The opinion
STATE OF MAINE SUPERIOR COURT
CUMBERLAND, ss. CIVIL ACTION
DOCKET NO. AP-23-08
JENNIFER L. BRIDGE,
Plaintiff,
v.
CITY OF WESTBROOK, ORDER ON 80B APPEAL
Defendant,
and ACRE PROPERTIES,
Party-in-interest.
Before the Court is Plaintiff Jennifer L. Bridge’s appeal pursuant to Maine Rule of
Procedure 80B.
FACTUAL BACKGROUND
This litigation concerns the City of Westbrook Planning Board’s (the “Board”) approval of
a subdivision plan. On July 1, 2022, ACRE Properties, LLC (“ACRE”) submitted an application
to the City for site plan and subdivision approval for a nine-unit apartment building on Conant
Street. (R. T.1, p.1.)! The proposed building is a three-story structure with a footprint of 4,296
square feet and a height of 44 feet. (R. T.1, p.1-2.) The lot is located in the City Center zoning
district CCD”) and is also subject to the Village Review Overlay zoning district (““VROZ”), (R.
T.1, p.2.) Plaintiff owns an abutting property. (Compl. at 5.)
' The record submitted by Petitioner is not consecutively paginated. [t is organized by tabs, some of which contain
numbered pages. When citing to the record, the Court will, wherever possible, indicate both the tab (“T.”} and the
page number (“‘p.”) within that tab where the supporting information is located.
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After receiving ACRE’s application, the Board held a neighborhood mecting (R. T.2), a
Board workshop (R. T.4), a site walk (R. T.6), and a meeting with the City’s VROZ committee.
(R. T.7.) As a result of feedback it received from the Board and the community, ACRE made
changes to the design of the building and its placement within the lot. (R. T.7.) ACRE submitted
a revised site plan on January 4, 2023. (R. T.8, p.1.) The Board held a public hearing on ACRE’s
revised site plan on January 17, 2023, and it voted unanimously to approve the revised site plan
and subdivision application. (R. T.13, pp.38-44.) The Board provided written notice of its decision
to ACRE on January 18, 2023. (R. T.14, p.L.) Plaintiff filed this Rule 80B appeal with the Superior
Court on February 14, 2023.
80B STANDARD OF REVIEW
In Rute 80B appeals, the court’s review of municipal decisions is deferential and limited.
The court reviews the municipal decision below for errors of law, abuse of discretion, or findings
not supported by the evidence. Aydelott v. City of Portland, 2010 ME 25, { 10, 990 A.2d 1024.
The party seeking to vacate the decision has the burden of persuasion. Friends of Lamoine v. Town
of Lamoine, 2020 ME 70, § 20, 234 A.3d 214.
DISCUSSION
Plaintiff first argues that the Board erred in its interpretation of the VROZ criteria relating
to building scale and height. Specifically, Plaintiff contends that at 3.5 stories and approximately
44 feet tall, the proposed building is not compatible with the adjacent 2.5 story properties, which
ate 31 to 32 feet tall. “Although interpretation of an ordinance is a question of law, [the court}
accord{s] substantial deference to the Planning Board’s characterizations and fact-findings as to
what meets ordinance standards.” Wolfram v. Town of North Haven, 2017 ME 114, 4 15, 163 A.3d
835 (quoting Bizier v. Town of Turner, 2011 ME 116, 4 8, 32 A.3d 1048),
Here, as noted above, the location of the proposed building falls within the CCD, which
has no minimum lot size or setback requirements and no maximum building heights.? (R. T.25,
p.2, § 335-5.1(C).) The VROZ, which applies to multiple zoning districts, provides that “the scale
of a building must be compatible with adjacent properties and buildings in its neighborhood,” and
that “[w]hile maintaining a particular height is not required, changes in height must be compatible
with the streetscape, adjacent buildings and the neighborhood.” (R. T. 26, p.3, § 335-7. 1(E).)
The Board determined that the proposed building satisfied the VROZ visual factors, finding
as follows:
The proposed structure is located within an established neighborhood that is
comprised with a mix of newer and older structures with a predominantly New
England style architecture. The structure is a rectangular building with the narrow
side oriented as the “front” of building, consistent with a direct abutter and other
structures along Conant St. A covered front porch is incorporated into the front
facade and building materials/colors were chosen to be consistent with the
neighborhood/New England architecture. Window size and placement is varied to
create a residential character. To lessen the appearance of scale the building
structure is positioned at a location that provides a minimum 75° separation from
the closest abutting residential structure and provides multiple gable peaks to soften
the height of the structure.
The record supports the Board’s findings as to the visual appearance of the proposed building. The
architectural style and aesthetic appearance of the proposed building blends with the adjacent
structures. (R. T.8, Attachments 1, 3.)
As for the size of the proposed building, the CCD and VROZ ordinances are clear that new
buildings need not be identical in scale and height to adjacent buildings in order to be compatible.
Here, the proposed building is not a skyscraper; it is a small apartment building only one story
higher than the adjacent structures. Although it is larger in scale than the adjacent structures, the
* The CCD zoning ordinance provides: “The purpose of the City Center Zoning District is to create a flexible
atmosphere for the return of the Downtown to a prominent regional service center.” (R. T.25, p.f, $ 335-5.1.) Uses
permitted in the CCD as a matter of right include, amongst others: multi-family dwellings, business offices, banks,
restaurants, museums, hotels, and medical] and educational facilities. (Id. at pp.f-2, 5.1(A)}
3
setback visually reduces the significance of the deviation, and the Court accords substantial
deference to the Board’s conclusion that the scale and height of the proposed building meet the
VROZ compatibility standard. Wolfram, 2017 ME 114, 915, 163 A.3d 835.
Plaintiff further argues that the Board erred by considering the scale and height of buildings
on other streets within the CCD in its compatibility analysis, Plaintiff contends that those buildings
are not in the “neighborhood,” and states: “The fact that taller buildings exist elsewhere in the City
Center zone is not relevant when approving the specific building project.” (Compl. at 23.) The
Court is not persuaded that “neighborhood” should be so narrowly construed under the applicable
ordinances as to relate to Conant Street alone. However, even were it so, there would still be
support in the record for the Board’s finding of compatibility. (R. T.8, Atachment 3.)
Finally, to the extent that Plaintiff also argues that the Board erred in identifying Conant
Street as being part of the Downtown District, no such language appears in the Board’s findings.
Plaintiff appears to be referencing a single ambiguous comment made by one Board member in
the January 17, 2023 hearing. (R. T.29, p.37.) This does not constitute a finding of the Board, nor
does it appear to have had any effect on the Board’s findings, which clearly indicate that the
proposed building will be located within the CCD.
In sum, the Court discerns no errors or abuse of discretion by the Board, and the Board’s
findings are supported by the record. Accordingly, Plaintiff's appeal is denied.
Entry is:
Plaintiff Bridge’s appeal pursuant to Rule 80B is Denied. The clerk is directed to
incorporate this order into the docket by reference pursuant to M.R. Civ. P. 79{a).
Dated: ~~] \4 3 /\ Q
John O° NOt. 1 Jr.
Justice, Maine Superior Court
Entered on the Docket: 7/ 19/ 023