Balano v. Town of Kittery, Planning Board

STATE OF MAINE SUPERIOR COURT

YORK, SS . CIVIL ACTION

DOCKET NO . AP-15-26

RICHARD BALANO,

Petitioner,

V. ORDER

TOWN OF KITTERY, PLANNING BOARD,

and

275 U. S. ROUTE 1, LLC,

Respondents.

I. Background

Richard M. Balano appeals to this court from a decision by the Town of Kittery

Plam1ing Board. M.R. Civ. P. 80B . Balano contends the Board erred in approving a site

plan application for a hotel development on Route 1 in Kittery . For the reasons set fo1ih

below, the appeal is denied and the Board' s decision is affirmed.

Intervenor and respondent 275 U.S. Route 1, LLC ("the applicant") submitted an

application for site plan review for an 83-room hotel at 275 Route 1 in Kittery . The Town

of Kittery Planning Board ("the Board") held a public hearing on the final site plan

application on August 20, 2015 . Various parties spoke for and against the proposal and

the Board took evidence. After considering the evidence and addressing each of the

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various site plan review criteria, the Board voted 5-0 to approve the application, with

conditions. This appeal followed.

II. Discussion

A. Rule SOB Standard

In Rule 80B appeals, the court reviews the municipal decision below for enors of

law, abuse of discretion, or findings not supp01ied by substantial evidence. Aydelott v.

City ofPortland, 2010 ME 25, ,i 10, 990 A.2d 1024. The party challenging the decision

has the burden of proof. Id. When the appeal comes before the Superior Court after

multiple levels of review at the municipal level, the court reviews the operative decision

directly. Dunlop v. Town of Westport Island, 2012 ME 22, ,i 13 , 37 A.3d 300.

Mnnir.ip:::il nniin:::inrP<: :::irP. intPrprPtPrl :::inrl appliPrl hy thP r .nnrt rl P nnun. ,Nugent v.

Town of Camden, 1998 ME 92, ~ 7, 710 A.2d 245 . "The terms or expressions in an

ordinance are to be construed reasonably with regard to both the objectives sought to be

obtained and the general structure of the Ordinance as a whole." Jordan v. City of

Ellsworth, 2003 ME 82, ~ 9, 828 A.2d 768.

B. Standing

The Town first argues Balano lacks standing to bring this appeal. The applicable

ordinance provides " [a]n aggrieved party with legal standing may appeal a final decision

of the Planning Board" to Superior Court pursuant to Rule 80B within forty-five days

from the decision. Kittery, Me., Land Use & Development Code, § 16.6.2(A) (July 26,

2010) ("Ordinance"). There is no dispute this appeal was timely filed.

To establish legal standing, an appellant must show (1) paiiicipation at the

administrative proceeding, and (2) a particularized injury as a result of the decision.

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Norris Family Assocs. , LLC v. Town ofPhippsburg, 2005 ME 102, ~ 11 , 879 A.2d 1007.

The term "party" is broadly interpreted to mean an "any participant in the proceedings

who is aggrieved" by the decision of the municipal agency. Id. ~ 16. "Because 'matters

before a local board of appeals are conducted in a fashion far less formal than court

proceedings,' an appellant need not have formally appeared as a party as long as it

participated throughout the process." Friends of Lincoln Lakes v. Town ofL incoln, 2010

ME 78, ~ 12, 2 A.3d 284.

The Town argues Balano failed to "participate throughout the process sufficient to

confer standing. Prior to the hearing, Balano submitted a letter to the Town Planner

detailing his opposition to the proposal. The Town Planner read the letter aloud at the

public hearing, which is reflected in the meeting minutes and summarized as: "Rich

Balano, Ox Point Drive resident, who has concerns about the design of the project not

meeting Kittery code, specifically the sloped roof and building height." (R. 4.)

This was adequate participation to confer standing. See Witham Family Ltd. v.

Town of Bar Harbor, 2011 ME 104, ~ 10, 30 A. 3d 811 (" 'Appearance,' for Rule 80B

standing purposes, has been expansively interpreted to refer to any ' participation' ­

formal or informal, whether personally or through an attorney- in the municipal

proceedings by, for example, 'voic[ing] ... concerns for traffic, noise and aesthetics,' or

' express[ing] opposition' at a municipal hearing; no formal appearance is necessary.") .

