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517 Ocean House LLC v. Town of Cape Elizabeth

Superior Court of Maine, Cumberland

April 27, 2017

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

          Attorney for: JEREL BABCOCK STEPHEN WHITING, THE WHITING LAW FIRM, PA.

          Attorney for: SHEILA BABCOCK STEPHEN WHITING THE WHITING LAW FIRM, PA.

          Attorney for: KIMBERLY JANE ALLEN PAUL F DRISCOLL NORMAN HANSON & DETROY LLC.

          Attorney for: KIMBERLY JANE ALLEN LEONARD I SHARON LEONARD SHARON ESQ PC.

          Attorney for: KIMBERLY JANE ALLEN SHANE T WRIGHT NORMAN HANSON & DETROY LLC.

          Attorney for: MAX GARCIA PAUL F DRISCOLL NORMAN HANSON & DETROY LLC.

          Attorney for: MAX GARCIA LEONARD I SHARON LEONARD SHARON ESQ PC.

          ORDER

          THOMAS D. WARREN, JUSTICE, SUPERIOR COURT

         Before the court is a second Rule 8OB appeal by 517 Ocean House LLC from a decision of the Cape Elizabeth Planning Board approving a site plan application by party in interest 541 Ocean House Road LLC.

         541 Ocean House originally sought site plan approval for a pizza restaurant, retail space, and a landscaping business on Ocean House Road in Cape Elizabeth in April 2015. The retail space and landscaping business are pre-existing, but in addition to adding the restaurant, the application involved alterations to the site by modifying the existing parking area and creating a patio n and landscaped area in front of the proposed restaurant.

         The 541 Ocean House application was approved by the Cape Elizabeth Planning Board on May 19, 2015. 517 Ocean House LLC, the owner and operator of a restaurant (Rudy's on the Cape) located a short distance north on Ocean House Road, [1] filed a Rule 8OB appeal from that decision. AP-15-22.

         In an order dated May 10, 2016 and filed May 11, 2016 in AP-15-22 the court rejected a number of the arguments raised by Rudy's but remanded the case to the Planning Board for further findings on three issues:

(1) whether the lighting is adequate for safety without excessive illumination and whether the light fixtures are shielded;
(2) whether the plantings between the road and the parking area will obscure the view of parked cars and parking areas; and
(3) whether the existing stormwater management system, with the modifications proposed by 541 Ocean House Road LLC and revision of the plan in conformity with paragraph 4 of the Town Engineer's letter, meets the approval standard in Ordinance § 19-9-5(D).

         The Planning Board considered the issues in the court's remand order at a meeting on June 21, 2016. At a subsequent meeting on July 19, 2016 the Board reviewed and acted on 16 motions ...


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