The opinion
STATE OF MAINE SUPERIOR COURT
LINCOLN, ss CIVIL ACTION C.
DOCKET NO. AP-04-011 $-&
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STETSON HOUSE LLC and *- 1,
OLD SHIPYARD LLC,
Petitioners
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DECISION AND ORDER
THE INHABITANTS OF THE
TOWN OF NEWCASTLE and
NEWCASTLE SHORES, INC.,
Respondents
On July 15, 2004, the Town of Newcastle Planning Board (PB) granted site plan
and subdivision approval to Newcastle Shores, Inc. (NS) to construct a five-unit
residential condominium and dock facility. R. 10, 14, 32, 33. On October 13, 2004, the
Town of Newcastle Board of Appeals affirmed the PB's decision. See R. D. Stetson
House LLC and Old Shpyard LLC (SH/OS) appeal these decisions. See R. K. The
court reviews directly the decision of the PB to determine whether the PB abused its
discretion, committed errors of law, or made findings not supported by substantial
evidence. See Gensheimer v. Town of Phppsburg, 2005 ME 22, ¶¶ 7, 16, 868 A.2d 161,
163,166. The burden of persuasion rests with SH/OS. See Mack v. Mun. Officers of the
Town of Cape Elizabeth, 463 A.2d 717, 720 (Me. 1983). In order to vacate the PB's
findngs, SH/OS must show that there is no competent evidence to support the PB's
conclusions. See Adelman v. Town of Baldwin, 2000 ME 91, ¶ 12, 750 A.2d 577, 583.
For the following reasons, the decisions of the PB and Town of Newcastle Board of
Appeals are affirmed.'
COUNT I
Normal High Water Line
"Normal high water line" is defined by the Mandatory Shoreland Zoning Act and
the Town of Newcastle Land Use Ordinance (NLUO). See 38 M.R.S.A. § 436-A(9)
(2005); NLUO, ch. I1 at 17. The PB concluded that the h g h water mark shown on the
survey met the requirements of the ordinance. See 7/1/04 Tr. at 9-27. The PB's
interpretation of the ordinance was reasonable and is supported by substantial
evidence. See Drawings 1 & 2 (1811 h g h water mark); Drawings 8 & 9, based on a
Boundary Survey by Maine Coast Surveying dated 1/8/04 (normal h g h water line);
Adelman, 2000 ME 91, ¶ 12,750 A.2d at 583.
Work Performed on Wharf
The PB must review new wharves but not repairs to existing wharves. See
NLUO, ch. XI at 109-110. Initially, the Town of Newcastle Code Enforcement Officer
(CEO) issued a permit for rebuildng a stone wall around an existing wharf but later
determined h s permit was not necessary. See 7/ 15/04 Tr. at 6, 9; 71 1/ 04 Tr. at 46-47.
Instead, the CEO determined that NS needed a permit from the Department of
Environmental Protection. See R. B-18. Plans and photographs of the property revealed
that a filled area with a retaining wall existed at the time of the application. See,
Preliminary Subdivision 131an, Site Plan & Landscape Plan, C-1; Drawing 2; R. B-1. The
1
The petitioners filed a 40-page brief and a 27-page reply brief. Respondent Town of Newcastle filed a
27-page brief with an addendum. The requirements of M.R. Civ. P. 7(f), and the reasons for those
requirements, apply to a M.R. Civ. P. SOB review.
2
This is a retaining wall with fill.
PB's conclusion that NS did not build a new wharf is supported by substantial evidence
in the record. See 7/15/04 Tr. at 109-110.
Lot Size Calculation
The PB determined that the entire parcel, including the repaired wharf, was
located above the h g h water mark and that NS met the requirements for minimum lot
size of 30,000 square feet for a parcel in the Shoreland Zone. R. 33 at 11; 7/1/04 Tr.
at 27-28. The record reveals that the PB determined that chapter V, § F(10) of the NLUO
applied only to cluster developments. See 6/ 17104 Tr. at 51-52. The PB's conclusions
are supported by substantial evidence and the construction of the Town's ordinance is
reasonable. See Perenrine Developers, LLC v. Town of Orono, 2004 ME 95, ¶ 9, 854
A.2d 216, 219.
Lot Width Determination
The PB's application of the shoreland standards for lot width to the NS plan was
discussed at the 71 1/04 hearing. See 71 1/04 Tr. at 35-46; NLUO, ch. XI, § J(l)(f); R. 33
at 12. The PB declined to measure the property as requested by SH/OS. See 71 1/04 Tr.
at 44-45. The PB's construction of its ordinance was reasonable. The PB's conclusion
that the width of the NS parcel met the NLUO requirements is supported by substantial
evidence and is consistent with the requirements of the ordinance.
Minimum Lot Size
In determining the required lot size for the NS project, the PB applied the
amendments to the standards for the Village Waterfront District, where the NS parcel is
located. See NLUO, ch. XI Proposed Changes to Maritime District Section of NLUO, §
Ha(2), passed 12/1/03 (addendum to Town of Newcastle Mem.). The PB determined
that based on the survey in the record, the minimum lot size of 30,000 square feet was
met. See R. 33 at 11.Based on the language of the ordinance, the PB determined that the
lot size did not have to be doubled because NS intended two uses for the parcel.
