The opinion
STATE OF MAINE SUPERIOR COURT
CUMBERLAND, ss. CIVIL ACTION
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CONCERNED CITIZENS OF
GORHAM INC., et al.,
Plaintiffs,
v.
TOWN OF GORHAM, et al.,
Defendants.
This is an appeal by four Gorham residents and a non-profit citizens group from
a decision of the Gorham Planning Board approving an application by defendant Shaw
Brothers Construction Inc. for the development of a quarry property located on Mosher
Road in Gorham. Before the court is plaintiffs' motion for a trial of the facts pursuant to
Rule 80B(d).
Despite the requirements of Rule 80B(e), plaintiffs have not filed the record with
their motion for a trial of the facts, nor have they requested an extension of time in
which to do so. For that reason alone, their motion can be denied. In the alternative,
however, based on the offer of proof plaintiffs have submitted, the court agrees with
defendants that - with one possible exception - the Baker's Table Inc. v. City of Portland,
2000 ME 7 err 9, 743 A.2d 237, 240-41. Rule 80B(d) does not apply to any independent
claims that are raised in the complaint. Id. Rule 80B(d) is not designed to allow a party
to retry the facts that were before the Planning Board or to offer evidence that could
have been offered at the administrative level.
In this case plaintiffs are seeking a trial of the facts to offer (1) testimony from
participants in the drafting and promulgation of Gorham's comprehensive plan; (2)
testimony by a licensed geologist who testified before the Planning Board as to the
relationship of DEP requirements to the Town's performance standards and as to the
ability of the Planning Board to waive performance standards; and (3) testimony from
DEP officials to describe the State regulatory scheme.
The first of those categories, testimony from participants in the drafting of the
Gorham Comprehensive Plan, looks to be in the nature of legislative history. First, such
legislative history could only be considered if the comprehensive plan were found to be
ambiguous. Second, legislative history has to be contemporaneous - not after the fact
statements as to the drafters' intent.
With respect to the second and third categories of the evidence plaintiffs seek to
offer, it appears that plaintiffs are either seeking to re-litigate issues that were heard
before the Planning Board or are attempting to offer expert testimony that should have
been offered before the Planning Board. 1
Accordingly, plaintiffs' motion for a trial of the facts is denied with one
exception. The exception concerns plaintiffs' claim that the quarry approval violates
Gorham's Comprehensive Plan. Counsel for the Town has indicated that it would not
oppose the addition of the Town's Comprehensive Plan to the record, and it is not clear
whether the Comprehensive Plan issue was raised below. It is also not clear to the court
whether a claim that a zoning approval violates a town's comprehensive plan is an
issue that has to be the subject of an 80B appeal or whether it can constitute an
independent claim. In any event, the court believes that the Comprehensive Plan must
be made part of the record.
The entry shall be:
1 If, as plaintiffs apparently contend, it was improper for the Planning Board to assume that
certain issues would be addressed by the applicable DEP requirements, plaintiffs have not
demonstrated why they did not have an opportunity to make a record on that issue below.
2
Plaintiffs' motion for a trial of facts pursuant to Rule 80B(d) is denied except that
Gorham's Comprehensive Plan, a copy of which is attached to plaintiffs' motion, shall
be made part of the record. The clerk is directed to incorporate this order in the docket
by reference pursuant to Rule 79(a).
DATED: September Z , 2008
3
)X 287
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HELEN EDMONDS ESQ
77 WINTHROP STREET
AUGUSTA ME 04330
COURTS
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304112-0287
NATALIE BURNS ESQ
PO BOX 4510 ~ DVeIYl cui riv~r ht (V)
PORTLAND ME 04112
PI Boo r d ! T-OVV"'I pc/
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JAMES CLOUTIER ESQ
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465 CONGRESS STREET
PORTLAND ME 04101-3528
STATE OF MAINE SUPERIOR COURT
CUMBERLAND, ss. CIVIL ACTION
pocketNo. AP-08-}7
J ,'-- CU/n·· .1/ /, c' ,
CONCERNED CITIZENS OF
GORHAM INC., et aI,
Plaintiffs,
v. ORDER
TOWN OF GORHAM, et al.,
Defendants.
