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Friends of Motherhouse v. City of Portland

Superior Court of Maine, Cumberland

April 20, 2016

FRIENDS OF THE MOTHERHOUSE, et al., Plaintiffs
v.
CITY OF PORTLAND, Defendant and SEA COAST AT BAXTER WOODS ASSOCIATES, LLC, et al., Intervenors.

          ORDER

          THOMAS D. WARREN, JUSTICE

         Before the court is a motion for summary judgment brought by Intervenors Motherhouse Associates LP and Sea Coast at Baxter Woods Associates, LLC and joined by defendant City of Portland.

         The plaintiffs in this action are a non-profit corporation, Friends of the Motherhouse, and two individuals, Raymond Foote and Barbara Weed. They allege that recent amendments to the City of Portland's zoning ordinance and zoning map are inconsistent with the City's comprehensive plan and that the rezoning failed to comply with applicable procedural requirements in the comprehensive plan. They seek a declaratory judgment that the amendments are unlawful.

         The intervenors are developers whose proposed project depends upon approvals granted by the City under the zoning amendments. The intervenors' motion for summary judgment asserts that the amendments are not inconsistent with the comprehensive plan and are otherwise lawful.

         Summary Judgment

         Summary judgment should be granted if there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. In considering a motion for summary judgment, the court is required to consider only the portions of the record referred to and the material facts set forth in the parties' Rule 56(h) statements. E.g., Johnson v. McNeil, 2002 ME 99 ¶ 8, 800 A.2d 702. The facts must be considered in the light most favorable to the non-moving party. Id. Thus, for purposes of summary judgment, any factual disputes must be resolved against the movant. Nevertheless, when the facts offered by a party in opposition to summary judgment would not, if offered at trial, be sufficient to withstand a motion for judgment as a matter of law, summary judgment should be granted. Rodrigue v. Rodrigue, 1997 ME 99 ¶ 8, 694 A.2d 924.

         In this case plaintiffs have admitted all of the factual assertions in the interveners' statement of material facts. Although plaintiffs also submitted a statement of additional material facts, that statement consists almost entirely of legal arguments that the rezoning is inconsistent with plaintiffs' interpretation of the comprehensive plan.[1] The court concludes that there are no disputed issues of material fact.

         After filing their opposition to the motion for summary judgment and essentially agreeing that there were no disputed issues of fact, plaintiffs filed a Rule 56(f) motion to stay any decision on the motion until they had the opportunity to conduct discovery. Because plaintiffs did not demonstrate that the discovery they sought was in any way needed to discover facts essential to their opposition to summary judgment, their Rule 56(f) motion was denied in an order dated March 8, 2016.

         Factual Background

         In June 2014 Sea Coast Healthcare Inc. entered into an agreement with St. Joseph's Convent and Hospital to purchase a 17.5 acre property located on Stevens Avenue in Portland. The property includes the vacant St. Joseph's convent, known as the Motherhouse, as well as Catherine McAuley High School, St. Catherine's residence hall, surrounding grounds, and playing fields. Intervenors' SMF ¶¶ 1, 3. At that time the property was in an R-5 zone.

         The purchase agreement was assigned to Intervenor Sea Coast at Baxter Woods Associates, LLC (Sea Coast), which proposes to develop the property by converting the vacant Motherhouse into a multifamily dwelling of 88 affordable and market rate senior housing units and creating a retirement community or congregate care facility consisting of additional dwelling units and assisted living facilities. Sea Coast will offer Catherine McAuley High School a 25 year lease and St. Catherine's Hall will remain as housing for retired Sisters of Mercy. Intervenors' SMF ¶¶ 2, 4-5.

         In March 2015 Sea Coast filed an application for a zoning amendment concerning the property. The original application sought to rezone the entire property from R-5 to R-6A. However, during the course of review by the Planning Board, Sea Coast revised its application to reduce the size of the area to be rezoned from 17.5 to 13.5 acres, excluding Catherine McAuley High School and St. Catherine's Hall and certain associated land areas, which would remain in the R-5 zone. Sea Coast also revised its proposal by switching the proposed rezoning of the remaining 13.5 acre parcel to R-5A, which is lower density than R-6A. Interveners' SMF ¶¶ 8, 10.

         In May 2015, after notice and public hearing, the Planning Board voted 4-0 to recommend that the City Council approve the proposed rezoning as revised. The proposed revisions included both amendments to the text of the zoning code and to the zoning map. Intervenors' SMF ¶ 12.

         The City Council held a public hearing on the proposed rezoning and voted to adopt the proposed text amendments on June 15, 2015. At that time it tabled the proposed map amendments to its next meeting. Intervenors' SMF ¶¶ 16, 18.

         Before that meeting Sea Coast suggested that its proposal be revised to rezone only 7.51 acres to R-5A, increasing to 9.53 acres the area that would remain as originally zoned in R-5.[2]This had the effect of reducing the maximum number of dwelling units potentially allowed under the proposed rezoning from 334 to 249, including the 88 units in the converted Motherhouse. Intervenors' SMF ¶¶ 19-21. On July 6, 2015 the City Council unanimously approved the proposed map amendment as revised, rezoning 7.51 acres to R-5 A. Intervenors' SMF ¶ 22.

         On August 11, 2015 the Planning Board approved Sea Coast's application to approve a four lot subdivision of the property, along with subdivision approval for a multifamily dwelling consisting of 88 senior housing units (66 affordable and 22 market rate) in the Motherhouse. No appeal from the Planning Board's approvals was filed. Intervenors' SMF ¶¶ 23-25.

         Consistency with Comprehensive Plan

         The Law Court has stated that review of rezoning decisions by a city council must respect that "zoning is a legislative act" and must give deference to the legislative body. Remmel v. City of Portland,2014 ME 114 ¶ 12, 102 A.3d 1168, quoting Golder v. City of Saco, 2012 ME 76 ¶ 11, 45 A.3d 697. By statute, zoning decisions and rezoning decisions must be "pursuant to and consistent with a comprehensive plan adopted by the municipal legislative body." 30-A M.R.S. § 4352(2). See also 30-A M.R.S. § 4314(3). In considering whether a rezoning action is consistent with a city's comprehensive plan, the court must determine whether the City Council could have determined from the evidence before it that the rezoning was "in basic harmony" with the comprehensive plan. Remmel,2014 ME 114 ¶ 13, quoting Adelman v. Town of Baldwin,2000 ME 91 ¶ 22, 750 A.2d 577, and LaBonta v. City of Waterville,528 A.2d ...


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