# Leighton v. Town of Waterboro

> Superior Court of Maine · May 4, 2005

URL: https://www.frixlaw.com/law-library/cases/10808407

## Case

- **Court:** Superior Court of Maine
- **Decided:** May 4, 2005
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Judges:** G. Arthur Brennan
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10808407

## How later opinions describe it (automated extraction)

- finding no vested rights were acquired simply because the plaintiff acquired a building permit or spent money complying with regulations before the effective date

## Opinion text

STATE OF MAINE SUPERIOR COURT
CIVIL ACTION
YORK, ss. DOCKET NO. AP-02-068

LESLEY LEIGHTON,

Plaintiff

v. ORDER

TOWN OF WATERBORO,

Defendant

This case comes before the Court on briefs and stipulated facts in Petitioner

Lesley Leighton's BOB appeal of a decision by the Town of Waterboro Zoning Board of

Appeals denying him a Growth Control permit, along with an independent Declaratory

Judgment claim.

FACTS

Petitioner Lesley Leighton (Leighton) owns property on Route 5 in Waterboro,

Maine. In December 1992, Respondent Town of Waterboro (Waterboro) approved

Leighton's subdivision plan for Victoria Park, a mobile home park for 23 mobile homes.

Over the next ten years, Leighton spent time and money installing infrastructure for the

park, including wells, septic systems, electrical and plumbing connections, landscaping,

roads, tie downs, and 23 concrete pads to support the mobile homes. By July 23, 2002,

Leighton had acquired building permits and installed mobile homes on 10 of 23

available spots. Leighton acquired six additional building permits on July 23, 2002,

three that were used to install additional mobile homes, and three to be used in 2003.

On July 24, 2002, Waterboro adopted a Growth Management Ordinance,

requiring Leighton to apply for a Growth Permit before obtaining building permits for
additional mobile homes. The effective date of the ordinance was July 1, 2002. When

Leighton applied for a Growth Permit for additional mobile homes on July 30, 2002, the

Waterboro Code Enforcement Officer (CEO) denied his request under the Growth

Management Ordinance. Leighton appealed to the Waterboro Zoning Board of Appeals

(ZBA), which upheld the CEO's denial. On October 25, 2002, Leighton filed t h s appeal

pursuant to Maine Civil Rule 80B, aslung this Court to reverse the decision of the ZBA

and allow him to add mobile homes (Count I). Leighton also asserts an independent

claim, aslung this Court for declaratory relief finding the provisions of Waterboro's

Growth Management Ordinance unconstitutional. (Count 11).

DISCUSSION

In an 80B appeal, the Superior Court, reviews the operative decision of the

municipality for abuse of discretion, errors of law, or findings unsupported by

substantial evidence in the record. Yates v. Town of Southwest Harbor, 2001 ME 2, ¶ 10,

763 A.2d 1168, 1171; M.R. Civ. P. 80B(f). This Court will affirm that decision unless it is

arbitrary, capricious, or unreasonable. Senders v. Town of Columbia Falls, 647 A.2d 93, 94

(Me. 1994). T h s Court will reverse the decision only if the evidence compels a different

conclusion. Perrin v. Town of Kittery, 591 A.2d 861, 863 (Me. 1991). Interpretation of a

local zoning ordinance is a question of law whch this Court reviews de novo. Isis Dev.,

LLC v. Town of Wells, 2003 ME 149, 3 n.4, 836 A.2d 1285, 1286-87. In construing an

ordinance, the court will "look both to the ordinance as a whole and to its first

enumerated purposes." Id. at ¶ 4. The burden is on the petitioner to show, based on

evidence in the record, that the ZBA was in error. Britton v. Town of York, 673 A.2d 1322,

1325 (Me. 1996).

a. Vested Rights.
Leighton argues his mobile home building permits are exempt from the

requirements of Waterboro's Growth Management Ordinance, because the ordinance

cannot be retroactively applied to divest him of his vested right to install all 23 mobile

homes. Waterboro argues that the Growth Management Ordinance expressly applies to

Leighton as a subdivision owner, and to any mobile homes built on the ten remaining

sites, and survives the test for a deprivation of vested rights.

