# Calpine Corporation v. City of Westbrook

> Superior Court of Maine · October 10, 2018

URL: https://www.frixlaw.com/law-library/cases/10811561

## Case

- **Court:** Superior Court of Maine
- **Decided:** October 10, 2018
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Judges:** Andrew M. Horton
- **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/10811561

## How later opinions describe it (automated extraction)

- holding that the Board's denial of a project would not be overturned even though the Board's decision was contradicted by expert opinions on the record

## Opinion text

STATE OF MAINE SUPERIOR COURT

Cumberland, ss.

CALPINE CORPORATION and
WESTBROOK ENERGY CENTER, LLC

Plain tiffs-Appellants

V. Docket No. PORSC-AP-18-012

CITY OF WESTBROOK,
Of MAINE
STATE Cler\,'s omce
Defendant-Appellee cumber\and, ss.

OCT ' ' 2018
\O'·'"\~~-- •
and
RECE\VED
IDEXX LABO RA TORIES, INC. and
IDEXX REAL ESTATE HOLDINGS, LLC

Parties-in-interest

DECISION AND JUDGMENT

This case presents an appeal pursuant to M.R. Civ. P. BOB by Plaintiffs Calpine

Corporation("Calpine") and Westbrook Energy Center, LLC ("WEC") from the

Westbrook Planning Board's approval of a site plan application filed by Party-in­

interest Idexx Laboratories, Inc. regarding property owned by Party-in-interest

Idexx Real Estate Holdings, LLC.

Oral argument on the appeal was held October 1, 2018, after which the court

took the case under advisement. Because the challenged approval decision was based

on substantial evidence and not on any errors oflaw or abuse of discretion, the court

affirms the decision and denies this appeal.
Factual Background

Plaintiffs Calpine and WEC are Delaware corporations conducting business in

the State of Maine. (Pl.'s Compl. ~ ~ 2-S.) WEC is an affiliate of Calpine. (Pl.'s

Compl. ~ 4.) Calpine operates a natural gas-fired combine-cycle energy generation

facility in Westbrook, Maine on a parcel of land owned by WEC (the "Calpine

Facility"). (Pl.'s Compl. ~ ~ 9-10.)

IDEXX Laboratories Inc. ("IDEXX") is a Delaware corporation that operates

a facility in Westbrook, Maine north of the Calpine Facility (the "IDEXX Facility").

(Pl.'s Compl. ~~ 6, 8.) The facility is located on land owned by IDEXX Real Estate

Holdings, LLC and land which is leased from Central Maine Power ("CMP"). (Pl.' s

Compl. ~~ 8, 24).

The City of Westbrook ("Westbrook" or the "City") is a municipality located in

Cumberland County, Maine. (Pl.'s Compl. ~ 5.) Westbrook's City Code subjects

certain site plans and subdivision plans to be reviewed and approved by the Westbrook

Planning Board (the "Board"). Westbrook, Me., Land Use Ordinances§ 204.1.

In February of 2018, IDEXX met with the Board to begin the process of

acquiring Board approval for a new road and a series of parking lots that IDEXX

planned to construct in between the IDEXX Facility and the Calpine Facility. (R.

453-55.) On February 6, 2018, the Board and IDEXX held a workshop to discuss the

site plan. (R. 476-81.) IDEXX submitted a formal plan to the Board in March and

held a walkthrough of the site on March 17, 2018. (R. 456.)

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On April 3, 2018, the Board held a public hearing to discuss IDEXX's new road

and parking lot expansion. (R. 490.) During this hearing a Calpine representative

raised concerns that this project may affect Calpine's security procedures on its

property. (R. 487-88.) The Calpine representative also stated that Calpine had

superior rights to the road and that Calpine's access rights must not be interrupted.

(R. 488.) After listening to all comments at the hearing, the Board concluded that

Calpine's concerns were private matters that should be resolved between Calpine and

Idexx, rather than resolved by the Board. (R. 490.) The Board approved IDEXX's

site plan unanimously and adopted a March 30, 2018 memo as its findings of fact,

conclusions, and conditions of approval. (R. 492-94.)

Procedural History

Calpine and WEC filed this appeal pursuant to M.R. Civ. P. 80B on May 2,

2018. Their complaint contained three counts. Count I claims that the Board's finding

that the IDEXX site plan would not negatively impact the City's safety services was

not supported by evidence. Count II claims the record fails to show that IDEXX held

sufficient right, title, and interest in the roadways to conduct its projects. Count III

claims the Board's finding that the project site is "adequate" is not supported by the

record and fails to meet the required review criteria stated in the Westbrook Land Use

Ordinance. (Pl.'s Compl. , , 97-102.) Calpine asks the court to remand the case to

the Westbrook Planning Board for further findings and, possibly, further taking of

evidence.

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Plaintiffs filed their brief on June 20, 2018. Their brief did not address the claim

in Count III of the complaint, so that issue is deemed waived. Their brief did address

the claims in Counts I and II. The parties-in-interest filed a brief in opposition on

July 27, 2018. Defendant City of Westbrook filed its brief on July 30, 2018. The

Plaintiffs-Appellants filed a reply brief on August 16, 2018.

