The opinion
STATE OF MAINE MAR S42 7805 SUPERIOR COURT
Wary Gb £Uug
CIVIL ACTIONS |
KNOX, ss. . DeM- Ree
THELANECONSTRUCTION
CORPORATION,
Plaintiff
v. . DOCKET NO. AP-03-013
TOWN OF WASHINGTON,
Defendant
LAND ASSOCIATION OF ae
WASHINGTON, et al.,
Plaintiff
v. DOCKET NO. AP-03-011
TOWN OF WASHINGTON, et al.,
Defendant
DECISION AND ORDER
This matter is before the court on M.R. Civ. P. 80B petitions by plaintiffs Land
Association of Washington! and The Lane Construction Corporation,’ plaintiffs in
separate petitions seeking review of governmental action.
The present complaints arise out of The Lane Construction Corporation's
(hereinafter “Lane”) proposal to operate a hard rock quarry, rock crusher, concrete
batch plant and bituminous hot-mix (asphalt) plant on a parcel of land in the Town of
’ The other named plaintiffs in this complaint include individual town residents who own land abutting a
parcel subject to a lease held by The Lane Construction Corporation, as well as other town residents who
live farther from said parcel.
2 The Lane Construction Corporation is also a named defendant in Land Association of Washington’s
complaint.
Washington’s Farm and Forestry (FF) district. On March 22, 2001, Lane filed an
application with the Town, requesting a conditional use permit for the aforementioned
activities. On May 10, 2001, the Washington Planning Board (hereinafter “the Board”)
held the first of thirteen public hearings on the application. At these hearings, both
Lane and the Land Association of Washington (hereinafter “LAW”) provided testimony
and documentary evidence in support of their differing views as to the legality of the
proposal in light of the applicable Land Use Ordinance (hereinafter “the LUO”). On
January 16, 2002, the Board considered a motion that the asphalt and concrete plants are
not “accessory uses” as contemplated by the LUO, and therefore, those portions of the
permit application should be denied. This motion passed by a vote of 3-0, with two
board members abstaining. As a consequence of this vote, Lane officially withdrew the
plants from consideration as part of the application. Thereafter, on January 16, 2002, the
Board considered a motion that the quarry and the rock crusher go “hand-in-hand”.
This motion also passed, this time by a vote of 3-2. The “hand-in-hand” phraseology
was used by the Board as an expression of their view that both quarrying and crushing
are part of the process of “mineral extraction” contemplated by the LUO. In taking this
vote, the Board specifically foreclosed the possibility of finding rock crushing to be a
use accessory to the quarrying operation.
On August 5, 2002, the Board issued its final decision granting Lane a conditional
use permit “to operate and maintain mineral extraction and crushing operations”. The
opinion also referenced the Board’s earlier decision to deny Lane’s permit request for
the asphalt and concrete plants, stating that “they were manufacturing in nature and
not listed as an allowable use for the FF district”. The Board also imposed various
conditions for approval of the permit, including the reimbursement by Lane of over
$20,000.00 in costs the Town incurred in the hearing process.
Both LAW and Lane appealed the Board’s decision to the Washington Board of
Appeals. On June 11, 2003, the Board of Appeals issued its opinion that the Planning
Board had correctly addressed the quarry and plants, but that its findings relative to the
rock crusher were “clearly contrary” to the LUO and had to be overturned. The
Appeals Board also upheld the Planning Board’s determination that Lane must
reimburse its costs.
Lane timely filed its Rule 80B complaint on June 26, 2003. Lane seeks to overturn
the Board’s decision that the concrete and asphalt plants are prohibited in the FF district
and that Lane is required to reimburse the board for costs associated with the hearing
process.
LAW timely filed its Rule 80B complaint on June 18, 2003. LAW seeks to
overturn the Board’s decision granting Lane’s conditional use permit to operate the
quarry and rock crusher.
On appeal, this Court independently examines the record and reviews the
operative decision of the municipality for “error of law, abuse of discretion, or findings
not supported by substantial evidence in the record.” Yates v. Town of Southwest Harbor,
2001 ME 2, ¥ 10, 763 A.2d 1168, 1171 (citing Sproul v. Town of Boothbay Harbor, 2000 ME
30, I 8, 746 A.2d 368, 372. The substantial evidence standard requires the court to
examine the entire record “to determine whether on the basis of all the testimony and
exhibits before the [board] it could fairly and reasonably find the facts as it did.” Ryan
v. Town of Camden, 582 A.2d 973, 975 (Me. 1990) (quoting Seven Islands Land Co. v. Maine
Land Use Regulation Comm., 450 A.2d 475, 479 (Me. 1982)). The court is not permitted to
“make findings independent of those explicitly or implicitly found by the board or [to]
substitute its judgment for that of the board.” Perrin v. Town of Kittery, 591 A.2d 861, 863
(Me. 1991). “The board’s decision is not wrong because the record is inconsistent or a
different conclusion could be drawn from it.” Twigg v. Town of Kennebunk, 662 A.2d 914,
916 (Me. 1995). To prevail, the plaintiff must show “not only that the board’s findings
are unsupported by record evidence, but also that the record compels contrary
findings.” Total Quality v. Town of Scarborough, 588 A.2d 283, 284 (Me. 1991). “Whether
a proposed use, principal or accessory, falls within a given categorization contained in a
zoning regulation is a question of law....” Singal v. City of Bangor, 440 A.2d 1048, 1051
(Me. 1982).
