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Kurlanski v. Portland Yacht Club
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	2001 ME 147
Docket:	Cum-01-67
on Briefs:	June 25, 2001
Decided:	October 26, 2001




	[¶1]  	Zbignew J. Kurlanski and Kathleen M. Kurlanski appeal from a
judgment entered in the Superior Court (Cumberland County, Warren, J.)
affirming the Town of Falmouth Planning Board's decision to approve the
Portland Yacht Club's site plan for the construction of a building for boat
storage and use by the junior sailing program.  The Kurlanskis contend that
the Planning Board erred in accepting an insufficient application for site
plan review, in approving the application without conducting a full site plan
review, and in failing adequately to specify the reasons for its decisions.  We
agree and vacate the decision of the Superior Court with directions to
remand the matter to the Town of Falmouth Planning Board for site plan
review as required by the applicable ordinance.
	[¶2]  	The Club property, located in a residential zone at the end of Old
Powerhouse Road, has a club house and a parking lot.  In March of 1999, the
Falmouth Zoning Board of Appeals approved, and we later affirmed, the
Club's conditional use request for the "construction of a building . . . that
measures 30' x 40' to store small boats nine months a year and use as
classrooms during the summer for the Junior Sailing Program."  Wells v.
Portland Yacht Club, 2001 ME 20, ¶¶ 1-2, 771 A.2d 371, 372-73 (internal
quotation marks omitted).  
	[¶3]  	Pursuant to section 9.1{1} of the zoning ordinance, the Club
requested a hearing before the Planning Board and submitted a letter prior
to the hearing that indicated that the site plan review standards should be
applied "to the proposed Project located in a corner of the existing parking
lot and the associated parking lot revisions and not to the existing Club
property as a whole."  Because the proposed boathouse would be
constructed in the existing parking lot, the Club stated at the hearing that it
would reconfigure and paint new stripes on the balance of the parking lot to
create several more spaces than it currently has.  Although the existing
parking lot extends into the side setback, the Club requested that its
current grandfathered status be continued because the parking lot predated
the ordinance containing the setback requirements.  The Club also
requested that the minimum aisle width be waived because the aisle width
currently in use was adequate.  The Club indicated that it was currently
using an upper lot for overflow parking that could be paved if necessary. 
Moreover, the Club did not propose any changes to the driveway,{2} or the
parking lot lighting, buffering, or landscaping.  The Kurlanskis and other
residents raised concerns about the proposed boathouse's effect on, inter
alia, Old Powerhouse Road, parking, lighting, landscaping, and buffering.  
	[¶4]  	During the hearing, the Planning Board discussed certain
lighting requirements, after which a member stated that the Planning Board
chose "not to deal with lighting," and lighting was not in the Planning
Board's "purview tonight."
	[¶5]  	Regarding the driveway, several Planning Board members stated
that it was "not before" them and that "[b]uilding a garage to store boats is
not going to increase traffic," even though the Club proposed adding parking
spaces.  While discussing the ordinance requirements for parking lot aisle
widths and setbacks, the Planning Board also discussed whether the parking
lot was "on the table" or was "substantially changed" within the meaning of
section 9.1, and a member stated that he did not "feel" that the Planning
Board needed "to do a site plan review of the parking . . . ."  The Planning
Board also indicated that it did not know if it had to consider landscaping. 
In addition, the Planning Board did not determine whether the site plan
submitted by the Club showed, or had to show the "proposed grades and
drainage," and "a landscaping plan including locations of proposed plantings
and screenings and buffer areas . . . ."  Falmouth, Me., Zoning And Site Plan
Review Ordinance § 9.2(a)(2). 
	[¶6]  	Despite its ambiguous discussion, the Planning Board approved
the site plan "to build a 1200 sq. ft. boathouse and reconfiguration of the
parking lot," subject to only two conditions:  (1) "The development is to be
constructed in accordance with the plans, maps, diagrams, specifications,
testimony, and textual submissions presented to the Board by the applicant"
and (2) "Per Section 9.8 of the Zoning and Site Plan Review Ordinance, a
waiver is granted on the aisle width."  The Superior Court affirmed the
Planning Board's decision, and the Kurlanskis filed this appeal.  
	[¶7]  	"Because the Superior Court acted as an appellate court, we do
not review its decision, but we examine directly the operative decision of
the municipality."  Logan v. City of Biddeford, 2001 ME 84, ¶ 7, 772 A.2d
1183, 1185 (internal quotation marks omitted).  We review the Planning
Board's decision "for abuse of discretion, errors of law, or findings not
supported by substantial evidence in the record."  Rockland Plaza Realty
Corp. v. City of Rockland, 2001 ME 81, ¶ 7, 772 A.2d 256, 259.
