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Adelman v. Town of Baldwin

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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	2000 ME 91
Docket:	Cum-00-28
Argued:	May 2, 2000
Decided:	May 17, 2000




	[¶1]  Thomas G. Adelman{1} appeals from a judgment entered in the
Superior Court (Cumberland County, Mills, J.) (1) granting WMTW's and the
Town's motion to strike his independent claim of bias because it was
duplicative of the Rule 80B appeal; (2) denying his Rule 80B appeal; and (3)
granting a summary judgment stating that an amendment to the Baldwin
Land Use Ordinance was consistent with Baldwin's Comprehensive Plan. 
Adelman argues that the court erred in its rulings.  We disagree and affirm
the judgment.
	[¶2]  WMTW filed an application for a conditional use permit to
construct a television tower in Baldwin in May 1998.{2}  WMTW filed its
application pursuant to a recent amendment to the Baldwin Land Use
Ordinance that permitted communications towers as a conditional use in
highlands and rural districts.{3}  WMTW planned to build its communications
tower on 322 acres of land, 320 acres of which to be available for hunting
and hiking and less than two acres for the proposed tower and security
	[¶3]  In response to WMTW's application, the appellants organized
into a community action group called Community Advocates for the
Saddleback Hills (CASH) and sought a six-month moratorium on the
granting of conditional use permits for communications towers.   The Town
Selectmen scheduled a referendum vote on the moratorium for
August 11, 1998; the moratorium was defeated at a town-wide election. 
	[¶4]  The Planning Board held public hearings on the conditional use
permit on July 9 and July 23.  At these hearings, WMTW and many members
of the public presented evidence for and against the conditional use permit.  
At the July 27th meeting, the Board decided that WMTW satisfied the
criteria necessary for the permit, but the Board postponed its final
determination until the next meeting to impose a list of conditions on the
permit.  Despite WMTW's request to have the Board vote on the permit
before the moratorium vote, the Board scheduled its next meeting for
August 27th.  At the August 27th meeting, the Board unanimously approved
the permit with eleven conditions.   Adelman appealed to the Zoning Board
of Appeals.  
	[¶5]  The Zoning Board of Appeals held a public hearing and denied
Adelman's appeal by a three to two vote.  Adelman then filed an appeal in
the Superior Court pursuant to Rule 80B and also sought a declaratory
judgment that the tower amendments to the Baldwin Land Use Ordinance
were inconsistent with Baldwin's Comprehensive Plan.  Adelman included
an independent claim of bias against the Planning Board in his Superior
Court complaint.  The court struck the independent bias claim as duplicative
of the Rule 80B appeal; denied the Rule 80B appeal; and granted a summary
judgment in favor of the town finding the tower amendments to be
consistent with Baldwin's Land Use Ordinance.  This appeal followed.
	[¶6]  Adelman argues that the appellants were entitled to bring an
independent claim of bias pursuant to 30-A M.R.S.A. § 2605 (1996).{4} 
WMTW and the Town assert that the court properly struck the bias count
because bias may be addressed in a Rule 80B appeal.   We review motions to
strike for abuse of discretion.  See McNutt v. Johansen, 477 A.2d 738, 740
(Me. 1984) (reviewing denial of motion to strike default judgment for abuse
of discretion); Michaud v. Steckino, 390 A.2d 524, 531 (Me. 1978)
(reviewing denial of motion to strike testimony for abuse of discretion).  
	[¶7]  Rule 80B addresses appeals of government action, including
the issue of bias by municipal planning boards.  See M.R. Civ. P. 80B; Ryan v.
Town of Camden, 582 A.2d 973, (Me. 1990) (addressing issue of board
member bias in Rule 80B appeal).  Rule 80B(d) allows an appellant to add
facts to the administrative record for a trial of the facts when an appellant
establishes, with sufficient particularity, the need for a trial of such facts. 
See Baker's Table, Inc. v. City of Portland, 2000 ME 7, ¶ 9, 743 A.2d 237,
241.  The issue of bias is properly addressed in the Rule 80B appeal because
80B(d) provides a specific mechanism for augmenting the record if
necessary to show bias.  See id.{5}  Adelman's allegations of bias arose from
the Planning Board's conduct concerning the issuance of the conditional use
permit.  These allegations are (and were) properly addressed in the Rule
80B appeal-not in an independent claim of bias, which would be duplicative
of the Rule 80B appeal.  The Superior Court, therefore, did not exceed the
bounds of its discretion by striking the independent bias claim. 
	[¶8]  When a Zoning Board of Appeals and the Superior Court act in
their appellate capacity, we review the Planning Board's decision directly for
"error of law, abuse of discretion or findings not supported by substantial
evidence in the record."  See 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)).   The parties to the present case agree that the Board
of Appeals reviewed the decision of the Planning Board in its appellate
capacity.  We, therefore, directly review the Planning Board's decision.  See

