Arundel Lodge76 v. Town of Kennebunkport

STATE OF MAINE SUPERIOR COURT

YORK, SS. Civil Action

Docket No. AP-16-0017

ARUNDEL LODGE #76, A. F. & A. M.,

Plaintiff

V. DECISION AND ORDER ON

PLAINTIFF'S RULE SOB APPEAL

TOWN OF KENNEBUNKPORT,

Defendant.

Before the court is Plaintiffs appeal from a decision by the Town of

Kennebunkport Planning Board denying a site plan review application with

respect to a proposed change of use of property. For the following reasons, the

Planning Board's decision is vacated and the case is remanded for further

proceedings consistent with this decision and order.

Background

Plaintiff Arundel Lodge #76, A. F. & A. M., ("Lodge") is the owner of

property located at 10 North Street in Kennebunkport, Maine. The property is

located in the town's Village Residential Zone, and is in close proximity to the

Dock Square Zone, a separately identified commercial zone by the town's Land

Use Ordinance ("LUO" or "Ordinance"). Record ("R") 4, 14, 45. This case

involves a dispute over the Lodge's proposed changed use of five parking

spaces in its parking lot.

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In October 1993, the Kennebunkport Planning Board approved the

Lodge's application for site plan review that sought permission to construct a

gravel parking lot on the property behind the lodge. The Planning Board's

1993 decision found that use of the parking lot "will be restricted to Lodge

functions and possibly to overflow for South Church functions ." R. 1. Further,

the Board found: "The applicant indicated that the Lodge did not intend to

'lease' spaces or in any other way generate revenue from parking." Id. The

Board approved the proposed use subject to a number of conditions. Condition

4 provided: "No public parking may be permitted, nor may parking spaces be

'leased' or otherwise made available for uses other than those described in

Condition 3." R. 3. 1

On November 16, 2015, Plaintiff filed an application for site plan review

for a partial change in use of the parking lot. The application requested that

the Lodge be relieved from Condition 4 in the 1993 decision so that it could

"designate five parking places on its property on an annual rental subscription

basis to local business owners from Memorial Day to Columbus Day." R. 6.

The application stated that this proposal was "not for a public parking lot" but

rather for the limited purpose of renting five parking spots on a seasonal basis

to business owners as a means of generating funds for maintenance and

upkeep of the lodge. Id. No other changes in the 1993 decision were

requested.

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Condition 3 required installation of security features to "prevent use of the parking lot

except for Arundel Hall functions or for South Church overflow." R. 3.

2

The Planning Board reviewed the Lodge's application on March 2, 2016,

and deemed it complete. R. 8-10.

The Board held a hearing on March 16, 2016, and voted to deny the

application. R. 12-13.

On April 6, 2016, the Board issued its Findings of Fact and Decision on

the application. Among its findings were the following:

• "The proposal is not for a parking lot."

• Referring to the 1993 decision: "In an approval of a previous

application (dated October 27, 1993) a specific condition was

placed on the Lodge and the use of the lot."

• "The Applicant seeks to be relieved from that restriction, namely

condition #4 contained in the Planning Board decision in its

Findings of Fact dated October 27, 1993 and revised November 10,

1993."

• "At the public hearing on March 16, 2016 an abutter to the

Arundel Lodge raised several concerns ...."

• The Board's "actions regarding this application would not set a

precedent (each application being unique)"

• "[T]he application did not constitute a commercial parking lot

under the LUO"

• "While there are larger concerns about parking in Kennebunkport,

they are outside the purview of the Planning Board"

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• "[T]here is not sufficient evidence or clarity under the LUO to

compel the Planning Board to overturn the prior condition (#4) set

by the Planning Board in 1993."

See R. 2.

The Board concluded as follows: "The Board found no compelling

rationale or evidence, nor any clear mandate under the current LUO, to justify

relieving the Applicant of the Conditions contained in the 1993 Planning Board

Findings of Fact, specifically Condition #4." Accordingly, "the Site Plan

Application identified above is hereby: Disapproved." Id.

On April 14, 2016 Plaintiff timely filed its complaint for review under

M.R. Civ. P. Rule SOB. The complaint alleges that the Board's decision

committed errors of law; was not supported by substantial evidence; and was

arbitrary and capricious. (Compl. ,r 13.) Plaintiff filed its brief on May 24,

2016, and Defendant filed its brief on July 1, 2016. Plaintiff filed its reply brief

on July 20, 2016. Hearing was held on November 9, 2016.

Conclusions

Interpretation of a zoning ordinance is a question of law, and a Board's

interpretation of its own ordinance is subject to de nova review. Jordan v. City

of Ellsworth, 2003 ME 82, ,r 9, 828 A.2d 768; Isis Dev., LLC v. Town of Wells,

2003 ME 149, ,r 3, 836 A.2d 1285. In interpreting an ordinance, the court

looks to the plain meaning of the language, and if the meaning is clear need

not look beyond the words themselves. Wister v. Town of Mount Desert, 2009

ME 66, ,r 27, 974 A.2d 903.