Before the court is an 80B appeal brought by Concerned Ci tizens of Gorham Inc.
and four individual citizens whose property abuts the site of a quarry proposed by
Shaw Brothers Construction Inc. on property located at Route 237 in Gorham. The
plaintiffs (collectively, "CCOG") are appealing a permit granted by the Gorham
Planning Board for the quarry.
1. Procedural History
In December 2006 Shaw Brothers submitted an application to permit operation of a
brickyard quarry and asphalt plant. On March 31, 2008, after several revisions and
numerous planning board meetings, the planning board issued a decision document
with conditions, R. 844-51, and a second document entitled "findings of fact,
conclusions, and conditions of approval," R. 852-70, approving the application. CCOG
timely appealed that decision on April 30, 2008.
After litigation on the question of whether CCOG would be entitled to a trial of the
facts pursuant to Rule 80B(d), see Order dated September 2, 2008, the parties briefed the
appeal. At this time only two issues are being pursued: (1) whether the Shaw Brothers'
application adequately addressed the hydrogeological requirements for a quarry in the
Gorham Land Use and Development Code and (2) whether the placement of the quarry
in an industrial zone is consistent with Gorham's Comprehensive Plan. CCOG has
withdrawn count III of its complaint. 1
This case was fully briefed on December 3, 2008 but the court has not had any time
scheduled for civil cases since that date. Because, at this time, it is uncertain when the
court will be able to schedule argument on this appeal, it is deciding the appeal on the
briefs. See Lindemann v. Commission on Governmental Ethics, 2008 ME 187 <n 26, 961 A.2d
538,546.
2. Standard of Review
Ordinarily the court reviews the decision of a municipal planning board for errors of
law, abuse of discretion, or findings not supported by substantial evidence in the
record. York v. Town of Ogunquit, 2001 ME 53 <n 6, 769 A.2d 172, 175. Interpretation of
the language of a local ordinance is a question of law that is reviewed de novo. Isis
Development LLC v. Town of Wells, 2003 ME 149 <n 3, 836 A.2d 1285, 1287. In contrast,
factual determinations made by a local planning board will only be overturned if they
are not adequately supported by evidence in the record. Jordan v. City of Ellsworth, 2003
NIB 82 <n 8, 828 A.2d 768, 771. On factual issues the court may not substitute its
judgment for that of a local planning board. Just because a different conclusion could
be drawn from the record does not justify overturning a planning board's decision if
there is evidence in the record that could support the board's determination. Twigg v.
Town of Kennebunk, 662 A.2d 914, 916 (Me. 1995).
1 The Planning Board also approved the asphalt plant, and that aspect of its decision is not
being appealed.
2
3. Hydrogeological Issues
Chapter II, Section I.C of the Gorham Land Use and Development Code
addresses new and existing sand and gravel and other quarrying operations and
includes such quarrying operations, including the removal, processing and storage of
topsoil or loam, rock, sand, gravel and other earth materials, within the term "gravel
pit." Land Use and Development Code, Chapter II, Section I.C(I) at p. 98?
Section I.C of the Code applies to both new and existing gravel pits. With respect
to new gravel pits, the Code provides as follows:
4) Application for New Pit Operations
a) Permit Application Requirements. No new gravel pit ...
may commence operations without first applying to the
Planning Board for a new pit operations permit. The
following shall be submitted with the permit application:
* * * ** * * * *
(3) a site plan ... showing ... the type and location
of all existing surface and ground water, including
location of existing wells and streams, drainage ways, .
and depth to ground water at the site of the proposed
excavation as determined by test borings and other
geotechnical methods; ....
* * * * * * * * *
(10) for new pits of five (5) acres or more, the
following additional submissions are required:
a) A hydro geological study which shows the
depth of ground water throughout the site
and establishes that the gravel pit
operation will not cause any pollution to
ground water and/ or surface water.
2 Page references to the Land and Development Code are the copy of the Code in Volume IA of
the record on appeal, which is separately paginated.
3
* * * * * * * * *
Chapter II, Section I.C4.a(3), (10)(a), R. Vol. 1A at 103-104.
