requiring the split of an appeal regarding zoning issues to the zoning board and subdivision issues to the Superior Court
How later courts described this case
- requiring the split of an appeal regarding zoning issues to the zoning board and subdivision issues to the Superior Court
- affirming the DEP's permit application decision despite ongoing adverse possession litigation
Written by the judges who cited it.
The opinion
STATE OF MAINE SUPERIOR COURT
CUMBERLAND, ss. CIVIL ACTION
DOCKET NO: AP-11-03q
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WILLIAM A. HORTON, STATE OF MAINE
Cumbed<.·wd,s'..>,Cierk's Office
BRIAN COSGROVE, and
AUG 16 2012
THERESA COSGROVE
Plaintiffs, RECEIVED
v. ORDER
TOWN OF CASCO
Defendant,
AT &T MOBILITY, LLC
Intervening Party.
The plaintiffs' Rule SOB appeal of the Zoning Board of Appeals' decision is before the
court. 1
BACKGROUND
William Horton, Brian Cosgrove, and Theresa Cosgrove (the plaintiffs) share a
private right of way known as Tamarack Trail with Robert and Shellie Symonds. (R. A
at ex. 25.) This right of way is located in a subdivision in the Town of Casco, Maine (the
Town). The Symonds executed a lease for a 100-foot by 100-foot square portion of their
lot to AT&T Mobility, LLC, (AT&T) allowing AT&T to build a wireless
telecommunications facility including a 150-foot tall tower (the tower). (R. A ex. 8.)
1
Since the Zoning Board reviewed the Planning Board's decision in its limited appellate
capacity this court reviews the Planning Board's decision. See Casco, Me., Zoning Ordinance§
7.5.3 (June 10, 2009); see also See Concerned Citizens to Save Roxbury v. Bd. of Envtl. Prot., 2011 ME
39, <JI 17, 15 A.3d 1263.
1
On June 14, 2010, AT&T presented its application for site plan review to the
Town's Planning Board (Planning Board). William Horton is the Chair of the Planning
Board, but he recused himself for this matter. The Planning Board discussed the
application over a series of meetings that included a site visit. (R. B-F.) On January 1S,
2011, the Planning Board issued a notice of decision, finding that "[t]he standards
contained in The Casco Zoning Ordinance have been met" and the permit application is
"approved subject to conditions below." (R. G.) The plaintiffs appealed to the Zoning
Board of Appeals (Zoning Board). (R. H.)
'
The appeal was based on the claim that "[t]he Planning Board improperly
granted the application of AT&T Mobility for a cellular telephone tower to be located at
Map 6, Lot 34-7." (R. H.) The objections stated are the same objections the plaintiffs are
making in the current appeal. The Zoning Board met on May 16, 2011, discussed the
matter, and then tabled the discussion in order to consult legal counsel. (R.I.) They
met again on July 1S, 2011, discussed the issue again and voted to uphold the Planning
Board's decisions. (R. J.) The plaintiffs filed a timely SOB appeal to this court naming
the Town of Casco as the defendant. This court allowed AT &T to intervene and
supplement the record.
DISCUSSION
1. Standard of Review
When reviewing governmental action under M.R. Civ. P. SOB, the Superior Court
reviews the operative decision of the municipality for "abuse of discretion, errors of
law, or findings not supported by the substantial evidence in the record." Camp v. Town
of Shapleigh, 200S ME 53, 'IT 9, 943 A.2d 595 (quoting McGhie v. Town of Cutler, 2002 ME
62, 9I 5, 793 A.2d 504). "Substantial evidence is evidence that a reasonable mind would
accept as sufficient to support a conclusion." Toomey v. Town of Frye Island, 200S ME 44,
2
<[ 12, 943 A.2d 563 (quoting Sproul v. Town of Boothbay Harbor, 2000 ME 30, <[ 8, 746 A.2d
368). "That inconsistent conclusions can be drawn from evidence does not mean that a
finding is not supported by substantial evidence." Id.