Discussion

I. Standard of Review
r
A court reviews planning board decisions for errors oflaw, abuse of discretion,

or findings not supported by substantial evidence in the record. Sproul v. Town ef

Boothbay Harbor, 2000 ME 30. ,8, 746 A.2d 368.

A board's findings must be supported by substantial evidence in the record. For

purposes of a Rule 80B appeal, "substantial evidence" is "such relevant evidence as a

reasonable mind might accept as adequate to support a conclusion." Gorham v. Cape

Elizabeth, 625 A.2d 898, 903 (Me. 1993) (quoting Hrouda v. Town if Hollis, 568 A.2d

824, 826 (Me. 1990)). If the record contains evidence that reasonably supports the

Board's findings, "the fact that the record contains inconsistent evidence or

inconsistent conclusions could be drawn from the evidence does not invalidate the

Board's holding." Herrick v. Town ef Mech. Falls, 673 A.2d 1348, 1349-50 (Me. 1996)

(quoting Boivin v. Town ifSanford, 588 A.2d 1197, 1199 (Me. 1991)).

The court may not substitute its judgment for that of the board. Tarason v.

Town efS. Berwick, 2005 ME 30, , 6, 868 A.2d 230. The findings of the Board must

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be upheld unless Calpine can demonstrate that "no competent evidence supports the

[Board's] conclusions." Adelman v. Town cfBaldwin, 2000 ME 91, ~ 12, 750 A.2d 577.

II. Preservation of Argument Regarding Public Safety Service Impact.

As a threshold matter, the Defendant City contends that Calpine failed to

preserve the issue of whether the Board adequately considered the impact on public

safety services for appellate review. (Def.'s Br. S-5.) Calpine contends it did preserve

the issue for appellate review. (Pl.'s Reply Br. 6-10.)

To preserve an issue for appeal, a party must raise the objection before the

adjudicating authority in a manner that allows the adjudicating authority to address

the issue initially, before the issue is addressed on appeal. See Wells v. Portland Yacht

Club, 2001 ME 20, ~ 5, 771 A.2d S 71. A party is deemed to have raised and preserved

an objection if "there was a sufficient basis in the record to alert the [board] and any

opposing party to the existence of that issue." Brown v. Town cf Starks, 2015 ME 47,

16, 114 A.sd 100s.

On this question, the court agrees with Calpine. Calpine voiced concerns about

the possibility that the new road would create a strain on public safety services to the

Board and IDEXX during the Public Hearing on April S, 2018. (R. 487-88.) ("there

are stiff penalties for not complying with [the] monitoring guidelines and whenever

there is suspicious activity, local law enforcement is alerted."). Additionally, the Board

considered the issue before making a final decision, clearly indicating that the Board

took notice of the issue. (R. 490.) ("The only issue that was not resolved is the Calpine

issue.").

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III. Adequacy of Board's Finding on Public Safety Service Impact.

Calpine asserts that no factual findings supported the Board's determination

that the IDEXX site plan would not hinder the City's ability to provide public safety

services. (Pl.'s Br. 9.) Calpine's Rule 80B complaint claims that Calpine's security

gate is within SO feet of the newly approved road leading to the new ldexx parking

lots-so close that Calpine may have to call the Westbrook police or federal

authorities whenever a car comes up Calpine Drive to turn right onto the new road­

possibly resulting in hundreds of calls a day to the police. This articulation of

Calpine's concern is much more specific than the general security concern that Calpine

expressed at the Planning Board hearing.

In any event, it is important to note that the public safety issue that Calpine

contends should have been investigated and resolved by the Planning Board is not

presented or raised by any particular aspect ofldexx's proposed project, but instead is

presented and raised by how Calpine claims it may respond to the project.

At issue in this case is whether the Board's determination that ldexx's proposal

did not present a negative impact on the City's safety services was supported by

"substantial evidence." See (Pl.'s Compl. ~ ~ 97-102.)

The court concludes that the Board properly and adequately considered

whether the IDEXX site plan would impact public safety services and that its decision

was supported by "substantial evidence." Prior to approving the project, the Board

had conducted a workshop on February 6, 2018, a site walkthrough on March 17,

2018, and held a public hearing on April S, 2018. (R. 482-95.) During the February

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6 workshop the Board heard comments about public safety services aspects ofldexx's

proposal, including fire safety comments, (R. 476-77.), and police safety comments, (R.

478.)

Nothing in the Code compelled the Planning Board to take evidence on the

potential for ldexx's project to result in multiple calls to the police by Calpine. In

fact, the only evidence required by the Code on matters of public safety consists of

statements from the Fire Chief on fire safety issues and statements from the Police

Chief"relative to traffic circulation." City of Westbrook Code of Ordinances sec. 501

Subdivision Final Plan Submission Requirements (R. 513); id. sec. 504 Site Plan

Review and General Provisions (R. 531 ). The record before the Planning Board

included detailed comments by the Fire Chief and the Police Chief, with the Police

Chiefs comments focused on the traffic and parking aspects of the proposed project,

consistent with the Code. (R. 478).