The Code also contains, in Section I.CS, Operational Requirements for new and
existing gravel pits, including the following:
b) Excavation shall not extend below an elevation five (5)
feet from the seasonal high water table as established by
competent, technical data. A variance from this
requirement shall be allowed pursuant to paragraph 490
E, Variance, Performance Standards for Excavation for
Borrow, Clay, Topsoil, or Silt, 38 M.R.S.A. Sec 490-A-390
M and Article 8, Performance Standards for Quarries, 38
M.R.S.A. Sec 390-W to 490-EE. The request for variance
shall consist of a hydro geologic study and supporting
documentation required by the Deparbnent of
Environmental Protection. The variance shall be
reviewed and approved by the Deparbnent of
Environmental Protection. Planning Board approval
shall be conditioned on Deparbnent of Environmental
Protection approval. ...
Chapter II, Section I.CS.6, R. Vol. 1A at 106.
Under the Code, the Planning Board IS required to review any gravel pit
application according to the special exception approval standards of Chapter I, Section
IV(E) and the site plan approval standards of Chapter IV, Section IX (B, C, D, F, J, M,
and P) and Chapter II, Section I.C4.b(1), R. Vol. 1A at 104. Of these standards, the only
one directly relevant to hydro-geological issues is contained in Chapter I, Section IV.E.2:
The proposed use will not cause water pollution, sedimentation,
erosion, contaminate any water supply nor reduce the capacity of
the land to hold water so that a dangerous or unhealthy condition
results.
R. Vol. 1A at 18.3
The brickyard quarry application envisioned that the quarry project would be
developed in three phases. Phase I contemplated the excavation to approximately a
3 The site plan approval standards in Chapter IV, Section IX are found at R. Tab 3 at 193-96.
They do not address hydrogeological criteria except with respect to storm water.
4
100-foot depth. Phase II contemplated deeper excavation within the Phase I area and to
a depth below the seasonal high water table and accordingly required not just the
approval of the Town Planning Board but a variance from the DEP pursuant to Section
r.C.S(b). Phase III contemplated excavation in an area east of the Phase I excavation.
The issue raised by CCOC is whether the requirements in Chapter II, Section
r.C.4(3) and (lO)(a) that an applicant for a new gravel pit permit submit a site plan
showing the type and location of existing ground water, including"depth to ground
water at the site of the proposed excavation" and a "hydrogeological study which
shows the depth of ground water throughout the site and establishes that the gravel pit
operation will not cause any pollution to ground water and/ or surface water" were met
in this case. 4
In Shaw Brothers' application, site plans were submitted and are contained in a
separate portion of the record. Those site plans do not, however, show "the depth to
ground water at the site of the proposed excavation as determined by test borings and
other geotechnical methods." Section r.C.4(a)(3). Moreover, with respect to a
hydrogeological study, the Shaw Brothers' application states as follows:
C.4(A)(lO)(a): Hydrogeological Study: It is the intent of the
applicant to provide a complete hydrogeological
assessment prior to the start of excavation for Phase 2.
The applicant will submit the initial Notice of Intent
to Comply and the Variance Application to MDEP for
Phase 1. During the operation of Phase 1, a complete
hydrogeological assessment of the site will be
performed. The applicant intends to submit a second
variance request to MDEP in association with Phase 2
to allow for excavation beneath the water table
requiring the hydrogeological assessment. The
applicant requests site plan approval from the Town
for all three phases of the operation, however, with
the stipulation that prior to the start of operation
4 There is no dispute that the brickyard quarry involved more than 5 acres, thereby triggering
Section r.C.4(10).
5
within Phase 2 that the hydrogeological assessment
and all other pertinent submission materials to MDEP
be provided to staff and that MDEP approve the
proposal.
R. Tab 5 at 223.
At a later point in the process, Shaw Brothers submitted a letter from MAl
Environmental stating that MAl "has performed the necessary hydrogeological study to
obtain the local permits for Phases I and III of the brickyard quarry." R. Tab 7 at 559-60.
