The opinion
STATE OF MAINE . , SUPERIOR COLTRT
Cumberland, ss " 5
, j Civil Action
, A
Docket No.
ROBERT C. HAINS,
Appellant / Plaintiff
DECISION AND JUDGMENT ON APPEAL
(M.R.Civ.P. 808)
CITY OF PORTLAND,
Defendants
I. NATURE OF ACTION
Petitioner, Robert Hains appeals a decision by the City of Portland Planning
Board denying his application for minor site plan review
11. FACTS
Petitioner Robert Hains owns 19 lots of undeveloped land fronting Murray
Street, an improved city-accepted public way in Portland. Hains owns an additional 4
lots of undeveloped, "back land" fronting Rosedale and Dudley Streets; both Rosedale
and Dudley Streets are undeveloped, non-vacated, legally platted paper streets located
immediately south of Murray Street.' The petitioner intends to acquire more lots
contained in the back land, apparently to facilitate a future building development plan.
' There seems to be some discrepancies whether the City vacated Dudley and Rosedale Streets. The staff
report to the planning board indicates that Dudley road is non-vacated, whereas at least one survey map
shows Dudley Street as vacated. R. at 78, 98. Furthermore, a City of Portland street vacation list, dated
September 3, 1997, states that the two streets continue, R. at 56, whereas civil engineers hired by the
petitioner claim the City vacated Dudley and Rosedale Streets. R. at 65-66,68. Finally, the Planning and
Development Director for the City of Portland informed the Maine Department of Environmental
Protection that "contrary to the assertion of [Hains], the pertinent portion of Rosedale Street . . . has not
been vacated and the City retains its right of incipient dedication in that street."
On March 26, 2004, the petitioner submitted a minor site plan application to the
City of Portland Planning Department for review and approval of a 2412wide driveway
to provide access to h s Rosedale and Dudley Street properties via the Murray Street
property.3 The petitioner submitted the application because the project requires filling
w i h n a stream protection zone and general alteration of Fall Brook, a drainage course
or swale. Before Hains could file his minor site application, however, the Maine
Department of Environmental Protection ("DEP") had to approve filling the wetland to
construct the driveway. Following two requests from the DEP about the purpose of the
driveway, petitioner finally submitted a plan showing a driveway servicing three
housing units. In addition, during the DEP application process, the petitioner
represented that although he "has not formally proposed a development program to the
City of Portland [,I it is h s intent to do so upon receipt of the DEP . . . approval." The
DEP granted the petitioner's application.
After receiving the DEP permit, the petitioner filed his minor site application, as
previously indicated. On April 20,2004, a planner in the City of Portland Planning and
Development Department ("the staff") issued the petitioner an incompleteness letter
regarding Hains1March 20,2004 minor site application. In response, Hains submitted a
general project narrative and an additional plan sheet encompassing the entire site. The
project narrative indicated that, among other things, the only other way the petitioner
could access the property would be to construct a street, costing approximately
$250,000.00. The petitioner also declined to provide h s development intentions, merely
' Petitioner's plan started out as a 22' wide driveway, but after working with the City in an attempt to be
granted the requisite permit, the Petitioner increased the size.
' In English, this means that the petitioner wants to build a "driveway" from Murray Street to his
property, which would cross Rosedale Street. See my nifty highlighted sketch.
stating that if further development were to occur, he would return to the Planning
Department.
Although the additional materials Hains submitted did not complete h s
application, the information provided the staff with enough information to evaluate his
application. On July 1, 2004, the staff denied the petitioner's minor site application
based on inconsistency with the Site Plan ordinance and the City's Technical Design
Guidelines. According to the Technical Standards, a driveway serving one or two
family residences is limited to a maximum width of 20 feet. A driveway serving multi-
unit project has a minimum width of 20 feet if one-way or 24 feet if allowing two-way
traffic. Furthermore, the staff found that Hains could access h s property over unbuilt
paper streets; that the adequacy of the driveway design could not be determined
because the driveway is intended to serve an unspecified residential development; and
that the application is inconsistent with standards for development adjacent to wetlands
because it does not propose a one hundred foot buffer strip between the access drive
and nearby Fall Brook.
