The opinion
STATE OF MAINE SUPERIOR COURT
CIVIL ACTION
YORK, ss. DOCKET NO. AP-OS-052
PAUL ROGERS,
Plaintiff
v. ORDER
DONALD L. GARBRECHT
TOWN OF OLD ORCHARD BEACH LAW L1BRARV
And SEACOAST RV RESORT, LLC,
AUG 02 2007
Defendants
This matter comes before the Court on Paul Rogers's 80B appeal of
administrative action taken by the Town of Old Orchard Beach.
BACKGROUND
Plaintiff Paul Rogers ("Rogers") lives off of Ross Road in Old Orchard Beach,
Maine, on land abutting the property of Defendant Seacoast RV Resort, LLC
("Seacoast"). In 2004, Defendant Town of Old Orchard Beach ("OOB") granted
Seacoast a conditional use permit to develop its 26.5-acre property into a seasonal
campground with 88 sites, a pool, and recreational buildings. Conditions of that
approval included that the property would have IOO-foot natural buffers to the adjacent
properties as required by OOB's zoning ordinance, and that Seacoast would add
buffering on the side of its property abutting Rogers. Rogers sought review of the
planning board's decision to grant the permit in March 2004 via an 80B action. 1
Before resolution of the case, Seacoast and Rogers entered into a settlement
agreement dated October 21, 2004. As a result, Rogers dismissed his 80B complaint
The prior case was York County Superior Court Docket No. AP-04-023.
with prejudice. OOB's Town Planner decided in June 2005 that Seacoast would not be
required to provide the buffering described in the conditional use permit. Rogers
appealed that decision to the OOB Planning Board ("the Board") later that month. On
July 21, 2005, Seacoast applied to the Town for an amendment to its conditional use
permit, seeking to install fencing near the Rogers - Seacoast boundary. Seacoast
proposed the addition of seven six foot tall evergreen trees and an eight foot tall
wooden, stockade style fence. Following a hearing on August 11, 2005, the Board
approved the amendments to the permit, including the evergreens and the site plan
with fencing, finding that the plan complied with the zoning ordinance.
In September 2005, Rogers filed an 80B appeal in this court and also complained
for breach of contract, arguing that Seacoast violated the terms of the settlement
agreement, which included abiding by the original conditional use permit. Seacoast
raised the affirmative defenses of failure to state a claim, accord and satisfaction, the
Statute of Frauds, and that the suit is barred by terms of the settlement agreement.
Action on the breach of contract claim has been stayed until final judgment is reached
on Rogers's 80B appeal?
DISCUSSION
1. Does Ro&ers Have Standin& to Brin& This 80B Appeal?
In order to appeal a local board's decision, the appellant must "have appeared
before the board of appeals" and "be able to demonstrate a particularized injury as a
result of the board's action." Sproul v. Town of Boothbay Harbor, 2000 ME 30, en 6, 746
A.2d 368, 371 (quotations omitted). But, where the appellant is an abutter, he or she
"need only allege 'a potential for particularized injury' to satisfy the standing
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Due to the stay of the claim for breach, this Court will not address Seacoast's argument that
Rogers breached the settlement agreement by bringing this appeal.
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requirement." Id. As this is a low threshold, "a minor adverse consequence affecting
the party's property, pecuniary or personal rights is all that is required for the abutting
landowner to have standing." Id. <[ 7,746 A.2d at 371-372.
Applying this standard, Rogers clearly has standing as an abutter who could be
affected by Seacoast's RV campground project. But, Seacoast argues that Rogers has no
standing because he agreed to dismiss his claims against Seacoast in the 2004 settlement
agreement, and the current proposal relates back to the original use permit, which
required it to submit a buffering plan. The agreement, however, clearly reserves the
right of either party to pursue litigation to enforce compliance with the terms and
conditions of the permit. The proposal alters the terms of the original permit, and those
original terms were the ones that Rogers waived his right to contest. In essence, this
appeal presents the issue of whether the Board properly determined that the
amendments complied with the zoning ordinance, which both challenges the new terms
and attempts enforcement of the original permit. The settlement agreement does not
prevent Rogers from pursuing this appeal.
2. Did the Board Err When It Authorized an Amendment of the Conditional Use
Permit?
A municipal board's interpretation of a zoning ordinance is a legal question
entitled to de novo review. Lewis v. Town of Rockport, 2005 ME 44, <[ 11, 870 A.2d 107,
110. "A court's interpretation of an ordinance must not create 'absurd, inconsistent,
unreasonable or illogical results.'" Banks v. Maine RSA #1, 1998 ME 272, <[ 4, 721 A.2d
655,657 (quoting Melanson v. Belyea, 1997 ME 150, <[ 4,698 A.2d 492, 493).
OOB's zoning ordinance requires 100 feet of vegetation as a buffer zone between
adjacent properties to create visual screening. § 78-1229(l)(b)-(c). The ordinance also
allows the use of artificial screening and buffering materials such as fences and walls. §
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78-1823. In particular, that section states that "retention of natural vegetation and
topography shall be employed as a screening tool whenever possible." Id. (emphasis
added). In this case, the Board found that Seacoast's proposed amendments to the
conditional use permit satisfied both § 78-1229 and § 78-1823 of the ordinance.
