved -- did not

constitute a request for approval of a multi-unit plan.
2. Plaintiff's Claims of Other Covenant Violations

Similarly, the court's findings of fact establish the spuriousness of plaintiffs'

claim that the Association is not entitled to enforce its covenants because it has

overlooked other violations.

3. Authority of Board to Act as Design Review Committee

Given its findings that the Board did not approve a multi-unit concept on

October 21, 2002 and that the Association has not waived its right to enforce its

covenants, the court turns its attention to plaintiffs' challenges to the validity of the

Board's December 2,2003 decision denying plaintiffs' application.

At the outset, plaintiffs contend that the December 2, 2003 decision cannot be

sustained because the Board lacked authority to act as the Design Review Committee.

T h s poses an interesting issue on whch neither the parties nor the court have found

much pertinent authority. Whle plaintiffs argue with some force that the lack of a

properly constituted Design Review Committee means the Board had no authority to

disapprove their condominium plan, it does not follow that the condominium plan

should be automatically deemed approved. As a matter of logc, it would make more

sense to conclude that if the Board lacked authority to approve or disapprove plaintiffsf

plans, the Board's December 2, 2003 decision would be invalid and plaintiffs should be

given the opportunity to resubmit their application to a properly constituted Design

Review Committee."

lo Plaintiffs argue that h s would also require that every project previously approved be resubmitted to a
newly constituted committee. The court disagrees. First, as long as the developer owned lots in the park,
the Design Review Committee was to consist of representatives of Lots 2 and 16 and three other members
appointed by the developer. On h s record, it is not clear that the committee was not properly
constituted for some or all of the approvals given prior to the developer's exit. Second, and more
importantly, even if the Design Review Committee was never properly constituted, any projects that had
been approved and that had in fact been built would not be jeopardized. Once buildings had been
However, the court concludes that this issue can be resolved on other grounds.

By the time of both the November 24,2003 meeting and the December 2,2003 decision,

the Board of Directors had been elected at the annual association meeting. After the

developer's exit, the Design Review Committee was supposed to consist of one

representative from Lot 2 (Anthem), one representative from Lot 16 (Blethen

Publishing), and three members elected by the Association. See Declaration Article I.

Although no election for a "Design Review Committee" was ever held, the existing

Board members met the necessary criteria for that committee. In addtion, it can be

inferred from the events at the November 17, 2003 association meeting that it was

known to the members of the Association, including Rowe, that the Board was acting as

a defacto Design Review Committee. Having been present at the annual meeting, Rowe

knew there had been no separate election of a Design Review Committee. If Rowe had

wished to object to the Board's authority to act as a Design Review Committee, he could

have done so. By the time of the November 24, 2003 meeting, moreover, Rowe was

accompanied by counsel, who did not raise the issue.

The court therefore concludes that the December 2, 2003 decision should not be

overturned on the grounds that the Board was not authorized to act as the Design

Review Committee.

4. Failure to Follow Procedural Requirements

The court concludes that the December 3,2003 decision cannot independently be

sustained on the ground that Rowe violated the Declaration's requirement that a

development plan must be submitted to the Design Review Committee prior to

constructed based on Board approval, the Association and its members would be estopped from
attempting to retroactively revoke their approvals. This argument would also apply to Rowe insofar as
he had already built his own building.
submission to the South Portland Planning Board. T h s is true for two reasons. First,

counsel for the Association has acknowledged that Rowe's plan would not have been

turned down solely for h s reason. Second, the evidence reflects that the Board had not

adhered to h s requirement in the past. Indeed, Rowe's own building, whch was

approved by the Board on October 21,2002, had previously been submitted to the South

Portland Planning Board for approval.

5. "Harmonious Well-Integrated Campus-Like Environment"

The second ground set forth in the December 2, 2003 decision for disapproving

plaintiffs' condominium proposal was that subdividing Lot 14 would be inconsistent

with the Declaration's express goal of promoting a "harmonious well-integrated

campus-like environment." According to the December 2, 2003 decision (Trial Exhbit

34), the condominium proposal was not harmonious and well integrated either

"physically" or "administratively". On the subject of physical consistency, the decision

stated that under Rowe's proposal the development of eight separate buildngs "will be

inconsistent with the development pattern well established in the Park." On the subject

of administrative consistency, the decision stated that the individual lot owners w i h n

Lot 14 would be governed by a separate and independent condominium association,

raising governance problems in terms of the enforcement of the Association's covenants

against indvidual members of the condominium.