No actual study was submitted. Moreover, the information reported in the MAl letter
was that two bedrock wells were installed and that there were no reported water-
bearing bedrock fractures reported until 45 feet below mean sea level. The record
demonstrates, however, that depth to ground water is not the same as depth to water
bearing fractures. See Supp. Record at 6-7. The record reflects that MAl told the Board
that ground water at the two wells that had been drilled was found at 94.01 feet above
sea level and 102.3 feet above sea level. Supp. Record 6. Thus the MAl letter does not
constitute a report showing the depth to ground water throughout the site, as required
by Chapter II, Section r.C.4a(l0)(a), R. Vol. 1A at 104.
The MAl letter goes on to reiterate that an in-depth hydrogeological study is
contemplated as part of Phase II. R. Tab 7 at 559 \ . It is therefore apparent that Shaw
Brothers and the Town expected that the hydrogeological study would be performed
during the course of the quarrying operation. This may make sense and may satisfy the
DEP with respect to the variance to be sought from the DEP for Phase II of the project.
However, it is not what the Land Use Code requires.
The Code requires that a hydrogeological study be submitted as part of the
application. Chapter II, Section r.C.4.a(10)(a). It also requires that the site plan
6
submitted show the depth of ground water at the site of the proposed excavation.
Section I.C4.a(3).
To the extent that the Planning Board interpreted the Land Use Code to allow the
hydrogeological study to be performed after approval, the Planning Board's
interpretation of the Land Use Code is not entitled to deference. Isis Development LLC v.
Town of Wells, 2003 ME 149 err 3 and n. 4, 836 A.2d at 1287 and n. 4. Moreover, there is
potentially a significant difference because a study submitted with the application is
available to be considered on the question of whether the application will be approved
at all. Once approval has been granted, ongoing studies may influence what measures
need to be taken during the implementation and remediation process but cannot
rescind the original approval.
Notably, the minutes of the May 22, 2007 Planning Board meeting reflect that
counsel for the Town advised the Board that it was her opinion that an applicant had to
submit a hydrogeological study under Chapter II, Section I.C4a(10)(a) regardless of
whether the applicant was also submitting hydrogeological information in seeking a
variance under Section I.CS.b. R. Tab 5 at 385. The court agrees.
On this issue, therefore, the court concludes that the Planning Board incorrectly
determined that Shaw Brothers had satisfied the hydrogeological conditions. s CCOC
also contends that the Shaw Brothers' application did not adequately address surface
water pollution. The court has reviewed the relevant materials in the record and
disagrees with CCOC on this issue.
5 While the actions of the Gorham Planning Board will be vacated for failure to meet the
hydrogeological standards, this action is without prejudice to further proceedings to remedy the
failings with respect to the site plan and hydrogeological study as set forth above. This does not
mean that Shaw Brothers is required to resubmit its entire application.
7
4. Consistency with Comprehensive Plan
This issue requires only brief consideration. The area where Shaw Brothers
proposes to conduct quarrying operations is in Gorham's Industrial District. "Mineral
extraction" is a permitted use in the Industrial District. Land Use Code, Chapter I,
Section IX.E.9 (R. Tab 2 at 144).
CCOG argues that Gorham's Comprehensive Plan contemplates "production
distribution areas" that generally correspond with the Industrial Zone in Gorham's
Zoning Code. The Comprehensive Plan does not mention "resource extraction" in the
context of production-distribution areas but only in the context of the areas it has
designated as "rural." See R. Tab 2 at 69. Accordingly, CCOG argues, location of a
quarry or gravel pit in an industrial zone is not consistent with the Comprehensive
Plan.
Defendants contend that this argument fails both because CCOG's claim is
barred by the statute of limitations and because it fails on the merits. On the statute of
limitations issue, defendants cite Bog Lake Co. v. Town of Northfield, 2008 ME 37 cn:cn: 8-9,
942 A.2d 700, 703-04, where the Law Court rejected as untimely a landowner's
application for a declaratory judgment that its land did not meet the criteria for
inclusion within the strict resource protection area established under the town's
shoreland zoning ordinance.
In this case, the record appears to establish that the Comprehensive Plan was
adopted in May 1993 and amended in August 1994, that the Land Use Code was
effective in August 1972, and that the authority to engage in mineral extraction was
contained in the initial definition of Industrial Zone and has not been amended. See R.