A.  Error of Law

	[¶9]  Adelman asserts that the Planning Board committed an error of
law by applying the wrong burden of proof when assessing whether WMTW
satisfied the criteria for the conditional use permit.   WMTW and the Town
contend that the Planning Board did not apply the wrong burden of proof. 
Article IX, § 3 requires the applicant to establish "to the satisfaction of the
Planning Board [that the requisite criteria exists]."  Baldwin Land Use
Ordinance, Article IX, § 3.  Although he initially advised the Board to apply
an erroneous standard, the Town's counsel notified the Planning Board of
his error and the proper standard on July 19, 1998-five days before the
second public hearing and five days before the Board's deliberations.  The
Planning Board expressly applied the proper standard when it considered
WMTW's application.  Thus, the Planning Board did not commit an error of
B.  Abuse of Discretion 

	[¶10]  Adelman asserts that the Planning Board abused its discretion
because it was biased.  Adelman bases his bias argument on the employment
of Planning Board Chairman, Norman Blake, and on statements made by
Chairman Blake and by another Planning Board member, Josiah Pierce.  At
the beginning of the application process, in the presence of WMTW, the
Town's counsel and twenty-two members of the public, Chairman Blake
announced that he worked for Shively Labs; that Shively Labs built FM
antennas, low power TV antennas, and transmission lines; and that he could
not profit in any way from WMTW's application.  Blake polled the members
of the Board about whether they thought Blake had a conflict of interest and
none of the members thought a conflict existed.   A member of the public
asked the entire Board if they were impartial and they all answered yes.  
Blake also left the employ of Shively Labs before he decided upon the
conditional use permit.  
	[¶11]  In defending the Planning Board decision before the Zoning
Board of Appeals, Blake and Pierce made statements that indicated they
applied their personal experiences when discerning the credibility of
contradictory evidence presented before the Planning Board.  Adelman
maintains that because the Planning Board members may have relied on
their own personal experiences to judge the evidence before it, the Board
impermissibly relied on extrinsic evidence.  This argument is not supported
by law.  Although it is impermissible for a Board member to rely on extrinsic
evidence when adjudicating issues before the Board, a Board member may
rely on competent personal knowledge. Compare City of Biddeford v. Adams,
1999 ME 49, ¶ 10, 727 A.2d 346, 349 (stating that an administrative board
acts improperly if it considers evidence that is not part of the record in
reaching its decision) with Pine Tree Telephone & Telegraph Co. v. Town of
Gray, 631 A.2d 55, 57 (Me. 1993) (recognizing well-established law that
Planning Board members may employ their competent personal knowledge). 
The transcripts of the Planning Board hearings and its deliberations reflect
that no member of the Board relied on extrinsic evidence.  The members'
statements before the Zoning Board of Appeals indicate that the Planning
Board members permissibly employed their personal experiences to discern
fact from fiction.  See Pine Tree, 631 A.2d at 57.
C. Substantial Evidence in the Record