The petitioner appealed the staff's decision to the Planning Board. The Planning
Board held its public hearing on Hains' appli~ation.~
After reviewing the record de
novo, the Planning Board voted 2-4 to deny the application. The Planning Board sent
the petitioner a letter indicating that it denied the application because it found the
project "noncompliant with sections III(2) and XI(3)(C)(a)of the City's Technical and
Design Standards and the site plan standards of City Code § 14-526. The petitioner filed
his timely appeal to the Superior Court.
Between the Staff's denial and the Planning Board's hearing, Hains revised his site plan to comply with
the Planning Board Report provided to the petitioner and the Planning Board in advance of the hearing.
Staff submitted the Planning Board Report on October 22,2004; Hains provided the Staff with his revised
site plan on January 18,2005. Hains complains about the extra time and expense the additional work cost
him, but this is not the proper criteria for a decision by the Board or the court.
111. DISCUSSION
A. Standard of Review
When a Planning Board "acts as the tribunal of original jurisdiction as both fact
finder and decision maker, [the court] review[s] its decision directly for errors of law,
abuse of discretion, or findings not supported by substantial evidence in the record."
Brackett v. Town of Rangeley, 2003 ME 109, ¶ 15, 831 A.2d 422, 427. In reviewing the
Planning Board's decision, this court "is not free to make findings of fact independently
of those found by the municipal zoning authority. It may not substitute its judgment
for that of the municipal body." Mack v. Municipal Officers of Cape Elizabeth, 463 A.2d
717, 719-20 (Me. 1983). See also Gensheimer v. Town of Phippsburg, 2005 ME 22, q[ 17, 868
A.2d 161, 166. Finally, in a Rule 808 action, the burden of persuasion rests with the
party seelung to overturn the local decision. Mack, 463 A.2d at 720.
B. Technical Standards
Technical Standard III(2) contains subsections (A), which deals with multi-family
(3 or more units) driveway design and subsection (B) which addresses single and two-
family driveway design. Technical Standard III(2)(A)(b)requires a minimum driveway
width for a two-way driveway to be 24' wide. When the petitioner increased the size of
the driveway in response to the Planning Board's Report, he did so to comply with
III(2)(A)(b) R. at 262. Hains applied, however, for a driveway to service no more than
two units and maintains that the driveway will service no more than two homes. If this
is true, then Hains' 24' wide driveway violates Standard III(2)(B)(a) because that
subsection limits the driveway width to 20'. It is wholly unclear upon wluch subsection
of the Standard the Planning Board relied. The deliberations do not resolve this
problem, either. As a result, the court cannot rely on the Planning Board's conclusion
that the application violated Technical Standard III(2) because it is unclear how the
Planning Board classified the driveway.
Technical Standard XI applies to "all projects which may impact wetlands [that]
are classified as a river, stream or brook . . ." (emphasis added). There is no question
that the petitioner's driveway, whether it services a single- or multi-unit project impacts
a classified brook, Fall Brook. As such, Technical Standard XI(3)(C)(A)provides:
For developments located adjacent to perennial streams, a minimum one
hundred (100) foot buffer strip on either side of the stream should be
maintained. For intermittent streams, the buffer strip may be reduced to
twenty-five (25) feet.
The buffer proposed by the petitioner fills to within 25' of Fall Brook, indicating an
intermittent stream. Nonetheless, substantial evidence in the record supports the
Planning Board's determination that Fall Brook constitutes a perennial stream. The
record indicates that the Army Corp of Engineers classifies Fall Brook as a perennial
stream as does the United States Geological Survey. R. at 105, 187. Additionally, the
DEP lists the stream as perennial. R. at 187,442.
The petitioner, however, argues that the three agencies incorrectly classify Fall
Brook as perennial because his engineers classify it as intermittent. This argument is
unpersuasive. Hains hired his engineers to support his application, and as a result,
cannot be relied upon as a final authority on the matter. The court does not necessarily
value a private corporation's assessment over three independent agency
determinations. That is an assessment for the Board unless their decision is deemed
clearly erroneous. Furthermore, the petitioner argues that the DEP approved filing
witl-un the 100-foot buffer, demonstrating that the DEP does not consider the stream
perennial. Hains' argument ignores that the City of Portland developed the 100-foot
buffer standard and in cases where State and Local rule conflict "the more stringent
rules will apply." R. at 352.
