The opinion
STATE OF MAINE SUPERIOR COURT
CIVIL ACTION
YORK, ss. CONSOLIDATED ACTIONS
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OGUNQUIT VILLAGE ESTATES,
LLC, et al.,
Plaintiffs
v. AP-07-22
THE INHABITANTS OF THE
TOWN OF OGUNQUIT, et al.,
Defendants
****************************************** ORDER AND DECISION
WILLIAM R. BODACK,
Plaintiff
v. AP-07-38
THE INHABITANTS OF THE
TOWN OF OGUNQUIT, et al.,
Defendants
These consolidated appeals are based on the more recent attempt of Ogunquit
Village Estates, LLC and Stephen T. Hallett to obtain approval from the Ogunquit
Planning Board to build "a retirement community for active adults over the age of fifty-
five" on some 50 acres of land bordering Berwick Road in Ogunquit. See Bodack v. Town
of Ogunquit, 2006 ME 127, <[2 909 A.2d 620 for the history of this case. In Bodack the
subdivision approval was ultimately primarily denied because of the developer's
inability to meet traffic standards contained in the local ordinance.
The Town of Ogunquit has since amended its Zoning Ordinance at Section
8.13.A.3 regarding traffic. When the Selectmen declined to authorize requested changes
regarding traffic flow and management the Ogunquit Planning Board denied this most
recent request for subdivision approval. The developers have appealed that decision in
AP-07-22. A nearby property owner William Bodack has also appealed that decision in
case AP-07-38 arguing that the Planning Board was correct in denying the request for
subdivision approval but should also have denied it for additional reasons. The cases
have been consolidated, briefed and argued. In case AP-07-22 only Count I, the 80B
appeal, will be decided now. The remaining four counts have been severed and are
subject to a separate procedural order.
The key zoning ordinance provision is Section 8.13.A.3 of the Ogunquit Zoning
Ordinance which reads as follows:
A. General. Provision shall be made for vehicular access to all development and
circulation upon the lot in such a manner as to safeguard against hazards to
traffic and pedestrians in the street and within the development, to avoid traffic
congestion on any street and to provide safe and convenient circulation on
public -streets and within the development. More specifically, access and
circulation shall also conform to the following standards and the design criteria
below.
3. The street giving access to the lot and neighboring streets which can be expected
to carry traffic to and from the development shall have traffic carrying capacity
and be suitably improved to accommodate the amount and types of traffic
generated by the proposed use. No development shall increase the
volume:capacity ratio of any street above 0.8 nor reduce the street's Level of
Service to "D" or below, unless the applicant constructs traffic improvements or
agrees to reasonable conditions of approval to mitigate the traffic impacts of the
proposed development. If the volume capacity ratio of the existing street giving
access to the proposed development already exceeds 0.8, or the level of service of
streets or nearby intersections leading to the proposed project are already at "D"
or below, the application shall be denied unless the applicant can improve the
street or intersection capacities or level of service so that no further diminution of
the level of service will occur, should the project be constructed. (Amended
4/5/05 ATM)
2
It is this section, in an earlier version, which was the primary reason for the decisions in
Bodack by the Superior Court and Law Court and, which in its current form, was the
reason for the denial of the most recent application. The developer has offered several
arguments challenging the current version of Section 8.13.A.3.
The first claim is that Section 8.13 is inconsistent with the Town's comprehensive
plan and is therefore invalid. While there is no doubt that multiple provisions of the
comprehensive plan refer to the well-known traffic problems in Ogunquit there is no
requirement that the Town, in its zoning ordinance, adopt a specific remedy that is to
the developer's liking. The Zoning Ordinance at Section 8.13.A.3 addresses traffic
issues in a manner, among many possible options, that is "in basic harmony", with the
comprehensive plan. F.S. Plummer Co. v. Town of Cape Elizabeth, 612 A.2d 856, 859 (Me.
1992). The failure, if there is one, of the Town to more aggressively address traffic
through other non-zoning actions does not in itself invalidate the zoning provisions
dealing with traffic if those provisions are in basic harmony with the comprehensive
plan. See Bog Lake Company v. Town of Northfield, 2008 ME 37 (Feb. 28, 2008) for the
principles governing limited review of legislative actions taken by municipalities and
<JI15 discussing comprehensive plans.