Although Balano did not personally appear, his letter, detailing specific grounds for

opposing the project, was read aloud and considered by the Board. Had Balano appeared

and read the same letter, this would clearly establish participation. Given the distaste for

overly formal requirements to establish standing in the municipal context, see id., the

court concludes Balano participated adequately to meet the first prong of the standing

test. Cf Jaeger v. Sheehy, 551 A.2d 841 , 842 (Me. 1988) (conversations with municipal

official prior to hearing about concerns, but never expressing overt opposition to a project

inadequate participation) .

As to the "particularized injury" requirement, Balano asserts that he lives on Ox

Point Drive, a dead-end street, and the proposed hotel will be constructed on land

adjoining his only point of access to Route 1 and increased traffic will burden this access.

He also alleges injury from his "westward view," increased traffic, and noise from trash

removal. (Balano Aff. ,i,i 5-7.) 1

The Town concedes Balano lives "in the general area of the proposed motel,"

Town Brief 11 , but argues this is insufficient to satisfy the injury requirement. "A person

suffers a particularized injury only when that person suffers injury or harm that is in fact

distinct from the harm experienced by the public at large." Nergaard v. Town of Westport

Island, 2009 ME 56, 1 18, 973 A.2d 735 (citation omitted) (quotation marks omitted) .

"[S]tanding has been liberally granted to people who own property in the same

neighborhood as the property that is subject to a permit or variance." Id.

Balano lives in the neighborhood of the proposal on a dead-end street accessible

primarily from Route 1. Because of this uniquely limited access, Balano must drive

through the Route 1 intersection adjoining the proposal and would necessarily do so more

often than other members of the public. The introduction of additional traffic to the area

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The applicant argues that the court should not consider Balano ' s affidavit in determining

whether he has standing. (Intervenor Brief 2 n. l.) Because a lack of standing would be grounds to

dismiss the appeal without considering the merits, the court considers the affidavit. See Norris

Family Assocs., LLC, 2005 ME 102, ii 17 n.5, 879 A.2d 1007 (stating court may consider

affidavit submitted in opposition to motion to dismis s Rule SOB appeal fo r lack of standing) . The

rationale for limiting a Rule SOB appeal to the record before the Board would not be served by

ignoring Balano's affidavit because his standing was not at issue below.

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will therefore affect Balano in a manner different from the public at large. Cf Nergaard,

2009 ME 56, ~ 20, 973 A.2d 735 (no standing absent evidence parties lived in the

neighborhood or were unique in use of a road that adjoined proposed boat launch ramp).

Balano has standing to appeal the Board's decision. The court next turns to the

merits of the appeal.

C. Grounds for Appeal

Balano raises five arguments, each of which he contends is grounds to vacate the

decision: (1) the Board granted an unlavvful variance for the proposed structure's roof

shape and height, (2) even if the Board had authority to grant the waiver, there is

insufficient evidence in the record to support the decision, (3) the Board failed to grant a

special exception for the project, which is required for all developments exceeding 40

feet in height, (4) the Board erred in concluding the development complied with the

Town's comprehensive plan, (5) the Board abused its discretion in imposing buffer

conditions dependent upon actions by adjoining property owners not before the Board.

1. Flat Roof Design Standard

Balano argues the Board erred in approving the proposal with a flat roof design.

The Town's ordinance provides :

A building's prominent roofs must be pitched a minimum of 4:12 unless

demonstrated to the Planning Board's satisfaction that this is not

practicable. Acceptable roof styles are gabled, gambrel, and hipped roofs.

Flat roofs, shed roofs, and roof facades (such as "stuck on" mansards) are

not acceptable as prominent roof forms except as provided above.

Ordinance, § 16.3.2.ll(D)(3)(b)(ii) (R. 235-36.) The prope1iy is zoned C-1, which

permits a maximum building height of 40 feet. Id. § 16.3 .2.ll(D)(2). The ordinance

defines "height of a building" for flat roofs as the "vertical measurement from the

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average grade between the highest and lowest elevation of the original ground level to the

highest point of the roof beams." Id. § 16.2.2.