Yet Rogers contends that the plain language of §78-1229 regarding maintenance
of vegetation and natural buffers would preclude the use of an artificial buffer such as
Seacoast's proposed stockade fence. He contends that the Board should have
interpreted this section consistently with the goal of maintaining natural vegetation, as
articulated in § 78-1823. Seacoast contends that § 78-1823 expressed the goal of
maintaining vegetation but acknowledges that this is not always possible; thus, using
natural screening is not always required. It also argues that § 78-1229 does not prohibit
fencing and is intended to insure that campgrounds are not too close to the property
line, and its fence would accomplish that goal.
Here, the Board conducted a hearing and thoroughly reviewed the proposed
amendments to the conditional use permit. The Board approved the amendments and
found them to be consistent with the buffering and screening provisions of the
ordinance because the natural buffers required under § 78-1229 would still exist.
Additionally, in its list of acceptable materials, § 78-1823 specifically mentions non
natural buffers such as fences and walls. Considering the two sections in relation to
each other, they prioritize buffering and are designed to minimize the impact of sites
like Seacoast's on abutters such as Rogers. Although the ordinance expresses a
preference for natural buffering, the limiting language "whenever possible" recognizes
that in certain situations, completely natural buffering may not be feasible. If Rogers
was correct that only natural vegetation could serve as a buffer, the ordinance likely
would not have made specific provision for non-natural buffers in it list of acceptable
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materials. In addition, there is no express statement that fencing cannot be coupled
with natural vegetation to achieve a buffering effect. The Board, therefore, did not
commit legal error by interpreting the ordinance to allow fencing as part of an overall
plan to appropriately buffer the proposed campground.
3. Did the Board Abuse its Discretion By Allowing Seacoast to Place Its
Fence Within Five Feet of Rogers's Property?
Review of board 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, en 8, 865 A.2d 555,558. The party appealing a board's decision bears the burden of
persuasion. Twigg v. Town of Kennebunk, 662 A.2d 914, 916 (Me. 1996). Rogers contends
that it was an abuse of discretion for the Board to permit the fencing within five feet of
his property.
At the 2005 hearing, the Board discussed placement of the fence. One member
seemed confused about why the Board would require Seacoast to replace trees it
incorrectly removed if fencing was going to be allowed. Another member responded
that the fence would ensure that further tree removal along the property line would not
occur. The Board then decided not to allow fencing within five feet of Rogers's
property. As Seacoast point out, moving the fence too far inward would prevent it from
using a substantial portion of its property. It was within the Board's discretion to limit
the placement of the fence as it did, especially where the ordinance does not set forth
guidelines for placement of fencing near boundary lines. Given this Court's deferential
review, it cannot be said that the proposed placement of the fence constituted an abuse
of the Board's discretion.
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4. Was There Substantial Evidence in the Record to Support the Board's
Finding That the Project Would Not Affect the Value of Rogers's
Property?
When assessing specific factual findings, 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, <JI 14, 770 A.2d 644, 650.
Rogers contends that no evidence was presented at the hearing as to the potential
for positive or negative impact on property values in the form of testimony of real estate
professionals or other anecdotal evidence. He claims that the Board should have
required such evidence before finding that property values would not decrease, as the
ordinance is intended to mitigate the effects campgrounds have on abutters.
In its findings, the Board explicitly determined that the value would not suffer,
basing that finding on the fact that the fence, coupled with the vegetation, provides
100% of the required buffering between Rogers and Seacoast. It also referenced the
2004 findings of fact, which were more detailed regarding impact on property values.
Those findings further specify steps that would be taken to minimize impact on
abutters, such as maintaining natural buffering with evergreen trees, implementing
park rules and regulations, and directing lighting toward the interior. Impact on the
property values of abutters was not required to be a pivotal consideration in the Board's
decision, but in its discussions, the Board seems to have considered that fencing might
actually improve Rogers's situation because it would further shield his property from
Seacoast's. Because this Court's review is a deferential one, there was sufficient
evidence in the record to support the finding that Seacoast's plan would not adversely
affect the property values of abutters.
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CONCLUSION
The appeal is Denied and the Board's decision is Affirmed.
The clerk may incorporate the decision in the docket by reference.
Dated: May 14, 2007
c.
/
PLAINTIFF:
CRAIG J RANCOURT ESQ
13 CRESCENT ST
BIDDEFORD ME 04005
DEFENDANT - TOWN OF OLD ORCHARD BEACH
CHRISTOPHER L. VANIOTIS, ESQ.
BERNSTEIN SHUR SAWYER & NELSON
PO BOX 9729
PORTLAND ME 04104-5029
DEFENDANT - SEACOAST RV RESORT LLC
WILLIAM S KANY ESQ
SMITH ELLIOTT SMITH & GARMEY
PO. BOX 1179
SACO ME 04072
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