The next argument is that the use of the word "nearby" in Section 8.13 produces
an ordinance that is not sufficiently defined thus constituting an unconstitutional
delegation of legislative authority, See Kosalka v. Town of Georgetown, 2000 ME 106, <JIll,
752 A.2d 183, 6 and its determination that a duty to "conserve natural beauty" was far
too imprecise and failed to "furnish a guide which will enable those to whom the law is
to be applied to reasonably determine their rights." Kosalka at «]Ill, quoting Stucki v.
Plavin, 291 A.2d 508, 510 (Me. 1972).
3
In this case there is no question that the developer knows what must be done to
obtain the requested permit. The argument is that the developer might not know where
the requirements applied. Here the "nearby" intersection is the intersection of Berwick
Road and Route 1, some 1.5 miles or so away, which was the focus of the initial
application, administrative decision, court appeals and the current application,
proceeding before the Selectmen, planning board decision and Superior Court appeal.
It might be advisable to define "nearby" in feet or miles but it is not necessary to do so
particularly here. The developer knew what must be done and what intersection
needed attention.
The third argument is that Section 8.13.A.3 constituted an illegal de facto building
moratorium. The developer is correct that any moratorium must be both limited in
time and follow specified procedures. See 30-A M.R.S.A. §4356. In this case the
decisions of the Selectmen regarding road or traffic flow modifications and of the
Planning Board do not constitute a moratorium. They are decisions based on a specific
application which resulted in denials for the specific reason that the application did not
meet the ordinance provisions. Because a project, even a larger scale project, is rejected
does not mean, without more, than a moratorium in disguise has been enacted.
The final argument focuses on the requirement that the applicant "improve the
street or intersection capacities or level of service ...". In order to do this the Selectmen
must ultimately assist the developer by granting the required approval either if the
proposed solution constitutes a decision to "layout, alter or widen town ways." 23
M.R.S.A. §3022 or involves amendments to traffic ordinances, 30-A M.R.S.A. §3009.
In this case the developers suggested eight possible methods of meeting the
requirements of Section 8.13.A.3 and focused on two of them. Eventually the developer
presented its case to the Selectmen who declined to adopt any of the proposals. Once
4
that happened the Planning Board denied the subdivision approval application for
failure to comply with Section 8.13.A.3.
While there is a provision at 23 M.R.S.A. §3029 which allows an appeal from the
"action or nonaction of municipal officers" to the Superior Court there was no petition
to "layout, alter or widen town ways" which is necessary before an appeal can be
taken. Likewise, I find no basis under any other statute or "otherwise available by
law", Rule 80B(a), M.R.Civ.P. to permit Superior Court review under Rule 80B of the
Selectmen's decision to not approve any proposed traffic mitigation proposal. The
Selectmen were free, at least under Rule 80B, to determine, on a principled basis or
otherwise, that none of the proposals were satisfactory. That decision, in the context of
this portion of this case, is not reviewable by the Superior Court.
Since none of the arguments for a reversal of the Planning Board decision were
successful the Planning Board's denial stands and it is not necessary to examine the
alternative arguments for denial suggested in Mr. Bodack's appeal.
The entries are:
In Count I of AP-07-22 the decision of the Ogunquit Planning Board of
July 24, 2007 denying the application of Ogunquit Village Estates, LLC for
subdivision preliminary plan approval is affirmed.
Counts II through V of AP-07-22 shall proceed consistent with the prior
procedural order. The plaintiff shall contact the judicial secretary in
Portland to seek to arrange a judicial settlement conference.
In AP-07-38 the complaint is dismissed as moot.
Dated: March ~ , 2008
AP-07-022
Durward Parkinson, Esq. Mark Franco, Esq.
BERGEN & PARKINSON THOMPSON & BOWIE
62 PORTLAND RD PO BOX 4630 Paul A. Fritzsche
KENNEBUNK ME 04043-6658 PORTLAND ME 04112-4630 Justice, Superior Court
for: Plaintiff for: Defendant
AP-07-Q38
John C. Bannon, Esq. JOHN C. BANNON, ESQ. PATRICK J. SCULLY, ESQ.
MURRAY PLUMB & MURRAY MURRAY PLUMB & MURRAY BERNSTEIN SHUR SAWYER & NELSC
PO BOX 9785 PO BpX 9785 PO BOX 9729
PORTLAND ME 04104-5085 PORTEAND ME 04104-5085 PORTLAND ME 04104-5029
for: Intervenor _ U1111~m RnnA~k for: William Bodack for: Defendant