Opinion
Civil Action AP-17-0023
08-20-2018
KENNETH P. HOLMES, Plaintiff, v. TOWN OF OGUNQUIT, and JASON EVANS and APRIL EVANS d/b/a "The Trap", Defendants, and KARAMEL PARTNERS, LLC, Party-in-Interest.
ATTORNEY FOR APPELLANT: JOHN C. BANNON, ESQ., MURRAY PLUMB & MURRAY. ATTORNEYS FOR APPELLEE TOWN OF OGUNQUIT: NATALIE L. BURNS, ESQ., JENSEN BAIRD GARDNER & HENRY AND JAMES N. KATSIAFICAS, ESQ. PERKINS THOMPSON. ATTORNEY FOR JASON & APRIL EVANS, D/B/A THE TRAP BRUCE M. READ, ESQ. SHEPARD & SHEPARD. ATTORNEY FOR PARTY-IN-INTEREST KARAMEL PARTNERS, LLC SIGMUND D. SCHUTZ, ESQ. PRETI FLAHERTY.
ATTORNEY FOR APPELLANT: JOHN C. BANNON, ESQ., MURRAY PLUMB & MURRAY.
ATTORNEYS FOR APPELLEE TOWN OF OGUNQUIT: NATALIE L. BURNS, ESQ., JENSEN BAIRD GARDNER & HENRY AND JAMES N. KATSIAFICAS, ESQ. PERKINS THOMPSON.
ATTORNEY FOR JASON & APRIL EVANS, D/B/A THE TRAP BRUCE M. READ, ESQ. SHEPARD & SHEPARD.
ATTORNEY FOR PARTY-IN-INTEREST KARAMEL PARTNERS, LLC SIGMUND D. SCHUTZ, ESQ. PRETI FLAHERTY.
ORDER
John O'Neil Jr. Justice.
I. BACKGROUND
Before the court is plaintiff Kenneth P. Holmes's Rule 80B Complaint for governmental review of defendant Town of Ogunquit's (the "Town's") approval of an application for site plan approval of a change of use of "The Trap" restaurant (the "Application").
The Trap is located at 117 Perkins Cove Road as shown on Town Tax Map 3, Lot 75 (the "Trap Lot"). (R. 1-2.) The building on the Trap Lot has an apartment dwelling unit on the second floor in addition to The Trap on the first floor. (R. 33.) The building has also had an attached deck since 1988. (R. 36.) The Trap Lot is .06 acres in size and located in the Town's Shoreland General Development District 2 ("SG2"). (R. 114.)
Party-in-Interest Karamel Partners, LLC ("Karamel") owns The Trap Lot. (R, 1, ) Plaintiff Holmes resides in the adjacent parcel, 115 Perkins Cove Road and is identified as Parcel 3-74-A on the Town's Tax Map. (R. 7, 39.)
Defendants Jason and April Evans (the "Evanses") own and operate the Trap. (R. 5.) The Evanses submitted the Application in order to convert the Trap from a "Restaurant, Type 1" to a "Restaurant, Type 2" under Article 2 of the Ogunquit Zoning Ordinance (the "OZO") on June 26, 2017. (R. 5.)
Under the OZO, a Restaurant, Type 1 is defined as:
An establishment where meals are prepared and served to the public for consumption, which meets all of the following characteristics:
(1) food or beverages (either alcoholic or nonalcoholic) are served to persons seated only at indoor seating on the premises;
(2) where food or beverages are not served to pedestrians from an exterior opening or counter; and
(3) where the design of the facilities, advertising, signage or packaging procedures does not promote the consumption of food or beverages outside the enclosed building.(R. 155-156; OZO § 2.) A Restaurant, Type 2 has an almost identical definition to a Restaurant, Type 1, but also provides for the serving of food and beverages to persons at outdoor seating on the premises. (R. 156.) Specifically, the OZO defines a Restaurant, Type 2 as:
An establishment where meals are prepared and served to the public for consumption, which meets all of the following characteristics:
(1) food or beverages (either alcoholic or nonalcoholic) are served to persons seated at either indoor or outdoor seating on the premises;(2) where food or beverages are not served to pedestrians from an exterior opening or counter; and (3) where the design of the facilities, advertising, signage or packaging procedures does not promote the consumption of food or beverages off the premises.
(4) when located in the Limited Business Zone, the restaurant must also meet the following additional standards;
a. the exterior seating area shall be limited in size to no more than 600 square feet;
b. outdoor serving shall not begin before 7:00 a, m, and no outdoor serving is allowed after 9:00 p.m.;
c. there shall be no outside musk or outside entertainment allowed at any time;
d. Type 2, Restaurant use in the Limited Business Zone is limited to lots that abut Shore Road.(R. 156.) Both Type 1 and Type 2 restaurants arc permitted in the SG2 upon site plan review by the Ogunquit Planning Board (the "Planning Board"). (R. 212; OZO Table 702.1.) Section 6, 6.A of the OZO also requires site plan review by the Planning Board for a change from one use to another. (R. 190; OZO § 6.6.A.)