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The Lodge sought Planning Board review and approval for a proposed

change of use of its property, specifically its use of five parking spaces in the

parking lot adjacent to its building on North Street. The Ordinance requires in

Section 10.2.A.3 that a "change of any existing use" undergo site plan review

by the Planning Board. R. 60. The Ordinance provides in Section 10.10.A. l

that the Planning Board "shall approve an application for Site Plan Review

unless it m~es one or more of the following written findings with respect to

the proposed development," and then lists 16 specific findings, any one of

which, if found, can serve as a basis for denying the application. R. 70-71.

Although Defendant's brief in this appeal advances arguments related to these

findings, the Board's decision itself is not based on the existence of any one of

these findings. R. 14-15.

Instead, the Planning Board applied a different standard-that there was

"no compelling rationale or evidence, nor any clear mandate under the current

LUO to compel the Planning Board to overturn the prior condition (#4) set by

the Planning Board in 1993." R. 72. The Ordinance, however, does not provide

for such a standard of review.

The Town argues on appeal that the Board considered the 2015

application for site plan review in the context of its earlier conditional approval

of the 1993 application; and that Plaintiffs application for site plan review in

2015 was barred by res judicata because .the Board expressly prohibited the

leasing of parking spaces in its conditional approval of Plaintiffs 1993

application. R. 3.

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The common law doctrine of res judicata prevents parties from re­

litigating claims that were already tried, or that could have been tried, in a

previous suit on the same cause of action. Town of Ogunquit v. Cliff House &

Motels, Inc., 2000 ME 169, ,r 10, 759 A.2d 731 (quoting Blance v. Alley, 1997

ME 125, ,r 4, 697 A.2d 828). Specifically, resjudicata applies when:

(1) the same parties or their privies are involved in both actions; (2)

a valid final judgment was entered in the prior action; (3) the

matters presented for decision in the second action were, or might

have been, litigated in the first action . . . ; and (4) both cases

involve the same cause of action. The doctrine may apply to bar a

second cause of action even where the legal theories, relief sought,

and evidence submitted may differ from those which were asserted,

sought, and submitted in the first cause.

Id. (quoting Goumas v. State Tax Assessor, 2000 ME 79, ,r 5, 750 A.2d 563).

The doctrine applies to administrative proceedings so long as the

proceedings include the "essential elements of adjudication." Town ofBoothbay

u. Jenness, 2003 ME 50, ,r 20, 822 A.2d 1169. The Board's 1993 decision was

a final decision involving the same parties. The issue of leasing parking spaces

in the lot apparently was not actually "litigated," though Plaintiff presumably

would have had the opportunity to do so had it been seeking permission to

lease spaces (which, apparently, it was not). The extent to which there was any

record relating to such issue is unclear. R. 1. Nor is it clear for purposes of a

res judicata analysis that the "cause of action" is the same. For example,

among the factors the court considers in making this determination is whether

the facts underlying the two cases are "related in time." Lewis v. Me. Coast

Artists, 2001 ME 75, ,r 10, 770 A.2d 644. The Board's prior decision predates

Plaintiff's 2015 application by more than 20 years.

6

Defendant argues that Plaintiff must show a substantial change of

condition between the 1993 and 2015 applications in order to avoid the

application of res judicata. See Silsby u. Allen's Blueberry Freezer, Inc., 501

A.2d 1290, 1295 (Me. 1985). Silsby, however, stands for the proposition that a

board of zoning appeals "may not entertain a second application concerning the

same property after a previous application has been denied, unless a

substantial change of conditions had occurred or other considerations

materially affecting the merits of the subject matter had intervened between the

first application and the subsequent application." Id. (emphasis added) . This

case, however, does not involve a situation in which an unsuccessful applicant

seeks another review shortly after denial of a previous application. See, e.g.

Silsby, 501 A.2d 1292 (Second application for building permit filed within

months after denial of first application); Driscoll u. Gheewalla, 441 A. 2d 1023,

1027 (Me. 1982) (Second application for variance filed less than one month

after denial of first barred by terms of Ordinance and principles of res judicata).

Plaintiffs previous application was granted (but with an added condition

addressing a matter not requested).

Condition 4 in the 1993 decision, as well as the reasons for its inclusion

therein and any changed circumstances since, certainly are relevant to the

Board's consideration of Plaintiffs 2015 application. However, Plaintiffs 2015

site plan review application should be evaluated on the basis of relevant

current facts and circumstances to determine whether or not it meets the

Ordinance's stated criteria. If the Board denies the application, its decision

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should articulate specifically the findings that support its denial with respect to

said criteria. The Board's April 6, 2016 Findings of Fact and Decision did not

do so.

Order

In accordance with the foregoing, the decision of Defendant Town of

Kennebunkport's Planning Board is VACATED. This case is REMANDED for

further proceedings consistent with this decision and order.

The clerk may incorporate this order upon the docket by reference

pursuant to Rule 79(a) of the Maine Rules of Civil Procedure.

SO ORDERED.

DATE: February 17, 2017

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