Municipalities are permitted to retroactively apply their ordinances. Portland v.

Fisherman's WharfAssoc., 541 A.2d 160,164 (Me. 1988).Such retroactive application may

"determine the legal significance of acts or events that occurred prior to its effective

dates." Kittery Retail Venttlres v. Town of Kittery, 2004 ME 65, 9 11, 856 A.2d 1183, 1189.

Such retroactive application may not be allowed where it would deprive plaintiffs of

"vested rights" they had acquired in their property. Portland v. Fisherman's WharfAssoc.,

541 A.2d at 164 (finding no vested rights were acquired simply because the plaintiff

acquired a building permit or spent money complying with regulations before the

effective date). Before proposed construction can go forward despite an existing

ordinance on the theory of "vested rights", the owner must meet three requirements:

"1) there must be the actual physical commencement of some significant and visible

construction; 2) the commencement must be undertaken in good faith ... with the

intention to continue with the construction and carry it through to completion; and 3)

the commencement of construction must be pursuant to a validly issued building

permit." Sahl v. Town of York, 2000 ME 180, q[ 12,760 A.2d 266,269.

Here, the Growth Management Ordinance became effective July 1, 2002, before

Leighton had an opportunity to put mobile homes on ten of the remaining sites allowed

in the subdivision approval for Victoria Park. On July 23, 2002, Leighton had acquired

approval for three building permits for mobile homes to be installed in 2003 but these
were not issued because Leighton failed to obtain Growth Permits. He had no building

permits for putting mobile homes on the seven other empty sites.

Waterboro's Growth Management Ordinance applies to "all new dwelling units

(including manufactured housing) within the Town of Waterboro." Mobile homes are

expressly included in the definition of "manufactured housing" and "dwelling unit."

Ord. at 5 16 (B). Both Growth Permits and Building Permits are required before

construction of a new "dwelling unit" is allowed.

Here Leighton's subdivision approval for installing mobile homes on the

remaining ten sites in Victoria Park fails the third prong of the test for "vested rights."

Construction had not begun on the vacant sites, and the three building permits for

additional mobile homes in 2003 have not been "validly issued" by meeting Growth

Management Ordinance requirement for Growth Permits. Nor, as Leighton argues, are

the unbuilt mobile homes analogous to unbuilt apartment units, for which construction

of one is a "commencement of construction" for all. Notwithstanding Waterboro's

subdivision approval and Leighton's site preparation for the park as a whole, each

mobile home in the park is a new "dwelling unit," under Waterboro ordinances, subject

to individual permit requirements. Subdivision approval for the park as a whole is not

a substitute for a valid building permit issued by a separate municipal authority under

separate standards in a separate proceeding. Larrivee v. Tirnrnons, 549 A.2d 744, 746 (Me.

1988)(separate approvals needed in the course of construction are not merely steps in a

single proceeding). Leighton's investment of time and money in site preparation is also

not the equivalent of "construction commenced under a valid permit." Portland v.

Fisherman's Wharf Assoc., 541 A.2d 160, 164 (Me. 1988). Because Leighton can claim

"vested rights" in completing construction on the ten remaining sites in Victoria Park,
only if he began construction of those mobile homes pursuant to a validly issued

building permit, his appeal on h s basis must fail.

b. Validity of Waterboro's Growth Management Ordinance.

i. Compatibility with the Comprehensive Plan.

