The opinion
STATE OF MAINE SUPERIOR COLTRT
CIVIL ACTION
CUMBERLAND, ss DOCKET NO: AP-05-089
J;;
PAUL GALLANT,
Peti
ORDER ON MOTION
FOR A TRIAL OF THE
DOUGLAS and LE.4H KIELEY, * FACTS
JOAN MORTON, *
and the CITY OF MrESTBROOK, *
*
Respondent *
This case comes before the Court on Petitioner Paul Gallant's motion for a
limited trial of the facts pursuant to M.R. Civ. P. 80B(d),in this administrative
appeal of the decision of the Zoning Board of Appeals of the City of Westbrook
denying petitioner"^ appeal and affirming the issuance of two building permits
for Respondents Joan Morton and Douglas and Leah &eley.
FACTUAL BACKGROUND
In October 2005, the Code Enforcement Officer ("CEO) of the Town of
Westbrook issued two building permits, one to the Mortons and one to the
IGeleys. Both applicants have lots at the end of Austin Street in Westbrook. In
order to obtain the proper street frontage for building permits, the Board found
that the l e l e y driveway provides access to the Kieley lot from Austin Street, and
the Mortons have access to Austin Street over Adams Way, a private right-of-
way over their daughter's property. When the Board considered the validity of
the building permits, it was under the assumption that Austin Street was a public
street. Recently, however, Petitioner discovered a copy of the 1997 Westbrook
City Council Resoluition # 72 "Reaffirming Status of Austin Street Extension,"
which confirms that the Austin Street is a private way. The discovery of this
document forms the basis of this motion for a trial of the facts.
DISCUSSION
Petitioner contends that the Board found Austin Street to be a public street
and not to have been extended based on the erroneous assertions of the CEO.'
Petitioner maintains that Austin Street is a private way until it turns to gravel, at
which point it is a substandard private way. He contends that the Kieley
driveway is merely an extension of Austin Street and cannot be the basis for
frontage on the Geley lot. Ordinance 5 502.5(C)(l)(c).IHe further contends that
Adams Way, the street used for frontage on the Morton lot, does not meet the
standards set out in 5 502.5(C)(l)(c)of the Ordinance, and therefore cannot
provide the necessary frontage for the Morton lot. In sum, he argues that
because the Morton and %eley properties are not located on a private or public
way that meets the standards of the Ordinance, the issuance of the building
permits to the applicants violates the Ordinance.
In response, lRespondents first contend that a diligent search of the City
records would have revealed Resolution # 72. They assert that Petitioner cannot
'At hearing, the City argued that relevant portions of Austin Street had been taken by the City by
prescription, which transformed Austin Street from a private way to a public street.
2
Section 502.5(C)(l)(c)of the Ordinance provides:
Dead End Str12ets and Private Rights-of-way. A dead-end street or private way shall
have a maxi~numlength of 800 feet with either a cul-de-sac with a minimum turning
radius of 35 feet or a T-intersection utilizing a 30 foot x 30 foot hammerhead. A dead end
street, either l~ublicor private, may not begin from any point along another existing or
proposed dead end street. As private right of way may only be taken off a City Street,
while a drive.way may be taken off either a private right of way or a City street. (Ord. of
03-07-05).
have a second bite of the apple merely because he discovered the information too
late. Second, and most importantly, Respondents contend that whether Austin
Street is a public street or a private way is irrelevant to the issuance of the
permits. Ordinance § 202.13.3
Under the provisions of M.R. Civ. P. 80B(d), a party may seek a trial of the
facts "to permit inb:oduction of evidence that does not appear in the record of
governmental agency action and that is not stipulated." A party filing a motion
under this section rnust include with it a detailed statement in the nature of an
offer of proof of the evidence that the party intends to introduce at trial, as well
as the proposed Rule 80B record. M.R. Civ. 80B(d),(e).
The purpose of tlus rule is to allow the parties to an appeal of a
governrrlental action to augment the record presented to the reviewing
court with those facts relevant to the court's appellate review of
agency action. Rule 80B(d) is not intended to allow the reviewing
court to retry the facts that were presented to the governmental
decision maker, nor does it apply to any independent claims contained
in the complaint. Rather, it is intended to allow the reviewing court to
obtain facts not in the record that are necessary to the appeal before
the court,
Baker's Table, Inc. v.City of Portland, 2000 ME 7, ¶ 9, 743 A.2d 237, 240-41
(emphasis added).