The operative language under the Declaration is as follows:

The Design Review Committee shall ensure h g h standards in the design
and construction of improvements in the Park and shall promote a
harmonious, well-integrated campus-like environment. To that end the
Committee shall review all proposed development in the Park and shall
consider such factors as location, configuration, materials and color
schemes of all proposed buildings and improvements, as well as all
proposed landscaping and signage.
Declaration, Article I.

Given the principle that restrictive covenants are to be narrowly construed, with

any ambiguity resolved in favor of less restrictive uses of the property, Boehner v.

Brigns, 528 A.2d 451, 453 (Me. 1987), the court cannot interpret the harmonious well-

integrated standard to embrace the so-called "administrative" issues relied on by the

Board. The harmonious, well-integrated standard is a design standard intended to

ensure h g h quality design and construction and to prevent visual and spatial

incongruities that would detract from the value and ambience of the other properties in

the park. The court cannot therefore uphold the Board's December 2, 2003 decision to

the extent that it relied on so-called administrative issues.

Turning to the physical issues, it bears emphasis that the "harmonious well

integrated campus-like" standard is susceptible to being interpreted in a hghly

subjective manner. Once again, given the principle that restnctive covenants are to be

narrowly construed, the court concludes that h s standard must be interpreted as

objectively as possible - to prevent obvious incongruities and obviously low-quality

design and construction without giving the Design Review Committee discretionary

authority to reject a lot owner's plan just because it has a different taste in archtecture

or harbors some animosity for the lot owner.

Measured against h s standard, it is evident that issues involving building

design, exterior finishes, and colors for the seven additional structures proposed under

Rowe's amended condominium plan were not before the Board on November 24,

2003." All the Board had before it were site plans setting forth the footprints of the

These had been the issues that the Board had concerned itself with in reviewing Rowe's own building
on October 21,2002.

15
proposed buildings. See Trial Exhibit 31. Under the Declaration, the Design Review

Committee has the right to review specific building plans, and it would have retained

that right with respect to any specific buildings to be constructed in the future. As of

December 2, 2003, however, no decision on "harmoniousness" could be made with

respect to the exterior design of future buildings. Moreover, the "harmoniousness" of

future buildings could be ensured by such measures as employing the same

arclutecture, exterior finishes, and color scheme used for Rowe's own building. Such

issues would therefore have justified a decision by the Board to require submission of

all the specific building plans in the future, but they cannot form the basis for rejection.

That leaves the question of whether, as the Board found, the number of the

buildings proposed would in and of itself be inconsistent with the "harmonious well-

integrated campus-like environment" standard. Based on the site plan and its view of

the Park, the court concludes that the number of buildings would not be sufficiently

inconsistent with the existing environment of the Park that it can uphold the December

2, 2003 decision on this issue.

At the outset, Cummings Road Business Park does not present the uniform

appearance of the Bowdoin College Campus or the Harvard Yard. The buildngs in the

Park are not uniform in size, appearance, or arclutectural style, and the Park is not fully

harmonious to begin with. Specifically, as noted in the findings of fact, the area of

Gannett Drive where Lot 14 is located is not adjacent to the larger, more imposing

corporate headquarters buildings but is in an area with more eclectic, smaller buildings.

In addition, six of the proposed buildings to be built on Lot 14 would be partially or

wholly screened by Rowe's existing building and could be further screened by
landscaping or fencing if necessary.12 The remaining proposed building would be set

off by itself to the east along Gannett Drive. Given the amount of frontage of Lot 14, that

building would not appear materially different from other buildings located along

Gannett Drive.

Accordingly, construing the covenants strictly against restrictions on plaintiffs'

property, and given the inherent difficulties in applying a potentially subjective

"harmonious, well-integrated campus-like environment" standard, the court cannot

sustain the December 2, 2003 decision on the ground that standard was not met.