As described in the Application, the outdoor service would occur on the front patio space, the attached deck in the back of the property, and a section of private beach immediately in front of the building. (R. 5.) The Application further claims that the restaurant that occupied the Trap Lot before the Trap had used these spaces for customers; the only change would be to allow staff to attend customers while they use such areas. (R 5.) The Application also slates, "This change of use does not increase the use of the property from what has been used for the last several years. It also does not change the building design or footprint." (R. 5.)
After reviewing the Application, the Town's Fire Chief commented, "The seating capacity will be 20 persons on the beach for area designated, 20 persons on the outside deck facing the ocean, 20 persons inside the main building seating area and 20 persons for the patio area facing the cove for a total of seating of 80 persons." (R. 14.) Otherwise, the Fire Chief did not have any other concerns. (R. 14.) Likewise, the Town's Chief of Police submitted a memorandum to the Planning Board after reviewing the Application, stating, "I do not see anything that warrants major concern from a public safety standpoint." (R. 13.) Ogunquit's Public Works Supervisor, Water and Sewer Districts, and Conversation Commission commented that they had no concerns about the Application. (R. 9-12.)
The Town's Director of Planning, however, noted that seating on the beach cannot be used as patron seating, only to "sit and watch the water socialize etc." because the beach is in the Resource Protection Zone ("RPZ"). (R. 16.) He requested some clarification concerning the proposed seating plan, outside lighting, and trash removal and further recommended that conditions from the previous restaurant's Restaurant, Type 1 permit approval in 2012 be carried over. (R. 16-17.)
The building and deck on the Trap Lot are not within the RPZ. (R. 21.)
At a July 10, 2017 meeting, the Planning Board reviewed the Application, (R. 18-22.) During this meeting, Jason Evans clarified that The Trap currently has seating for 40 patrons: 20 inside the building and 20 on the oceanside deck. (R. 20.) The Town Planner also reiterated that because the beach is within the RPZ, no food or beverage consumption on the beach would be permitted. (R. 20.) Additionally, a waiver from the requirement of a second restroom for restaurants with more than 40 seats would necessary under the proposed seating plan. (R 20.) Instead of requesting such a waiver, the Evanses proceeded with a request for only 40 seats: 20 seats indoors on 20 on the oceanside deck, and without food or drink service on the beach. (R. 20-21.) After this concession, the Planning Board voted unanimously to consider the Application as complete, with the condition that the Evanses provide a revised seating plan. (R. 21.) The Planning Board then agreed that no site visit was necessary and scheduled a public hearing on the Application for July 24, 2017. (R. 21.)
The Evanses and all abutters were directly notified of the hearing and public notices were also posted in the Town, on the Town's website, and on the local cable television channel on June 26, 2017. (R. 118.)
A public healing was held as scheduled on July 24, 2017. (R. 39.) At the hearing, the Planning Board heard from plaintiff Kenneth Holmes and Jason Corbin, who also resides with Mr. Holmes. (R. 39-52.) Plaintiff and Mr. Corbin distributed copies of a five-section handout to the Board. (R. 40.) In the handout and orally before the Board, Holmes argued that the back deck was not big enough for twenty seats, that the building needed a sprinkler system because of the type of food being prepared, that the restaurant had a restriction on "grease laden food," that a permit for a fryer and an exhaust vent was issued without prior notice to him, that the board needed to do a site visit, that patrons had been eating and drinking on the beach and were generally loud and intrusive, and that The Trap is in violation of several OZO provisions, including sections 8.3 and 6.6.A.l. (R. 39-47.) After hearing from Holmes, Mr, Evans responded by saying that he removed the chairs on the beach and was not serving in that area. (R. 47.) Mr, Corbin then spoke, noting the poor relationship he had with the previous tenants at 117 Perkins Cove Road, complaining of his lack of notice before the installation of the ventilation hood at the Trap, and arguing that the Town should comply with its ordinances. (R. 48-49.) After Mr. Corbin noted that he did not receive notice of the installation of the vent hood at the Trap, Mr. Evans further stated that the permit he received explicitly provided that it did not need to be displayed. (R. 49-50.)
After hearing from the public, the Board deliberated on the Application. (R. 50-72.) During deliberation, Mr. Evans noted that other Type 2 Restaurants operate in the Perkins Cove Business District, including another restaurant that he has operated for over 20 years. (R. 50-51.) He emphasized that The Trap would be open from 11:00 a.m. to 9:00 p.m. and would not have outside music or entertainment. (R. 50.) Additionally, Mr. Evans represented that he had removed the chairs from the beach and placed them on the front patio of the restaurant so that patrons could wait for tables. (R. 50-53.)
The Town's CEO further commented on the installation of the hood and vent at The Trap, noting that he had issued the permit in December of 2016 and that the installation met the applicable code. (R. 51.) Because the Evanses did not propose to renovate more than 50% of the building, the CEO also noted that the State Fire Marshall's rules did not require a sprinkler system, nor was one recommended by the Fire Chief. (R. 60.) Further, he noted that the rear deck size had not changed since it was installed and that the Fire Chief had set deck occupancy at 20 seats. (R. 62-63.) Concerning the hood and vent, the CEO stated that the noise from the vent would remain the same whether or not the restaurant was Type 1 or Type 2 and that it would be shut off around 9:00 p.m. when the restaurant closes. (R. 64-65.)
