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517 Ocean House LLC v. Town of Cape Elizabeth

Superior Court of Maine, Cumberland

May 10, 2016

517 OCEAN HOUSE LLC, Plaintiff
TOWN OF CAPE ELIZABETH, et al, Defendants

          Plaintiff's Attorney PEGGY L. MCGEHEE, ESQ LAUREN B. WELIVER, ESQ

          Defendant's Attorney JOHN WALL Ill. ESQ (CAPE ELIZABETH) MONAGHAN LEAHY, LLP



          Thomas D Warren Justice

         Before the court is a Rule 80B appeal by 517 Ocean House LLC from a May 19, 2015 decision of the Cape Elizabeth Planning Board approving a site plan application by parties in interest 541 Ocean House Road LLC, Nick Tammaro, Jennifer Feeney, and Sheldon Goldman (collectively, 541 Ocean House).

         541 Ocean House sought site plan approval for a pizza restaurant, retail space, and a landscaping business on Ocean House Road in Cape Elizabeth near the intersection of Ocean House Road and Two Lights Road. Plaintiff 517 Ocean House LLC is the owner and operator of a restaurant (Rudy's on the Cape) located a short distance north on Ocean House Road. For the sake of clarity, plaintiff 517 Ocean House will be referred to as Rudy's in this order.

         Standard of Review

         Review of a municipal decision under Rule 80B is for the purpose of determining whether there was an abuse of discretion, an error of law, or findings not supported by substantial evidence. E.g., Camp v. Town of Shapleigh, 2008 ME 53 ¶ 9, 943 A.2d 595.[1] Substantial evidence is evidence that a reasonable mind would accept as sufficient to form a conclusion even if the evidence would also support a contrary conclusion. Sproul v. Town of Boothbay Harbor, 2000 ME 30 ¶ 8, 746 A.2d 368.

         This case largely turns on the issue of whether the Planning Board made sufficient findings to conclude that site plan approval should be granted. The Law Court has ruled on a number of occasions that municipal planning boards are required to make the necessary findings and that meaningful judicial review is not possible without findings of fact sufficient to apprise the court of the basis of a planning board decision. E.g., Comeau v. Town of Kittery, 2007 ME 76 ¶ 12, 926 A.2d 129; Chapel Road Associates v. Town of Wells, 2001 ME 178 ¶ 10, 787 A.2d 137. The Law Court has also stated as recently as 2012, however, that in an appropriate case a court may conclude that, if there is sufficient evidence in the record, a planning board's decision may be deemed to be supported by "implicit findings." Town of Minot v. Starbird, 2012 ME 25 ¶ll n. 4, 39 A.3d 897; York v. Town of Ogunquit, 2001 ME 53 ¶ 14, 769 A.2d 172.

         In this case the Cape Elizabeth Planning Board made a general finding that subject to certain express conditions, the site plan application submitted by 542 Ocean House substantially complied with the site plan provisions in the Cape Elizabeth Zoning Ordinance. See R. Tab 12 Finding 3. It did not, however, make findings with respect to each of the individual approval standards in the Ordinance.

         In some cases the Law Court has remanded for express findings with respect to specific standards set forth in the zoning ordinance. See Sawyer v. Town of Cape Elizabeth, 2004 ME 71 ¶ 25, 852 A.2d 58. In other cases the Law Court has concluded that a remand is not necessary where a general finding has been made and the subsidiary findings are obvious or easily inferred from the record. Wells v. Portland Yacht Club, 2001 ME 20 ¶¶ 10-11, 771 A.2d 371. In the absence of express findings, whether a case should be remanded for further findings depends on whether the determinations made by the Planning Board and the basis for those determinations are sufficiently clear so that there can be meaningful judicial review. See Chapel Road Associates v. Town of Wells, 2001 ME 178 ¶ 12.


         The site at issue in this case contains four buildings and three greenhouses. Tammaro Landscaping currently uses three of the buildings and the greenhouses. At the time of the application the front building (closest to Ocean House Road) contained three retail businesses, and 541 Ocean House proposes to replace one of the retail uses in the front building with a 30 seat restaurant, leaving the other two retail uses essentially unchanged. R. Tab 1 at 1-2. 541 Ocean House also proposes to modify the existing parking by removing approximately 7000 sq. ft. of pavement and creating a patio and landscaped area in front of the restaurant. R. Tab. 1 at 1.

         Tammaro Landscaping will continue to use the remaining three buildings on the site but two of the greenhouses will be removed. The 541 Ocean House application does not propose the expansion of any of the existing buildings. R. Tab 1 at 2.

         Motivated by what Rudy's perceives as a major difference in the treatment that 541 Ocean House received compared to the treatment that Rudy's received when it applied for site plan approval in 2012-14, [2] Rudy's takes issue with the approval of the 541 Ocean House application in 11 respects.

         The challenges made by Rudy's involve certain of the submission requirements for site plan applications in section 19-9-4(C) of the Cape Elizabeth Zoning Ordinance, certain of the standards for the approval of site plan applications in section 19-9-5 of the ordinance, and certain of the design requirements in section 19-6-5 of the ordinance.

          1. Right, Title and Interest

         Rudy's argues that 541 Ocean House failed to meet the submission requirement that the applicant must show evidence of right, title, and interest in the site of the proposed project. Ordinance § 19-9-4(C)(1). However, 541 Ocean House submitted a copy of its deed to the property. R. Tab 1 at 11-13. Moreover, although a portion of the property (the area in the front building where 541 Ocean House proposed to place a restaurant) was subject to a lease to the retail store "Something's Fishy" at the time the application was filed, the undisputed evidence in the record demonstrates that the lease was to expire in March 2016. R.Tab. 16 at 5.

         Rudy's challenge on this issue is without merit.

         2. Financial Capability

         Rudy's argues that 541 Ocean House failed to meet the submission requirement of showing financial capability. Ordinance § 19-9-4(C)(16). The record showed that Nick Tammaro is the sole owner of 541 Ocean House Road LLC, R. Tab. 11 at 2. The record also contains a letter from the Town Manager stating that he had reviewed the finances of Mr. Tammaro and had determined that he had the financial capability to undertake the project. R. Tab 7. Finally, the ordinance expressly contemplates that the Town Manager will make a recommendation to the Planning Board on the issue of financial capability. Ordinance § 19-9-4(C)(16).

         Rudy's challenge on this issue is without merit.

         3. Water Supply

         One of the standards for approval of a site plan application is a finding that there is an adequate supply of drinking water. Ordinance § 19-9-5(F). Specifically, this standard requires that if the project is served by a public water supply, the applicant submit a letter from the supplier that "the proposed water supply system conforms with its design and construction standards, will not result in an undue burden on the source or ...

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