[¶ 1] Richard and Sherry Thacker appeal from a judgment entered in the Superior Court (Sagadahoc County, Brennan, J.) affirming the decision of the Topsham Planning Board approving Konover Development Corporation's site plan and subdivision applications, and from a judgment entered in the Superior Court (Kennebec County, Studstrup, J.) affirming the decision of the Maine Department of Transportation approving Konover's application for a traffic movement permit. The Thackers contend that: (1) the Topsham Planning Board erred when it concluded that Konover's proposed subdivision would comply with the requirements of the Topsham site plan and subdivision ordinances pertaining to the use of existing public roads; and (2) the Maine Department of Transportation erred by failing to perform a level of service analysis and by issuing a traffic movement permit to Konover. We affirm both judgments.
[¶ 2] Richard and Sherry Thacker own the Arby's Restaurant that is located on a southeast corner parcel at the intersection of Topsham Fair Mall Road (the Mall Road) and Route 196 in Topsham. There are two means of ingress and egress to the Mall Road from Arby's. The first is provided by an unsignalized paved accessway (Arby's access drive) that begins 190 feet southwest of Route 196. Four other businesses located on two other lots also have direct access to Arby's access drive. The second means of ingress and egress to Arby's is located a little farther southwest at a currently unsignalized intersection formed by the Mall Road, the access drive for the Tire Warehouse and other commercial establishments on the southeasterly side of the Mall Road, and, directly across the street, an access drive for Hannaford Brothers on the northwest side of the Mall Road. Arby's access drive and the access road for the Tire Warehouse are connected by a private service road (the Bank service road) that runs parallel to the Mall Road across a parcel, with several commercial establishments including Gardiner Savings Bank. Directly across the Mall Road from the entrance to Arby's is Winners Circle, a drive that provides access to McDonald's and Wendy's restaurants.
[¶ 3] In February 2001, Konover Development Corporation applied for site plan and subdivision approval from the Topsham Planning Board so that it could subdivide a large parcel of land adjacent to the Mall Road and construct a Wal-Mart Superstore and a second retail store on two of the new lots. Konover retained Sitelines,
[¶ 4] From September 2000 until November 2001, the Board held fourteen meetings and workshops at which it considered Konover's proposed site and subdivision plans. The Board retained DeLuca-Hoffman Associates, Inc., a consulting engineer firm, to review the information provided by Sitelines and Eaton Traffic Engineering. In a May 3, 2001 letter to the Board, the DeLuca-Hoffman project engineer made several recommendations in response to Sitelines's plan and questioned whether the proposed additional width of the Mall Road would increase delay time for people making left turns to and from any of the driveways, including the Arby's access drive. On September 18, 2001, the Board reviewed a traffic impact study and discussed a September 14 letter from DeLuca-Hoffman, in which DeLuca-Hoffman agreed with Sitelines that the number of vehicles that would exit from Arby's via the Bank service road to the Mall Road at the Tire Warehouse would not represent a safety or operational concern. At the meeting, Bill Eaton from Eaton Traffic Engineering stated that people who are exiting Arby's access drive and turning left onto the Mall Road would have "incredibly long delays" during peak hours. In addition, the Thackers' attorney expressed concern over the proposed traffic plan because Gardiner Savings Bank would not give the Thackers an easement for Arby's customers to drive across the Bank service road to get to the proposed signal at the intersection of the access road for Tire Warehouse and the Mall Road.
[¶ 5] On November 6, 2001, the Board approved the final subdivision plan contingent upon certain road improvements, restrictions, and requirements. The Board's approval included a written finding that the proposed subdivision "[would] not cause unreasonable highway or public road congestion or unsafe conditions with respect to use of the highways or public roads existing or proposed." The Thackers appealed this decision pursuant to M.R. Civ. P. 80B. The Superior Court affirmed the Board's decision, and the Thackers filed a timely appeal.
[¶ 6] In addition to applying for and receiving site plan and subdivision approval from the Board, Konover applied for and received a traffic movement permit from the Maine Department of Transportation (MDOT) pursuant to 23 M.R.S.A. § 704-A (Supp.2002).
A. Topsham Planning Board's Approval of Konover's Application
[¶ 7] The Thackers contend that the Board erred by approving Konover's application because the proposed development will prevent vehicles from making a left turn from Arby's access drive onto the Mall Road during peak hours, causing the level of service of the intersection to fail. This, they contend, violates the requirements of Topsham's Site Plan Review and Zoning ordinances and the subdivision statute.
[¶ 8] When a decision of the Superior Court acting in an intermediate appellate capacity is appealed, we directly review the operative decision of a town planning board "for an abuse of discretion, error of law, or findings unsupported by substantial evidence in the record." Bragdon v. Town of Vassalboro, 2001 ME 137, ¶ 4, 780 A.2d 299, 301 (quoting Springborn v. Town of Falmouth, 2001 ME 57, ¶ 8, 769 A.2d 852, 855) (internal quotation marks omitted). "Substantial evidence exists when a reasonable mind would rely on that evidence as sufficient support for a conclusion...." Forbes v. Town of Southwest Harbor, 2001 ME 9, ¶ 6, 763 A.2d 1183, 1186. "We will not substitute our own judgment for that [of a local administrative board]." Id. A demonstration that no competent evidence supports the local board's findings is required in order to vacate the board's decision. Id.
1. Topsham Site Plan Review and Zoning Ordinances
[¶ 9] The Site Plan Review ordinance provides that: "[t]he proposed site layout shall provide for safe access and egress from public and private roads by providing adequate location, numbers and control of access points, including site distances, turning lanes and traffic signalization when required by existing and projected traffic flow on the municipal road systems."
Topsham, Me., Code § 225-28(A) (Sept. 25, 2002). Both provisions focus on assuring "safe access and egress" to and from public and private roads. The zoning ordinance provision also focuses on whether the proposed development will cause "an unreasonable impact on local roads by degrading levels of service." Id.
[¶ 10] The Board's finding that the development "[w]ill not cause unreasonable highway or public road congestion or unsafe conditions with respect to use of the highways or public roads existing or proposed" was supported by substantial evidence.
[¶ 11] The Thackers assert that the Board should not have considered the access provided by the Bank service road because the Thackers do not have a deeded right-of-way or easement to it. The Board considered, however, that Arby's patrons regularly use the service road. Moreover, the minutes of the September 18 Board meeting reflect that "there is a plan on file signed by the Planning Board [relating to] the Tire Warehouse approval that shows specifically that the access leading from the Tire Warehouse through the Bank property was a public access."
2. Subdivision Statute
[¶ 12] Maine's subdivision statute requires that a "proposed subdivision will not cause unreasonable highway or public road congestion or unsafe conditions with respect to the use of the highways or public roads existing or proposed." 30-A M.R.S.A. § 4404(5) (Supp.2002). The Thackers claim that this statutory standard will be violated by Konover's proposed subdivision because the anticipated increase in traffic will reduce the level of service at the intersection of Arby's access drive and the Mall Road during peak hours. A reduction in the level of service of Arby's access drive during peak hours does not, however, constitute "unreasonable highway or public road congestion or unsafe conditions." Id. Furthermore, because section 4404(5) is directed at the effect a subdivision will have on highways and public roads, a reduction in the level of service associated with a private access drive does not, standing alone, establish a violation of the statute. The Board did not err by concluding that the proposed subdivision satisfied section 4404(5) of the subdivision statute. Accordingly, we affirm the Board's decision because it is supported by substantial evidence.
B. Maine Department of Transportation's Approval of Konover's Traffic Movement Permit
[¶ 13] The Thackers contend that MDOT erred by failing to evaluate the reduction in the level of service at the intersection of Arby's access drive and the Mall Road that will result from the project's approval.
