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
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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
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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