The Board also heard substantial evidence during the public hearing about

traffic concerns and solutions from IDEXX's traffic engineer. (R. 484-86.) The March

30 Memo, that the Board adopted upon its approval of the plan, found that the

proposed plan would not negatively impact the City's ability to provide public safety

services. (R. 458.) This finding is clearly supported by "substantial evidence"

contained in the site plan application, the site walkthrough, and the testimony given

at the public hearing. See Adelman, 2000 ME 91, ,fl4, 750 A.2d 577 (finding that

testimony provided at a hearing constituted "substantial evidence"); Sproul, 2000 ME

30 ,f 9, 746 A.2d 368 (finding that a site visit constituted "substantial evidence").

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Calpine's argument that the Board did not properly consider whether public

safety services would be impacted due to the security concerns at Calpine's entrance

is incorrect. (Pls. Br. 11-12.) The record is clear that the Board did hear and consider

the concern (R. 487-88) and decided that the concern needed to be resolved between

Calpine and Idexx. (R. 490-91). See Sproul, 2000 ME SO. ~9, 746 A.2d 36 8

(determining that evidence in the record that contradicts the Board's finding does not

create a lack of "substantial evidence").

The Board also acted within its discretion in viewing Calpine's concern as a

private issue between abutting property owners that did not justify either denial of the

application or further investigation. Having heard Calpine's concern, the Board could

have found that the concern did not raise any question about a negative impact on

public safety services for purposes of the City Code, given that the public safety focus

of the Code provisions in question was on traffic and fire safety.

The Board acts as the fact finder and may weigh contradicting evidence.

Gorham, 625 A.2d at 903. See Adelman, 2000 ME 91, ~ 14, 750 A.2d 577 ("The Board

is not bound to accept any particular evidence as true; as fact-finder, it has the

obligation to determine credibility."). The Board was not required to investigate

every concern and create a factual record for every concern. See York v. Town ef

Ogunquit, 2001 ME 5S, ~ 14, 769 A.2d 172 ("[A]gencies are required to make written

factual findings sufficient to show the applicant and the public a rational basis of its

decision, the agency is not required to issue a complete factual record").

8
Calpine's position, in effect, is that the court should substitute its judgment for

that of the Planning Board and decide that the Board was compelled to investigate

further a public safety issue triggered, not by any aspect of the ldexx proposal, but by

Calpine's response to traffic. But the court cannot substitute its judgment for that of

the Board. Tarason, 2005 ME 30, , 6, 868 A.2d 230. Therefore, if, as is the case here,

when the Board's decision is one that a reasonable mind could reach based on the

record, the court will not overturn the Board's decision. See Gorham, 625 A.2d at 903

(holding that the Board's denial of a project would not be overturned even though the

Board's decision was contradicted by expert opinions on the record).

IV. Calpine's Claimed Superior Right of Access to Calpine Drive.

At the public hearing on April 3, 2018, Calpine voiced its concern that the

IDEXX Project may interfere with Calpine's easement over Calpine Drive. (R. 487.)

The Board considered this information, finding that Calpine Drive was a public street

and that the traffic impact associated with the project would not restrict Calpine's

access. (R. 490.)

Calpine argues on appeal that the Board could and should have made its

approval conditional upon the ldexx development not infringing Calpine's rights.

(Pl.'s Reply Br. 12.) However, the Board decided not to make this a condition on

approval. (R. 492-95.) There was ample "substantial evidence" contained in

!DEX.X's application that supported the Board's determination that the traffic

associated with IDEXX's project would not interfere with Calpine's ability to use or

access Calpine Drive. See (R. 170-205 .) Moreover, ldexx needed only to make a prima

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facie showing of its right of access over Calpine Drive. With that showing made, the

Board determined that the status ofldexx's right vis-a-vis Calpine's right was an issue

that should be settled privately between the parties, not by the Board. (R. 490.) A

contrary decision would have put the Planning Board in the inappropriate role of

adjudicating the parties' respective property rights in Calpine Drive.

Conclusion

For the foregoing reasons, it is ORDERED AND ADJUDGED AS

FOLLOWS:

1. The April 3, 2018 decision of the Westbrook Planning Board approving

Idexx Laboratories, Inc.'s site plan application is hereby affirmed.

2. The Plaintiffs' appeal is denied.

3. Judgment is rendered in favor of Defendant City of Westbrook against

Plaintiffs, with recoverable costs, see M.R. Civ. P. 54( d).

Pursuant to M .R. Civ. P. 79(a), the Clerk is hereby directed to incorporate this

Decision by reference in the docket.

Dated October 10, 2018
A. M. Horton, Justice

Entered on the Docket: 1o·11 · \ ~

10
Calpine Corporation, et al. vs. City of Westbrook, et al. PORSC-AP-18-012

Attorney for Plaintiff:

Jeff Selser, Esq.
Fletcher, Selser & Devine

Attorneys for Defendant:

Natalie Burns, Esq.
Mark Balfantz, Esq .
Jensen Baird Gardner Henry

Attorney for PII (IDEXX):

David Kallin, Esq.
Drummond Woodsum

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10811561. Public record. Not legal advice.