2. Subdivision Ordinance
The Zoning Board did not consider whether the tower violated the Subdivision
Ordinance, because it can only review issues under the Zoning Ordinance, according to
section 6.3.2(A)(2?. See also 30-A M.R.S. § 4353(1) (2011) ("The board of appeals shall
hear appeals from any action or failure to act of the official or board responsible for
enforcing the zoning ordinance, unless only a direct appeal to Superior Court has been
provided by municipal ordinance."); 30-A M.R.S. § 2691(4) (2011) ("No board may
assert jurisdiction over any matter unless the municipality has by charter or ordinance
specified the precise subject matter that may be appealed to the board."). The plaintiffs
had other options to appeal the Planning Board's decisions regarding the Subdivision
Ordinance. The Subdivision Ordinance allows for direct appeal to the Superior Court
pursuant to article 11, section 11.1. 3 Additionally, case law allows the plaintiffs to split
their appeal and appeal the questions regarding the Subdivision Ordinance directly to
the Superior Court and the questions regarding the Zoning Ordinance to the Zoning
Board. Lakes Envtl. Asso. v. Naples, 486 A.2d 91, 95 (Me. 1984) (requiring the split of an
appeal regarding zoning issues to the zoning board and subdivision issues to the
Superior Court). This appeal was filed after the deadline for appealing the Planning
Board's decision. Therefore, the court dismisses the Subdivision Ordinance arguments.
2
"The Zoning Board of Appeals shall hear and decide where it is alleged that there is an error in
a decision by the Planning Board under the site plan review provisions in Article 7 of this
Ordinance." Casco, Me., Zoning Ordinance§ 6.3.2(A)(2) (July 10, 2009).
3
"An appeal from any order or decision of the Planning Board under this Ordinance may be
taken by any aggrieved party to Maine Superior Court in accordance with Rule SOB of the
Maine Rules of Civil Procedure." Casco, Me., Subdivision Ordinance§ 11.1.
3
3. Zoning Ordinance
The plaintiffs argue that the Planning Board failed to find that the tower violates
two aspects of the Zoning Ordinance.~ First, they argue that the tower violates the
permitted uses listed in article 4, section 4.4.2, which specifically notes (in bold), "all
other uses are prohibited." Second, they argue that the tower does not meet the setback
requirements set forth in article 8, section 8.8.l(d)(4)(a). 5
To determine the permitted use AT&T and the Town refer the court to Zoning
Ordinance article 8, section 8.8.1(b)(l), which allows the construction of wireless
communication towers in "Commercial (C) and Residential (R) zoning districts, and
prohibited in all other districts." The lot in question is in a residential zoning district.
The plaintiffs point out that under Zoning Ordinance article 8, section 8.5(a) 6 when
ordinance conflict the more restrictive provision applies. Therefore, they reason article
4, section 4.4.2, which restricts all" other" uses controls. Zoning Ordinance article 8,
section 8.5(a) requires the application of the more restrictive provisions when
ordinances conflict. Here, article 4 is more restrictive than article 8 regarding the use of
land for a wireless tower.
1
The court notes that the findings made by the Planning Board do not include an adequate
explanation of the finding of facts. See Chapel Rd. Assocs. v. Town ofWells, 2001 ME 178, <[10, 787
A.2d 137. A failure to make proper finding of facts does not result in an automatic remand.
Christian Fellows/zip & Renewal Ctr., 2001 ME 16, <[19, 769 A.2d 834. The court may "treat the
Board as having made whatever factual determination could, in accordance with correct legal
concepts, support its ultimate decision, and we inquire whether on the evidence such factual
determinations must be held clearly erroneous." Daley v. Spinnaker Indus., 2002 ME 134, <[17,
803 A.2d 446 (internal quotation marks omitted). Although the findings are inadequate, the
court finds that the record and the supplemental record provide sufficient factual background.
5
"The center of the tower base shall be set back from the property line by a distance of at
least one hundred (100%) percent of the total tower height. This provision shall apply to
both leased and owned property." Casco, Me., Zoning Ordinance§ 8.8.1(d)(4)(1) (June
10, 2009).
6
"Whenever a provision of this article conflicts with or is inconsistent with another provision of
this article or of any other ordinance, regulation or statute, the more restrictive provision shall
apply." Casco, Me., Zoning Ordinance § 8.5(a) (June 10, 2009).
4
Although article 4 is more restrictive, the plaintiffs' interpretation of the
ordinance would render the residential permissive use set forth in article 8, section
8.8.1(d)(4)(1) null, and this interpretation is undesirable. "An ordinance may not be
interpreted in such a way to read a provision out of existence or to render it
surplusage." Jade Realty Corp. v. Town of Eliot, 2008 ME 80, 9I 8, 946 A.2d 408. Therefore,
the tower is a permitted use in the residential district.
