Opinion
AP-2019-026
02-04-2020
PHILIP E. ST. GERMAIN, and ELIZABETH B. ST. GERMAIN Petitioners v. TOWN OF CAPE ELIZABETH and MARY JUNE CASEY, and JEFFREY C. PREBLE, Respondents
ORDER ON PETITIONER'S 80B APPEAL
HAROLD STEWART II, SUPERIOR COURT JUSTICE
Before the Court is Petitioners' Rule 80B appeal of the July 24, 2019 decision of the Town of Cape Elizabeth Zoning Board of Appeals ("ZBA'' or "Board") approving a conditional use application for a permit to run a home day care at 9 Cannel View Road. Following the submission of the record and briefs in accordance with M.R, Civ. P. 80B(f) and (g), this matter is in order for this Court's decision.
I. Background
On June 17, 2019. Applicants mid Correspondents Mary Casey and Jeff Preble ("Applicants") submitted an application to the Board seeking a permit to run a home day care out of their home located at 9 Channel View Road, Cape Elizabeth. (R. L). An application for a conditional use permit in a Residence A District requires the applicant to satisfy each of the criteria set forth in the Town of Cape Elizabeth Zoning Ordinance ("Code"). §§ 19-5-5, 19-6-1, 19-8-8. (R. 63-74.) Section 19-5-5 requires, inter alia, the proposed use "will not adversely affect the value of adjacent properties." (R. 65); Code § 19-5-5(D)(4).
Petitioners Philip and Elizabeth St. Germain ("Petitioners") reside at a property adjacent to the Applicants proposed day care at 7 Channel View Road, Cape Elizabeth. (R. 27-29.) Prior to seeking an application, Applicants had been running their home day care out of 9 Channel View Road for the previous 12 years. (R. 25.)
On July 23, 2019, the Board held a hearing on the application. Prior to the hearing, the Code Enforcement Officer ("CEO") Benjamin McDougal sent a notice regarding the application to abutters of the Applicants' property. (R. 24.) CEO McDougal received concerns from three abutting neighbors and the application was brought before the Board. (R. 24.) At the public hearing, Applicants presented a PowerPoint presentation to the Board stating that they had met the criteria required for the issuing of a permit. (R. 24-26.) Several residents of Cape Elizabeth made public comments expressing support for the application, other residents, including Petitioners, voiced their concerns regarding the potential adverse effect the day care permit may have on their property values. (R. 26-29.)
After public comments, the Board members discussed their views on what were the most pertinent issues to decide upon before granting or denying the conditional use permit. (R. 29- 30.) The most prevalent concerns expressed by the Board were (1) traffic impact on Channel View Road; and (2) property values of adjacent properties being adversely affected by the noise of children. (R. 29-30.) Many of the Board members drew upon their knowledge when discussing these issues. (R. 29-30.) Board Member Kevin Justh stated:
I don't know that necessarily living near a day care is a positive. I don't know that it's a negative. I don't know it's a neutral. I know there have been home sales on Channel View, not of direct abutters from what I can see, and I'm not an expert in this. It doesn't appear to be have been impactful.(R. 107.) Board Member Colin Powers stated, "Once again, property values are really subjective and speculative. What someone could value in an abutting house is a (unintelligible). Because it has a day care, it may be a value to someone else. A working family with young children could find that a gain." (R. 109.) Board Chair Michael Vaillancourt concurred:
What sticks out to me is being probably the largest issue is -- is the effect of property values as I think we've all hit upon. And I agree that that could be viewed as a benefit by some....
I feel as though the applicant has proven that there's no adverse [e]ffect on property values based upon the fact that - - based upon the limitation of the scope of this. We've got a limitation of the scope of the timing, limited time during the day, during the business day, a really limited time frame when the children are outside, and the limited number of children.
And I'm not sure I would feel the same way if we were talking about 10 or 12 and 15 children.(R. 109.) To address these concerns the Board unanimously voted to adopt the following conditions on the approval of the application: (1) No additional lighting shall be added other than the lights above the garage door and the main entrance of the house; (2) outdoor play shall be fenced in by an attached fence; (3) pupils shall be between the ages of three and six; (4) outdoor activities shall be limited to the hours between 10:00 a.m. and 12:00 p.m.; (5) drop-off and pickup times shall be staggered by 15 minute increments and no more than three additional vehicles shall be present in the driveway at one time; (6) the Home Day Care may only be operated by a state licensed provider; (7) it shall be confirmed that the property is on public sewage lines; and (8) the CEO or Cape Elizabeth Fire Department may inspect the property once a year. (R. 30-33.) The Board unanimously approved the Applicants conditional use permit. Along with the approval the Board made the following additional findings of fact, inter alia, "[t]he proposed use will not adversely affect the value of adjacent properties" and "the applicant has demonstrated compliance with the requirements in Section 19-8-8(C) and 19-5-5 of the Zoning Ordinance." (R. 32.)