Leighton argues Waterboro's Growth Management Ordinance does not comply

with a Maine statute requiring growth management ordinances to be consistent with a

town's comprehensive plan. 30-A M.R.S.A. § 4314(3) (2004).' Leighton directs the Court

1
3. RATE OF GROWTH, ZONING AND IMPACT FEE ORDINANCES. After January 1,2003, any
portion of a municipality's or multimunicipal region's rate of growth, zoning or impact fee ordinance
must be consistent with a comprehensive plan adopted in accordance with the procedures, goals and
guidelines established in this subchapter. The portion of a rate of growth, zoning or impact fee ordinance
that is not consistent with a comprehensive plan is no longer in effect unless:
C. The ordinance or portion of the ordinance is exempted under
subsection 2;
D. The municipality or multimunicipal region is under contract with
the office to prepare a comprehensive plan or implementation program,
in which case the ordinance or portion of the ordinance remains valid
for up to 4 years after receipt of the first installment of its first
planning assistance grant or for up to 2 years after receipt of the
first installment of its first implementation assistance grant,
whichever is earlier;
(NOTICE: TEXT OF PARAGRAPH E AS AMENDED BY 2003, c. 595, § 1.)
E. The ordinance or portion of the ordinance conflicts with a newly
adopted comprehensive plan or plan amendment adopted under this
subchapter, in which case the ordinance or portion of the ordinance
remains in effect for a period of up to 24 months immediately
following adoption of the comprehensive plan or plan amendment;
(NOTICE: TEXT OF PARAGRAPH E AS AMENDED BY 2003, c. 641 § 4.)
E. The ordinance or portion of the ordinance conflicts with a newly
adopted comprehensive plan or plan amendment adopted in accordance
with the procedures, goals and guidelines established in this
subchapter, in which case the ordinance or portion of the ordinance
remains in effect for a period of u p to 24 months immediately
following adoption of the comprehensive plan or plan amendment; or

(NOTICE: TEXT OF PARAGRAPH F AS AMENDED BY 2003, c. 595,s 2.)
F. The municipality or multimunicipal region applied for and was
denied financial assistance for its first planning assistance or
implementation assistance grant under this subchapter due to lack of
state funds on or before January 1,2003. If the office subsequently
offers the municipality or multimunicipal region its first planning
assistance or implementation assistance grant, the municipality or
multimunicipal region has up to one year to contract with the office
to prepare a comprehensive plan or implementation program, in which
case the municipality's or multimunicipal region's ordinances will be
subject to paragraph D; or
to Waterboro's 1990 Comprehensive Plan, w h c h includes a section devoted to

affordable housing, including provisions that continue to allow manufactured housing

(Appdx. 35, § 11 Affordable Housing Plan at p.6). Contrary to Leighton's assertions

however, the 1990 Plan does not encourage (or discourage) trailer park development,

but rather recognizes trailer parks as "an important component in the housing mix"

w h l e insisting such parks be restricted in the future to suitable sites, and that no more

than one new park be allowed. (Id. at p. 7).

Elsewhere, Waterboro's 1990 Comprehensive Plan states as a goal: "To establish

a well-balanced land use pattern that meets current and future needs of Waterboro in a

manner that is economical, equitable, environmentally sound, and sensitive to the

Town's visual and cultural character." Appnx. 35, § I Policy Development at p. 16).

Part of that goal, Objective 11.2 is "To monitor future growth and development in a

manner that preserves the fiscal capacity of the Town to provide essential services and

facilities." Objective 11.8 further seeks "to conserve the rural character of the

community."