Issuing a permit for a hood vent is standard for restaurants and appropriate at all restaurant types upon receiving a permit; no planning board approval is necessary. (R. 51, 87.)
The CEO also suggested two additional conditions for approval: (1) that the frying of food be limited to the current restaurant use, which included light battered calamari, tempura seafood, and crab cakes; and (2) that use of the beach be limited to residents of the upstairs unit above The Trap. (R. 58, 60.) The restrictions already in place concerning trash pick-up and storage would also carry over. (R. 58.)
During its deliberation, the Board considered the Application in light of the standards in section 6.7 of the OZO and found that each was satisfied. (R. 50-69.) The Planning Board ultimately voted unanimously to approved the Application with six conditions. (R. 72-73.) The Board approved written Findings of Fact, Conclusions, and Decision on August 14, 2017 (the "Decision"). (R. 114.)
On September 8, 2017, plaintiff filed the instant Rule 8OB Complaint challenging the Board's decision granting the Application.
II. STANDARD OF REVIEW
In its intermediate appellate capacity, this court reviews decisions of administrative bodies for abuse of discretion, errors of law, and findings not supported by substantial evidence. Otis v. Town of Sebago, 645 A.2d 3, 4 (Me. 1994) (citation omitted). Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Conservation Law Found, v. Town of Lincolnville, 2001 ME 175, ¶ 6, 786 A.2d 616 (citations omitted). Additionally, "the fact that two or more conclusions can be drawn from the evidence does not mean that a Board's finding is unsupported by substantial evidence." Id. (quoting Gorham v. Cape Elizabeth, 625 A.2d 898, 903 (Me. 1993)). "The party seeking to overturn any of the Board's decisions bears the burden of persuasion." Lane Constr. Corp. v. Town of Wash, 2008 ME 45, ¶ 11, 942 A, 2d 1202 (citation omitted).
Interpretations of zoning ordinance provisions are questions of law that courts review de novo. Priestly v. Town of Hermon, 2003 ME 9, ¶ 7, 814 A.2d 995 (citation omitted). In its review, the court looks at the plain language of the ordinance, and "[t]he terms or expressions in an ordinance are to be construed reasonably with regard to both the objectives sought to be obtained and the general structure of the ordinance as a whole." Id. (quoting Gerald v. Town of York, 589 A.2d 1272, 1274 (Me. 1991)). The court also construes the language of the ordinance as "to avoid absurd, inconsistent, unreasonable or illogical results." Melanson v. Belyea, 1997 ME 150, ¶ 4, 698 A.2d 492. Although the court's interpretation of an ordinance is de novo, the court:
[R]eview[s] factual findings of the Planning Board with deference and may not substitute our own judgment for that of the Board. The Board's decision is not wrong because the record is inconsistent or a different conclusion could be drawn from it. Further, a demonstration that no competent evidence supports the local board's findings is required in order to vacate the board's decision. ., . [The court is] bound to uphold the Board's decision unless the evidence before the Board would compel a positive finding for [the appellees].Gensheimer v. Town of Phippsburg, 2005 ME 22, ¶¶ 17-18, 868 A.2d 161 (alteration, citations, and quotation marks omitted).
III. DISCUSSION
a. Whether the Record is Sufficient for Meaningful Review
In his brief, plaintiff first challenges the sufficiency of the Board's findings. The OZO mandates, "Within 30 days of the public hearing the Planning Board shall prepare a detailed finding of facts and conclusions and shall reach a decision on [an] application. Within seven days of the decision, the Planning Board shall inform the applicant, the Code Enforcement Officer and Board of Selectmen of its decision in writing." (R. 197; OZO § 6.6.E.L) Concerning site plan reviews, Section 6.7(A) of the OZO further requires, 'The Board shall not approve [an] application unless it makes written findings that the proposed use or structure" meets the specified criteria. (R. 197-198; OZO § 6.7.A.) Written findings are also required by Maine's Freedom of Access Act when the board conditionally approves a permit application. 1 M.R.S.A. § 407(1).
" 1. will allow the orderly and reasonable use of adjacent properties;
It is well-established that this court cannot conduct a proper review of a municipal decision without sufficient findings. Chapel Rd Assocs. v. Town of Wells, 2001 ME 178, ¶ 10, 787 A.2d 137. Although sufficient findings are required, in cases where "the subsidiary facts may be obvious or easily inferred from the record and the general factual findings, and a remand would be unnecessary." Wells v. Portland Yacht Club, 2001 ME 20, ¶ 10, 771 A.2d 371 (quoting Christian Fellowship and Renewal Ctr. v. Town of Limington, 2001 ME 16, ¶ 19, 769 A.2d 834). As the Law Court stated in Forester v. Westbrook, 604 A.2d 31, 33 (Me. 1992), "Inadequacy of the findings is not, by itself, reason to overturn the Board's decision. If there is sufficient evidence on the record, the Board's decision will be deemed supported by implicit findings. However, unless there is support in the record for a finding that each statutory criterion is met, the grant of a variance is improper." Id. at 33 (citations omitted), When a party contends that findings are inadequate for judicial review, the court will examine the findings to determine if they are "sufficient to show the parties, the public, and an appellate court the basis for its decision." Bodack v. Town of Ogunquit, 2006 ME 127, ¶ 16, 909 A.2d 620. If the court agrees that the board's findings are insufficient, it will remand the matter to the board for further findings. Carroll v. Town of Rockport, 2003 ME 135, ¶ 30, 837 A.2d 148.