A Ninth proposed condition to limit the conditional use permit to the Applicants did not pass a Board vote. (R. 31.)
Petitioners filed their Rule 80B complaint on August 22, 2019. Petitioners filed their Rule 80B brief on October 2, 2019. Respondent Town of Cape Elizabeth ("Respondent Town") submitted its brief on December 5, 2019. Petitioners replied to Respondent Town's brief on December 18, 2019.
Corespondent Applicants adopted Respondent Town's brief on December 5, 2019.
II. Standard of Review
The decision of a fact-finding body in an 80B appeal is reviewed for errors of law, abuse of discretion, or findings not supported by substantial evidence. Aydelott v. City of Portland, 2010 ME 25, ¶ 10, 990 A.2d 1024 (quotation marks omitted). The burden of persuasion is born by the party seeking to overturn the decision. Id. The Board's conclusion as to what facts meet the requirements of a zoning ordinance are afforded deference and "will only be overturned if it is not adequately supported by evidence in the record." Jordan v. City of Ellsworth, 2003 ME 82, ¶ 8, 828 A.2d 768. The Court may not substitute its judgment for that of the Board. Tarason v. Town of S. Berwick, 2005 ME 30, ¶ 6, 868 A.2d 230.
III. Discussion
Petitioners assert that the Applicants bore the burden of proving to the Board that the Applicants complied with all the standards in the Code, including, that the day care would not "adversely affect the value of adjacent properties." (Pet'rs' Br, 5.) Petitioners claim that Applicants did not submit substantial evidence to the Board to show that Applicants complied with this standard and therefore the Board's decision must be vacated. (Pet'rs' Br. 5.) Respondent Town argues that the Board's decision was supported by competent evidence and should not be vacated. (Resp't Town's Br. 9-13.)
Cape Elizabeth allows conditional use permits if:
1. The use is specifically listed as a conditional use in the district, and
2. Conditional use approval is granted by the Zoning Board of Appeals.(R. 63); Code § 19-5-5(A). Day Care facilities are listed as a conditional use in the Residence A District, which is the proposed district for Applicants' home day care. (R. 68); Code § 19-6-1(C)(2)(b). Home Day Care Facilities are required to comply with the standards in the Code sections 19-5-5 and 19-8-8(C). (R. 74); Code § 19-8-8(A)(2).
At issue in this case is whether the Board had substantial evidence to find that the proposed day care would "not adversely affect the value of adjacent properties" pursuant to section 19-5-5(D)(4). (R. 65.) "Substantial evidence" is considered "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 of 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 of Mech Falls, 673 A.2d 1348, 1349-50 (Me. 1996) (quoting Boivin v. Town of Sanford, 588 A.2d 1197, 1199 (Me. 1991)). To vacate the Board's decision Petitioners must demonstrate that "no competent evidence supports the [Board's] conclusions." Adelman v. Town of Baldwin, 2000 ME 91, ¶ 12, 750 A.2d 577.
Prior to approving the Applicants' conditional use permit, the Board heard testimony from the Applicants that the day care had been operating in its current location for 12 years and had not had a detrimental effect on recent sale prices of properties on Channel View Road. (R. A-27, 10, 82-83.) Applicants in their presentation directed the Board to review Respondent Town's assessor's records to confirm this fact. (R. A-27.) Petitioners argue that the actual assessor's records needed to be submitted during the public hearing because nothing in the record shows the Board had personal knowledge of these records. (Pet'rs' Br. 6.) Additionally, Petitioners point out that "only evidence that is made a part of the record can be considered by the Board in making its decision." City of Biddeford v. Adams, 1999 ME 49, ¶ 10, 727 A.2d 346. However, "a Board member may rely on competent personal knowledge." Adelman, 2000 ME 91, ¶ 11, 750 A.2d 577. It is clear in their deliberating comments that Board Members either had personal knowledge of the assessor's records or relied on them extrinsically, Board Member Justh stated:
I know there have been home sales on Channel View, not of direct abutters from what I can see, and I'm not an expert in this. It doesn't appear to have been impactful.
There have been lots of home sales on Roundabout, which again is not a directly abutting road, but it's a block away. Those home sales appear to have been very strong.(R. 107.) It is unclear which category the assessor's records would fall under, extrinsic evidence or personal knowledge. The Court need not decide this issue as there was other competent evidence for the Board to rely on when granting Applicant's conditional use permit.
