Opinion

Althenn v. Town of China Code Enforcement Officer

Court
Superior Court of Maine
Filed
Jan 20, 2009
Status
Unpublished
On the bench
Joseph M. Jabar
Cited by
0 cases

The opinion

STATE OF MAINE SUPERIOR COURT

CIVIL ACTION

KENNEBEC, ss. DOCKET NO. AP-08-26

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ALBERT ALTHENN, :.; :.. L ,\ ,\ C," Cc,.; RT 'j

Petitioner

v. DECISION

TOWN OF CHINA CODE

ENFORCEMENT OFFICER

SCOTT PIERZ,

Respondent

Before this court is an appeal pursuant to M.R. Civ. P. 80B from the decision of

the Board of Appeals for the Town of China affirming the decision of the town's

Planning Board to grant Joseph Sears a subdivision permit.

On March 7,2006, Joseph Sears applied to the Town of China Planning Board for

approval of an existing subdivision. The application was discussed at a meeting on

March 14, 2006. The Planning Board determined that the proposed subdivision should

be classified as a major subdivision. On March 7, 2007, Mr. Sears requested the

Planning Board place his application on the next agenda. At the meeting on March 13,

2007, Mr. Sears' engineer, Rick Pershken, handed out a sketch plan seeking approval of

an expanded 10-lot subdivision.

The subdivision proposal was not finally reviewed and approved until the

September 11, 2007 meeting of the Planning Board. During this time period, a new

ordinance was adopted. By letter dated July 9, 2007, Mr. Sears' engineer, Rick Pershken,

requested a waiver of the new road standards, which were incorporated into the

subdivision ordinance. The request for a waiver was granted at the August 14, 2007

2

Planning Board meeting. The subdivision plan itself was approved a month later at the

September 11, 2007 Planning Board meeting. Mr. Althenn appealed the decision to the

Board of Appeals by notice dated October 11, 2007. The Appeals Board denied Mr.

Althenn's appeal on March 12, 2008. From this decision, the petitioner has filed this 80B

appeal.

Discussion

In his brief, the petitioner raises three issues. The first issue he raises is that he

did not get notice of the proceedings.

The second issues he raises is that the waiver of the road standards by the

Planning Board was inappropriate under the facts of the case.

The third issue he raises is a conflict of interest of one of the China Planning

Board members.

The court finds and concludes that the first argument raised by the petitioner is

without merit because the petitioner did receive notice of all of the hearings in this

matter. In this argument, the petitioner also contends that the application for the

approval of the subdivision was incomplete and, therefore, since there was an

incomplete application, the matter was never properly litigated. In this case the record

is very clear that the Planning Board did approve a subdivision plan and, therefore, the

plan was based on a completed application. This is implicit by the very fact that it

approved the plan.

The second issue which the respondent raises concerns the town's waiving of the

road standards pursuant to its ordinance. The ordinance in question indicates that if

the Planning Board finds, "either (1) extraordinary difficulty may result from strict

compliance with its provisions, or (2) that there are special circumstances of the

particular plan," it may waive any of the subdivision's provisions except lot size. The

3

petitioner argues that the appellant has failed to show undue hardship, however this is

not the proper standard of review in this particular case. The court finds there is

sufficient evidence presented to the Planning Board justifying its waiver either on the

grounds of extraordinary difficulty or special circumstances. There is sufficient

evidence on the record to support the Planning Board's decision in this regard.

The third issue raised by the petitioner is one of the board member's alleged

conflict of interest. First of all, this was never raised before the Planning Board and was

therefore not preserved for review. Nevertheless, the board member in question

notified the Board of his potential conflict of interest and recused himself from voting.

For all reasons stated above, the court hereby DENIES the petitioner's 80B

appeal. This matter is REMANDED to the Town of China for furtllf~~011

Dated: January~ 2009

Date FiIed ----'+4+-/-J,-1-'+4+-/-vOG8--- Kennebec Docket No. _ _,F\A~P=uO.o8=-L.2.u6 _

County

Action ----(;8>1.0Y;(:-.llB>-j-)------------­

J.JABAR

ALBERT ALTHENN vs. TOWN OF CHINA BOARD OF APPEALS

Plaintiff's Attorney Defendant's Attorney

John O'Donnell, Esq. Alton C. Stevens, Esq.

160 College Ave 44 Elm Street

Waterville, Maine Waterville, Maine 04901

Date of

Entry

4/14/08 Complaint and sunnnary sheet ill1lclksumm6ns !fj1iled~ s/O'Donnell,Esq.

4/16/08 Amended summons filed by Atty O'Donnell.

5/13/08 Amended complaint of petitioner, Albert Althen against the Town of China

code enforcement office Scott Pierz regarding appeal of the Joseph Sears

subdivision. Filed by Atty O'Donnell.

6/11/08 Acknowledgement of Receipt of Summons and Amended Complaint, filed. s/

Stevens, Esq.

7/1/08 Def's motion to dismiss filed by Atty Stevens.

7/8/08 PIt's objection to def's motion to dismiss 80b complaint and PIt's motion

for extension of time to file briefs and the record filed by Atty O'Donnell.

8/4/08 DEFENDANT'S MOTION TO DISMISS, Jabar, J.

Motion denied.

Copies mailed to attys. of record

ORDER, Jabar, J.

Upon a showing of good cause, plaintiff is allowed an additional 30 days,

until 6, 2008, within which to file a brief as required by Rule 80B (g).

Copies mailed to attys. of record.

8/8/08 Brief of Complainant, filed. s/O'Donnell, Esq.

8720/08 NOTICE AND BRIEFING SCHEDULE ISSUED.

Copies mailed to attys. of record.

9/10/08 Defendant's Motion to Extend Date by Which Brief Must be Filed. s/Stevens,Esq

Proposed Order, filed.

9/11/08 ORDER, Jabar, J.

it is hereby ordered that the date by which'defendant's brief is due is

extended to September 29, 2008.

Copies mailed to attys. of record.

Date of

Entry Docket No.

9/29/08 Supplemental Record, filed. s/Stevens, Esq.

Defendant Town's Brief, filed. s/Stevens, Esq.

12/30/08 Oral arguments set for 1/8/09 at 9:00 a.m.

Notice mailed to attys. of record.

1/8/09 Hearing held with Hon. Justice Joseph Jabar, presiding.

John O'Donnell, Esq. for the Petitioner and Alton Stevens, Esq. for th~

Respondent.

Oral arguments made to the court. Court to take matter under advisemento

1/22/09 DECISION, Jabar, J. (1/20/09)

For all reasons stated above, the court hereby DENIES the petitioner's

80B appeal. This matter is REMANDED to the Town of China for further

action.

Copies mailed to attys. of record.

Notice of removal of record,mailed to AAG

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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