Plaintiff argues that because the Law Court in Wells did not specify specific facts that were obvious or easily inferred from the record, it is "virtually impossible" to apply to this case, or any other. (PL's Repl, 8.) Even though the Law Court did not identify what it found to be obvious from the record, the court does not find that the precedent is without force. Thus, the court will use its judgment to determine if a finding is obvious or easily inferred from the record.
In the instant case, the Board issued its Decision on August 14, 2017. (R. 114.) The Decision enumerates sixteen findings of fact. (R. 114-119.) However, the Decision simply recites, "After discussion regarding the concerns and questions raised during the Public Hearing the Board determined that all standards under Section 6.7 were... satisfied, with some conditions." (R. 119.)
In support of Ms contention that this finding is inadequate, plaintiff cites to Comeau v. Town of Kittery, 2007 ML 76, 926 A.2d 189. In Comeau, the municipal board neglected to make specific findings of fact, and instead designated minutes of meetings it had conducted to serves as findings. Id. ¶ 10. The Law Court characterized the minutes as "lengthy narratives of the discussions, with details of who said what. As would be expected, the discussion is wide-ranging and not always in a logical, progression. The Board members expressed their individual views to various points of the proposed project and their views on the issues raised by the individuals opposing it" Id. In light of difficulty of parsing through the minutes to discern the reasoning behind the board's decision, the Court concluded, "It is impossible to discern what the Board found as facts." Id. Thus, the Law Court remanded the case to the board to make sufficient findings. Id. ¶ 13.
In Wells v. Portland Yacht Club, 2001 ME 20, 771 A.2d 371, however, the Law Court declined to vacate a board's decision where its unstated findings were obvious or easily inferred from the record. Id. ¶ 10. Specifically, the Law Court noted:
The record reflects that the Board questioned the Club about the requirements in section 8.3, and the minutes of the meeting slate that a Board member "reviewed the conditional use standards[, ] finding that the applicant satisfied those standards if conditions were placed on an approval." We find that the communications in the meeting between the Board, the Club, and the appellants and the conditions the Board placed on approval support the Board's implicit finding that the Club satisfied the requirements for receiving conditional use approval.Id. ¶ 11 (citations omitted).
The findings made by the Board and the Board's discussion here closely resemble that in Wells. Although the Board did not specifically list each of the criteria, the Decision states that the Board found all to be satisfied.
Plaintiff asserts that the minutes only reveal discussion of 5 of the 16 site plan review criteria, record no individual board member votes on the satisfaction of each criterion, and make no factual findings to support the conclusion that The Trap's site plan application satisfied any of the criteria. (PL's Repl. 12.) However, review of the transcript of the July 24 hearing demonstrates that the Board engaged in meaningful discussion of each of the standards and approved, determined some to be inapplicable, and tailored conditions accordingly. (R. 50-73; 114-120.) Specifically, the Board utilized a check list of site plan requirements, addressing each criterion and either deeming it satisfied or deeming it inapplicable. (R. 24, 63-69.) Although there is no record of the Board vote on each criterion, both the vote at the hearing and the Board's ultimate decision unanimously found that the Application satisfied the site plan review criteria with conditions. (R. 73, 120.)
Because the findings are obvious from the record, the court concludes that the Board's findings are sufficient for this court to review. Because the record contains sufficient evidence to support the board's finding that each of Section 6.7's criteria had been satisfied, the Court will not remand the matter to the Board for further findings. To the extent that plaintiff contends that there is insufficient evidence in the record to demonstrate that the Evanses satisfied the site plan review criteria, that is a separate issue involving a much different, deferential standard of review.
b. Whether the CEO Improperly Determined that Several of the Site Plan Review Criteria Were Inapplicable
Next, plaintiff argues that the Planning Board improperly delegated its authority to the CEO to grant waivers to the site plan review submission requirements. These submission requirements are listed in Section 6.6.C.3 of the OZO and include 33 different materials that the applicant is to submit to complete the Application. (R. 191-195; OZO § 6.6.C.3.) However, Section 6.6.C.4 provides that the Code Enforcement Officer may make an initial determination that some of the requirements are unnecessary:
Plaintiff also argues that the CEO failed to provide the reasoning for his determination that the sections were determined to be inapplicable to the Planning Board. As discussed further on, however, the OZO does not require that the CEO provide the Planning Board, only a "a copy of that determination ... for consideration in the Board's determination of completeness of the application." (R. 195; OZO § 6.6.C.4.) Thus, the CEO was not required to provide the Board with the reasoning for his determinations.