If the board of appeals acted as a tribunal of original jurisdiction, that is, as fact
finder and decision maker, the court reviews its decision directly. See Stewart v. Town of
Sedgwick, 2000 ME 157, { 4, 757 A.2d 773, 775. If, however, the board acted only in an
appellate capacity, the court reviews directly the decision of the planning board, not the
board of appeals. See Id. In the absence of an explicit ordinance creating a purely
appellate review, a municipal board must conduct a hearing de novo’. See Id { 7, 757
A.2d at 776.
1. The Implications of the Beckley Decision
LAW raises the argument that the Law Court’s decision in Beckley v. Town of
Windham, 683 A.2d 774 (Me. 1996), required the Board to deny Lane’s application in its
entirety. In Beckley, the applicants sought a permit from the Windham Planning Board
for the construction of a boat rental facility on land situated within the Town’s
“Resource Protection District” or “RPD”. The proposed facility was to include a gravel
parking lot, a twenty-four by twenty-eight foot building, walkways, a storage rack, and
a temporary dock. The Town’s zoning ordinance permitted marinas, private recreation
> All parties agree that this Court’s review must focus solely on the Planning Board’s decision and not the
decision of the Board of Appeals. Insofar as the LUO only authorizes the Board of Appeals to conduct an
appellate review, and that its review was in fact limited to that extent, it appears that this Court should
review the Planning Board’s decision directly. See Washington, Me. LUO, Art. X, § 3(1) (March 23, 2002);
AB-30, pp. 1-6.
areas and “accessory structures” within the RPD, but it specifically prohibited
“commercial structures”. The Law Court, in determining that the building qualified as
a commercial structure, remanded the case to the Superior Court with instructions to
vacate the entire permit and not just the portion of the permit allowing construction of
the building. According to LAW, Beckley stands for the proposition that where a land
use permit application includes both permissible and prohibited uses, Maine law
requires the denial of the entire permit. Hence, because Lane, like the applicants in
Beckley, presented a single application containing both permissible and prohibited uses,
the Board’s determination that certain of the proposed uses were forbidden prevents it
from approving any part of the request.
In response, Lane attempts to distinguish Beckley from the present case by noting
that the Washington LUO does not specifically ban rock crushers and, moreover, rock
crushers and plants are allowable as integral and/or accessory to mineral extraction
anyway. The Town also attacks the relevance of Beckley to Lane’s application. The
Town asserts that, unlike Beckley, the application at issue here consists of separate and
distinguishable components, any one of which can be removed “without unwinding the
entire permit”. Also, the Town notes that Beckley is the reverse situation from that
presented here. Specifically, Lane’s project as currently approved includes only the
rock quarry, a use that all parties apparently would agree is permitted under the LUO,
whereas in Beckley, the Law Court examined a proposal that still included prohibited
uses that were erroneously allowed.
After due consideration, this Court concludes that Beckley does not require it to
vacate the permit issued to Lane. Nowhere within that decision did the Law Court
opine that where a permit application contains a prohibited use, the entire application
must be denied. In light of the Law Court's silence on this point, this Court declines
LAW’s invitation to expand the holding of Beckley. Hence, even if it is determined that
the rock crusher and/or the plants are forbidden under the LUO, the decision to permit
the operation of a rock quarry will stand. Likewise, if it is determined that the rock
crusher is a permissible use in the FF district, that decision of the Board will stand as
well.
2. The Rock Crusher
Throughout the hearing process and subsequently, Lane has asserted two
distinct theories to support its claim that the rock crusher is a permissible use within the
FF district. In particular, Lane, at various times, has characterized the rock crusher as
“integral” to quarrying operations, implying that it falls within the ambit of “mineral
extraction” under the Washington LUO. Thus, according to this view, the rock crusher
would be considered part and parcel of the primary use under consideration. In other
instances, however, Lane has asserted that the rock crusher is permissible under the
LUO as a use “accessory” to the quarrying operation. Under this view, the rock crusher
would apparently be considered a use in and of itself, separate from the rock quarry.
Adding to the confusion, Lane, in its Rule 80B briefs submitted in conjunction with the
present cases, has apparently devised a third argument that blurs this distinction,
suggesting that a use may be both integral and accessory.