Waterboro's Growth Management Ordinance likewise neither favors nor

disfavors mobile homes, identifying them as one of many "dwelling units" for purposes

(NOTICE: TEXT OF PARAGRAPH F AS AMENDED BY 2003, c. 641, § F.)
F. The municipality or multimunicipal region applied for and was
denied financial assistance for its first planning assistance or
implementation assistance grant under this subchapter due to lack of
state funds on or before January 1,2003.If the office subsequently
offers the municipality or multimunicipal region its first planning
assistance or implementation assistance grant, the municipality or
multimunicipal region has up to one year to contract with the office
to prepare a comprehensive plan or implementation program, in which
case the municipality's or multimunicipal region's ordinances will be
subject to paragraph D.
G. The ordinance or portion of an ordinance is an adult entertainment
establishment ordinance, as defined in section 4352, subsection 2,
that has been adopted by a municipality that has not adopted a
comprehensive plan.
of growth permits. As such, mobile homes are treated no differently from any other

"dwelling units" that may supply housing to Waterboro residents. The Growth

Management Ordinance limiting the number of building permits issued in a given year

for all dwelling units in order to regulate the rate at which new dwelling units are

added is in keeping with the 1990 Comprehensive Plan's goal of balancing current and

future needs, and its objective of monitoring growth and conserving resources.

ii. Compliance with Maine growth management statutes.

Leighton also maintains implementation of Waterboro's Growth Management

Ordinance did not comply with the provisions of 30-A M.R.S.A. § 4326, stipulating the

necessary elements of a growth management program.' Leighton argues Waterboro

§ 4326. Growth management program elements
A growth management program must include at least a comprehensive plan, as described in
subsections 1 to 4, and an implementation program as described in subsection 5.
1. INVENTORY AND ANALYSIS. A comprehensive plan must include an inventory and analysis
section addressing state goals under this subchapter and issues of regional or local significance that the
municipality or multimunicipal region considers important. The inventory must be based on information
provided by the State, regionaI counciIs and other relevant local sources. The analysis must include 10-
year projections of local and regional growth in population and residential, commercial and industrial
activity; the projected need for public facilities; and the vulnerability of and potential impacts on natural
resources.
The inventory and analysis section must include, but is not limited to:
A. Economic and demographic data describing the municipality or
multimunicipal region and the region in which it is located;
B. Significant water resources such as lakes, aquifers, estuaries,
rivers and coastal areas and, when applicable, their vulnerability to
degradation;
C. Significant or critical natural resources, such as wetlands,
wildlife and fisheries habitats, significant plant habitats, coastal
islands, sand dunes, scenic areas, shorelands, heritage coastal areas
as defined under Title 5, section 3316, and unique natural areas;
D. Marine-related resources and facilities such as ports, harbors,
commercial moorings, commercial docking facilities and related
parking, and shell fishing and worming areas;
E. Commercial forestry and agricultural land;
F. Existing recreation, park and open space areas and significant
points of public access to shorelands within a municipality or
multimunicipal region;
G. Existing transportation systems, including the capacity of
existing and proposed major thoroughfares, secondary routes,
pedestrian ways and parking facilities;
H. Residential housing stock, including affordable housing;
I. Historical and archeological resources including, at the
discretion of the municipality or multimunicipal region, stone walls,
stone impoundments and timber bridges of historical significance;
J. Land use information describing current and projected development
patterns; and
K. An assessment of capital facilities and public services necessary
to support growth and development and to protect the environment and
health, safetv and welfare of the public and the costs of those
facilitiks and services.
2. POLICY DEVELOPMENT. A comprehensive plan must include a policy development section
that relates the findings contained in the inventory and analysis section to the state goals. The policies
must:
A. Promote the state goals under this subchapter;
B. Address any conflicts between state goals under this subchapter;
C. Address any conflicts between regional and local issues; and
D. Address the State's coastal policies if any part of the
municipality or multimunicipal region is a coastal area.
3. IMPLEMENTATION STRATEGY. A comprehensive plan must include an implementation
strategy section that contains a timetable for the implementation program, including land use ordinances,
ensuring that the goals established under this subchapter are met. These implementation strategies must
be consistent with state law and must actively promote policies developed during the planning process.
The timetable must identify significant ordinances to be included in the implementation program. The
strategies and timetable must guide the subsequent adoption of policies, programs and land use
ordinances.
3-A. GUIDELINES FOR POLICY DEVELOPMENT AND IMPLEMENTATION STRATEGIES. In
developing its strategies and subsequent policies, programs and land use ordinances, each municipality
or multimunicipal region shall employ the following guidelines consistent with the goals of this
subchapter:
A. Identify and designate geographic areas in the municipality or
multimunicipal region as growth areas and rural areas, as defined in
this chapter.
1) Within growth areas, each municipality or multimunicipal
region shall:

a) Establish development standards;
b) Establish timely permitting procedures;
c) Ensure that needed public services are available; and
d) Prevent inappropriate development in natural hazard areas,
including flood plains and areas of high erosion.
2) Within rural areas, each municipality or multimunicipal region
shall adopt land use policies and ordinances to discourage
incompatible development. These policies and ordinances may
include, without limitation, density limits, cluster or special
zoning, acquisition of land or development rights, transfer of
development rights pursuant to section 4328 and performance
standards. The municipality or multimunicipal region should also
identify which rural areas qualify as critical rural areas as
defined in this chauter. Critical rural areas must receive
priority consideration for proactive strategies designed to
enhance rural industries, manage wildlife and fisheries habitat
and preserve sensitive natural areas.
3) A municipality or multimunicipal region may also designate as
a transitional area any portion of land area that does not meet
the definition of either a growth area or a rural area. Such an
area may be appropriate for medium-density development that does
not require expansion of municipal facilities and does not
include significant rural resources.
4) A municipality or multirnunicipal region is not required to
identify growth areas for residential, commercial or industrial
growth if it demonstrates that it is not possible to accommodate
future residential, commercial or industrial growth in these
areas because of severe physical limitations, including, without
limitation, the lack of adequate water supply and sewage disposal
services, very shallow soils or limitations imposed by protected
natural resources.
5) A municipality or multimunicipal region is not required to
identify growth areas for residential, commercial or industrial
growth if it demonstrates that the municipality or multimunicipal
region has experienced minimal or no residential, commercial or
industrial development over the past decade and this condition is
expected to continue over the 10-year planning period.
6) A municipality or multimunicipal region exercising the
discretion afforded by subparagraph 4 or 5 shall review the basis
for its demonstration during the periodic revisions undertaken
pursuant to section 4347-A;
B. Develop a capital investment plan for financing the replacement
and expansion of public facilities and services required to meet
projected growth and development;
C. Protect, maintain and, when warranted, improve the water quality
of each water body pursuant to Title 38, chapter 3, subchapter I,
article 4-A and ensure that the water quality will be protected from
long-term and cumulative increases in phosphorus from development in
great pond watersheds;
D. Ensure that its land use policies and ordinances are consistent
with applicable state law regarding critical natural resources. A
municipality or multimunicipal region, if authorized to enact
ordinances, may adopt ordinances more stringent than applicable state
law;
E. Ensure the preservation of access to coastal waters necessary for
commercial fishing, commercial mooring, doclung and related parking
facilities. Each coastal area may identify and designate one or more
critical waterfront areas and implement policies to ensure protection
of those areas or otherwise discourage new development that is
incompatible with uses related to the marine resources industry;
F. Ensure the protection of agricultural and forest resources. Each
municipality or multimunicipal region shall discourage new
development that is incompatible with uses related to the
agricultural and forest industries;
G. Ensure that the municipality's or multimunicipal region's land use
policies and ordinances encourage the siting and construction of
affordable housing within the community and comply with the
requirements of section 4358 pertaining to individual mobile home and
mobile home park siting and design requirements. The municipality or
multimunicipal region shall seek to achieve a level of at least 10%
of new residential development, based on a 5-year historical average
of residential development in the municipality or multimunicipal
region, that meets the definition of affordable housing. A
municipality or multimunicipal region is encouraged to seek creative
approaches to assist in the development of affordable housing,
including, but not limited to, cluster housing, reduced minimum lot
and frontage sizes, increased residential densities and use of
municipally owned land;
H. Ensure that the value of historical and archeological resources is
recognized and that protection is afforded to those resources that
merit it;
I. Encourage the availability of and access to traditional outdoor
implemented its Growth Management Ordinance before the requisite studies and

Comprehensive Plan were completed. Waterboro concedes the Ordinance was adopted

July 24, 2002, effective July 1, 2002 while the Updated Comprehensive Plan was not

adopted until April 25-26, 2003.