6. Lot Size and Street Frontage Requirement

At the outset, it bears emphasis that the Declaration does not expressly bar any

further subdivision of the existing lots nor does it preclude multiple ownerslup under

condominium or other arrangements. Article IV of the Declaration (entitled "Space and

Bulk Regulations") does contain lot size and street frontage requirements. However,

under the Declaration, the Design Review Committee is not given any jurisdiction over

the lot size and street frontage requirements; the Committee's role is discussed only in

Article I of the Declaration. As a result, the court interprets the minimum lot size and

street frontage requirements as being independently applicable to plaintiffs' lot

regardless of the Board's December 2, 2003 decision.13 Nevertheless, there is a live

controversy between plaintiffs and the Association as to whether plaintiffs'

condominium proposal violates those conditions.

l2 Requirements for such landscaping and fencing could be imposed at the time individual buildings are
submitted for individual design review.

l3 As to the minimum of size and street frontage requirements, therefore, whether the Board properly
acted as a Design Review Committee on December 2,2003 is irrelevant.
Specifically, Article IV of the Declaration provides in pertinent part as follows:

1. The minimum Lot size allowed shall be two (2) acres . . . .
Provided, nonetheless, that adjacent Lots under the same
ownershp may, at the election of the owner thereof, be treated as
a single Lot for the purpose of the space and bulk regulations
established herein.

2. The minimum street frontage allowed for each Lot shall be . . . one
hundred (100) feet . . .. Provided, nonetheless, that adjacent Lots
under the same ownership may, at the election of the owner
thereof, be treated as a single Lot for the purpose of the space and
bulk regulations established herein.

Trial Exhbit 1.

Lot 14 consists of 7.31 acres and (per Trial E h b i t 31) has 310.91 feet of frontage

on Gannett Drive. If Rowe's condominium proposal is seen as creating additional lots,

therefore, there would be space for only three such lots (not the eight proposed by

Rowe) before some of the lots would be less than 2 acres and have less than 100 feet of

frontage.

On the issue of whether Rowe's condominium proposal would result in

"subdividing" Lot 14 and creating 8 new lots on that space, both parties have directed

the court's attention to decisions issued in connection with the state's subdivision laws.

Plaintiffs argue, citing Town of York v. Cra in, 541 A.2d 932 934 (Me. 1988), that the

conversion of property into a multi-unit condominium does not create separate lots or

constitute a subdivision. Defendants argue, citing Town of Orrin~ton
- v. Pease, 660 A.2d

919, 922 (Me. 1995) and Plannin~Board of Town of Naples v. Michaud, 444 A.2d 40,42-

43 (Me. 1982), that the creation of identifiable parcels whose boundaries can be

determined on the face of the earth, with separate ownershp interests that can be

transferred and mortgaged, constitutes the creation of separate lots that must

independently comply with the lot size and street frontage requirements in the

Declaration.
On h s issue the court agrees with defendants. The Cragin case relied on by

plaintiffs is distinguishable because in Cragin a single building was involved. The Law

Court expressly held that "the division of a structure, as opposed to the division of a

parceI of land into lots, does not result in the creation of a subdivision . . . " 541 A.2d at

934 (emphasis added). The Pease and Michaud cases, in contrast, support the

conclusion that what Rowe contemplates here is the division of h s parcel into separate

lots. See 660 A.2d at 922; 444 A.2d at 42-43.

That does not, however, end the inquiry because the Declaration provides that

for both the lot size and street frontage requirements, "adjacent lots under the same

ownershp . . . may be treated as a single lot." Under h s provision, Rowe could

subdivide Lot 14 into separate lots, retain ownershp of those lots, keep his own

building for hmself, and lease buildings on the seven other lots to various commercial

tenants without violating the lot size and street frontage requirements. Under these

circumstances, the court has difficulty seeing why, instead of retaining ownershp

lumself, Rowe cannot transfer ownershp to a condominium association. The

Association argues with some force that if lot owners could evade the lot size and street

frontage requirements by "condominiumizing" their lots (in Thbodeau's words, Tr.

455), the lot size and street frontage requirements would be rendered to some extent

meaningless. It can also be argued that creating a business park witlun a business park

is inconsistent with the spirit of the Declaration. Nevertheless, that result is permitted

under the Declaration as drafted.

7. Association's Claim for Attornevs Fees

Article VII of the Declaration provides, inter alia, that the Association "may levy

limited assessments against a particular lot or lots for reimbursement for costs resulting
from the lot owner's breach of any provision of these covenants and performance

standards." Under h s provision, the Association seeks its attorneys fees in litigating

h s action.

The court concludes that plaintiffs are not in breach of any provisions of the

covenants. The Association's claim for attorneys fees under Article VII of the

Declaration is denied.