8
Tab 1 at 1; R. Vol. 1A at page 1; R. Tab 2 at 144. 6 If CCOG was required to challenge the
inclusion of mineral extraction activities in the Industrial Zone as inconsistent with the
Comprehensive Plan within 6 years of the adoption of the Comprehensive Plan, its
complaint is untimely under 14 M.R.S. § 752.
The court has some doubt that the six-year statute of limitations applies in this
situation. First, comprehensive plans - even when they mandate action - do not do so
instantaneously. As a result, it is difficult to set the date of the adoption of a
comprehensive plan as the date on which a cause of action would accrue. Second, the
Bog Lake case applied a statute of limitations to the landowner. In contrast, the CCOG
plaintiffs are abutters, and it would be unreasonable to require abutters to have to
research and litigate all potential uses of neighboring properties at the time a
comprehensive plan is adopted or lose their right to do so.
Finally, Bog Lake found the challenge in that case to be barred "absent a challenge
to the ordinance itself." 2008l\1E 37 <j[ 9, 942 A.2d at 704. Whatever the purpose of that
exception, this case appears to involve a challenge to the ordinance itself. In the end,
however, the court does not have to decide this case based on the statute of limitations
because CCOG's argument fails on the merits.
First, CCOG's argument depends on the premise that the drafters of the
Comprehensive Plan envisioned a strict correlation between the categories in the plan
and the zoning districts. The problem with this is that the Comprehensive Plan
discusses eight "areas," but the zoning ordinance contains 12 "districts." Moreover, the
comprehensive plan does not contain any directive or statement of intention that the
designated areas in the Comprehensive Plan should correlate with zoning districts. As
6 In the Land Use Code, amendments are footnoted with the date of each amendment and there
has been no amendment to Ch. I, Section XII.B.9.
9
a result, the court cannot discern any legally enforceable prohibition against resource
extraction activities being permitted in more than one zoning district.
Second, the Gorham Comprehensive Plan states that it is intended to be a "guide
for managing change" and specifically states that it "is not a zoning ordinance, nor is it
law of any kind." R. Tab 1 at 7. While it contains a section addressing the
implementation of the plan, the plan does not contain language that can be construed as
prohibiting resource extraction or quarrying in industrial districts. Nor does it contain
language directing the Town to implement such a prohibition in the future.
In sum, just as in City of Old Town v. Dimoulas, 2002 ME 133 lJIerr 18-19, 803 A.2d
1018, 1023, CCOG has failed to meet the burden of proving that the inclusion of mineral
extraction in an industrial district is not "in harmony with" the Comprehensive Plan.
Just because there is nothing in the Comprehensive Plan that affirmatively permits
quarrying in an industrial district does not mean that quarrying is prohibited. rd. err 19,
803 A.2d at 1023.
The entry shall be:
On count I of the complaint, the Gorham Planning Board's approval of the
application by Shaw Brothers Construction to operate a gravel pit on Route 237 is
vacated for the reasons set forth above. Judgment shall be entered for defendants on
count II of the complaint dismissing the claim by plaintiff that mineral extraction in an
industrial zone is inconsistent with Gorham's Comprehensive Plan.
The clerk is directed to incorporate this order in the docket by reference pursuant
to Rule 79(a).
DATED: April / b , 2009
-.~
Thomas D. Warren
Justice, Superior Court
10
Date Filed 4-30-08 Cumbprland Docket No. _---l:AUP'--'OLl.8.L::-::....1L..7<---__• _ _.
County
Action 80B APPEAL
CONCERNED CITIZENS OF GORHAM INC. INH. OF THE TOWN OF GORHAM, MAINE
THERESA DOLAN THE PLANNING BOARD OF THE TOWN OF GORHAM
ANNE HAYES SHAW BROTHERS CONSTRUCTION
RUSSELL SPRAGUE
JENNIFER EVERETT
vs.
Plaintiff's Attorney Defendant's Attorney
Helen Edmonds, Esq. (Shaw Bros. Cons)
JAMES CLOUTIER ESQ 77 Winthrop Street Augusta ME 04330
465 CONGRESS STREET #800
PORTLAND ME 04101 775-1515 William Dale & Natalie Burns Esqs for
Town of Gorham and Planning Board
Date of
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