Although the Board’s written findings do not explain which of Lane’s arguments
it accepted, an examination of the transcripts taken from public hearings on the
application reveal that the Board considered the rock crusher to be integral, and not
accessory, to the quarry. During the public hearing of January 16, 2002, Board Member
Wendell Ware made a motion that the rock crusher “goes with the quarry hand in
hand”. Transcript, pg. 656, line 18. Shortly thereafter, in response to a question about
whether the crusher might still be deemed accessory, the Board Chairman stated “no”,
and then explained that “It’s got to go one way or the other here”. The Chairman
further clarified that a vote in favor of the motion would express the conclusion that
rock crushing was “part of the process” of quarrying. Board Member Ware’s motion
subsequently passed by a vote of 3-2.
The foregoing recitation shows that the Board interpreted the phrase “mineral
extraction” as it appears in the LUO to include the processing of mined materials with a
rock crusher. The interpretation of a zoning ordinance is a question of law that is
reviewed de novo. See Priestly v. Town of Hermon, 2003 ME 9, J 7, 814 A.2d 995, 997
(citing DeSomma v. Town of Casco, 2000 ME 113, 8, 755 A.2d 485, 487). In addition, the
Law Court has explained that no deference is given to the interpretations of zoning
ordinances by local volunteer boards. See Isis Development, LLC v. Town of Wells, 2003
ME 149, n. 4, 836 A.2d 1285 (Some Law Court decisions mistakenly merged de novo and
deferential reviews).
In pertinent part, the Washington LUO defines “mineral extraction” as “any
extraction of mineral deposits, including gravel....”. Washington, Me. LUO, Art. XI,
§ 2 (March 23, 2002)’. This definition, however, is vague at best. The LUO also provides
that “all words not defined herein shall carry their customary and usual meanings”. Id.
at§ 1. Accordingly, Black’s Law Dictionary defines the root word “extract” as “to draw
out or forth; to pull out from a fixed position”. BLACK’s LAW DICTIONARY 605 (7" ed.
1999). In this definition there is no suggestion that pulverizing or otherwise reducing
the size of an object in any way constitutes “extraction”. To the contrary, it appears that
* Tn its brief, Lane also references the Town’s “Mining Ordinance”. According to Lane, this ordinance
defines the phrase “mineral extraction activity” as “any excavation or removal, handling or storage of on-
site extracted sand, gravel, borrow, rock, clay, minerals, or topsoil to include, but is not limited to sand or
gravel pits, clay pits, borrow pits, quarries, mines, and topsoil mining or removal”. Further, Lane asserts
that the Mining Ordinance defines “handling” as “any aggregate screening, mixing or storage of sand,
gravel, stone, rock, clay, or topsoil; to include any mining of material”. See Lane Brief, pp. 11-12.
Strangely, this ordinance appears in neither the compilation of town ordinances submitted nor anywhere
else in the administrative record.
the ordinance as written merely contemplates the removal of the mineral from the
ground in whatever form that entails. Thus, as a matter of law, “mineral extraction”
under the Washington LUO does not include the operation of a rock crusher. The
Board's determination that the rock crusher was integral to the quarrying operation was
therefore erroneous and must be overturned.
In addition, it should be noted that Inhabitants of Leeds v. Maine Crushed Rock &
Gravel Co., 127 Me. 51, 141 A. 73 (1928), does not dictate a contrary conclusion on this
issue. In Leeds, the dispositive question involved whether the crushing of quarried rock
constitutes manufacturing. The Law Court held that it does not. Based upon this
relatively straightforward holding, Lane leaps to the unwarranted further conclusion
that crushing and extracting rock are not separate or distinct processes. A plain reading
of Leeds, and particularly the passage cited by Lane, reveals no such proposition of law.
See Id. at 56, 141 A. at 75.
Although operation of a rock crusher is not “mineral extraction”, the Board may
still properly permit this activity within the FF district if it meets the LUO’s definition of
“accessory uses”. Pursuant to the authority cited above, the Board’s interpretation that
the rock crusher is not an accessory use within the meaning of the LUO is subject to de
novo review and is afforded no deference.
In its brief in opposition to Lane’s complaint, the Town raises the argument that
a use accessory to a conditional use is not permissible under the terms of the LUO. The
Town first notes that the LUO defines “accessory uses” as “uses clearly incidental and
subordinate to a principle building or use allowed in the district in which it is located,
and located on the same lot with such principle building or use” (emphasis in Town
Opp. Brief). Washington, Me., LUO Art. XII, § 2 (March 23, 2002). The Town then
draws the Court’s attention to the following provisions of the LUO:
B. Allowable Uses.
The following uses are allowed in the Forest and Farm District:
7. Accessory Uses.
C. Conditional Uses.
The Following uses may be permitted only upon approval as conditional
uses in accordance with the appropriate provisions of this Ordinance.
1. Mineral Extraction
(Emphasis in Town Opp. Brief). The Town believes it is significant that the subcategory
“accessory uses” appears only under “allowable uses” and not under “conditional
uses”. Specifically, the Town contends that the absence of “accessory uses” in the
conditional uses” list shows a clear intent that uses accessory to a conditional use are
not allowed. Furthermore, the Town highlights the fact that the word “allowed”
appears in the definition of “accessory uses” and in the heading to the list of “allowable
uses”, but not in the heading to the list of “conditional uses”, which instead uses the
word “permitted”. Reading the definition of “accessory uses” in conjunction with this
language, the Town believes it is clear that an accessory use cannot attach to something
that requires a conditional use permit.
