# Harding v. City of Biddeford Planning

> Superior Court of Maine · May 20, 2008

URL: https://www.frixlaw.com/law-library/cases/10809137

## Case

- **Court:** Superior Court of Maine
- **Decided:** May 20, 2008
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Judges:** G. Arthur Brennan
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

STATE OF MAINE SUPERIOR COURT
CIVIL ACTION
YORK, ss. DOCKET NO. AP-07-48
"C·

STEPHEN HARDING, et al.,

Plaintiffs

v. ORDER

CITY OF BIDDEFORD PLANNING
BOARD, et al.,

Defendants

This case comes before the Court on Plaintiffs Stephen Harding and Lisa

Harding's (Hardings) appeal pursuant to M.R. Civ. P. 80B, of a decision of the

Biddeford Planning Board (Planning Board) approving a planned unit development

(PUD) by Vacation Properties, Inc. (Vacation Properties). Following hearing, the matter

will be remanded for further proceedings.

PROCEDURAL AND FACTUAL BACKGROUND
The PUD development at issue in this case is to be located on a 4.29-acre parcel of

land located at Biddeford (City) Tax map 84, Lot 32 (Parcel) off of South Street. The

Parcel is located in the City's R-3 zoning district under the Biddeford Land

Development Regulations (Ordinance). The Hardings own property abutting the

proposed development. PUD development regulations were enacted by the City in

2006 in order to encourage more creative land development through relaxed underlying

zoning regulations (PUD Ordinance).
In June of 2006, Vacation Properties submitted a proposal to the Planning Board

for a PUD development on the Parcel (Chicopee Heights). On July 18, 2007, after

numerous revisions, the Planning Board approved the proposal. The Planning Board

generated Findings of Fact on July 18, 2007 and a Notice of Decision on July 19, 2007.

(Record Tab (hereafter RT) 12-13.)

The approved Chicopee Heights design contains twenty-four residential units in

three buildings, recreation areas and a seventy-foot long storage shed at the back of the

Parcel (the area abutting the Hardings' Property). Chicopee Heights is to be located on

the Parcet with access to South Street by way of a proposed public way named

Chicopee Lane. (See RT 8 Ex. B.)

The Hardings participated in Planning Board hearings on Chicopee Heights.

After approval of Chicopee Heights by the Planning Board, the Hardings appealed,

pursuant to Article IX of the Ordinance, to the City's Zoning Board of Appeals (ZBA),

alleging that the approval of the permit was based on misinterpretations of the

Ordinance. (RT 15.) The issues presented on appeal to the ZBA were 1) lack of

adequate frontage for the project, 2) inadequate buffering or screening, 3) lack of a

phasing plan, 4) the approved storage unit was too large, and 5) concern regarding the

process based on change in personnel on the Planning Board, and lack of preparation in

general. On October 11, 2007, the ZBA voted 2-1-1 to deny the Hardings' appeal. The

appeal to this Court followed.

DISCUSSION

I. Standard of Review

The Superior Court, acting as an appellate court, reviews the operative decision

of the municipality for error of law, abuse of discretion, or findings not supported by

substantial evidence in the record. Griffin v. Town of Dedham, 2002 ME lOS, «JI 6, 799 A.2d

2
1239,1241 (citations omitted). "Substantial evidence exists when a reasonable mind

would rely on that evidence as sufficient support for a conclusion." Forbes v. Town of

Sw. Harbor, 2001 ME 9, <[ 6, 763 A.2d 1183, 1186. An abuse of discretion occurs "when a

material factor deserving significant weight is ignored, an improper factor is relied

upon, or when all proper and no improper factors are assessed, but the [decision­

maker] makes a serious mistake in weighing them." West Point-Pepperell, Inc. v. State Tax

Assessor, 997 ME 58, <[ 7, 691 A.2d 1211, 1213 (citations omitted).

The burden of persuasion is on the party challenging aboard's decision to show

that the evidence compels a different result. Twigg v. Town of Kennebunk, 662 A.2d 914,

916 (Me. 1995). The Court will uphold the decision of the Planning Board unless the

record evidence compels a contrary conclusion. Gensheimer v. Town of Phippsburg, 2005

ME 22, <[<[16-18, 868 A.2d 161. Specifically, this Court "will not substitute [its] own

judgment for that of the Board." Forbes, <[ 6, 763 A.2d at 1186.