The Board also heard accounts from residents of the neighborhood that the school is a benefit to the neighborhood and increases the value of their homes. (R. A-4, A-10, 95.) The Board also heard testimony from adjacent home owners that they believed that their property values would decrease if the conditional use was approved. (R. 20, 97-104.) "Property owners, by reason of their ownership alone, may state their opinion as to the fair market value of their property." Garland v. Roy, 2009 ME 86, ¶ 21, 976 A.2d 940 (quotation marks omitted). However, what the resale value of these homes might be and what value is added to the community's homes' values as a whole are purely speculative, and the Board was not required to base its decision on speculative testimony. See Hannum v. Bd. of Envtl. Prot., 2003 ME 123, ¶ 15 n.6, 832 A.2d 765 ("Fact-finders must rely on evidence, not speculation, in fact-finding, and we must vacate decisions where fact-finding was unsupported by evidence.").
Dispositive to this appeal is that the Board received evidence that the home in which the day care is operated out of is quite indistinguishable from other homes in the neighborhood and its operation is minimally intrusive. (R. A-1, A-7, A-8, A-9, A-10, A-12, A-14, 94-97, 104.) In addition to hearing this evidence, the Board set conditions on the approval of the home day care permit that would minimize the effect that the home day care would have on neighbors; including, limits on lighting, outdoor play time, the number of students, and the age of students, and requirements that a fence is installed and that child drop off times are staggered. (R. 32-33, 110-19.) A conditional use under a zoning ordinance is a legislative determination that such use will "not ordinarily be detrimental or injurious to the neighborhood within the zone." Cmty, Sch., Inc. v. Zoning Bd. of Appeals, 369 A.2d 1146, 1149 (Me. 1977) (quoting Phillips Petroleum Co. v. Zoning Bd. of Appeals, 260 A.2d 434, 436 (Me. 1970)). "[A] condition precedent to the Board's right to deny a use which has been given a generalized legislative approval that the record before the Board contain significant evidence to constitute a preliminary showing that the proposed use" would possess a unique quality that would distinguish it from another similar use in the zone. Id. Although Applicants had the burden to prove their proposal met the requirements of the Code, the Court finds that the Board reasonably concluded that because the proposal would not significantly impair traffic and outside activities would be limited so that the day care's operation would not significantly harm property values. The Court will not second-guess the Board's decision.
This finding is clearly supported by "substantial evidence" contained in the application, letters submitted to the CEO, and testimony given at the public hearing. See Adelman, 2000 ME 91, ¶ 14, 750 A.2d 577 (finding that testimony provided at a hearing constituted "substantial evidence").
The Board was entirely within its discretionary powers to dismiss Petitioners and fellow neighbors' speculative concerns that the day care would decrease their homes resale values. 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."). Even if the Board accepted that living next to a daycare decreases the value of that home, the Board could have found that having a daycare in the neighborhood increases the value of all homes in the neighborhood and the net value of the increase to the adjacent homes outweighed any decrease in value. See Id. ¶ 14, The Board acts as the fact finder and may weigh contradicting testimony. Gorham, 625 A.2d at 903. The Court will not 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. Sproul v. Town of Boothbay Harbor, 2000 ME 30, ¶ 9, 746 A,2d 368 (finding that the presence of contradictory evidence in the record is not a showing of a lack of "substantial evidence"); 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).
In sum, the BZA's findings and conclusions are adequate and supported by substantial evidence in the record.
An administrative board's findings must be "sufficient to show the parties, the public, and an appellate court the basis for its decision." Bodack v. Town of Ogunquit, 2006 MR 127, ¶ 16, 909 A.2d 620. However, findings need not always be made explicitly in written form; "[i]n some cases the subsidiary facts may be obvious or easily inferred from the record and the general factual findings, and a remand would be unnecessary." Christian Fellowship & Renewal Ctr. v. Town of Limington, 2001 ME 16, ¶ 19, 769 A.2d 834.
In this appeal, the Court can infer that the Board determined property values would not be significantly adversely affected based on the facts supporting the Board's conditions and its ultimate conclusions that "the proposed use will not adversely affect the value of adjacent properties'5 and "the proposed site plan and layout are compatible with adjacent property uses and with the Comprehensive Plam1' (R. 32-33.) The Board gave the adverse to adjacent property values criteria due consideration during its deliberation before deciding to approve the project. (R. 106-110.) The Board is not required to create a factual record for every concern. See Christian Fellowship & Renewal Ctr., 2001 ME 16, ¶ 19, 769 A.2d 834.
IV. Conclusion
For the foregoing reasons, Petitioners' Rule 80B appeal is DENIED. The Clerk is directed to incorporate this Order into the docket by reference pursuant to Maine Rule of Civil Procedure 79(a).