York v. Town of Ogunquit
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MAINE SUPREME JUDICIAL COURT	Reporter of Decisions
Decision:	2001 ME 53
Docket:	Yor-00-392
Argued:	December 13, 2000
Decided:	April 4, 2001

Panel:WATHEN, C.J., and CLIFFORD, RUDMAN, DANA, SAUFLEY, ALEXANDER, and
CALKINS, JJ.

CHARLES T. YORK et al.

v.

TOWN OF OGUNQUIT et al.

CLIFFORD, J.

	[¶1]  Charles T. York and others{1} (York) appeal from a judgment
entered in the Superior Court (York County, Fritzsche, J.) affirming the
Ogunquit Planning Board's approval of Robert Young's final subdivision plan. 
York challenges Young's standing, the Planning Board's authority to grant
waivers of ordinance provisions, the sufficiency of the findings of fact issued
by the Board and the sufficiency of the evidence on which those findings
were based, and the Board's approval of the plan without compliance with
subdivision requirements.  Although we are convinced of Young's standing
and the sufficiency of both the evidence and the findings of fact, we vacate
the judgment and remand for the limited reasons that are stated below.
	[¶2]  In July of 1998, Robert Young sought approval from the Ogunquit
Planning Board for the development of a thirty-nine lot subdivision, the
Windward Subdivision.  At the time, Young's interest in the property
consisted of his right to purchase the property pursuant to two purchase
and sale agreements.  Young has since purchased both parcels and conveyed
title to a limited liability company, but does continue to hold a mortgage
interest in both parcels.{2}  
	[¶3]  The Board met and discussed the plan for the subdivision
numerous times between August of 1998 and June of 1999.  The Board held
two public hearings and conducted one site review.  Abutters participated in
both public meetings and voiced various concerns.  On June 21, 1999, the
Board voted to accept and approve the final plan for the subdivision on three
conditions, one of which was the condition that "the developer will discuss
bonding requirements with the Town Manager." 
	[¶4]  The Board later issued twelve pages of findings of fact approving
Young's application.  Included in its approval were waivers of five Ogunquit
Subdivision Standards requirements and one Ogunquit Zoning Ordinance
requirement discussed at many of the meetings:  a thirty-two foot road
width requirement, a six percent road grade requirement, a cul-de-sac dead
end street design requirement, a two street connections requirement, and a
five foot sidewalk width requirement.{3}  The Board disclosed the lengthy
considerations underlying each waiver.{4}  Finally, the findings included the
statement that Young had not demonstrated a legal interest in the property. 
At a subsequent Board meeting on May 22, 2000, the findings of fact were
amended to fix a "clerical error" by removing the word "not" from the
statement that Young had not demonstrated an interest in the property. 
Thus, the Board found that Young did have a legal interest in the property
for the proposed subdivision.
	[¶5]  On July 16, 1999, York filed a complaint in the Superior Court
for review of the Board's decision pursuant to M.R. Civ. P. 80B.{5}  The
Superior Court affirmed the Ogunquit Planning Board's approval of Young's
subdivision plan, and this appeal by York followed.
	[¶6]  Because the Superior Court acted in an appellate capacity, we
review the decision of the Planning Board directly for "error of law, abuse of
discretion or findings not supported by substantial evidence in the record." 
Sproul v. Town of Boothbay Harbor, 2000 ME 30, ¶ 8, 746 A.2d 368, 372
(quoting Veilleux v. City of Augusta, 684 A.2d 413, 415 (Me. 1996)). 
Substantial evidence is "evidence that a reasonable mind would accept as
sufficient to support a conclusion."  Id.  We may not substitute our own
judgment for that of the Board.  Brooks v. Cumberland Farms, Inc., 1997 ME
203, ¶ 12, 703 A.2d 844, 848. 

	I.

