[¶ 1] Ogunquit Village Estates, LLC, the Seafarer Development Group, and Stephen T. Hallett (the developers)
[¶ 2] In September of 2002, the developers filed an application for subdivision approval with the Planning Board to build a retirement community for active adults over the age of fifty-five. The most recent plans call for thirty-five dwelling units to be constructed on two parcels of land totaling approximately fifty acres located on the southern and northern sides of Berwick Road in Ogunquit. William R. Bodack owns property immediately adjacent to the proposed subdivision's southern parcel. The Planning Board and the public, including Bodack, raised various concerns about the subdivision, noting, among other things, its size and potential impact on traffic, and specifically the level of service (LOS) at the intersection of Berwick Road and U.S. Route 1 (the intersection).
[¶ 4] In March of 2005, the Planning Board issued a written decision approving the application to build the subdivision, and finding that, although the subdivision would cause an increase in traffic congestion at the intersection, such an increase would not result in an unreasonable impact on traffic. The Planning Board waived the two-street-connections requirement of section 10.3.1.11, but did not state the reasons for its waiver of the access requirement.
[¶ 5] Bodack appealed the Planning Board's decision to the Superior Court pursuant to M.R. Civ. P. 80B,
A. Standard of Review
[¶ 6] When the Superior Court is acting in its appellate capacity, we review the Planning Board's decision "directly for an abuse of discretion, error of law, or findings unsupported by substantial evidence in the record." Herrick v. Town of Mechanic Falls, 673 A.2d 1348, 1349 (Me. 1996). "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. A Planning Board's decision is given deference and "[w]e will not substitute our own judgment for that of the Board." Id. The interpretation of a local ordinance, however, "is a question of law, and we review that determination de novo." Gensheimer v. Town of Phippsburg, 2005 ME 22, ¶ 16, 868 A.2d 161, 166.
B. Interpretation of the Zoning Ordinance and Subdivision Standards
[¶ 7] Bodack contends that the Planning Board's approval of the subdivision was error because the plain language
[¶ 8] Before approving a subdivision permit, the Planning Board must consider and review traffic-related criteria pursuant to 30-A M.R.S. § 4404(5) (2005), the Ogunquit Zoning Ordinance, and the Planning Board's own Subdivision Standards. Section 4404 provides:
30-A M.R.S. § 4404. Section 1.1.5 of the Subdivision Standards mirrors section 4404(5) and provides that, before granting approval for a proposed subdivision, the Planning Board must determine that the subdivision "[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." Ogunquit, Me., Standards for Reviewing Land Subdivisions and Other Projects § 1.1.5 (Apr. 3, 2000).
[¶ 9] The Town's Zoning Ordinance, however, imposes more stringent traffic requirements than the reasonableness standards found in the State of Maine statute or the Planning Board's Subdivision Standards. Section 8.13(A)(3) of the Town's Zoning Ordinance provides:
Ogunquit, Me., Zoning Ordinance § 8.13(A)(3) (Apr. 4, 1998) (emphasis added).
[¶ 10] In support of the Planning Board's determination that the proposed subdivision would not create unreasonable traffic congestion at the intersection, the developers contend that section 8.13(A)(3) of the Zoning Ordinance should be construed in light of the reasonableness standard found in section 1.1.5 of the Subdivision Standards, as well as 30-A M.R.S. § 4404(5).
[¶ 11] The Zoning Ordinance and Subdivision Standards each contain provisions regarding how to reconcile conflicting provisions within the Ordinance and Standards. Section 1.5 of the Zoning Ordinance provides: "Whenever the requirements of this Ordinance are in conflict with the requirements of any other lawfully adopted rules, regulations, or ordinances, the most restrictive or that imposing the higher standards shall govern." Ogunquit, Me., Ogunquit Zoning Ordinance § 1.5 (Apr. 4, 1998) (emphasis added). Similarly, section 10.1.1 of the Subdivision Standards provides that "the most rigid requirement of either this standard, the zoning or other ordinance shall apply whenever they may be in conflict." Ogunquit, Me., Standards for Reviewing Land Subdivisions and Other Projects § 10.1.1 (Apr. 3, 2000) (emphasis added).
[¶ 12] Section 8.13(A)(3) of the Zoning Ordinance, as applied in the instant case, imposes a more restrictive standard than, and thus is in conflict with, the reasonableness standard found in section 1.1.5 of the Subdivision Standards. To conclude that the reasonableness standard found in section 1.1.5 and section 4404(5) of title 30-A applies, and that the specific numerical requirements of section 8.13(A)(3) do not apply would render those requirements a nullity. Rules of statutory construction require zoning ordinances and subdivision standards to be interpreted "so as [not] to render a provision a surplusage." Kimball v. Land Use Regulation Comm'n, 2000 ME 20, ¶ 26, 745 A.2d 387, 394. It is the burden of the developers, as applicants, "to demonstrate that the proposed subdivision will satisfy every requirement of the . . . town ordinance," namely, that the subdivision will not exacerbate the traffic problems at the intersection in violation of section 8.13(A)(3). Grant's Farm Assocs., Inc. v. Town of Kittery, 554 A.2d 799, 801 (Me.1989). The traffic studies performed on the intersection found that it had an LOS of "F." Adding any traffic to this already failing intersection would adversely impact its LOS, as Bodack correctly asserts. Because the Planning Board improperly applied the reasonableness standard found in section 1.1.5 of the Subdivision Standards and section 4404(5) of the State statute, as opposed to the more restrictive standard found in section 8.13(A)(3) of the Zoning Ordinance, the Superior Court correctly vacated the Board's approval of the subdivision. See Herrick, 673 A.2d at 1349.
C. Waiver of the Access Requirement
[¶ 13] The developers contend that the Planning Board's decision to grant a waiver of the access requirement in the Board's Subdivision Standards was supported by the evidence because special circumstances exist to justify the waiver. Bodack contends that the Planning Board's decision never made a specific finding that the developers met the standards
[¶ 14] The findings of a planning board must be "sufficient to apprise either us or the parties of the basis for their conclusion." Christian Fellowship & Renewal Ctr. v. Town of Limington, 2001 ME 16, ¶ 10, 769 A.2d 834, 837. Although an agency is not always required to issue a complete factual record, written factual findings must be sufficient to show the applicant and the public a rational basis of its decision.
[¶ 15] We have previously addressed a waiver of the same regulation at issue in the present case: section 10.3.1.11 of the Subdivision Standards. See York, 2001 ME 53, 769 A.2d 172. In upholding the Planning Board's waiver of the access requirement, we noted that "[t]he Planning KBoard 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." Id. ¶ 10, 769 A.2d at 176. There, the Planning Board had issued twelve pages of findings of fact approving the plan and granting the developers a waiver of the access requirement, in which it "disclosed the lengthy considerations underlying each waiver." Id. ¶ 4, 769 A.2d at 174. We further noted: "There was sufficient competent evidence, including evidence supporting a finding of the special circumstances of [the developer's] plan, on which the Board could have based its ample findings of fact." Id. ¶ 15, 769 A.2d at 178.
[¶ 16] In this case, the Planning Board never made a finding that the waiver was granted due to extraordinary and unnecessary hardships or the special circumstances attendant to the developers' plan, nor did it disclose the considerations or factual findings supporting the waiver. The Planning Board is required to make written factual findings sufficient to show the parties, the public, and an appellate court the basis for its decision to grant the waiver. Although the evidence did not preclude the Planning Board from making such findings,
The entry is: