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Munz v. Town of Cape Elizabeth

Superior Court of Maine, Cumberland

March 13, 2019

CHRISTOPHER AND JULIE MUNZ, Petitioners
v.
TOWN OF CAPE ELIZABETH, and MARGARET BIRLEM AND NOELLE C. DELUCA, Respondents

          DECISION AND ORDER

          Nancy Mills, Justice.

         Before the court is petitioners Christopher Munz and Julie Munz's Rule 80B appeal of respondent Town of Cape Elizabeth's May 15, 2018 approval of respondents Margaret Birlem and Noelle C. Deluca's private road extension application. For the following reasons, the case is remanded to the respondent Town of Cape Elizabeth Planning Board for further findings of fact consistent with this decision and order.

         I. Background

         Petitioners Christopher and Julie Munz are owners of 5 South Street, Cape Elizabeth, Maine. (R. 2, p. 2.) Respondent Town of Cape Elizabeth is a Maine municipal corporation located in Cumberland County, Maine, with offices located at 320 Ocean House Road, acting through its Planning Board. (R. 8, p. 13.) Respondents Margaret Birlem and Noelle C. Deluca are owners of 6 South Street and 8 South Street, Cape Elizabeth, Maine, which were consolidated into a single parcel and renamed 8 Aster Lane, Cape Elizabeth, Maine. (R. 3, p. 12-18.)

         On March 29, 2018, respondents Birlem and DeLuca submitted an application for minor subdivision review to extend a private road pursuant to respondent Town's ordinance. Subdivision Ordinance for Private Road Standards, § 16-2-3. (R. 3.) On April 23, 2018, the Board conducted a hearing to assess the completeness of the application, determined the application was complete, and scheduled a site visit. (R. 8.) The Board conducted the site visit on April 30, 2018. (R. 13, p. 7.)

         On May 15, 2018, the Board held a hearing and received evidence both for and against the application. (R. 14-15.) Respondents Birlem and DeLuca submitted a boundary and topographic survey, engineering plans, and a traffic analysis report in support of the Application. (R. 3, R. 10, R. 11.) Respondent Town's engineer analyzed the plans, (R. 5, R. 12) respondent's town planner provided summaries of the project to the Board, (R. 7, R. 13) and the respondent Town's fire chief commented on the plans. (R. 4, R. 14, p. 5 (minutes).) Petitioner Christopher Munz spoke against approval of the application on both April 23, 2018 and May 15, 2018. (R. 8, p. 4 (minutes), R. 14, p. 4 (minutes).) On May 15, 2018, the Board made findings of fact and voted to approve the application with eight conditions. (R. 14, p. 6-9 (minutes).) The Board confirmed the findings and conditional approval by letter dated May 17, 2018. (R. 15.)

         II. Procedural History

         Petitioners filed a petition for appeal of government action pursuant to Rule 80B on June 13, 2018. M.R. Civ. P. 80(B). The petitioners claim that the Board's approval of the application was an error of fact and law, an abuse of its discretion, arbitrary and capricious, and unsupported by substantial evidence in the record. Petitioners filed their brief in support of their Rule 80B petition on September 7, 2018. Respondents Birlem and DeLuca filed their brief in opposition to the Rule 80B petition on October 22, 2018. Respondent Town filed its brief in opposition to the Rule 80B petition on October 22, 2018. Petitioners filed a reply brief on November 5, 2018.

         III. Discussion

         Petitioners argue that the Board erred in approving the application as it was contrary to Town Zoning and Subdivision Ordinance provisions, is unsupported by required findings of fact, and violated the Munzes' contract and property rights. Respondents Birlem and DeLuca argue that the Munzes do not have standing to appeal the Board's decision, the decision is supported by record evidence, and the decision is adequate for appellate review. Respondent Town argues petitioners have not preserved all issues for appeal, the decision was supported by record evidence, the decision is supported by facts that are obvious or can be inferred, that no amendment process was required, and that petitioners' arguments are not germane to the appeal.

         1. Standard of Review

         When the Superior Court acts in its appellate capacity pursuant to Rule 80B, the court "directly examine[s] the record developed before the Board ... for abuse of discretion, error of law, or findings unsupported by substantial evidence in the record." Lane Constr. Corp. v. Town of Washington, 2008 ME 45, ¶ 29, 942 A.2d 1202; MR. Civ. P. 80B. The court will "neither embark on an independent and original inquiry, nor ... review the matter by implying the findings and grounds for the decision from the available record." Appletree Cottage, LLC v. Town of Cape Elizabeth, 2017 ME 177, ¶ 9, 169 A.3d 396 (quotations omitted). "The fact that the record before the Board is inconsistent or could support a different decision does not render the decision wrong." Duffy v. Town of Berwick. 2013 ME 105, ¶ 22, 82 A.3d 148 (quotations omitted). Petitioners bear the burden of persuasion on appeal because they seek to vacate the Board's decision. See Fitanides v. City of Saco, 2015 ME 32, ¶ 8, 113 A.3d 1088.

         2. Standing

         "Any party may take an appeal, within 45 days of the vote on the original decision, to Superior Court from any order, relief or denial in accordance with the Maine Rules of Civil Procedure, Rule 80B." Sahl v. Town of York,2000 ME 180, ¶ 8, 760 A.2d 266. An abutting owner is an owner of land which abuts or adjoins;" the close proximity definition has been applied to an abutting landowner. Sahl. 2000 ME 180, ¶ 9, 760 A.2d 266 (quotations omitted). Abutters need allege only "a potential for particularized injury to satisfy the standing requirement." Sproul v. Town of Boothbay Harbor,2000 ME 30, ¶ 6, 746 A.2d 368 ...


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