# Ogunquit Village Estates v. The Inh. of the Town of Ogunquit > Superior Court of Maine · March 6, 2008 URL: https://www.frixlaw.com/law-library/cases/10809195 ## Case - **Court:** Superior Court of Maine - **Decided:** March 6, 2008 - **Precedential status:** Unpublished - **Opinion:** Opinion - **Judges:** Paul A. Fritzsche - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10809195 ## Opinion text STATE OF MAINE SUPERIOR COURT CIVIL ACTION YORK, ss. CONSOLIDATED ACTIONS . •':0. :;::,- (\ ' Ii)i -, "r, - ",.' \ 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