At the hearing, the applicant put fo1ih tlrree reasons why a pitched roof design

would not be practicable: (1) inability to adequately screen mechanical equipment, (2)

safety issues, and (3) increased mass and scale to compensate for fourth-floor space

constraints. (R. 18-19.)

Balano argues that by not requmng a pitched roof design under Section

16.3.2.ll(D)(3)(b)(ii), the Board effectively granted an unlawful variance of the height

restrictions. The Town responds that the ordinance does not require a pitched roof if the

Board, in its discretion, determines such design is "not practicable." The applicant

presented evidence to the Board's satisfaction that a pitched roof was impracticable. (R.

18-19.) Balano's contention that the Board' s practicability conclusion was unsupported

lacks merit. See Rudolph v. Golick, 2010 ME 106, ljj 8, 8 A.3d 684 (noting Board entitled

to "substantial deference" on findings and conclusions as to what meets a particular

ordinance standard). The Board's conclusion is suppmied by substantial evidence in the

record. (R. 18-19.)

Balano's true objection is the height calculation depends on the roof design.

Balano argues that by allowing a flat roof design, the Board constructively granted an

unlawful variance or special exception from the height standards imposed by the

ordinances.

2. Building Height Calculation

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The proposed hotel is 40' in height, parapets 2 not included. According to the

elevation plans, the tallest parapet extends 11' above the roofline, and thus the proposed

hotel will stand 51' at its highest point. (R. 142.) Balano argues that even if Section

16.3.2.ll(D)(3)(b)(ii) allows for a flat roof, this amounts to a variance from the height

restrictions because height is measured differently depending upon roof style. See

Ordinance, § 16.2.2 (setting forth differing calculation methods for flat, mansard,

gambrel, and pitched roofs under "height of a building" definition). At a minimum,

Balano argues the applicant needs a special exception to build a structure exceeding forty

feet in height. See Ordinance 16.3 .2.11 (C)(l )(k) (requiring special exception permit for

"[b Juildings and structures over forty (40) feet").

The Town points out the parapets are irrelevant because the ordinance only

measures buildings with flat roof designs to the highest point of the roof beams.

Ordinance, § 16.2.2. The Town further emphasizes the ordinance definition for "height of

a structure" expressly excludes "chimneys, steeples, ante1mas, and similar appmienances

which have no floor area." See id. The Tovm asserts the parapets constitute a "similar

appurtenance" because they have no floor area.

Here too, Balano's arguments fail. If characterized as a "building," the proposed

hotel does not require a special exception because height is only measured to the roofline

and the roofline does not exceed fo1iy feet. See Ordinance, § 16.2.2; (R. 142.) If

characterized as a "structure," there was evidence in the record that support the

conclusion the parapets are a "similar appurtenance," which is not measured for purposes

of height standards. This interpretation of "similar appurtenance" would fmiher the intent

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A parapet is a structural element that extends a wall vertically above the roofline at the edge

of a roof. The parapets depicted on tbe applicant's plan resemble enlarged capitals atop a Doric

Roman column . (R. 141.)

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of the ordinance to exclude ornamental structures on top of a building from a height

calculation. See Rockland Plaza Realty Corp. v. City ofRockland, 2001 ME 81, ~ 12, 772

A.2d 256 (rejecting challenger's argument that ornamental cupola ought to be included

within the height calculation as "overtechnical" and contrary to the intent of the

ordinance). Under either the definition of "building" or "structure," the fact the parapets

extend the hotel's height beyond forty feet is immaterial to the height measurement under

the ordinances.

To the extent the ordinances apply different height standards to different roof

designs, this is a legislative choice with the discretion of the drafters of the ordinance,

which expressly delegates power to determine practicable roof designs to the Board. The

Board did not grant a waiver or variance because the plain language of the ordinance

allows for the Board to approve a flat roof design if satisfied that a pitched roof is

impracticable. See York v. Town of Ogunquit, 2001 ME 53, ~ 10, 769 A.2d 172 (board

has authority under ordinances to make waivers upon certain findings; such waivers did

not amount to unlawful variances that had to be approve by ZBA). This is a substantive

standard that was applied by the Board and supported by record evidence. (R. 18-19.)