	[¶8]  	The Kurlanskis contend that due to the size of the proposed
boathouse, section 9.1 of the ordinance requires the Club to submit the
required information and obtain site plan approval of the entire application.  
They further contend that the Planning Board conducted an insufficient
"piecemeal review of selected features" of the site plan by considering the
proposed boathouse separate from the rest of the site, thereby approving an
application that did not meet the requirements pertaining to setbacks,
Falmouth, Me., Zoning And Site Plan Review Ordinance § 5.5; shoreland zoning,
id. § 7; landscaping, id.  §§ 9.7(a), 9.28; parking, id.  § 9.10; driveways, id.
§§ 9.14-.21; lighting, id. § 9.23; buffering, id. § 9.24; environmental
considerations, id. § 9.32; and site conditions, id. § 9.33.  The Club
contends that the Planning Board correctly interpreted the ordinance
because site plan review only applied to the area affected by the proposed
	[¶9]  	The interpretation of the provisions of a zoning ordinance is a
question of law that we review de novo.  Rockland Plaza Realty, ¶ 7,
772 A.2d at 259.  "'The language at issue must be construed reasonably and
with regard to both the ordinance's specific object and its general
structure.'"  Wells, ¶ 8, 771 A.2d at 374 (quoting Lewis v. Town of
Rockport, 1998 ME 144, ¶ 11, 712 A.2d 1047, 1049).  We construe an
ordinance "to avoid absurd, illogical, or inconsistent results."  Wright v.
Town of Kennebunkport, 1998 ME 184, ¶ 5, 715 A.2d 162, 164 (discussing
statutory interpretation).  
	[¶10]	The parties do not dispute the applicability of section 9.1,
requiring the Club to obtain site plan approval for the proposed boathouse. 
To have an application reviewed, the ordinance indicates that the "property
owner shall submit to the Planning Board," inter alia,  
[a] site plan . . . showing the dimensions and area of each lot or
plot to be built upon or otherwise used; the size, shape and
location of existing and proposed buildings; the location and
layout of parking areas, all parking spaces and driveways,
proposed grades and drainage, proposed sewer and water
facilities and connections; a landscaping plan including locations
of proposed plantings and screenings and buffer areas; proposed
locations of fences, signs and advertising features; and a key map
showing the entire project, and its relation to surrounding
properties and the existing building thereof.  
Id. § 9.2(a)(2) (emphasis added).  The Club had the burden to establish that
it satisfied all of the requirements necessary for approval.  Lentine v. Town
of St. George, 599 A.2d 76, 80 (Me. 1991). 
	[¶11]	Because the ordinance requires that a site plan comply with
§ 9.2(a)(2) even if the application involves an already developed site, the
Planning Board must review the plan in its entirety for compliance with all
standards.  See Falmouth, Me., Zoning and Site Plan Review Ordinance §§ 9.1
and 9.2.  Although the Club applied for site plan approval of a boathouse, the
ordinance requires it to submit the necessary documentation to enable the
Planning Board to conduct a review of the site in its entirety. Id. §§ 9.2(c)
(indicating that a party must submit "all supporting documentation" to the
Board before the public hearing); 9.3 (stating that the "Planning Board shall
ensure that . . . [t]he detailed drawings and specifications meet all applicable
codes and ordinances" before a site plan is approved); 9.7 ("The following
standards shall be utilized by the Planning Board in reviewing proposed site
plans including all accessory buildings, structures, signs, and other site
features."); 9.8 ("The guidelines and required minimum performance
standards in subsections 9.10 through 9.31 shall apply to all site plans.").
	[¶12]	The Planning Board failed adequately to consider and make
findings about a number of required site plan elements: the driveway,
parking, landscaping, and lighting.  For instance, based on the site plan
submitted, there is only one light depicted in the parking lot.{3}
	[¶13]	Although the Falmouth ordinance permits the Planning Board to
waive the standards in sections 9.10 through 9.31, the Planning Board
expressly waived only the parking lot aisle width standard in section
9.10(b).{4}  Id. § 9.8 (stating that the standards in sections 9.10 through 9.31
apply to all site plans unless "the Planning Board finds that, due to special
circumstances of a particular plan, the application of certain required
performance standards are not requisite in the interest of public health,
safety, and general welfare, the Planning Board may waive the required
standards, subject to appropriate conditions").  The Planning Board did not
state whether for site plan approval purposes it accepted as grandfathered
any violations of current off-street parking setback provisions, id. § 5.5(g),{5}
or shoreland zoning provisions, id. § 7.{6}   The Planning Board made no
findings to allow us to determine whether it waived certain requirements
for site plan approval or approved the site plan on the Club's demonstration
that it satisfied those requirements.