Finally, the petitioner argues that the language of Techrucal Standard XI(3)(C)(a)
clearly demonstrates that the Planning Board has discretion in applying this section.
Although it does appear that the language allows the Planning Board discretion, the
court reviews this issue for errors of law. It was within the Planning Board's legal
authority to require a 100-footbuffer.
Because substantial evidence supports the Planning Board's decision the
petitioner's application violates Technical Standard XI(3)(C)(a), the court need not
address whether the record supports the Planning Board's final reason for denying the
petitioner's application.
IV. DECISION AND JUDGMENT
The clerk shall make the following entry on the docket as the Decision and
Judgment of the court:
A. The Decision of the City of Portland Planning Board is affirmed.
B. Judgment is entered for the respondent City of Porqand.
SO ORDERED.
Justice, Superior c o i r t
Date Flled 03/24/05 CUMBJ3UW Docket No.AP-05-15
County
Action 80B APPEAL
ROBERT C. HAINS THE CITY OF PORTLAND
VS.
Plaintiff's Attorney PRIAN WILLINGS , ESQ. Defendant's Attorney
RONALD WARD, ESQ. PENNY LITTELL, ESQ.
~ - A , = E R , - - ~ S ~ .withdrawn 389 CONGRESS STREET
245 COMMERCIAL STREET PORTLAND, MAINE 04101
PO BOX 9781 874-8480
PORTLAND, ME 04104-5081
772-1941
Date of
En try
2005
March 24 Received on 03/24/05:
Complaint for Review of Governmental Action to Superior Court filed.
Mar. 25 On 3-25-05.
Briefing schedule mailed. plaintiff's brief due 5-3-05.
March 31 Received 3-31-05.
Acceptance of Service filed showing return of service on 3-29-05 upon
Defendant City of Portland to Penny Littell, Esq.
t'
April 6 Received 4-6-05.
Copy of Acceptance of Service filed showing return of service on 3-29-05 up01
Defendant City of Portland to Penny Littell, Esq. filed.
April 8, Received 4-8-04
Defendant's Answer to Plaintiff's Complaint for Review of Govermental Action
Pursuant to Rule 80B. (LH)
Apr. 28 Received 04-28-05:
Consented-to Motion for Enlargement of Time to File 80B Brief And Record
filed.
May 3 On 05-03-05:
As to Consented-to Motion for Enlargement of Time to File 80B Brief
and Record: (Delahanty, J.).
The Court, Having reviewed the plaintiff's Consented-To Motion for
Enlargement if Time to file the 80B Brief aqd Reocrd, hereby grants
the motion . The deadline for Plaintiff to file the Rule 80B Brief
and Record is enlarged until May 19, 2005. At the direction of the
Court, this Order shall be incorporated into the docket by reference.
Rule 79(a).
On 05-03-05 Copies mailed to Ronald Ward, Amanda A. M ~ a d e rand Penny
Littell, Esq.
ROIBERT C . HAINS v s . CITY OF PORTLAND
Date of
Entry Docket No. AP-05-15
2005
May 17 Received 05-17-05:
P l a i n t i f f , R o b e r t C . Hains Second c o n s e n t e d t o Motion f o r Enlargement
of Time t o F i l e Rule 80B B r i e f and Record f i l e d .
May 20 On 05-19-05:
A s t o p l a i n t i f f ' s Second Consented-To Motion f o r Enlargement of Time
t o F i l e 80B B r i e f and Record; ( D e l a h a n t ~ , J . )
The Court h e r e b y g r a n t s t h e motion. The d e a d l i n e f o r P l a i n t i f f t o f i l e
t h e Rule 80B B r i e f and Record i s e n l a r g e d u n t i l J u n e 13, 2005.
On 05-20-05 Copies m a i l e d t o Penny L i t t e l l , Ronald Ward and Amanda A .