The interpretation of an ordinance, however, is a question of law that the Court

reviews de novo. Kurlanski v. Portland Yacht Club, 2001 ME 147, <[ 9, 782 A.2d 783, 786

(citing Rockland Plaza Realty Corp. v. City of Rockland, 2001 ME 81, <[ 7, 772 A.2d 256, 259).

That interpretation is guided by the "ordinances specific object and its general

structure." Id. (quoting Lewis v. Town of Rockport, 1998 ME 144, <[ 11, 712 A.2d 1047,

1049). An ordinance is construed to "avoid absurd, illogical or inconsistent results." Id.

(quoting Wright v. Town of Kennebunkport, 1998 ME 185, <j[ 5,715 A.2d 162, 164).

II. Operative Decision

As an initial matter, the parties disagree which decision of the City is the

operative decision to be reviewed by this Court. The operative decision is the decision

of the "tribunal of original jurisdiction" that acts "as both a fact finder and a decision

maker." Peregrine Developers, LLC v. Town of Orono, 2004 ME 95, <[ 9, 854 A.2d 216, 219.

3
"\!\Then a board of appeals acts as a tribunal of original jurisidicion and properly

conducts a de novo hearing pursuant to 30-A lVl.R.S.A. § 2691 and the municipality's

ordinance, we review the decision of the board of appeals directly." Griffen v. Town of

Dedham, 2002 ME 105, <[ 6,799 A.2d 1239, 1241-42.

The Hardings assert that the Planning Board made the operative decision

because the Ordinance grants the ZBA only appellate review. Vacation Properties

counters that the Ordinance grants the ZBA de novo review and thus the ZBA decision is

the operative decision. (See RT 1 at 192-195.)1

"The jurisdiction of a board of appeals is a question of law that must be

ascertained from an interpretation of state statutes and local ordinances./f Gensheimer,

2005 ME 22, <[5, 868 A.2d at 163 (citations and quotations omitted). When, as in this

case, a matter is heard both by a planning board and a board of appeals, a

determination of the operative decision is dependant "on the type of review that the

Board of Appeals is authorized to undertake and what kind of review that Board

actually performs./f Id. <[ 7, 868 A.2d at 164. Under 30-A M.R.S.A. § 2691(3)(D) "unless

a local ordinance limits the authority of the Board of Appeals to appellate review, the

Board of Appeals is required by statute to undertake a de novo review, take evidence,

make factual findings and apply the applicable statutory and municipality provisions

entirely independent from the decision of the Planning Board./f Id. <[ 8, 868 A.2d at 164.

The Law Court considered an ordinance and found that where an ordinance

fails to provide explicit guidance as to whether a board of appeals is authorized to act as

an appellate body or a body of original jurisdiction, the board of appeals is required to

undertake a de novo review under 30-A M.R.S.A. § 2691. See Stewart v. Town of Sedgwick,

2000 ME 157, <[ 11, 757 A.2d 773, 777. The Stf:Luart Court found that the provisions of the

The City joins Vacation Properties' SOB Brief.

4
Sedgwick Shoreland Zoning Ordinance obfuscate the role of the zoning board of

appeals and thus mandate de novo review by the board of appeals. 2 Id. nn. 5 & 6, 868

A.2d at 777.

The Ordinance in this case is equally unclear. On the one hand it indicates that

the Zoning Board of Appeals has jurisdiction to hear appeals only:

Administrative appeals. To hear and decide appeals where it is
alleged there is a zoning violation or error in any order, requirement,
decision, or determination made by the building inspector or planning
board in the enforcement of this ordinance. The following procedure
governs administrative appeals:

1. When errors of administrative procedures or
interpretation are found, the case shall be remanded back to the
building inspector or planning board for correction.

Article IX, Sec. 4(A) (RT 1 at 192). On the other hand, the process mandated by the

Ordinance allows the Board of Appeals to receive oral or documentary evidence:

The board may receive any oral or documentary evidence but shall
provide as a matter of policy for the exclusion of irrelevant, immaterial or
unduly repetitious evidence or hearsay evidence. Every party shall have
the right to present his case or defense by oral or documentary evidence,
and to submit rebuttal evidence. Article IX Section 5 (3)(a) (RT 1 at 194.)3

2 The Stewart Court cited the following provisions of the Sedgwick Shoreland Zoning
Ordinance:

§ 16(I)(3)(b) (2): the Board 'may reverse the decision of the Code Enforcement Officer
or Planning Board only upon a finding that the decision was clearly contrary to specific
provisions of this Ordinance.'