	[¶14]	"'[T]he remedy for an agency's failure to act on all matters
properly before it or to make sufficient and clear findings of facts is a
remand to the agency for findings that permit meaningful judicial review.'" 
Christian Fellowship and Renewal Center v. Town of Limington, 2001
ME 16, ¶ 12, 769 A.2d 834, 838 (quoting Harrington v. Inhabitants of Town
of Kennebunk, 459 A.2d 557, 561 (Me. 1983)); Wells, 2001 ME 20, ¶ 10,
771 A.2d at 375 ("[I]f an agency's findings of fact are insufficient to apprise
us of the basis of the agency's decision and whether it is supported by
substantial evidence, we should usually remand to the agency for further
findings of fact.").
	The entry is:
Judgment vacated.  Remanded to the Superior Court with
instructions to remand to the Planning Board to complete site
plan review in accordance with Falmouth's site plan review

Attorneys for plaintiffs: S. James Levis Jr., Esq. John A. Turcotte, Esq. Levis & Hull, P.A. 409 Alfred Street Biddeford, ME 04005 Attorneys for defendants: Gary D. Vogel, Esq. Aaron P. Burns, Esq. Lambert, Coffin, Rudman & Hochman P O Box 15215 Portland, ME 04112-5215 (for Portland Yacht Club) Amy K. Tchao, Esq. Drummond Woodsum & MacMahon P O Box 9781 Portland, ME 04104-5081 (for Town of Falmouth)
FOOTNOTES******************************** {*} Wathen, C.J., participated in the initial conference, but resigned before this opinion was adopted. {1} . Section 9.1 provides in pertinent part: No building or signs in excess of 20 square feet in area . . . shall be erected or externally enlarged and no area for parking, loading or vehicular service (including driveways giving access thereto) shall be established or substantially changed, unless the property owner has submitted to and secured approval by the Planning Board of building and site plans . . . . Falmouth, Me., Zoning And Site Plan Review Ordinance § 9.1. Section 9.1 contains two exceptions, neither of which applies in this circumstance. Id. {2} . The ordinance defines driveways as including "any private local or collector streets, as well as entrance roads to any use other than single-family dwelling units." Falmouth, Me., Zoning And Site Plan Review Ordinance § 9.14(a). Thus, Old Powerhouse Road is a driveway. {3} . Before the hearing, the Club failed to submit plans "for all proposed exterior lighting" that "shall include the location, type of light, radius of illumination, manufacturer's specification sheet and the intensity in footcandles." Falmouth, Me., Zoning and Site Plan Review Ordinance §§ 9.2(c), 9.23. During the hearing, the Club offered to submit a further plan for lighting that "meets the current standards," but the Planning Board did not accept the offer or make that a condition of site plan approval. {4} . The Club requested that the Planning Board waive the twenty-five foot aisle width in favor of twenty-two feet wide aisles because the Club had substantial experience with the existing parking layout, which generally utilized twenty-two foot wide aisles, and the people who use the parking lot are familiar with the limited space. See Falmouth, Me., Zoning and Site Plan Review Ordinance § 9.10(b). The Planning Board voted to waive the aisle width requirement, and although the Kurlanskis contend that the waiver was improper, there is evidence in the record to support this decision. {5} . Section 5.5(g) provides that: "In any residential district, parking areas for uses other than single family detached dwellings shall be set back at least twenty-five (25) feet from any property line." Falmouth, Me., Zoning And Site Plan Review Ordinance § 5.5(g). We express no opinion as to whether in its site plan review the Planning Board is authorized or required to accept as grandfathered features deviating from the current zoning ordinance. {6} . "The Shoreland Zone includes and applies only to those land areas . . . [w]ithin two hundred and fifty (250) feet, horizontal distance, of the normal high water line of any designated great pond, river, or salt water body . . . ." Falmouth, Me., Zoning And Site Plan Review Ordinance § 7.2(a)(1). The Planning Board did not address whether the shoreland zoning requirements were applicable.