Meader, Esq.
Received 6-13-05.
P l a i n t i f f ' s Rule 80B B r i e f f i l e d .
Rule 80B Record f i l e d .
Received 07-11-05:
Defendant, C i t y of P o r t l a n d Rule 80B Reply B r i e f f i l e d .
Received 07-25-05.
P l a i n t i f f ' s 80B Reply B r i e f f i l e d .
Zeceived 1-25-06.
q o t i c e o f Withdrawal o f Amanda Meader Esq obo P l a i n t i f f f i l e d .
In 1-25-06.
q o t i f i e d Amanda Meader Esq t h a t s h e c a n n o t b e removed from d o c k e t
~ i t h o u ta p p e a r a n c e o f B r i a n w i l l i n g , Esq.
Received 0 1 - 2 5 - - 0 6 :
Consented-To Motion to Continue Rule 80R Hearing filed.
3ntry of Appearance of B r i m Will-ing, E s , q . 7,s counsel
For Plaintiff, Robert C. Hains filed. 1.'
On 0 1 - 3 0 - 0 6 :
.
Order filed. (Delahanty , J .) .
Upon consideration of Plaintiffs' Motion to Continue Rule
8 0 B Hearing, such motion is hereby GFUiNTED. This matter shall
he continued and rescheduled for Justice Delahanty's next
civil motion list.
On 0 1 - 3 0 - 0 6 copies mailed to Bria.n Willings, Ronald Ward and
Pennv I,ittell, Esqs.
On 0 6 - 2 8 - 0 6 :
Hearing Held on 8 0 B appeal.
Court takes matter under advisement.
Justice Thomas Delahanty presiding.
No record liade.
Received 0 8 - 2 9 - 0 6 :
Decision and Judgment on Appeal: (~elahanty,J.) .
The clerk shall make the following entry on the docket as
the Decision and Judqment of the court: A. The Decision
of the City of Portland planning Board is affirmed. R .
Judgment is entered for the respondent City of Portla-nd.
SO ORDERED.
ROIBERT C. HAlNS vs. CITY OF PORTLAND
Date of
Entry Docket No. AP'05-15
continued from previous page ....................
On 08-30-06 copies mailed to Brian Williams, Esq. and
Penny Littell, Esq. Ms. Deborah Firestone, Goss Mimeograph
The Donald Garbrecht Law Library and Loislaw.com, Inc.
STATE OF MAINE SUPERIOR COURT
Cumberland, ss Civil Action
Dockerno. AP-05-015
ROBERT C. HAINS,
Appellant / Pla.intiff
ORDER
CITY OF PORTLAND,.
Defendants
The Decision and Judgment in this matter, dated August 28,2006 is withdrawn
and vacated. The Decilsion and Judgment dated September 15,2006, filed
simultaneously with this Order is substituted therefore.
SO ORDERED.
Dated: September 15,2006
Justice, Superior court
4 5
STATE OF MAINE SUPERIOR COURT
Cumberland, ss I
, - . - Civil Action
Docket No. AP-05915
ROBERT C. HAINS,
Appellant / P1,aintiff
DECISION AND JUDGMENT ON APPEAL
(M.R.Civ.P. 80B)
CITY OF PORTLAND,
Defendants
I. NATURE OF ACTION
Petitioner, Robert Hains appeals a decision by the City of Portland Planning
Board denying his application for minor site plan review
11. FACTS
Petitioner Robert Hains owns 19 lots of undeveloped land fronting Murray
Street, an improved city-accepted public way in Portland. Hains owns an additional 4
lots of undeveloped "back land" fronting Rosedale and Dudley Streets; both Rosedale
and Dudley Streets are undeveloped, non-vacated, legally platted paper streets located
immediately south of Murray Street.' The petitioner intends to acquire more lots
contained in the back land, apparently to facilitate a future building development plan.