In order to determine whether the setback requirement is met the court must
consider whether a new lot was created by the Symonds's lease to AT&T. The plaintiffs
say a new lot was created since there was a separation of the land. See Town of York v.
Cragin, 541 A.2d 932, 934 (Me. 1988). AT&T argues that no lot was created; instead they
just assigned a use. AT&T's argument is essentially the inverse of Bakala v. Town of
Stonington, 647 A.2d 85 (Me. 1994). In Bakala the court found that the land was split off,
but no legal interest was conveyed so there was no subdivision. Id. at 87. Here, a legal
interest to build the tower and lease the right to build the tower on that land was
conveyed, but the land was not split off. As a result, it is not a separate lot. Using the
dimensions of the host lot the set back requirement is met.
4. Access and Use of Right-of-Way
The plaintiffs argue that the Planning Board did not adequately address concerns
regarding the impact on the shared right of way. AT&T and the Town maintain that the
Planning Board adequately considered the impact on the right of way and point to the
conditions regarding the right of way required by the Planning Board. Based on these
conditions, such as the requirement to create a construction performance bond, it is
clear that the Planning Board did consider the permit's impact on the right of way.
The plaintiffs also argue that AT&T has failed to demonstrate that it has a right
to use the right of way. The Planning Board has authority to interpret zoning ordinance
5
and rules that impact the public, but they cannot interpret private covenants. Whiting v.
Seavey, 159 Me. 61, 67-68, 188 A.2d 276, 280 (Me. 1963? ("Zoning per se does not abolish
restrictive covenants. Contractual restrictions in a deed are not abrogated or enlarged
by zoning restrictions." (internal citations omitted)). Instead, the applicant only needs
to demonstrate that it has "the kind of relationship to the site that gives him a legally
cognizable expectation of having the power to use that site in the ways that would be
authorized by the permit." Southridge Corp. v. Bd. of Envtl. Prot., 655 A.2d 345, 348 (Me.
1995) (internal citations and quotation marks omitted). Here, the application included a
copy of the deed for the land, which apparently includes access to the right of way. By
leasing part of the land there is a cognizable expectation that AT&T can utilize the right
of way. 8
The entry is:
The Zoning Board's decision is AFFIRMED.
DATE: ~2.-0 (:'!.--
7
Also from Whiting, "Zoning laws are enacted under the police power in the interest of public
health, safety and welfare; they have no concern whatever with building or use restrictions
contained in instruments of title and which are created merely by private contracts ....
Contracts have no place in a zoning plan. Zoning, if accomplished at all, must be accomplished
under the police power. It is a form of regulation for community welfare. Contracts between
property owners or between a municipality and a property owner should not enter into the
enforcement of zoning regulations."' 159 Me. 61, 67, 188 A.2d 276, 280 (Me. 1963) (quoting In re
Michener's Appeal, 115 A.2d 367, 369-70 (Pa. 1955)).
8
Additionally, the issue of AT&T's use of the right of way is already before in the Cumberland
County Superior Court as a quiet title action, docket number CV-2010-482. Although the
plaintiffs would prefer the Planning Board wait until the court issued an opinion in the quiet
title action, the Planning Board is not required to do so. The Planning Board, and this court, can
affirm the permit application so long as there is a cognizable right, despite the action for quiet
title. See Soutlzridge Corp, 655 A.2d at 347 (affirming the DEP's permit application decision
despite ongoing adverse possession litigation).
6
Date Filed __0_9 _-0_ 1-_1_1_ __ Cumberland Docket No. _A_P_-_1_1_-_3_6_ _ __
County
Action BOB
WILLIAM A. HORTON TOWN OF CASCO
BRIAN A. COSGROVE
A T & T MOBILITY
THERESA E. COSGROVE
VS.
Plaintiff's Attorney Defendant's Attorney
Natalie Burns Esq.
ERIKA L. FRANK, ESQ. PO Box 4510 Portland ME 04112
55 S'fR:OUD\lfs:'FER ::rfRE'ET
q;~BRR~~;~t_Mf.7-ra// (1(11'1'-/ Barry Hobbins Esq. (A T & T Mobility-In
w( n. dh_a.-f'Vt_ ol..!IJ~'L
Date of
Entry