[¶ 1] Charles T. York and others
[¶ 2] In July of 1998, Robert Young sought approval from the Ogunquit Planning Board for the development of a thirty-nine lot subdivision, the Windward Subdivision. At the time, Young's interest in the property consisted of his right to purchase
[¶ 3] The Board met and discussed the plan for the subdivision numerous times between August of 1998 and June of 1999. The Board held two public hearings and conducted one site review. Abutters participated in both public meetings and voiced various concerns. On June 21, 1999, the Board voted to accept and approve the final plan for the subdivision on three conditions, one of which was the condition that "the developer will discuss bonding requirements with the Town Manager."
[¶ 4] The Board later issued twelve pages of findings of fact approving Young's application. Included in its approval were waivers of five Ogunquit Subdivision Standards requirements and one Ogunquit Zoning Ordinance requirement discussed at many of the meetings: a thirty-two foot road width requirement, a six percent road grade requirement, a cul-de-sac dead end street design requirement, a two street connections requirement, and a five foot sidewalk width requirement.
[¶ 5] On July 16, 1999, York filed a complaint in the Superior Court for review of the Board's decision pursuant to M.R. Civ. P. 80B.
[¶ 6] Because the Superior Court acted in an appellate capacity, we review the decision of the Planning Board directly for "error of law, abuse of discretion or findings not supported by substantial evidence in the record." Sproul v. Town of Boothbay Harbor, 2000 ME 30, ¶ 8, 746 A.2d 368, 372 (quoting Veilleux v. City of Augusta, 684 A.2d 413, 415 (Me.1996)). Substantial evidence is "evidence that a reasonable mind would accept as sufficient to support a conclusion." Id. We may not substitute our own judgment for that of the Board. Brooks v. Cumberland Farms, Inc., 1997 ME 203, ¶ 12, 703 A.2d 844, 848.
[¶ 7] York first contends that Young lacked the requisite standing to pursue a development application before the Board because he had no interest in the property he proposed to develop.
[¶ 8] Furthermore, various title documents submitted at oral argument clearly resolve the standing issue in favor of Young. Although gaps in his interest do appear in the form of short lapses in the agreements to extend the closing dates for the purchase and sale agreements, these temporary gaps appear only at noncrucial points in this litigation. At all crucial times — the submission of Young's plan to the Board, the plan's approval by the Board, the issuance of the Superior Court's decision, and the argument before us — Young's "right, title or interest" has been clearly established.
[¶ 9] Relying principally on Perkins v. Town of Ogunquit, 1998 ME 42, 709 A.2d 106,
[¶ 10] In this case, however, the waivers granted by the Board for four of the five requirements — the sidewalk width, cul-de-sac street end design, road grade, and street connections requirements — are waivers of Ogunquit Subdivision Standards alone. This is unlike the situation in Perkins, where the Board purported to waive an Ogunquit Zoning Ordinance provision. See id. ¶ 4, 709 A.2d at 107. The Planning Board does have the authority to waive strict application of Subdivision Standards in certain circumstances, on a Board finding of extraordinary and unnecessary hardship or because of the special circumstances of a plan.
[¶ 11] The remaining fifth requirement, however, that streets must be thirty-two feet in width, is mandated not just by the Subdivision Standards, but also by Ogunquit Zoning Ordinance itself, which provides, "... paved traveled surface shall be at least 32 feet in width." Ogunquit, Me., Ogunquit Zoning Ordinance § 10.2(B)(3) (Apr. 5, 1999). See supra note 3. This requirement is limited to "collector streets," defined in the Zoning Ordinance as, "Any street that carries the traffic to and from the major arterial streets to local access street, or directly to destinations or to serve local traffic generators." Ogunquit, Me., Ogunquit Zoning Ordinance § 2 (Apr. 5, 1999). At least one of the street width waivers granted by the Board was for a collector street; in fact, the Board's findings of fact specifically state, "The Board approved the requested waiver from 32 feet to 24 feet from the collector road, Windward Way...." Therefore, in granting Young a waiver of the thirty-two foot street width requirement, the Board has granted Young a waiver of a provision mandated by the Ogunquit Zoning Ordinance. This is impermissible.
[¶ 12] Although the Board may waive Subdivision Standards requirements, it is not granted the authority to waive Zoning Ordinance provisions. This is the basis of our holding in Perkins, that Zoning Ordinance provisions are specifically subject to the variance analysis mandated by state statute in 30-A M.R.S.A. § 4353(4) (Supp.2000). Perkins, 1998 ME 42, ¶ 12, 709 A.2d at 110. Thus, deviation from Zoning Ordinance provisions may be obtained only when the requisite finding is made by the Zoning Board of Appeals. There is no dispute that the Board of Appeals made no such finding in this case.
[¶ 13] The Board's waiver of the street width requirement is the only waiver that was erroneously granted. This error does not require the disapproval of Young's plan in its entirety, but only that limited portion of the plan that violates the street width Zoning Ordinance requirement. In vacating the Superior Court judgment, we remand for compliance with the Ogunquit Zoning Ordinance requirement of a thirty-two foot road width on the collector street or streets, or for the Board of Appeals to consider a variance of the street width requirement for Young pursuant to 30-A M.R.S.A. 4353(4) (Supp.2000) and the Ogunquit Zoning Ordinance § 5.2(B)(2).
[¶ 14] York also contends that the twelve pages of findings of fact issued by the Board regarding the five waivers as well as the criteria for subdivision approval enumerated in 30-A M.R.S.A. § 4404 (1996 & Supp 2000)
[¶ 15] The record before us reveals considerable evidence to support the Board's determinations, including the four properly granted waivers. All of the issues were addressed and discussed at numerous Board meetings held over the course of more than a year. There was sufficient competent evidence, including evidence supporting a finding of the special circumstances of Young's plan, on which the Board could have based its ample findings of fact.
[¶ 16] Finally, York contends that the Board violated Ogunquit ordinance requirements by approving Young's final plan in the absence of the posting of a performance bond.
The entry is:
Judgment vacated and remanded to the Superior Court with instructions to remand the case to the Ogunquit Planning Board only for compliance with the street width requirement of the Ogunquit Zoning Ordinance and the bond requirement of the Ogunquit Subdivision Standards.
Ogunquit, Me., Standards for Reviewing Land Subdivisions and Other Projects §§ 10.3.1.11, 10.3.2, 10.3.4, 10.3.5.1 (Apr. 3, 2000). The road width requirement also has a corresponding provision in the Ogunquit Zoning Ordinance itself which provides. "All collector streets shall be designed and constructed in accordance with the specifications for local residential streets, except that paved traveled surface shall be at least 32 feet in width." Ogunquit, Me., Ogunquit Zoning Ordinance § 10.2(B)(3) (Apr. 5, 1999).
30-A M.R.S.A. § 4353(4-C) (Supp.2000). Thus, the lot frontage requirement at issue in Perkins is now specifically subject to this "practical difficulty" inquiry rather than the "undue hardship" standard in the general variance.
30-A M.R.S.A. § 3001 (1996). The Town of Ogunquit has indeed granted such power to the Planning Board in its Subdivision Standards, which state in pertinent part:
Ogunquit, Me., Standards for Reviewing Land Subdivisions and Other Projects §§ 12.1, 12.2 (Apr. 3, 2000). Therefore, pursuant to these two authorities, the Ogunquit Planning Board is permitted to waive non-Ordinance Subdivision Standards.
Ogunquit, Me., Standards for Reviewing Land Subdivisions and Other Projects § 7.1.7. (Apr. 3, 2000).