D. WARREN, JUSTICE
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
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.
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.
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
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. The court concludes that there are no
disputed issues of material fact.
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.
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.
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.
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.
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.
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.
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.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.
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.
with Comprehensive Plan
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 ...