The Code Enforcement Officer shall review the submissions to make an initial determination of whether all required submissions have been made with a site plan application. The Code Enforcement Officer shall determine whether any submission requirement is not applicable to a specific application, including but not limited to submission requirements for subsurface wastewater disposal systems for properties that are served by public sewer, private well information for properties served by public water or open space information where none exists and none is proposed or required. The Code Enforcement Officer shall document any determination that one or more submission requirements is inapplicable and shall provide a copy of that determination to the Planning Board for consideration in the Board's determination of completeness of the application.(R. 195; OZO § 6.6.C.4.) Additionally, the Planning Board may also waive the requirement that the applicant submit certain documents:
Where the Planning Board finds that strict compliance with the required applicable application submissions would unduly burden the applicant or be excessive in light of the nature of the proposed structure or activity or where there are special circumstances of a particular plan, the Board may waive application submissions upon written request of the applicant, provided that such waivers will not have the effect of nullifying the intent and purpose of the Zoning Ordinance.(R. 195; OZO § 6.6.C.4.) The OZO continues to outline the Planning Board's review of permit applications as follows:
The Planning Board shall review the application for completeness and note which submissions required by this section have been submitted which have been determined by the Code Enforcement Officer not to be applicable and which are missing. The Planning Board shall not schedule a public hearing on the Site Plan Review application until:
A. The application and supporting materials contain all of the submission requirements other than those that have been determined by the Code enforcement Officer to be inapplicable, or
B. The Planning Board has reviewed the written waiver requests that have been provided by the applicant for any missing submissions other than those that have been determined by the Code enforcement Officer to be inapplicable, and agrees that any missing submissions are either not applicable or necessary for the Site Plan Review. The applicant shall provide reasons and justifications for any requested waivers of applicable submission requirements, so that the Board may make findings pursuant to Section 4 above.
Because the Evanses did not request a waiver of any of the submission requirements and the Planning Board did not grant any such waiver, plaintiff contends that the only basis for ignoring the submission requirements is the CEO's determination that they are "inapplicable." (PL's Br. 22-23.) Plaintiff urges that the OZO's language:
[A]llows the CEO to exempt an applicant from a particular site plan submission requirement only where the proposed project has no characteristics to which that particular submission requirement could possibly relate ... A submission requirement is "inapplicable" only if it is effectively moot.
However, OZO 6.6(C)(4) cannot reasonably be interpreted as allowing the Planning Board to excuse a submission requirement, which otherwise applies to a given project, on the ground that the CEO considers that information unnecessary under the circumstances of that project. To do so would be to allow the Planning Board to delegate to the CEO its exclusive authority to waive submissions that are unduly burdensome, excessive in light of nature of the proposed activity, or otherwise inappropriate because of the "special circumstances" of a particular plan,(Pl's Br. 23) (emphasis in original).
Conversely, the Town argues, "Under the circumstances of the application, requiring [the submissions specified in Section 6.6.C.3] would be to impose exactly the sort of costly, unnecessary and hyper-technical standards that the Law Court criticized in Hartwell [v. Town of Ogunquit]” (Town's Br. 11.)
In Hartwell v. Town of Ogunquit, 2015 ME 51, 115 A.3d 81, the Law Court addressed whether, without authority in the ordinance, the planning board could waive certain submission requirements in the ordinance. Id. ¶ 10. The Law Court found that the Board lacked authority to do so, holding:
When a municipal ordinance requires an applicant to submit specific information, and the ordinance neither allows for the submission of written waiver requests nor includes a provision allowing a planning board to determine that certain requirements are not applicable, the planning board has no authority to disregard or waive the requirements of the ordinance. Similarly, the courts do not have the authority to determine that such mandatory requirements are de minimis or that the failure to include the required material constitutes harmless error. See M.R. Civ. P. 61.Id. Instead, the Law Court recommended that municipalities amend their ordinances if they do "not intend to require strict compliance." Id. ¶ 12. The Town notes that it accordingly amended its ordinance by enacting Section 6.6.C.4 of the OZO. (Town's Br. 10.)
'The Town could also provide a separate process for applicants of smaller projects so that they may by-pass the more complex requirements for applicants of larger projects and proposals, or the Town could provide a process to waive certain required submissions for design review similar to the existing waiver process for site plan review submissions."
Here, the CEO determined that 26 of the 33 submission requirements were inapplicable. (R. 3-4.) Although plaintiff concedes some of these requirements may be moot, he claims that eight of the requirements must have been either submitted or waived by the Planning Board. (PL's Br. 23-24.) Since the Planning Board did not do so, the plaintiff contends it committed reversible error.
These include submissions C, E, G, H, I, J, T, and Y. (PL's Br. 24; OZO § 6.6.C.4.)
i. Whether Plaintiff Has Waived Challenge to the Application's Completeness
Defendant Karamel Partners argues that plaintiff has waived any argument that the Application was incomplete because he failed to object at the Planning Board's July 10, 2017 meeting. (Karamel Br. 11.) Generally, objections that were not raised before the deciding municipal board or administrative agency are not preserved for appeal. See e.g., Tarason v. Town of South Berwick, 2005 ME 30 ¶ 8, 868 A.2d 230; New England Whitewater Center Inc. v. Department of Inland Fisheries and Wildlife, 550 A.2d 56, 58 (Me. 1988). The Superior Court (Cumberland County, Warren, J.) recently addressed the issue of whether a neighboring restaurant could challenge the completeness of an application despite not raising the issue before the municipal board in 517 Ocean House, LLC v. Town of Cape Elizabeth, No. AP-15-22, 2016 Me. Super. LEXIS 88 (May 10, 2016). Despite attending the hearing where the board decided that the application was complete, the neighbor neglected to object to the Board's determination that the application was complete. Id. at *I9. Justice Warren concluded, "Since [the neighboring restaurant] did not raise its procedural objections below, it has not preserved that issue for appeal." Id.