§ 16(I)(3)(b)(3): 'the person filing the appeal shall have the burden of proof (emphasis
added).'

§ 16(I)(3)(b)(5): 'All decisions shall ... include a statement ofJindings and conclusions ..
. (emphasis added).'

3 This provision in the Ordinance is taken directly from 30-A M.R.S.A. § 2691(3)(0) and
was quoted by the Stewart Court to support the notion that, "unless the municipal ordinance
explicitly directs otherwise, a Board must conduct a hearing de novo." Stewart, 2000 ME 157,
tjItjI 6-7, 757 A.2d at 776.

5
and additionally requires that decisions from the board of appeals shall include

(emphasis added):

1. A statement of findings and conclusions (emphasis added);

2. The reasons or basis therefore, upon all the material issues of fact, law
or discretion presented; ....

Article IX, Sec. 6(A) (RT 1 at 195).

The Ordinance in this case is similar to the ordinance considered by the Stewart

Court in that it fails to specifically provide for a purely appellate hearing by the ZBA.

Stewart, 2000 ME 157, lJI 11, 757 A.2d at 777. Accordingly, as the Stewart Court

determined that the Sedgwick ordinance's lack of specificity mandated a de novo review,

Id., so here the ZBA is required to undertake a de novo review.

a. Review by the ZBA

Vacation Properties asserts that the ZBA conducted a de novo hearing on the

matter, as required under the Ordinance, and "came to its own independent

determination as to the PUD application's conformance with the requirements of" the

Ordinance. (Vacation Properties Br. at 8.) In order to provide a de novo hearing, a

board of appeals:

does not examine evidence presented to the decision maker or tribunal
below, nor does it review the procedure below except to assure that the
matter is properly before it. Instead, it looks at the substantive issues
afresh, undertakes its own credibility determinations, evaluates the
evidence presented, and draws its own conclusions.

Stewart, 2000 ME 157, <[ 7, 757 A.2d at 776.

In this case the ZBA conducted two sessions on the Hardings' appeal. The

record before the ZBA was the same record that was before the Planning Board. (RT 17

at 5.) At the initial hearing, held on September 12, 2007, Mr. Harding reiterated his

arguments against Chicopee Heights. Sandra Guay, attorney for Vacation Properties,

6
argued for the developer. Attorney Guay informed the board that the ZBA should give

deference to the Planning Board decision. (RT 17 at 8.)

On October 10, 2007, the ZBA continued its consideration of the Hardings'

appeal, "but took no new testimony." (RT 18 at 1.) The record indicates that the ZBA

reviewed the Findings of Fact of the Planning Board to determine if the Planning Board

correctly considered the proposal. (RT 18 at 2.) At the conclusion of that meeting, the

ZBA voted to deny the Hardings' "administrative appeal of the Planning Board

approval" of Chicopee Heights. (RT 19.) There were no findings of fact or conclusions

of law generated from the ZBA hearing.

This procedure does not comport with the ZBA's obligation to conduct a de novo

hearing. See Stewart, 2000 ME 157, <f[7, 757 A.2d at 776; see also Ordinance Article IX,

Section 6(A-C). It is not clear that the ZBA conducted an evidentiary hearing as would

be required upon de novo review. However, it is clear that the ZBA did not make

findings and conclusions independent from the findings and conclusions of the

Planning Board. Accordingly, the matter is remanded to the ZBA for a de novo hearing.

See Id <f[15, 757 A.2d at 778.

The entry will be as follows:

Matter remanded to the ZBA for de novo hearing.

Dated: MaY'ZP,2008

PLAINTIFF:

Erica M. Johanson, Esq.
MONAGHAN LEAHY LLP
PO BOX 7046
PORTLAND ME 04112-7046

DEFENDANT:
No Attorneys

PARTIES-IN-INTEREST:
Sandra Guay Esq.
WOODMAN EDMANDS DANYLIK & AUSTIN
PO BOX 468 7
BIDDEFORD ME 04005

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10809137. Public record. Not legal advice.