In response, Lane points out certain other items on the lists of allowable and
conditional uses that the Town left out of its discussion. In particular, Lane notes that
also among the list of “allowable uses” are “home occupations” and “licensed
babysitting services”. Further, the list of “conditional uses” also includes “mobile home
°
parks”. Lane asserts that the logical extension of the Town’s reasoning would be that
no item listed under “allowable uses” could occur in any activity listed under
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“conditional uses”. But, given the existence of these other contemplated activities, the
Town’s argument would lead to absurd results. Indeed, it seems patently unreasonable
to say that the drafters of the LUO meant to prohibit a home occupation or licensed
babysitting services from occurring within a mobile home park.
Although it is far from clear, at least one provision of Article VIT tends to show
that the ordinance drafters probably did not attach any significance to their use of the
term “allowed” as opposed to “permitted”. Consider the following language as it
appears in section 2, subsection E:
E. Prohibited Uses
Uses not permitted as an allowable or conditional use are prohibited
within this district.
Washington, Me., LUO Art. VII, § 2 (March 23, 2002). If this Court is to accept the
reasoning espoused by the Town, it would seem that the drafters should have
expressed the foregoing as “uses not permitted as a conditional use or allowed as an
allowable use....” Considering the language as actually drafted, however, in light of
subsections B and C quoted above, the words “permitted” and “allowed” appear to be
used interchangeably. Given this conclusion, the use of the word “allowed” as opposed
to “permitted” in the definition of “accessory uses” cannot have the significance
suggested by the Town. Moreover, insofar as accessory uses may properly attach to
“use[s] allowed in the district”, and that “mineral extraction” is an allowed/ permitted
use in the district, it seems that the Washington LUO condones accessory uses that
accompany conditional uses.
The next step is to determine whether the rock crusher is in fact an accessory use.
As discussed above, the outcome of the Board’s vote of January 16, 2002, was not
simply limited to the conclusion that the rock crusher is part of “mineral extraction”,
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but also that it is nof an “accessory use”. Lane relies on Town of Shapleigh v. Shikles, 427
A.2d 460 (Me. 1981), in favor of its position that a use that goes hand-in-hand with or is
integral to a principal use qualifies as a permissible accessory use. In Shapleigh, the Law
Court considered whether a building constructed pursuant to a permit that allowed the
applicants to erect an “accessory guest house” was actually a “principal building”. In
undertaking its analysis of the Shapleigh LUO, the Law Court adopted the holding of
Lawrence v. Zoning Board of Appeals, 158 Conn. 509, 264 A.2d 552 (1969), wherein the
Connecticut Supreme Court examined a local ordinance enacted by the Town of North
Branford. The operative provisions of the North Branford ordinance and the Shapleigh
LUO are virtually identical to the ordinance presently before this Court, except that the
Washington LOU modifies the term “incidental” with the word “clearly” instead of
“customarily”. Compare Washington, Me., LUO Art. XIIL § 2 (March 23, 2002);
Shapleigh, 427 A.2d at 465; Lawrence, 158 Conn. at 511. The Lawrence court explained that
for a use to be “incidental”, “the use must not be the primary use of the property but
rather one which is subordinate and minor in significance”. Lawrence, 158 Conn. at 512.
Additionally, with regard to the term “customarily”, the court noted that “the use must
be further scrutinized to determine whether it has commonly, habitually, and by long
practice been established as reasonably associated with the primary use”. Id.
In light of the foregoing authority, Lane’s assertion that an integral use is also an
accessory use is without merit. In fact, a plain reading of the Lawrence decision reveals
exactly the opposite — that the accessory use “must not be the primary use” (emphasis
added). Id.
Even though rock crushing does not appear to fall within the LUO definition of,
and is therefore not integral to, “mineral extraction”, this Court may still interpret the
LUO to include the rock crusher as an accessory use thereto. In accordance with
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Lawrence, the Law Court set forth various factors that in its view will determine whether
a use is accessory within the terms of a zoning ordinance. See Shapleigh, 427 A.2d at 465.
Specifically, the Law Court explained that “the size of the land area involved, the nature
of the primary use, the use made of adjacent lots by neighbors, the economic structure
of the area and whether similar uses or structures exist in the neighborhood on an
accessory basis” will all bear on this issue. Id.
In its opposition to Lane’s brief, LAW concedes that Lane established that a rock
crusher is customarily found near a quarry. However, LAW also contends that the
Board made no findings as to whether the crusher was clearly incidental and
subordinate to the quarry or located on the same lot, as the LUO requires.