' There seems to be some discrepancies whether the City vacated Dudley and Rosedale Streets. The staff
report to the planning board indicates that Dudley road is non-vacated, whereas at least one sumey map
shows Dudley Street as vacated. R. at 78,98. Furthermore, a City of Portland street vacation list, dated
September 3, 1997, states that the two streets continue, R, at 56, whereas civil engineers hired by the
petitioner claim the City vacated Dudley and Rosedale Streets. R. at 65-66, 68. Finally, the Planning and
Development Director for the City of Portland informed the Maine Department of Environmental
Protection that "contrary to the assertion of [Hains], the pertinent portion of Rosedale Street. . . has not
been vacated and the City retains its right of incipient dedication in that street."
On March 26, 2004, the petitioner submitted a minor site plan application to the
City of Portland Plaruung Department for review and approval of a 2q2wide driveway
to provide access to his Rosedale and Dudley Street properties via the Murray Street
property. The petitiolner submitted the application because the project requires filling
within a stream protection zone and general alteration of Fall Brook, a drainage course
or swale. Before Hains could file his minor site application, however, the Maine
Department of Environmental Protection ("DEP") had to approve filling the wetland to
construct the driveway. Following two requests from the DEP about the purpose of the
driveway, petitioner submitted a plan showing a driveway servicing three housing
units. In addition, during the DEP application process, the petitioner represented that
although he "has not formally proposed a development program to the City of
Portland.[,] it is his intent to do so upon receipt of the DEP . . . approval." The DEP
granted the petitioner's application.
After receiving the DEP permit, the petitioner filed his minor site application, as
previously indicated. On April 20,2004, a planner in the City of Portland Planning and
Development Departnnent ("the staff") issued the petitioner an incompleteness letter
regarding Hains' March 20,2004 minor site application. In response, Hains submitted a
general project narrative and an additional plan sheet encompassing the entire site. The
project narrative indicated that, among other things, the only other way the petitioner
could access the property would be to construct a street, costing approximately
$250,000.00. The petitioner also declined to provide his development intentions, merely
stating that if further development were to occur, he would return to the Planning
Department.
Petitioner's plan started out as a 22' wide driveway, but after working with the city in an attempt to be
granted the requisite permit, the petitioner increased the size.
Although the additional materials Hains submitted did not complete h s
application, the information provided the staff with enough information to evaluate his
application. On July 1, 2004, the staff denied the petitioner's minor site application
based on inconsistenczy with the Site Plan ordinance and the City's Techrucal Design
Guidelines. Accordi.ng to the Technical Standards, a driveway serving one or two
family residences is limited to a maximum width of 20 feet. A driveway serving multi-
unit project has a minimum width of 20 feet if one-way or 24 feet if allowing two-way
traffic. Furthermore, the staff found that Hains could access his property over unbuilt
paper streets; that the adequacy of the driveway design could not be determined
because the driveway is intended to serve an unspecified residential development; and
that the application is inconsistent with standards for development adjacent to wetlands
because it does not propose a one hundred foot buffer strip between the access drive
and nearby Fall Brook.
The petitioner appealed the staff's decision to the Planning Board. The Planning
Board held its public hearing on Hains' appli~ation.~
After reviewing the record de
novo, the Planning Board voted 2-4 to deny the application. The Planning Board sent
the petitioner a letter indicating that it denied the application because it found the
project "noncompliant: with sections III(2) and XI(3)(C)(a)of the City's Techxucal and
Design Standards and the site plan standards of City Code 5 14-526. The petitioner filed
his timely appeal to the Superior Court.
111. DISCUSSION
A. Standard of Review
Between the staff's denial and the Planning Board's hearing, Hains revised his site plan to comply with
the Planning Board report provided to the petitioner and the Planning Board in advance of the hearing.
Staff submitted the Planning Board report on October 22,2004; Hains provided the staff with his revised
site plan on January 18,20015. Hains complains about the extra time and expense the additional work cost
hm,but this is not the proper criteria for a decision by the Board or the court.
When a Planning Board "acts as the tribunal of original jurisdiction as both fact
finder and decision nnaker, [the court] review[s] its decision directly for errors of law,
abuse of discretion, or findings not supported by substantial evidence in the record."