Plaintiff notes that the Planning Board's July 10 meeting was not a "Public Hearing," but instead a "Regular Business Meeting." (PL's Repl. 6.) Thus, plaintiff argues "Because that Completeness Review was not a Public Hearing, Mr. Holmes had no opportunity to comment on the completeness of The Trap's site plan application . . .." (PL's Repl. 6.) He further argues that his objections at the July 24 hearing are sufficient to preserve the issue for appeal. (PL's Repl. 6.)
Although in this case plaintiff did not attend the July 10 meeting and thus did not have an opportunity to object, plaintiff had notice of the meeting and could have attended to represent his interests. (R, 118.) He also did not raise the issue at the July 24 public hearing when presenting his other objections. Because he failed to do so, any challenge to the Application's completeness is not preserved for appeal.
c. Whether OZO Section 3.3.H.4 Applies to the Application
Next, plaintiff contends that the Board's decision is in error because the Evanses did not prove compliance with Section 3.3.H.4 of the OZO. Section 3.3.H.4 concerns the change of use of a non-conforming structure within a Shoreland Zone such as the SG2. The Section provides:
A. The use of a structure which is less than the required setback from the normal high-water line of a water body, tributary stream, or upland edge of a wetland may not be changed to another use unless the Planning Board, after receiving a written application, determines that the new use will have no greater adverse impact on the water body, tributary stream, or wetland, or on the subject or adjacent properties and resources than the existing use.
B. In determining that no greater adverse impact will occur, the Planning Board shall require written documentation from the applicant, regarding the probable effects on public health and safety, erosion and sedimentation, water quality, fish and wildlife habitat, vegetative cover, visual and actual points of public access to waters, natural beauty, floodplain management, archaeological and historic resources, and commercial fishing and maritime activities, and other functionally water-dependent uses.(R. 171; OZO § 3.3.H.4.) Prompted by Mr. Holmes's presentation, the Planning Board discussed the applicability of Section 3.3.H.4 at the public hearing. (R. 60-62.) It is unclear, however, whether the Board reached an ultimate conclusion concerning whether section 3.3.H, 4 applied. Notwithstanding its discussion, the Board never required the Evanses submit the written documentation specified in subsection (B) and did not expressly determine that the change of use would "have no greater adverse impact on the water body, tributary stream, or wetland, or on the subject or adjacent properties and resources than the existing use." (R. 171; OZO § 3.3.H.4.)
The Town concede that The Trap is a nonconforming structure generally subject to Section 3.3.H. (Town Br, 12.) Defendants, however, argue that the section is inapplicable because Section 3.3 applies to not to the categorical changes in use specified in Articles 6 and 7 of the OZO, but only to more comprehensive changes in the property's "essential" use. (Town's Br. 13.) Specifically, the Town argues that the technical requirement of site plan review in order to change a Type 1 restaurant to a Type 2 restaurant "does not mean that the change from a restaurant seating customers at an existing outside deck to one serving customers at an existing outside deck triggers review for a change of use under the separate, broader 'change of use' review in the Article 3 nonconformity provisions of Section 3.3 of the OZO." (Town's Br. 13.) On the other hand, plaintiff argues that Section 3.3.H.4 is "absolute" in requiring written documentation for any change of use of a non-conforming building. (PL's Br. 27.)
Table 702.1, titled "Land Uses Permitted in Zoning Districts," lists all the applicable uses and corresponding districts in which they are permitted to operate. (R. 203-221.) In this table, each type of restaurant (Types 1 through 6) are listed separately under the "Land Use" column and have different Site Plan Review requirements. (R. 212-213.) Land use is generally a term of art in the context of zoning ordinances. The court finds that "use" in Section 3.3.H.4 is not different from the term as used in other sections of the ordinance referring to specific categories of uses. Thus, the change of use at issue, although slight, still is subject to the requirements of Section 3.3.H.4.
Neither the Board nor this court has "the authority to ignore the plain language of Ogunquit's Zoning Ordinance." Hartwell, 2015 ME 51, ¶ 11, 115 A.3d 81. Consequently, the court will remand the matter to the Board with the directive to require the Evanses to submit the specified written documentation and to appropriate finding of whether the change in use "will have no greater adverse impact on the water body, tributary stream, or wetland, or on the subject or adjacent properties and resources than the existing use."
Plaintiff argues that a remand would be inappropriate because The Trap submitted neither a written application for approval to change the use of its nonconforming structure nor the written documentation required in subsection (B). (PL's Repl. 20.) The court disagrees. The written application submitted by the Evanses is sufficient to satisfy section 3.3.H.4.A. (R. 1.) The court will give the Evanses an opportunity to supplement the record wit, h the required documentation.
d. Whether the Board Properly Concluded that the Application Did not Create a Fire Hazard
Next, plaintiff complains about certain fire safety issues at The Trap, including that the seating is not secured to the floor and that the surface area of the deck is not large enough for the approved number of seats. (PL's Br. 31-32.) Although the application listed the deck's dimensions as 16' by 20', Mr. Holmes presented evidence at the public hearing that the deck is actually only 12' by 18'. (R. 43, ) Plaintiff argues that, given the fact that the deck is smaller than the Application represented, the number of seats approved exceeds the number allowed by State Fire Marshall regulations, which require at least 15 square feet of area per unsecured seat. (R. 40, 43, 76, 81.)