It appears that LAW is correct on this latest point, and therefore, the Board must
make explicit findings of fact with regard to whether the rock crusher is an “accessory
use” under the LUO. A review of the record before the Court reveals that although
evidence on this issue may have been submitted, the Board effectively avoided it by
interpreting “mineral extraction” to include the crusher. Insofar as this Court may not
make findings of fact independent of the Board, this issue must be remanded to the
Board with instructions to make findings of fact as to whether the rock crusher is an
“accessory use” to “mineral extraction”.
Although not specifically addressed by any of the parties, it seems that the use of
the modifier “clearly” requires a more restrictive interpretation of the ordinance than
the use of the word “customarily”. The word “customarily” describes something that is
commonly or habitually practiced. Similarly, the word “common” is defined as, inter
alia, “occurring frequently or habitually”. WEBSTER’S IT NEw COLLEGE DICTIONARY 226
(1995). On the other hand, the root word “clear” is defined as, inter alia, “plain or
evident to the mind: unmistakable; free from doubt or confusion: certain; free from
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limitation or qualification: absolute”. Id. at 208. Based on these definitions, it seems
that for a use to relate “clearly” to a primary use, there must exist some aspect of
necessity or indispensability. To the contrary, the use of the word “customarily”
implicitly recognizes that there are some instances outside of the custom under which
different standards or practices are adhered to. Hence, in that the factors enunciated in
Shapleigh allow some leeway for a non-essential use to qualify as “accessory”, they do
not appear particularly apt when analyzing an accessory use under the Town of
Washington’s or a similarly worded LUO. Instead, it seems that under the proper
interpretation of this ordinance, only those uses that are strictly necessary, yet
subordinate to the primary use, and located on the same lot, may be deemed accessory.
Therefore, when analyzing the LUO in light of factual determinations made upon
remand, the rock crusher is “accessory” only if this more stringent standard is met.
3. The Concrete and Asphalt Plants
Lane contends that the Board committed legal error in concluding that the two
plants are not accessory to the proposed quarrying operation, and therefore that
decision must be overturned. Lane first notes that because the terms “incidental” and
“subordinate” are not defined in the LUO, they must be given their common and usual
meanings. The common meaning of “incidental” cited by Lane is something that is
“dependent on or subordinate to something else of greater or principal importance”.
Lane Brief pg. 12 (citing WEBSTER’S NEW COLLEGIATE DICTIONARY 580 (1977)). Further,
Lane asserts that the evidence submitted on this point was not contradicted and
overwhelmingly supports its position that the plants are in fact accessory. In its brief,
Lane recites a laundry list of facts, provided upon the Board’s request, that compare
various aspects of an operation containing only the quarry as opposed to an operation
that also includes the plants. The various features discussed by Lane in its brief include
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the volume of traffic, days of operation, number of customers, and the value of the cite.
Lane also discussed various characteristics of the plants in terms that mirror the factors
for evaluating a proposed accessory use espoused in Shapleigh. According to Lane, its
statistical and valuation analysis of the proposed operations show the quarry to be the
primary use, and the Shapleigh factors show the plants to be accessory.
In response, the Town first asserts the argument that the LUO does not permit
uses accessory to conditional uses. This is the same argument addressed above and will
not be repeated here. Second, the Town asserts that the plants are not subordinate to
the quarrying operation. As support for this argument, the Town points to the same
statistics and analysis relied upon by Lane, providing its own spin on the estimated
impact of the plants on the volume of business and the value of the cite.
Based on the record of the proceedings, there exists competent evidence upon
which to support the Board’s conclusion that the plants are not accessory to the
quarrying operation. In fact, Lane’s own attorney admits that the plants are not
necessary to the operation of the quarry. Considering the implications of the word
“clearly” in the definition of “accessory uses” discussed above, this admission appears
to undermine Lane’s position entirely.
Lane also takes issue with the Board’s characterization of the plants as
“manufacturing” uses during the course of the public hearings as well as in its written
opinion. Specifically, Lane believes the Board abused its discretion by simply making
up a term without providing any substantive meaning or standards for it, then denying
the plants because manufacturing uses were not expressly allowed in the FF district.
Also, Lane contends that the board erred in not determining whether the plants
qualified as accessory uses.
15
In its reply brief, the Town points out what it believes are misleading and
inaccurate assertions set forth by Lane. In particular, the Town notes that the Board did
in fact conclude that the plants were not accessory. In the portion of the hearing
transcripts cited by Lane, the motion originally made was that the “asphalt operation
and the concrete plant are not considered by the Board to be accessory uses...”
Although there was subsequent discussion about the manufacturing nature of the
plants, the Town notes that the proposed amendment to the motion to include this
reasoning was never seconded. Further, after the vote, the Chairman referred to the
motion as the “accessory use” issue. Therefore, in the Town’s view, the Board
sufficiently and properly addressed whether the plants were accessory.