In this case, it: is clear that Resolution # 72 was not in the record before the
ZBA. The pertinent question then becomes whether this information is necessary
to the appeal before this C o ~ r t . ~
Here, the Board found that the lGeleys acquired land from Mr. Thomas to
"A lot is a parcel of land of at least sufficient size to conform to minimum zoning requirements
for use, coverage, and associated factors, and to provide such yards and other open spaces as are
herein required. m o t must have the minimum lot width for its particular z o n i n ~district
fronting on a public or private right-of-way." Ordinance § 202.13 (emphasis added).
Apart from Resolution #72, Mr. Gallant also seeks to introduce additional documents, including
property deeds and plans related to the properties. Because these documents could easily have
been presented to the Board, the motion for a trial of the facts is denied as to these documents.
obtain frontage on Austin Street, and that the Kieley driveway was not an
extension of Austin Street. (Minutes p. 18). The Board further found that the
Mortons gained frontage via a private right of way leading to Austin Street.
(Minutes p. 18). Contrary to Petitioner's contention, these findings are supported
by testimony from the applicants and other neighbors. This Court will not
second-guess these findings.
Thus, the remaining question is whether, under the facts found by the
Board, the permits comply with the Ordinance. The Ordinance clearly states that
a lot may front a p ~ ~ b lor
i cprivate right-of-way as long as it has the minimum lot
width for its particular zoning district. Ordinance 9 202.13. Notwithstanding,
Petitioner relies on § 502.5(C)(l)(c)to argue that Austin Street and Adams Way
are substandard private ways and therefore cannot provide street frontage for
the applicants' lots. However, § 502.5(C)(l)(c)was enacted and became
applicable on March 7, 2005. Adams Way was created before March 7,2005,
(Minutes p. 8), before the enactment of 5 502.5(C)(l)(c).As such, section
502.5(C)(l)(c)does not apply to Adams Way. Furthermore, the Board
specifically found that the Kieley driveway was not an extension of Austin Street,
and that the Kieleys have frontage on Austin Street, a private way.
Accordingly, because a lot may have frontage on a public or a private way,
Resolution # 72, the determination that Austin Street is a private way, is not
necessary for the determination of this appeal.
The entry is as follows:
Petitioner's Motion for a Trial on the Facts is DENIED.
DATE:
Justice, Superior Court
CUMBERLAND Docket No.
County
I
CITY OF WESTBROOK SUBSTITUTES
-WEGT--=-oF.-- -
DOUGLAS KIELEY
LEAH KIELEY
JOAN MORTON
VS.
IWILLIAM
Defendant's Attorney
DALE, ESQ. DAVID LOURIE, ES(
NATALIE BURNS, ESQ. 1 8 9 SPURWINK AVE
PO BOX 4510 C. ELIZABETH, ME
PORTLAND, ME 04112 04107 (Kieley)
7 9 9 - 4 9 2 2 (Both )
(Morton)
STATE OF MAINE SUPERIOR COURT
CUMBERLAND, ss. CIVIL ACTION
PAUL GALLANT
DOCKET NO: AP05- 89
Abc- rib -- ',: t
I
,.b)
P c~c)crw
Pb&&i.~
L. GARBRECHT
LAW LIBRARY ORDER ON PLAINTIFF'S 80B
E \~A:NE
APPEAL S T A ~ OF rr<f~:, Office
v. JAN 1 7 2007 cumber\"' T
S!'
CITY OF WESTBROOK, et al.
Defendants
This matter comes before the Court on Paul Gallant's 80B appeal of
administrative action taken by the City of Westbrook.
BACKGROUND
Paul Gallant ("Gallant") resides at 465 Austin Street in Westbrook, Maine.
Defendants Joan Morton ("Morton") and Douglas and Leah l e l e y ("the
leleys") also have lots on or near Austin Street Extension. The leleys' lot
fronts on Austin Street Extension, and Morton's lot has access via a private right-
of-way called Adams Way, wluch had been approved by the City prior to a
March 2005 change in the ordinance. Morton and the Kieleys applied to the City
of Westbrook seeking building permits, whch were approved by the City's Code
Enforcement Officer ("CEO) on October 12,2005. Gallant appealed this
decision to the Zoning Board of Appeals ("ZBA) on October 17, 2005, but h s
appeal was denied at an administrative hearing held on November 2, 2005.
Gallant filed an 80B appeal against the City of Westbrook, the leleys, and
Morton in this Court on November 23,2005. He alleges, as he did before the
ZBA, that the building permits should not have been granted because permitting
development on Austin Street without proper frontage would impact residents'
safety in violation of the City's zoning ordinance. He also argues that the Kieleys
are impermissibly extending Austin Street by constructing a turnaround.