The Law Court has held that "a municipality that chooses to engage in a growth

management program must adopt both a comprehensive plan and an implementation

strategy" pursuant to 30-A M.R.S.A. €J 4326. Bragdon v. Town of Vassalboro, 2001 ME 137,

¶ 7, 780 A.2d 299,301. "A municipality that enacts a zoning ordinance is considered to

be engaged in the implementation strategy phase of growth management program for

which creation of a comprehensive plan is a mandatory prerequisite." Id. (emphasis

added).

Waterboro points out that during the transition to a new comprehensive plan,

however, "rate of growth" ordinances that are inconsistent with the new

comprehensive plan may remain valid for many additional months. 30-A M.R.S.A. €J

4314(3).

Here, it is difficult to see how Waterboro's Growth Management Ordinance

escapes the requirements of 30-A M.R.S.A. €J 4326 requiring the new comprehensive

recreation opportunities, including, without limitation, hunting,
boating, fishing and hilung, and encourage the creation of
greenbelts, public parks, trails and conservation easements. Each
municipality or multimunicipal region shall identify and encourage
the protection of undeveloped shoreland and other areas identified in
the iocal planning process as meriting that protection; and
J. Develop management goals for great ponds pertaining to the type of
shoreline character, intensity of surface water use, protection of
resources of state significance and type of public access appropriate
for the intensity of use of great ponds within the municipality's
- - or
m ~ l t i m u n i c i ~region's
al jirisdiction.
4. REGIONAL COORDINATION PROGRAM. A regional coordination program must be developed
with other municipalities or multimunicipal regions to manage shared resources and facilities, such as
rivers, aquifers, transportation facilities and others. This program must provide for consistency with the
comprehensive plans of other municipalities or multimunicipal regions for these resources and facilities.
plan as a "mandatory prerequisite" to implementation of zoning ordinances. Bragdon v.

Town of Vassalboro, 2001 ME 137, 9 7, 780 A.2d 299, 301. Although individual provisions

of the Growth Management Ordinance, including those governing Growth Permits,

may fairly be categorized as "rate of growth ordinances" which would be valid for a

time if incompatible with the Comprehensive Plan, the Growth Permit provisions are

entirely compatible with the goals and objectives of Comprehensive 131an3and it is

impossible to see how 30-A M.R.S.A. § 4314(3), can apply. Because implementation of

the Growth Management Ordinance should not have preceded adoption of the

Comprehensive Plan under the clear mandates of 5 4326, Leighton may be entitled to

some relief on h s basis.

c. Constitutionality of the Growth Management Ordinance

Leighton argues that Waterboro's Growth Management Ordinance violates his

right to equal protection under the Maine and United States Constitutions by allocating

Growth Permits in an unfairly discriminatory manner.4 The burden is upon Leighton, as

the party attaclung the constitutionality of the ordinance, to show by clear and

irrefutable evidence that it infringes the paramount law. Velln v. Town of Camden, 677

A.2d 1051,1054 (Me. 1996). The burden is also on Leighton to establish the complete

absence of any state of facts that would support the need for the ordinance. Inhabitants

of Town of Boothbay v. Nntionnl Advertising Co., Me., 347 A.2d 419, 422 (1975) "The

prohibition against denial of equal protection . . . is implicated only when action by the

state results in treatment of that person different than that given similarly situated

3
See, for example, "Goal 4 Design and implement policies that will limit impact of residential
growth. . . . Considerations for controlled growth should include: growth ordinances." (Appnx. 29 at p.
13);
4
Leighton has not briefed a takings claim in his original petition, and therefore waives it on
appeal. Biette v. Scott Dugas Trucking and Excavating, Inc. 676 A.2d 490, 494 (Me. 1996); State v. Babcock, 361
A.2d 911,913 n.1 (Me. 1976) (failure to brief issues listed on appeal constitutes waiver of those issues).
individuals." Wellman v. Dqartment of Human Services, 574 A.2d 879, 883 (Me. 1990).