This case is therefore distinguishable from cases involving conflicting standards

and allowed Planning Boards to grant de facto variances where such power was the

exclusive domain of the Zoning Board of Appeals. See Sawyer v. Town of Cape

Elizabeth, 2004 ME 71, ~ 14, 852 A.2d 58 (citing Perkins v. Town a/Ogunquit, 1998 ME

42, 709 A.2d 106). Here, the Planning Board had the power to conclude that the pitched

roof was design was not practicable. The height calculation methods that flowed from

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allowing a flat roof design were plainly contemplated and permitted under the

ordinances. Cf Sawyer, 2004 ME 71 , ~ 16, 852 A.2d 58.

3. Waiver: Comprehensive Plan

The Town argues that Balano ' s remaining arguments were not raised before the

Board and are therefore waived. See Brown v. Town of Starks, 2015 ME 47, ~ 7, 114

A.3d 1003 (failure to raise standard of review issue before Board below waived

consideration of the issue on appeal); see also Tarason v. Town of S. Berwick, 2005 ME

30, ~ 8, 868 A.2d 230. "An issue is raised and preserved if there was a 'sufficient basis in

the record to alert the comi and any opposing pariy to the existence of that issue."'

Verizon New Eng. v. PUC, 2005 ME 16, ~ 15, 866 A.2d 844 (citation omitted) (quotation

marks omitted).

Balano effectively raised issues surrounding the building' s height at the municipal

level, thus arguments (1)-(3) as set forth above were preserved. Argument (5) challenges

an approval condition imposed as pari of the decision and thus could not have been raised

prior to the hearing. Balano's arguments regarding consistency with the comprehensive

plan, however, was not raised and would appear to have been waived. Even if the

argument was not waived, Balano fails to meet his burden demonstrate how the Board's

decision with respect to this site plan application is not in "basic harmony" with the

Town's comprehensive plan. See Remmel v. City ofPortland, 2014 ME 114, ~ 13, 102

A.3d 1168. Although the plan, like the ordinance, limits buildings and structures in the C­

3 zone to forty feet in height, the proposed hotel complies with the height standards as

calculated by the ordinances for the reasons stated above.

4. Approval Condition: Buffer

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Balano lastly argues that the proposal does not meet the applicable buffer

standard. See Ordinance § 16.3.2.ll(D)(3)(c)(i) ("A vegetated landscape planter strip

must be provided a minimum of thirty (30) feet in depth adjacent to the right of way of all

public roads . ...") Balano argues the Board unlawfully conditioned approval upon the

planting and maintenance of trees along a strip within a Maine Department of

Transportion (MaineDOT) right-of-way.

This argument misconstrues the condition imposed and the consequences should

the MaineDOT object to additional plantings. The Board conditioned approval as

follows: "The existing vegetated area within the Route 1 right of way will be planted with

additional trees if MaineDOT provides permission. In the event the permission is not

obtained the 30 foot wide reserve buffer area must be nlanted nrior to the nronosed

.1. .L J.. .1.

development's completion." (R. 13.) Thus, if MaineDOT denies the request to plai1t

additional vegetation buffer along the strip, the applicant has set aside an additional thirty

feet of buffer area that will be planted, in accordance with a site plan submitted to the

Board. (R. 46.)

The Board properly imposed a valid approval condition that will ensure

compliance with the buffer standard. Belano's challenge on this point lacks merit.

III. Conclusion

The Board's decision properly interpreted and applied the applicable ordinance

standards and was supported by substantial evidence. The appeal will be denied and the

decision will be affirmed.

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The entry shall be:

The petitioner' s Rule 80B appeal is DENIED. The decision of the Town

of Kitt ery Planning Board is AFFIRMED.

SO ORDERED.

DATE: May LL,2016

John O'Neil, Jr.

Justice, Superior Court

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