# Horton v. Town of Casco

> Superior Court of Maine · August 16, 2012

URL: https://www.frixlaw.com/law-library/cases/10809995

## Case

- **Court:** Superior Court of Maine
- **Decided:** August 16, 2012
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Judges:** Roland A. Cole
- **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/10809995

## How later opinions describe it (automated extraction)

- affirming the DEP's permit application decision despite ongoing adverse possession litigation

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10809995. Public record. Not legal advice.