It seems that the Board’s categorization of the plants as a manufacturing does not
provide grounds to overturn their decision. In addition to the transcript sections cited
by the Town, the Board’s written decision also indicates its specific conclusion that the
plants were not accessory to the quarry. Further, insofar as the plants obviously do not
fall into any other class of uses listed as allowable or conditional in the FF district, once
the Board determined that they were not accessory, it is inconsequential that any other
label was employed to describe them. This is so because the LUO clearly states that
“uses not permitted as an allowable or conditional use are prohibited within this
district”. Washington, Me. LUO, Art. VII § 2(E). Regardless of whether or not
“manufacturing” is defined in the LUO per se, the important issue for resolution by the
Board was whether the plants were accessory, and that was decided.
After the Board voted to deny the plants, Lane formally withdrew them from
further consideration as part of the proposal. On this basis, the Town asserts that the
plants should not now be considered by this Court to be part of the application, and
thus, no relief should be afforded to Lane.
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In response, Lane asserts that the plants were withdrawn only after the Board
took its vote, and therefore the withdrawal was moot. Lane likens the situation at hand
to that of an attorney attempting to withdraw a count asserted in a complaint after the
court has already granted the defendant’s motion to dismiss that count. Further, Lane
contends that the Board’s vote denying the plants was not a “final action” ripe for
appeal. Thus, Lane asserts that its only option was to wait until the Board issued a final
decision with respect to the other aspects of the application, then appeal.
It is the Court’s understanding that Lane’s proposal to obtain approval for the
placement and operation of the concrete batch plant and the bituminous hot-mix
(asphalt) plant were part and parcel of the original application to the Town. By
withdrawing them from further consideration, the Board’s vote is of no effect and the
matters are not pending either before the Town or before this Court. Nevertheless, the
Court has provided its analysis to bring a final conclusion to that issue in the event the
Court's decision on this procedural matter is found to be in error.
4, Alleged Bias, Arbitrary Action, Lack of Understanding of the LUO and Due
Process
LAW dedicates a majority of the brief in support of its complaint to highlighting
alleged improprieties and procedural snafus committed by various board members
during the hearing process. These arguments, along with record citations, are
summarized briefly as follows.
a. The Chairman’s Newspaper Statements
Board Chairman Bradley Brann wrote a letter to the editor of The Courier
Gazette expressing what LAW believes is a pro-Lane viewpoint. This letter appeared
in the March 29, 2001 edition of The Courier Gazette, some six weeks prior to the first
public hearing. Also, Chairman Brann made a statement appearing in the July 27, 2002
17
edition of The Courier Gazette. LAW asserts that this statement exhibits Chairman
Brann’s belief that LAW was interfering with the hearing process.
b. Statements Made to George Vandeventer
LAW alleges that immediately after the first public hearing in May of 2001,
Chairman Brann engaged in a dialogue with Mr. Vandeventer that shows a
predisposition to decide in favor of Lane. The essence of this conversation was that
Charlie Vanner (the owner of the parcel leased to Lane) “should have what he signed
on for with Lane”.
c. Statements Made to Budd Sloat
Chairman Brann allegedly made statements to Mr. Sloat on at least two occasions
in May of 2001 to the effect that the pollution coming from plumbing vent pipes and
septic tanks is similar to what would emanate from the Lane project. Brann
purportedly acknowledged that abutting residents would probably pack up and leave.
d. Chairman’s Initial Refusal to Consider Hiring Own Experts
LAW finds it telling that the Chairman was willing to accept the technical
information provided by the applicant, even though he could not understand it himself.
This supposedly indicates his predisposition to accept whatever Lane offered as
conclusive.
e. The Chairman Ignored the Opposition (LAW)
At a Planning Board work session, Chairman Brann stated that he had been
“humoring them (LAW) for months. Also, LAW was allegedly denied time to make
various presentations. Additionally, LAW was required to waive their right to submit
rebuttal evidence before being granted time to make a final presentation.
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f. The Chairman Violated LAW’s tights to Equal Protection and Due
Process
LAW alleges that Chairman Brann singled individuals out for ridicule who
opposed his anti-regulatory stance. (The constitutional ramifications of this allegation
are not entirely clear, other than LAW’s conclusion that such conduct “taints the entire
proceeding”).
g. The Chairman Impermissibly Relied Upon Outside Advise
On a motion to deny the entire application, the Chairman cast the
tiebreaking vote against the motion based on undisclosed information that was not
subject to public review by other board members or the public. Chairman Brann also
stated that he had received advice from the Maine Municipal Association (MMA) that
appeared to be a deciding, or at least supporting, factor in his opinions. However, he
was unable to restate the questions he had asked MMA and the advice given.
h. The Chairman Conducted Independent and Unspecified Research
The Chairman referred to unspecified readings concerning the classification of a rock
crusher vis-a-vis a quarrying operation. LAW alleges that these statements were made
before the opposition had a chance to submit evidence, showing the Chairman’s
predisposition to rule against them.
i. The Board Arbitrarily Re-Opened, Then Closed, the Hearing Process
LAW alleges that Lane was allowed to amend its application after the close of
the hearing process without an opportunity for anyone to determine the impact of the
_.. revisions. This revision allowed for a 33% increase in extraction capacity.