[¶ 14] When the Superior Court has acted in an intermediate appellate capacity, we directly review the decision of the Commissioner. Green v. Comm'r of Dep't of Mental Health, 2001 ME 86, ¶ 9, 776 A.2d 612, 615. The Commissioner's factual findings "must be affirmed unless clearly erroneous[,]" and "[his] decision is reviewed for abuse of discretion, error of law, or findings not supported by substantial evidence in the record." Id. "The administrative agency's `interpretation of a statute administered by it, while not conclusive or binding on this court, will be given great deference and should be upheld unless the statute plainly compels a contrary result.'" Davric Me. Corp. v. Me. Harness Racing Comm'n, 1999 ME 99, ¶ 7, 732 A.2d 289, 293 (quoting Town of Madison, Dep't of Elec. Works v. Pub. Utils. Comm'n, 682 A.2d 231, 234 (Me. 1996)). "Furthermore, we defer to an agency in those areas within its expertise unless a statute or regulation compels a contrary result." Green, 2001 ME 86, ¶ 9, 776 A.2d at 615.
[¶ 15] In accordance with 23 M.R.S.A. § 704-A(2) (Supp.2002), Konover is required to obtain a traffic movement permit from MDOT because the proposed development will draw "100 or more passenger car equivalents at peak hour." According to subsection (A), "[b]efore issuing a permit, [MDOT] shall determine that any traffic increase attributable to the proposed project will not result in unreasonable congestion or unsafe conditions on a road in the vicinity of the proposed project." § 704-A(2)(A).
[¶ 16] MDOT's rules provide that it will "consider all relevant evidence" before determining "whether the developer has made adequate provision for traffic movement... in the vicinity of the development area." 17-229 C.M.R. 305 § 7(4)(A) (Weil 2000). MDOT may review design and operations "to the extent necessary" to ensure that a development will "not cause any delay, interference or cause safety problems with the operation of adjacent roadways, adjacent driveways or pedestrian walkways." Id. In addition, section 7(8)(A) requires that an off-site traffic study be conducted and section 7(8)(D)(9)
[¶ 17] The Thackers specifically contend that MDOT failed to comply with its own rules by not performing a level of service analysis of Arby's access drive when the accessway is in the "vicinity" of the proposed development and would be affected by the resulting increase in traffic. In his written response to the Thackers' request for reconsideration, the Commissioner explained that because Arby's access drive is a driveway, it does not constitute a "road" or an "intersection" under section 7(8)(D)(9) and thus does not need to be reviewed by MDOT.
[¶ 18] MDOT's traffic movement permit rules do not expressly define the terms "road" and "intersection" used in section 7(8)(D)(9) and various other sections, but do define "entrances and exits" as "[a]n access way used by traffic movements of all types to or from properties abutting a highway or public way. As used herein, the term includes all driveways including private residential, commercial and other nonresidential driveways."
[¶ 19] Because Arby's access drive constitutes an "entrance and exit" under the regulations, MDOT was not required to perform a capacity analysis pursuant to section 7(8)(D)(9). This conclusion is consistent with MDOT's own interpretation of its rules, to which we afford "considerable deference." Langley v. Me. State Employees Ass'n, 2002 ME 32, ¶ 8, 791 A.2d 100, 102.
[¶ 20] MDOT also did not err by conducting a more detailed review of the Winners Circle and Hannaford access drives. MDOT is charged with reviewing the effect proposed projects will have on traffic "to the extent necessary." 17-229 C.M.R. 305 § 7(4)(A). There is nothing in the applicable rules that prohibit or restrict MDOT from exercising discretion in the level of scrutiny it gives the various roads, intersections, exits, and entrances in the vicinity of a proposed development when reviewing applications for traffic movement permits.
[¶ 21] The Thackers also challenge MDOT's failure to specifically study whether the development will "not cause any delay, interference or cause safety problems with the operation of adjacent roadways, adjacent driveways or pedestrian walkways," id., in conjunction with Arby's access drive. In addition, the Thackers challenge MDOT's consideration of the ability of Arby's customers to use the Bank service road to avoid delays exiting Arby's at peak traffic hours.
[¶ 22] MDOT did not treat Arby's access drive as an "adjacent" roadway or driveway because the proposed development is a considerable distance from Arby's. Although the Arby's access drive is in the "vicinity" of the development, it is not "adjacent" to it. MDOT did not, therefore, err by not examining the effect of the proposed development on the Arby's access drive under the criteria contained in
The entry is:
23 M.R.S.A. § 704-A(2) (Supp.2002).