"Seats not secured to the floor shall be permitted in restaurants, night clubs, and other occupancies where fastening seats to the floor might be impracticable. Unsecured seats shall be permitted, provide 3d that, in the area used for seating, excluding such areas as dance floors and stages, there is not more than one seat for each 15 ft2 of net floor area, and adequate aisles to reach exits are maintained at all times. Seating diagrams shall be submitted for approval by the authority having jurisdiction to permit an increase in occupant load." (R, 81.)
Plaintiff contends that this failure is a violation of the Site Plan Review standards enumerated in Section 6.7.A of the OZO, specifically that the proposed use "does not create a hazard to life, limb or property because of fire .. . created by reason of use, or by structures to be used therefore, or by the inaccessibility of the property or structures thereon for convenient entry and operation of fire and other emergency apparatus or by the undue concentration or assemblage of persons upon such plot" (R. 197-198; OZO § 6.7.A.9.)
In determining that this criterion was satisfied, the sole evidence relied on was a memorandum from the Town's Fire Chief assessing the original seating plan that the Evanses submitted that noted, "The seating capacity will be 20 persons on the beach for the area designated, 20 persons on the outside deck facing the ocean, 20 persons inside the main building seating area and 20 persons for the patio area facing the cove for a total seating of 80 persons." (R. 14.) Although the Evanses subsequently withdrew their request for seating on the beach and on the front patio, the Board considered the Fire Chiefs determination that the back deck could support 20 seats in concluding that the standard was met. (R. 62-63.)
This court gives "substantial deference" to the Planning Board's fact-findings as to what meets the Site Plan Review standards of Section 6.7.A. Bizier v. Town of Turner, 2011 ME 116, ¶ 8, 32 A.3d 1048. "The Planning Board, as factfinder, is allowed to weigh the evidence and make a decision based upon its perception of the evidence." Sproul v. Town of Boothbay Harbor, 2000 ME 30, ¶ 9, 746 A.2d 368 (citation omitted). As noted above, the court will only vacate a finding of fact when it is not supported by substantial evidence in the record. Osprey Family Tr. v. Town of Owls Head, 2016 ME 89, ¶ 9, 141 A.3d 1114. "Substantial evidence exists when a reasonable mind would rely on that evidence as sufficient support for a conclusion," Id. (citation omitted).
Although the Fire Chief had stated that twenty seats on the back deck was acceptable, this conclusion was based on the measurements of the deck submitted in the Application. Mr, Holmes presented unrebutted testimony that the deck is smaller than the seating plan represented, Because this court is remanding the case for further testimony in relation to Section 3.3.H.4 of the OZO, the Evanses should also submit a revised letter from Ogunquit's Fire Chief that takes into account the actual dimensions of the deck in determining the proper seating capacity. The Board should then make a new finding addressing whether the requested number of seats would pose "a hazard to life, limb or property because of fire .. . created by reason of use."
e. Exhaust Fan and Fryer
Next plaintiff argues "regardless of the building permit [for the construction of the vent fan and hood], conversion of The Trap to a Type-2 Restaurant would substantially increase the amount of odors and noise that would be emitted by The Trap compared to those it would have produced as a legal-operating Type-1 Restaurant." (PL's Repl. 24.) As a result, plaintiff argues, the Planning Board erred as a matter of law in determining that the change of use would satisfy the requirements of Section 6.7. A of the OZO.
Specifically, plaintiff contends that the following criteria were not met:
Again, this court gives "substantial deference" to the Planning Board's fact-findings as to what meets the Site Plan Review standards. Bizier v, 2011 ME 116, ¶ 8, 32 A.3d 1048. The Board found that, with the enumerated restrictions, the standards of Section 6.7. A of the OZO would be met despite the increase in capacity. Given the deference the court gives to the Board's determinations what satisfies Town standards, the court cannot find that this conclusion was in error.
Plaintiff further argues that The Trap cannot cook grease-laden foods because its predecessor was forbidden from doing so. In support, plaintiff cites to the minutes of the meeting where the Board found that The Trap's predecessor's application for a permit to operate as a Type 1 Restaurant was complete and scheduled a public hearing on the merits of the application. (R. 85.) In these minutes, the CEO indicates that "the Applicant has been informed that there can not be any cooking of grease laden foods." (R, 85.) There was no formal condition imposed on the original Type 1 Restaurant permit forbidding the cooking of such foods. Additionally, the Board clearly found that the restriction was not in force and instead found it appropriate to limit the amount of fried foods The Trap could serve to the light fare that it was already providing. (R. 120.) Consequently, this contention, even if it had a relation to the current Application and whether it satisfied the Site Plan Review Standards, is without merit.
f. Buffering
Finally, plaintiff argues that the Board impermissibly ignored the buffering requirement imposed by Section 6.7. A. 12 of the OZO, requiring a finding that the proposed use "will be adequately screened and buffered from contiguous properties." (R. 198; OZO § 6.7.A.12; PL's Br. 36-37.) Plaintiff also cites to Section 8.3 of the OZO, which provides:
A non-residential use which abuts an existing or potential residential use shall maintain a buffer strip along the side and rear yards for the purpose of eliminating any adverse effects upon the environmental or aesthetic qualities of abutting properties or any type of nuisance effecting the health, safety, welfare and property values of the residents of Ogunquit. Where natural vegetation cannot be maintained or due to varying site conditions, the buffer area may consist of fences, walls, tree plantings, hedges or combinations thereof. The buffering shall be sufficient to minimize the impacts of any kind of potential use such as: loading and unloading operations, outdoor storage areas, vehicle parking, mineral extraction, waste collection and disposal areas.(R. 222; OZO § 8.3.)
