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Hynes v. Town of Kittery

Superior Court of Maine, York

March 11, 2015

STEPHEN A. HYNES, TRUSTEE STEPHEN A. HYNES REAL PROPERTY TRUST AGREEMENT DATED MARCH 29, 1995 Plaintiff,
v.
TOWN OF KITTERY, MAINE and THE PLANNING BOARD OF SAID TOWN, Defendants.

ORDER

John O'Neil, Jr., Justice

I. Background

Plaintiff Stephen A. Hynes ("Hynes") brings this M.R. Civ. P. 80B appeal from a decision of the Town of Kittery Planning Board ("the Town") denying a request to expand a mobile home park. Hynes also brings an independent claim seeking a declaration that the ordinance is preempted by 30-A M.R.S. § 4358 and inconsistent with the Law Court's decision in Bangs v. Town of Wells, 2000 ME 186, 20, 760 A.2d 632.

A. Facts

Hynes owns the Yankee Commons Home Park ("Yankee Commons") in Kittery, Maine, which is composed of 63 mobile homes. In 2011, Hynes sought to expand Yankee Commons with 79 more mobile homes ("the Expansion Project") into an adjacent 50-acre lot ("the Proposed Site") that he also owns. Most of the Proposed Site is located in the Mixed-Use Zone of Kittery, with smaller portions zoned Residential-Rural and as a Shoreland and Resource Protection Overlay Zone. Current designs for the Expansion Project require excavation and removal of a substantial amount of earth to create a level surface for construction.

B. Procedural History

Hynes pursued several applications that advanced through a number of municipal decision makers before arriving in this court. The procedural history is thus somewhat complicated. After commencing discussions with the Town about a project to expand Yankee Commons, Hynes submitted a Subdivision Sketch Plan Review Application on December 20, 2011, which was accepted by the Planning Board. The Board visited the Proposed Site on September 4, 2012.

At a public hearing on September 13, 2012, Hynes presented the Application to the Planning Board. The Planning Board found the amount of excavation required for the Proposed Expansion "excessive" and not incidental, and advised Hynes to either (1) seek a mineral extraction permit from the Code Enforcement Officer ("CEO"), or (2) resubmit a new application with less excavation. Hynes disagreed that a mineral extraction permit was required on the grounds the excavation was merely "incidental" to the project. Under the mineral excavation permit requirements, there is an exception for "incidental" excavation, which does not require a permit.

Despite believing a permit was not required, Hynes applied for one with the CEO. The CEO denied the application because mineral extraction is not a permitted use in the Mixed-Use Zone, and directed Hynes to appeal to the Board of Appeals ("BOA"). The BOA reversed the CEO, concluding it had jurisdiction to consider the application and, as pressed by Hynes, the excavation was incidental to the Expansion Project.

With a favorable decision from the BOA, Hynes returned to the Planning Board. The Planning Board refused to reconsider the finding that the excavation was not incidental to the project, concluding that the BOA lacked jurisdiction to hear the appeal because the mineral extraction permit review process requires the CEO make a recommendation, which is forwarded to the Planning Board to make an ultimate decision.

After the Planning Board refused to revisit the matter, Hynes filed a second application with the CEO for a mineral extraction permit. This time, the CEO issued a recommendation to the Planning Board that the project receive consideration for the permit only in the Residential-Rural Zone because mineral extraction was not a permitted use under the zoning that applied to rest of the Proposed Site.

The Planning Board denied the Subdivision Review Application on September 26, 2013, ruling: (1) the Proposed Expansion requires a mineral extraction permit because the quantity of excavation required is not "incidental" to the project, and such a permit could not issue because mineral extraction is not permitted in the Mixed-Use Zone, and (2) mobile home parks are not permitted in the Mixed-Use Zone, and the ordinance is not preempted by 30-A M.R.S. § 4358 because single family homes are similarly not permitted.

II. Discussion

A. Rule 80B Appeals Standard


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