19
}. The Board Arbitrarily Ignored the Advice of its Attorney
LAW alleges that the Board arbitrarily ignored its attorney at least twice during
the hearing process. At the January 16, 2002 hearing, the Board failed to deny the entire
application, then failed to deny the rock crusher.
k. The Board Did Not Understand the Role of the Opposition
The Chairman expressed his opinion that the Board could vote on the application
before the Opposition had a chance to present its case.
LAW believes that the Beckley decision should dispose of this case. Alternatively,
LAW believes the foregoing allegations show that it never received the fair hearing that
it was entitled to. Therefore, a new hearing before the board is in order, and the sole
issue at that hearing should be the legality of the quarrying operation’.
Examining the evidence in the record and the application of law, to the extent the
court affirms the decision of the Planning Board, the court is satisfied that there is
sufficient evidence to support the conclusions and no evidence that the conclusions
were the product of bias and prejudice on the part of the chairman. On the other hand,
on remand, the Board will be required to make findings of fact in regards to whether
the rock crusher is an accessory use under its ordinance keeping in mind the application
of the terms “uses clearly incidental and subordinate to.” In meeting its responsibilities
to make the findings of fact, the members of the board will be required to apply a
subjective as well as an objective standard to analyze the weight of the evidence and the
credibility of the material that is before them. To the extent there is the necessity for a
subjective analysis, it would appear from the récord that there is sufficient indication of
predetermination by its chairman to question the objective nature of the Board’s
. Although it is not explained in detail, it seems that LAW believes the quarry is the only appropriate
issue for the Board’s consideration on remand because the other aspects of the proposal are, in its view,
prohibited as a matter of law.
20
decisions, particularly on a 3-2 vote. On this limited question, the court believes that
the chairman must recuse himself from consideration of this issue.
5. Is Lane Required to Pay the Town’s Expenses?
The Board required lane to reimburse the Town in the amount of $20,497.70 for
costs incurred in conducting the hearing process. Lane notes the legal requirement that
application fees for conditional use permits must be enacted “according to a fee
schedule established by the Planning Board”. Washington, Me. LUO, Art. XI § 2 (March
23, 2002). Lane asserts that because there was no fee schedule in place when it filed its
application, the Board has no authority to charge it for anything beyond the $50 filing
fee. Further, Lane feels that it was coerced into paying the fee because it was not
notified of the charges until substantial financial resources had been invested in the
application process. Lane also cites to 1 M.R.S.A. § 302 and Regan v. Racal Mortgage, Inc.,
715 A.2d 925 (Me. 1998) in support of its position.
The Town believes that Lane’s reading of Article XI of the LUO is overly
restrictive. The Town further asserts that a fee for this process could not be accurately
set in a schedule ahead of time without knowing the extent of any and all conditional
use applications. Also, the Town points out that Article XI, Section 2(1) lays out the
nature of anticipated costs, and therefore Lane had notice in advance of the charges.
Moreover, the Town argues that Lane could not realistically believe that its $50 filing
fee would cover the prospective expenses set out in the LUO. Finally, in response to
Lane’s charge of coercion, the Town contends that it merely submitted bills to Lane
when various charges became certain, which necessarily occurred some time after the
hearing process commenced. Also, the Town suggests that Lane could have decided
the project was not worth pursuing and withdrawn its application. Thus, the town
21
asserts that this Court should uphold the Board’s decision and order that the costs be
paid in full before any permits issue’.
LAW raises arguments in favor of the Town’s position that largely mirror those
set out in the Town’s opposition brief. Additionally, LAW asserts that Lane may not
now seek review of the Board’s decision to impose these fees because Lane failed to
appeal’.
Lane responds to LAW by stating that it did in fact appeal this part of the Board’s
decision.
The operative language relied upon by the parties is very ambiguous and itis not
surprising that there is an issue. However, the court is satisfied that there is sufficient
language to make it clear that there is a fee required to accompany the application and that
it is scheduled by the Town to be $50. (Emphasis supplied). It is also clear that the
ordinance provides a right of the Town to assess the applicants the costs as described.
Whether those costs, in this case, are reasonable under all of the circumstances is an
issue of fact not before this court, but to the extent the issue must be decided whether
the Town has the authority to assess such costs, the court is satisfied that it does.
The entry will be:
The Town of Washington Planning Board decision of August 5,
2002, granting The Lane Construction Corporation a conditional use
permit to operate and maintain mineral extraction operations is
AFFIRMED; the decision of the Town of Washington Planning Board of
August 5, 2002, granting The Lane Construction Corporation a conditional
use permit to operate and maintain a crushing operation is REVERSED
and the matter is REMANDED to the Town of Washington Planning
Board-to make findings of fact in accordance with this decision; the
decision of the Town of Washington Planning Board to deny the request
of The Lane Construction Corporation for asphalt and concrete plants in
the FF District is not before this Court; the order of the Town of
° Apparently, Lane has paid only $10,000.00 (under protest) of the accrued charges. See L-7; T-59, pg. 8.