NLUO, ch. X, 5 J(l)(g)(Proposed Changes to Maritime District Section of NLUO). That
conclusion is supported by substantial evidence in the record and is consistent with the
requirements of the ordinance.
Easement
The Declaration of Condominium for NS provides that the condominium owners
would grant an easement to a h r d party to operate the marina. R. 21 at 7; 71 15104
Tr. at 80-100. Additional language presented at the 7/ 15/04 hearing provided that the
owners would have the right to enforce the maintenance agreement with the marina
operator. See 7/15/04 Tr. at 813;NLUO, ch. V, 5 F(15). The easement does not confer
possession or create a separate unit. The PB concluded that the Declaration language
complied with the maintenance requirements of the NLUO. See 7/ 15/ 04 Tr. at 97-100.
That conclusion is supported by substantial evidence in the record and is consistent
with the requirements of the ordinance.
Shoreland Zone Setback Requirements
As discussed above, the PB applied the normal h g h water mark for the property
found in the survey filed with the NS application. Based on that mark, the PB
concluded that the condominium building met the 75-foot setback requirement found in
the NLUO. See NLUO, ch. XI, 5 J(2)(a)(Proposed Changes to Maritime District Section
of NLUO).
The PB concluded that the parking area also met the setback requirements. See
7/1/04 Tr. at 64. The PB determined that the driveway and roads were also
appropriate pursuant to the NLUO. See 7/ 1/ 04 Tr. at 66-80; R. 33, 5 IV(K); NLUO, ch.
3
The court could not find this document in the record. It appears that Mr. Pooley read the language of
"Coordination with Condominium" into the record. 711 5/04 Tr. at 8 1.
4
XII, § J(8)(a)(2)& (c). These conclusions are supported by substantial evidence in the
record and are consistent with the requirements of the ordinance.
Height Limitations / Number of Stories
The PB applied the method for measuring the height of a building the PB found
in Shoreland Zoning Ordinance, Village Waterfront District. See 7/ 1/ 04 Tr. at 51-56;
NLUO, ch. 11, at 14 & ch. X(Ha)(2)(f). The PB determined that the NS application
complied with the height requirements. See R. 33, § IV(H). The PB further determined
that because most of the garage is located at the basement level, the NS application met
the requirements for the number of stories. See 7/1/04 Tr. at 53-54. The PB's
conclusions are supported by substantial evidence in the record and are consistent with
the requirements of the ordinance.
Lot Coverage
The NLUO provides that the "total area of all structures, parlung lots, and other
non-vegetated surfaces" may not exceed 70% of the lot. See NLUO, ch. XI, 5 J(2)(d). The
engineer for NS considered everyhng that would be landscaped with "trees or some
sort of vegetate coverage, including grass" as not included in lot coverage. See 7/1/04
Tr. at 57-58. NS considered part of the wharf as included in the vegetation section and
the PB agreed. Se id. at 58-62. The engineer's calculations provide that 45% of the lot is
vegetation. See id. at 7. Relying on the NS engineer's calculations, the PB concluded
that the NS application met the requirements for lot coverage. See R. 33, 5 IV(1). The
PB's conclusions are supported by substantial evidence in the record and are consistent
with the requirements of the ordinance.
Functional Water Dependent Use
The PB determined that NS's proposed structure on the wharf would be used for
storage of items used by boaters. 7/1/04 Tr. at 62. 'The PB concluded that the uses
required access to the water and the shed was either a functionally water-dependent
use, w h c h does not have to meet setback requirements, or a waterfront dock facility.
See R. 33, § IV(J); NLUO, ch. I1 at 13; ch. XI(J)(2)(a)(l)& (J)(3)(e). The PB's conclusions
are supported by substantial evidence in the record and are consistent with the
requirements of the ordinance.
COUNT I1
The PB discussed the NS project with NS prior to the filing of the application, as
permitted by the NLUO. See NLUO, ~ h V,
. § B(3). The PB also recommended
amendments to the NLUO, which were approved by the Town of Newcastle on
3/29/04. See R. Book B-3; 16. None of these actions deprived SH/OS of an impartial
tribunal .
The record reflects that SH/OS received sufficient notice and were given the
opporbmity to be heard. See R.23/27! 30; NLUO, ch. V, 5 D(3); Cunnineharn v. -Ktterv
Planning Bd., 400 A.2d 1070, 1078-79 (Me. 1979) (citation omitted); see also Crispin v.
Town of Scarborou~h,1999 NIE 112, 99 17-27,736 A.2d 241, 247-49 (zoning). The record
is suffiaent to permit appellate review. See, e.G R. 8, 11, 12, 24, 27, 30, 32, 33; 6/17/04
Tr.; 7/1/04 Tr.; 7/15/04 Tr.; Glasser v. Town of Northport, 589 A.2d 1280, 1282 (Me.
The entry is
The Decisions of the Town of Newcastle Planning Board and
Board of Appeals are AFFIRMED.
I
Date: April 7, 2006
Petitioner: Hichael E. Stem. Esquire'
Respondent Town of Newcastle: Mark V. Franco, Esquire
Respondent Newcastle Shores: John A. Cunningham. Esquire
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