	[¶7]  York first contends that Young lacked the requisite standing to
pursue a development application before the Board because he had no
interest in the property he proposed to develop.{6}  To have standing, that is,
a sufficient personal stake in the outcome of a case, a party must have a
"right, title or interest" in the property he or she seeks to develop.  Halfway
House, Inc. v. City of Portland, 670 A.2d 1377, 1381.  Although the initial
findings of fact by the Board indicated that Young did not have standing to
pursue his development application, that finding was the result of a clerical
error and was amended by the Board.  	
	[¶8]  Furthermore, various title documents submitted at oral argument
clearly resolve the standing issue in favor of Young.  Although gaps in his
interest do appear in the form of short lapses in the agreements to extend
the closing dates for the purchase and sale agreements, these temporary
gaps appear only at noncrucial points in this litigation.  At all crucial
times-the submission of Young's plan to the Board, the plan's approval by
the Board, the issuance of the Superior Court's decision, and the argument
before us-Young's "right, title or interest" has been clearly established.
II.
	[¶9]  Relying principally on Perkins v. Town of Ogunquit, 1998 ME 42,
709 A.2d 106, York contends that the waivers granted by the Board were
actually impermissible variances that the Planning Board had no authority to
grant and that must instead be approved by the municipal Zoning Board of
Appeals.  In Perkins, a landowner was denied a variance from the seventy-
five-foot lot frontage requirement of the Ogunquit Zoning Ordinance by the
Ogunquit Board of Appeals because he could not establish undue hardship.{7} 
Perkins, 1998 ME 42, ¶ 4, 709 A.2d at 107.  Three weeks later, the
landowner requested and was a granted a waiver of the same requirement by
the Ogunquit Planning Board.  Id.  We held that the waiver was invalid
because it circumvented zoning requirements by functioning as a variance
granted in the absence of a finding of undue hardship.{8}  Id. ¶ 12, 709 A.2d
at 110.  We also noted that the Planning Board is without power to grant
such a variance because of "the Legislature's express and implicitly exclusive
grant of variance-granting authority to boards of appeals."  Id. ¶ 9, 709 A.2d
at 108.  Thus, only the board of appeals is vested with the authority to grant
a variance of zoning ordinance provisions.
	[¶10]  In this case, however, the waivers granted by the Board for four
of the five requirements-the sidewalk width, cul-de-sac street end design,
road grade, and street connections requirements-are waivers of Ogunquit
Subdivision Standards alone.  This is unlike the situation in Perkins, where
the Board purported to waive an Ogunquit Zoning Ordinance provision.  See
id. ¶ 4, 709 A.2d at 107.  The Planning Board does have the authority to
waive strict application of Subdivision Standards in certain circumstances,
on a Board finding of extraordinary and unnecessary hardship or because of
the special circumstances of a plan.{9}  The record is replete with evidence
that there are special circumstances associated with Young's plan
necessitating these four waivers.  This is true even though some of the
rationale for the waivers could apply to any plan.  For example, the steepness
of the property caused significant concerns regarding stormwater runoff and
retention, and resulted in the Board permitting a seven rather than a six
percent road grade.  The waivers also operate to preserve more of the
natural features of the property, which is aesthetically desirable, and better
for the environment because they reduce the impact on clam beds and
vegetation.  The waivers also are beneficial in reducing the property's
potential flooding problems.  Four of the waivers were therefore granted by
the Board pursuant to its authority under State statute and municipal
ordinance.  These four waivers were based on substantial evidence of special
circumstances as is required by the Subdivision Standards.  
	[¶11]  The remaining fifth requirement, however, that streets must be
thirty-two feet in width, is mandated not just by the Subdivision Standards,
but also by Ogunquit Zoning Ordinance itself, which provides, ". . . paved
traveled surface shall be at least 32 feet in width."  Ogunquit, Me., Ogunquit
Zoning Ordinance § 10.2(B)(3) (Apr. 5, 1999).  See supra note 3.  This
requirement is limited to "collector streets," defined in the Zoning
Ordinance as, "Any street that carries the traffic to and from the major
arterial streets to local access street, or directly to destinations or to serve
local traffic generators."  Ogunquit, Me., Ogunquit Zoning Ordinance § 2
(Apr. 5, 1999).  At least one of the street width waivers granted by the Board
was for a collector street; in fact, the Board's findings of fact specifically
state, "The Board approved the requested waiver from 32 feet to 24 feet
from the collector road, Windward Way . . . ."  Therefore, in granting Young a
waiver of the thirty-two foot street width requirement, the Board has
granted Young a waiver of a provision mandated by the Ogunquit Zoning
Ordinance.  This is impermissible.
	[¶12]  Although the Board may waive Subdivision Standards
requirements, it is not granted the authority to waive Zoning Ordinance
provisions.  This is the basis of our holding in Perkins, that Zoning
Ordinance provisions are specifically subject to the variance analysis
mandated by state statute in 30-A M.R.S.A. § 4353(4) (Supp. 2000). 
Perkins, 1998 ME 42, ¶ 12, 709 A.2d at 110.  Thus, deviation from Zoning
Ordinance provisions may be obtained only when the requisite finding is
made by the Zoning Board of Appeals.  There is no dispute that the Board of
Appeals made no such finding in this case.  The Planning Board's grant of a
waiver of the street width requirement, therefore, was beyond its authority.
	[¶13]  The Board's waiver of the street width requirement is the only
waiver that was erroneously granted.  This error does not require the
disapproval of Young's plan in its entirety, but only that limited portion of
the plan that violates the street width Zoning Ordinance requirement.  In
vacating the Superior Court judgment, we remand for compliance with the
Ogunquit Zoning Ordinance requirement of a thirty-two foot road width on
the collector street or streets, or for the Board of Appeals to consider a
variance of the street width requirement for Young pursuant to 30-A
M.R.S.A. 4353(4) (Supp. 2000) and the Ogunquit Zoning Ordinance §
5.2(B)(2).{10}

III.

	[¶14]  York also contends that the twelve pages of findings of fact
issued by the Board regarding the five waivers as well as the criteria for
subdivision approval enumerated in 30-A M.R.S.A. § 4404 (1996 &
Supp 2000){11} are both inadequate and based on insufficient evidence
pursuant to 1 M.R.S.A.