Brackett v. Town of Rrzngeley, 2003 ME 109, 91 15, 831 A.2d 422, 427. In reviewing the
Planning Board's decision, h s court "is not free to make findings of fact independently
of those found by the municipal zoning authority. It may not substitute its judgment
for that of the munici.pa1 body." Mack v. Municipal Oficers of Cape Elizabeth, 463 A.2d
717, 719-20 (Me. 198311. See also Gensheimer v. Town of Phippsburg, 2005 NIE 22, q[ 17, 868
A.2d 161, 166. Finally, in a Rule 80B action, the burden of persuasion rests with the
party seelung to overturn the local decision. Mack, 463 A.2d at 720.
B. Technical Standards
Technical Standard III(2) contains subsections (A), which deals with multi-family
(3 or more units) driv'eway design and subsection (B) which addresses single and two-
family driveway design. Techtucal Standard III(2)(A)(b)requires a minimum driveway
width for a two-way driveway to be 24' wide. When the petitioner increased the size of
the driveway in response to the Planning Board's Report, he did so to comply with
III(2)(A)(b) R. at 262. Hains applied, however, for a driveway to service no more than
two units and maintains that the driveway will service no more than two homes. If this
is true, then Hains' 24' wide driveway violates Standard 111(2)(B)(a)because that
subsection limits the driveway width to 20'. It is wholly unclear upon which subsection
of the Standard the Planning Board relied. The deliberations do not resolve this
problem, either. As a result, the court cannot rely on the Planning Board's conclusion
that the application viiolated Technical Standard III(2) because it is unclear how the
Planning Board classified the driveway.
Technical Standard XI applies to "all projects which may impact wetlands [that]
are classified as a river, stream or brook . . ." (emphasis added). There is no question
that the petitioner's driveway, whether it services a single- or multi-unit project impacts
a classified brook, Fall Brook. As such, Technical Standard XI(3)(C)(A)provides:
For developments located adjacent to perennial streams, a minimum one
hundred (100) foot buffer strip on either side of the stream should be
maintained. Flor intermittent streams, the buffer strip may be reduced to
twenty-five (251) feet.
The buffer proposed by the petitioner fills to within 25' of Fall Brook, indicating
an intermittent stream. Nonetheless, substantial evidence in the record supports the
Planning Board's determination that Fall Brook constitutes a perennial stream. The
record indicates that the Army Corp of Engineers classifies Fall Brook as a perennial
stream as does the United States Geological Survey. R. at 105, 187. Additionally, the
DEP lists the stream a:sperennial. R. at 187,442.
The petitioner, however, argues that the three agencies incorrectly classify Fall
Brook as perennial because his engineers classify it as intermittent. This argument is
unpersuasive. Hains hired his engineers to support his application, and as a result,
cannot be relied upon1 as a final authority on the matter. The court is not required to
accept or give more weight to privately retained specialists vis-a-vis the determination
of several separate a:nd distinct agencies. That is an assessment solely within the
province of the Board unless their decision is deemed clearly erroneous. Furthermore,
the petitioner argues that the DEP approved filling within the 100-foot buffer,
demonstrating that the DEP does not consider the stream perennial. Hains' argument
ignores that the City of Portland developed the 100-foot buffer standard and in cases
where State and Local rule conflict "the more stringent rules will apply." R. at 352.
Finally, the petitioner argues that the language of Technical Standard XI(3)(C)(a)
clearly demonstrates that the Planning Board has discretion in applying this section.
Although it does appear that the language allows the Planning Board discretion, the
court reviews this issue for errors of law. It was within the Planning Board's legal
authority to require a 100-foot buffer.
Because substantial evidence supports the Planning Board's decision the
petitioner's application violates Technical Standard XI(3)(C)(a), the court need not
address whether the record supports the Planning Board's final reason for denylng the
petitioner's application.
IV. DECISION AND JUDGMENT
The clerlc shall make the following entry on the docket as the Decision and
Judgment of the court:
A. The Decisio:n of the City of Portland Planning Board is affirmed.
B. Judgment is entered for the respondent City of Portland.
SO ORDERED.
Dated: September 15,2006
Thomas E. Delahanty I1
Justice, Superior Court