After filing h s 80B complaint, whch he amended to include Morton and
the Kieleys, Gallant moved for a limited trial on the facts pursuant to Rule 80B(d)
because he discovered information arguably indicating that Austin Street was
not a public way, as the City had assumed, but was a private way. T h s Court
denied that motion on May 23,2006, finding that whether Austin Street is a
public or private way is irrelevant to this 80B appeal.
DISCUSSION
1. Standard of Review.
Review of a Board of Appeals' findings is "for an abuse of discretion, error
of law, or findings unsupported by substantial evidence in the record." O'Toole
v. City of Portland, 2004 ME 130, ¶ 8, 865 A.2d 555, 558. This Court is "limited to
determining whether the record contains evidence to justify the Board's
determination." Lewis v. Maine Coast Artists, 2001 ME 75, ¶ 14, 770 A.2d 644, 650.
The party appealing the zoning board's decision bears the burden of persuasion.
Twigg v. Town of Kennebunk, 662 A.2d 914,916 (Me. 1996).
2. Safety and Frontage Requirements in the Zoning Ordinance.
The City of Westbrook's Zoning Ordinance § 101.1 articulates the City's
general goal of protecting the "health, safety, and general welfare" of City
residents, and this commitment to Westbrook citizens is restated as it pertains to
development within the City in 5 601.1. Another provision relevant to this
appeal is 3 202.13 of the ordinance, which provides that lots "must have the
minimum width for [their] particular zoning district fronting on a public or
private right-of-way." The CEO is invested with the authority to issue building
permits under § 603.1, and site plan review is not required prior to issuance of a
permit, 5 504.1.
At the November 2005 hearing, Gallant argued that Morton and the
l e l e y s did not have the appropriate amount of frontage on Austin Street1and
Adams Way, which is a private right-of way. He contended that the proposed
buildings would negatively impact the safety of residents in the area in
contravention of the ordinance. There is no evidence in the record, however, to
support this contention or warrant overturning the Board's findings on this basis.
Gallant provided no tangible connection between the frontage requirements in
the ordinance and the safety of residents. There is no apparent conflict between
the various provisions of the ordinance as they pertain to these permits.
Additionally, as it approved a motion to deny the appeal, the ZBA found
that both the l e l e y and Morton lots satisfied the City's frontage requirements
and upheld the building permits, providing the justification for its decision
required under Lezuis. Gallant has not met his burden to prove that the evidence
before the ZBA was insufficientto support its decision as to frontage or safety.
The ZBA's findings regarding appropriate frontage to support the permits are
therefore affirmed.
There was also some debate about whether Austin Street was a public or a private road. Gallant
said it had been a private road, and the City countered that it was a public road because the City
had been maintaining it. As this Court has already held that the public v. private status of the
road is irrelevant to resolving the issues on appeal, this will not be discussed in detail.
3. Extension of Austin Street.
Most of the debate in this case revolves around whether Austin Street
would be improperly extended by improving a turnaround to accommodate the
Morton and Geley construction projects. At the hearing, the CEO testified that
the IGeleys initially intended to extend the street, but when they learned about
the ramifications of doing that, they decided instead to acquire abutting land to
provide the frontage that they needed. Their proposal included constructing a
turnaround, but the CEO noted that the construction would be withn the
existing right-of-way. Gallant maintained that building the turnaround would
extend the street.
There was a significant amount of testimony on this subject from all the
parties, their attorneys, and the CEO. Given this, the ZBA had before it
substantial evidence to support its denial of the appeal and its finding that
Austin Street would not been further extended by construction of the Morton
and Kieley residences. Gallant has failed to provide evidence that would allow
this Court to disturb the findings of the ZBA, as its review is hghly deferential in
an 80B appeal.
The entry is:
Plaintiff's 80B appeal is DENIED. The decision of the Westbrook
Zoning Board of Appeals is AFFIRMED.
The clerk shall incorporate this
pursuant to M.R. Civ. P. 79(a).
2 0 , u oG
COURTS
nd County
ox 287
le 041 12-0287
DAVID LOURIE ESQ
189 SPURWINK AVENUE -
CAPE ELIZABETH ME 0 4 1 0 7
JOHN P H I L B R I C K ESQ
136 BAXTER BLVD
PORTLAND ME 04101
WILLIAM DALE ESQ
P O BOX 4510
I
PORTLAND ME 0 4 1 1 2