8. Conclusion

The entry shall be:

On Plaintiffs' request for a declaratory judgment, the court declares and
adjudges as follows:
(1) The Curnmings Road Business Park Association Board did not approve
any multi-unit condominium proposal on October 21,2002;
(2) The Association did not waive its right to enforce its covenants by
overloolung other violations;
(3) Although no Design Review Committee under Article I of the Declaration
of Covenants was ever properly constituted, the Association Board acted as de facto
Design Review Committee and plaintiffs did not object to going forward on that basis;
(4) The Association Board's December 2,2003 decision cannot be sustained on
the stated grounds that plaintiffs violated procedural requirements or that plaintiffs'
proposal did not promote a "harrnonious well-integrated campus-like environment;"
(5) Plaintiffs' eight unit condominium plan submitted to the Board on
November 18, 2003 does not violate the minimum lot size and street frontage
requirements set forth in the Business Park's Declaration of Covenants; and
(6) The Association's Design Review Committee shall retain the right to
review conceptual plans for any future buildings to be built on Lot 14 pursuant to the
applicable provisions of the Declaration.
Finally, judgment is entered in favor of plaintiffs and against defendant on the
defendants' claim for attorneys fees under Arhcle VII of the Declaration of Covenants.
No costs. The Clerk is directed to incorporate this order in the docket by
reference pursuant to Rule 79(a).

Dated: November ifi.2005

.S--AOL
Thomas D. Warren
Justice, Superior Court
F COURTS
~nd County
lox 287
ne 04112-0287

DAVID SHERMAN, ESQ.
PO BOX 9 7 8 1
PORTLAND, ME 04104-5081

COURTS
nd County
3x 287
le 04112-0287

DAVID HIRSHON, ESQ.
PO BOX 1 5 0 6 0
PORTLAND, ME 04112-5060
STATE OF MAINE SUPERIOR COURT
CUMBERLAND, ss. CIVIL ACTION
Docket No. CV-04-63

WINDWARD DEVELOPMENT
LLC, et al.,
- - -

Plaintiffs,

v. ORDER

CUMMINGS ROAD BUSINESS
PARK ASSOCIATION,

Defendant.

Before the court is defendant's motion to alter or amend its order filed November

14,2005 pursuant to Rule 59(e).

Defendant raises two primary arguments. The first is that the court erred in

interpreting the space and bulk regulations in Article IX of the Declaration of Covenants

as permitting new lots to be created from the orignal 23 lots. However, paragraphs 1

and 3 of the space and bulk regulations do not support defendant's argument.

Paragraph 1, for example, provides as follows:

1. The minimum Lot size allowed shall be two (2) acres
(with the exception of Lot #11, w h c h shall not be less than
1.75 acres). Provided, nonetheless, that adjacent Lots under
the same ownershp may, at the election of the owner
thereof, be treated as a single Lot for the purpose of the
space and bulk regulations established herein.

The evidence at trial demonstrated that all of the original lots with the exception

of Lot 11 (whch was 1.79 acres) exceeded 2 acres in size. Exhbit 1B. As a result,

there would be absolutely no reason to include the proviso that lots under common

ownership could be treated as a single lot for purposes of the acreage requirement if the

original lots were intended to be fixed and immutable.
The evidence at trial does not include exad street frontage distances for the

original 23 lots, but as far as the court can estimate from Exhbit 1B, all the original lots

met the 100 foot requirement set forth in paragraph 3 of the space and bulk regulations.'

Once again, there would be no purpose for the provision that the lots under common

ownership could be treated as a single lot for purposes of the street frontage

requirement if the orignal lots could not be subsequently divided. The court therefore

adheres to its interpretation.

The second argument made by defendant is that the court gave no deference to

the decisions of the Board, sitbng as the Design Review Committee. T h s is correct.

However, defendant has offered no Maine authority for the proposition that such

deference is required and, in the court's view, Boehner v. Brings, 528 A.2d 451,453 (Me.

1987), stands to the contrary.

--
The entry shall be:

Defendant's motion to amend the judgment is denied. The clerk is directed to

incorporate t h s order in the docket by reference pursuant to Rule 79(a).

DATED: January 20,2006

Thomas D. Warren
Justice, Superior Court

This is confirmed by a copy of the amended final subdivision plan submitted by plaintiffs in opposing
defendanfs motion. As far as the court can tell, t h s document was not introduced into evidence at trial.
' COURTS
ld County
?X 287
e 041 12-0287

DAVID HIRSHON, ESQ.
P O BOX 15060
PORTLAND, ME 0 4 1 1 2 - 5 0 6 0

COURTS
~dCounty
IX 287
e 041 12-0287

DAVID SHERMAN, E S Q .
P O BOX 9 7 8 1
PORTLAND, ME 04104-5081

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10808260. Public record. Not legal advice.