Thus Leighton must demonstrate that, under the Growth Management Ordinance, he

was treated differently from owners of similarly situated lots or projects. Id.

Here, the Growth Management Ordinance allows Waterboro to issue 70 Growth

Permits per year. Subdivisions may not receive more than 50% of those permits. Any

particular subdivision may not receive more than three growth permits in a given year,

and no individual or entity within a subdivision may receive more than two. Housing

for the elderly is excluded from these restrictions, and two permits are reserved for

Habitat for Humanity or a similar non-profit organization.

Leighton seems to allege, as an owner of a subdivision with ten dwelling units,

he has a lesser chance of getting growth permits for all lus remaining unbuilt units than

a subdivision owner with but three dwelling units left to build. True enough.

However, w h l e Leighton has no chance of obtaining growth permits for the ten

remaining units in Victoria Park within one year, other subdivision owners also have no

chance of obtaining growth permits for ten units in one year. The most permits any

subdivision owner can obtain, regardless of the potential or approval of their site to

accommodate new units, is three. It is impossible to see how Leighton is treated

differently from other Waterboro subdivision owners in the number of permits

available to him. Because Leighton does not meet his burden of establishing that he is

treated differently from other similarly situated persons under the ordinance, lus equal

protection claim must fail. Wellman v. Dqartment of Hzlma~zServices, 574 A.2d 879, 883

(Me. 1990).

The entry will be as follows:

Petitioner Lesley Leighton's independent action seelung to invalidate the Growth

Permit provisions of the Waterboro Growth Management Ordinance for violation of
equal protection provisions of the State and United States Constitution (Count 11) fails

and judgment on this claim is awarded to the Town.

Insofar as it rests on allegations of vested rights or illegality pursuant to its

incompatibility with Waterboro's Comprehensive Plan, Petitioner Lesley Leighton's

appeal seelung to overturn the decision of the Waterboro Zoning Board of Appeals

(Count I), is DENIED.

However, by their own admission Waterboro appears to have implemented the

Growth Management Ordinance in violation of express statutory provisions requiring

adoption of the new Comprehensive Plan before implementing Growth Management

Ordinances. 30-A M.R.S.A. § 4326. This error does not appear to be mitigated by the

transitional and savings provisions of 30-A M.R.S.A. § 4314, w h c h seems not to apply.

Waterboro was in violation of 30-A M.R.S.A. § 4326 when it implemented the

ordinances and denied Petitioner's growth permit, therefore Petitioner would appear to

be entitled to some reljef from that denial. Petitioner had approval for three additional

building permits on July 23, 2002, which were never issued when the effective date of

the ordinance requiring growth permits was set at July 1, 2002. The appropriate

remedy is to remand with a mandate to issue those three building permits because, for

reasons stated above, growth permits were not required.

The clerk may incorporate this order in the docket by reference.

Dated: May 9,2005

PLAINT1FF :
Alan Nelson Esq.
PRESCOTT LEMOINE JAMIESON & NELSON
PO BOX 1 1 9 0
SAC0 ME 0 4 0 7 2 Defendant
-/7
Natalie B u r n s , E s q .
G. rthur B ennan
~udtice,supe&iorCourt

JENSEN BAIRD GARDNER & HENRY
PO BOX 4 5 1 0
PORTLAND ME 04112-4510

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10808407. Public record. Not legal advice.