The Town argues that this section does not apply because The Trap Lot and building in which plaintiff resides have both residential and commercial uses. (Town's Br. 15.) However, the section references residential uses next to commercial uses, it does not designate that the residential use must be unaccompanied by a commercial use in the same building. Consequently, the plain language of Section 8.3 applies to the two properties at issue here. However, the fact that there is a commercial use on the first floor of plaintiffs residence currently factors into the reasonability of the necessary buffer.
Here, the Board found that the criteria was specified with the imposition of certain conditions. The Board considered the fact that the Trap Lot is located in Perkins Cove and thus does not have any required setbacks under the OZO in determining whether the present buffering was adequate. (R. 67-68.) The Board also concluded that it was appropriate to condition the approval on further screening of the vent on the Trap's roof. (R. 68.) Because this court gives "substantial deference" to the Board's determination of what is "adequate" under the ordinance, the court affirms the Board's finding that the proposed use is properly buffered from abutting residences.
IV. CONCLUSION
For the foregoing reasons, the August 14, 2017 decision of the Ogunquit Planning Board is vacated in part and affirmed in part. The Decision is vacated as to the Application's compliance with Section 3.3.H.4 and satisfaction of Section 6.7A.9 of the Ordinance. The Decision is otherwise affirmed. The matter is remanded to the Town of Ogunquit's Planning Board for further proceedings in order to address the Application compliance with Sections 3.3.H.4 and 6.7.A.9 of the Ogunquit Zoning Ordinance. The Board must give the Applicants the opportunity to submit further documentation on these issues and issue a corresponding decision on the Application after reviewing these submissions.
The clerk shall make the following entry on the docket;
The August 14, 2017 decision of the Ogunquit Planning Board is hereby affirmed in part and vacated in part. Vacated as to the finding of whether the Application satisfies Section 6.7.A.9 of the Ordinance. Vacated as to the applicability of Section 3.3.H.4 of the Ordinance. Affirmed in all other respects. The matter is remanded to the Board for further proceedings to determine whether the Application complies with Sections 3.3.H.4 and 6, 7.A.9 of the Ordinance consistent with this Order.
SO ORDERED.
2. will not adversely effect [sic] the safety, the health and the welfare of the Town; 3. will not create an undue increase of vehicular traffic congestion on public streets or highways; 4. includes adequate and proper public or private facilities for the storage, treatment, handling, use of, removal, or discharge of sewage, refuse, hazardous material or other effluent (whether liquid, solid, gaseous or otherwise) that may be causal or created by or as a result of the use; 5. or materials incidental thereto or produced thereby will not give offnoxious gases, odors, smoke or soot; 6. will not cause disturbing emission of electrical discharges, dust, light, vibration or noise; 7. and the operations in pursuance of the use will not cause undue interference with the orderly enjoyment by the public of parking or recreation facilities, existing, or proposed by the Town or by other competent governmental agencies; 8. contains adequate, off-street parking in compliance with this Ordinance; 9. does not create a hazard to lite, limb or property because of fire, flood, erosion created hy reason of use, or by the structures to be used therefore, or by the inaccessibility of the property or structures thereon for convenient entry and operation of fire and other emergency apparatus or by the undue concentration or assemblage of persons upon such plot, 10. will be sensitive to adjacent historic properties in compliance with Article 11, 11. has a plot area which is sufficient, appropriate and adequate for the proposed use and the reasonably anticipated operation thereof; 12. will be adequately screened and buffered from contiguous properties; 13. will be constructed with adequate landscaping in compliance with tliis Ordinance, and provision for a storm water drainage system incompliance with the Ogunquil Subdivision Regulations; (Amended 4-7-07 ATM) 14. will provide for adequate pedestrian circulation; 15. anticipates and mitigates potential nuisance created by its location; and 16. complies in a satisfactory manner with all applicable performance standards criteria contained in this Ordinance."
Hartwell, 2015 ME 51, ¶ 12, 115 A.3d 81.
1. [The proposed use] will allow the orderly and reasonable use of adjacent properties; ...
5. [The proposed use] or materials incidental thereto or produced thereby will not give off noxious gases, odors, smoke or soot;...
6. [The proposed use] will not cause disturbing emission of electrical discharges, dust, light, vibration or noise;
12. [The proposed use] will be adequately screened and buffered from contiguous properties;., .
15. [The proposed use] anticipates and mitigates potential nuisance created by its location; and
16. [The proposed use] complies in a satisfactory manner with all applicable performance standards criteria contained in this Ordinance.