7 Itis assumed that LAW is asserting that Lane did not appeal this portion of the Planning Board decision
to the Board of Appeals.
Washington Planning Board requiring a reimbursement for expenses from
The Lane Construction Corporation as part of the application process is
AFFIRMED; matter REMANDED to the Town of Washington Planning
Board for proceedings consistent with this Decision and Order.
Dated: March_Z9”_, 2005 Zo
22
onald H. Marden
Justice, Superior Court
Date Filed
6/18/03 Knox
Action
Docket No. AP-03-011
County
Atwood, J. recuses 2/5/04
80B Appeal
LAND ASSOCIATION OF WASHINGTON,
ROBERT MARKS,
PAULA GREEN, LOWELL FREIMAN, JOAN FREIMAN,
ZOLA COOGAN, SANDRA BOURRIE, GUY BOURRIE, INHABITANTS OF THE TOWN OF WASHINGTON, and
STEVE OCEAN,KATHY OCEAN and ANN N. FARLEY ys.
LANE CONSTRUCTION CORPORATION
Plaintiff’s Attorney , | Defendant’s Attorney
Robert Marks, Esq. Edmond J. Bearor, Esq. (Lane Construction)
PO Box 326 PO Box 1401
Washington ME 04574 Bangor ME 04402 947-4501
845-2800
Lee K. Bragg, Esq. (Town of Washington)
PO Box 5057
Augusta ME 04332 623-1596
Date of
Entry
6/18/03 80B Appeal and Summary Sheet filed by Attorney Marks.
6/18/03 Notice and Briefing Scheduled mailed to Attorneys Marks, Lee Bragg, and
Edmond Bearor.
7/14/03 Edmond J. Bearor, Esq. enters his appearance on behalf of the Defendant,
Lane Construction.
7/14/03 On 7/11/03, Lee K. Bragg, Esq. enters his appearance on behalf of the
Defendant, Town of Washington.
7/15/03 Return of Notice and Acknowledgment of Receipt of Services of Process filed:
-Edmond Bearor, Esq. accepts service on behalf of Lane Construction.
-Lee Bragg, Esq. accepts service on behalf of Town of Washington on 6/27/03.
7/24/03 Plaintiffs’ Motion to Enlarge Time to Submit Record and Proposed Order filed
by Attorney Marks.
7/25/03 Plaintiffs’ Initial Brief filed by Attorney Marks.
8/15/03 | On 8/14/03, Order (RE: Motion for Enlargement of Time to Submit Record)
filed: -
Granted. (Record due 8/15/03)
Dated: 28/4/03
Studstrup, J.
Copy mailed to Attorneys Marks, Bearor and Bragg.
8/15/03 On 8/13/03, Plaintiffs' Motion to Enlarge Time to Submit Record and
Proposed Order filed by Attorney Marks.
QfIOKRINAINKARAK F415A-
Date Filed
6/26/03 Knox Docket No. AP-03-013
Action
County ATWOOD, J. recuses 3/1/04
80B Appeal
THE LANE CONSTRUCTION COMPANY
LAND ASSOCIATION OF WASHINGTON (INTERVENERS)
;vS. TOWN OF WASHINGTON
Plaintiff’s Attorney Defendant’s Attorney
Edmond J. Bearor, Esq. Lee K. Bragg, Esq.
Timothy A. Pease, Esq. Michael A. Hodgins, Esq.
PO box 1401 PO box 5057
Bangor ME 04402-1401 Augusta ME 04332
947-4501 623-1596
Theodore A. Small, Esq. (Town of Washingto
PO Box 9729
Portland ME 04014
774-1200
Date of Robert Marks, Fsq. (Intervenors)
Entr PO Box 326
y Washington ME 04574 845-2800
6/27/03 On 6/26/03, 80B appeal; summary sheet and $100 fee filed by Attorneys
Bearor and Pease.
6/27/03 Notice and Briefing Scheduled mailed to Attorneys Bearor, Pease and the
Town of Washington.
7/1/03 Return of Service on Summons filed:
-Town of Washington served through Cheryl L. Ten Broeck on 6/27/03.
7/11/03 | Lee K. Bragg, Esq. enters his appearance on behalf of the Town of Washington.
Michael A. Hodgins, Esq. enters his appearance as co-counsel for Defendant.
7/25/03 Plaintiff's Motion for Enlargement of Time filed by Attorney Bearor.
8/15/03 On 8/14/03: Order (RE: Motion to Enlarge Time) filed:
Motion Granted and Time enlarged to 8/19/03.
Dated: 8/14/03
Studstrup, J.
Copy mailed to Attorneys Bearor, Pease, Bragg and Hodgins.
9/16/03 Plaintiff's Motion for Enlargement of Time and Propose Order filed by
Attorney Pease.
9/17/03 Second Plaintiff's Motion for Enlargement of Time and Proposed Order
filed by Attorney Pease.
9/18/03 Brief filed by Attorney Marks. Joint Record with AP-03-011.
10/1/03
Order filed:
4 o- . seek
Arann et . 4 “