	[¶12]  Adelman next maintains that the Planning Board's approval of
the conditional use permit was unsupported by competent evidence and
does not comply with the Land Use Ordinance.  WMTW and the Town
contend that substantial evidence supported the Planning Board's decision.   
Substantial evidence exists when a reasonable mind would rely on that
evidence as sufficient support for a conclusion; the possibility of drawing two
inconsistent conclusions does not render the evidence insubstantial.  See
Sproul, ¶ 8, 746 A.2d at 372 (quoting Veilleux v. City of Augusta, 684 A.2d
413, 415 (Me. 1996)).  We will not substitute our own judgment for the
Planning Board's judgment.  See Twigg v. Town of Kennebunk, 662 A.2d
914, 916 (Me. 1995).  To vacate the Planning Board's findings, Adelman
must demonstrate that no competent evidence supports the Planning
Board's conclusions.  See id.  Adelman is unable to satisfy this burden.
	[¶13]  Adelman claims that WMTW failed to satisfy the criteria of
section 3(1) and 3(3) for a conditional use permit as required by article IX,
§ 3 of the Baldwin Land Use Ordinance.   Section 3(1) provides that the
proposed use must not have a "significant adverse impact upon the value or
quiet possession of surrounding properties greater than would normally
occur from such a use in the district," and that the Board must consider five
criteria when making this determination.  The Board is required to
(a) the size of the proposed use compared with surrounding uses;

(b) the intensity of the proposed use, including amount and
type of traffic to be generated, hours of operation, expanse of
pavement, and similar measures of intensity of use,
compared with surrounding uses;

(c) the potential generation of noise, dust, odor, vibration,
glare, smoke, litter and other nuisances;

(d) unusual physical characteristics of the site, including size
of the lot, shape of the lot, topography, and soils, which may
tend to aggravate adverse impacts upon surrounding

(e) the degree to which landscaping, fencing, and other
design elements have been incorporated to mitigate adverse
impacts on surrounding properties.
Baldwin Land Use Ordinance, article IX, § 3(1).  

	[¶14]  Substantial testimony supported the Planning Board's
conclusion that WMTW satisfied this criteria.  The testimony offered by
WMTW indicated that the completed WMTW tower would not have a
significant negative impact on the surrounding property values in the Town
of Baldwin and that any impact would not be greater than would normally
occur from such a use in the zoning district.  The opponents to the permit
presented evidence stating that the property value may decrease by five to
fifteen percent.   The Board is not bound to accept any particular evidence
as true; as fact-finder, it has the obligation to determine credibility.  See
Sproul, ¶ 9, 746 A.2d at 372 (stating that as fact-finder, the Planning Board
"is allowed to weigh the evidence and make a decision based upon its
perception of the evidence.")  Moreover, even if the Board had accepted the
evidence as to a decrease in value, it could have found that a five to fifteen
percent decrease in property value was not a significant negative impact.  
	[¶15]  Pursuant to section 3(1)(a), the Board considered the size of
the tower compared with surrounding uses.  They inquired into whether the
tower needed to be 1667 feet tall.   WMTW explained that the tower needed
to be 1667 feet tall because the height of the tower correlated to the
strength of the signal.{6} 
	[¶16]  The Board heard testimony concerning the nuisance factors it
was required to consider pursuant to section 3(1)(c).  The evidence
demonstrated that from 1000 feet away the tower would sound like the
rustling of leaves; that the sound level would decrease further away from the
tower; and that human hearing is relatively insensitive to the low
frequencies of sound created by the tower.  The testimony indicated that the
lighting used on the tower would be FAA compliant and a state-of-the-art
dual lighting system that minimizes glare by confining the light from the
strobes and the beacon "to the narrowest possible area" above and below the
horizon.  The closer a residence is to the tower, the less visible the lights
will be, and the homes will be 100 feet below the lowest level of lights on
the tower.  The evidence before the Board demonstrated that the radio
frequency emissions from the tower did not pose a risk of exposure to high
levels of radio frequency because the emissions would be less than one
percent of the maximum permitted by the FCC.{7}
	[¶17]  The Planning Board also was offered evidence regarding
WMTW's compliance with section 3(1)(e) regarding the degree to which the
design elements mitigate the adverse impact upon neighboring properties.  
First, WMTW presented testimony that the entire tower complex, including
the parking, control building and security fencing, would only utilize less
than two acres of the 322 acre plot of land WMTW owned.  WMTW also
presented two photographs of simulated views of the tower from different
locations in the town and beyond the town limits.  When the Board
discussed this criteria, it noted the testimony stating that the tower was
designed to fall within the limits of WMTW's land; that it would be
impossible to build a fence to mask the tower; and that a majority of the 322
acres would be used for hunting and hiking. 
	[¶18]  Adelman also challenges the Board's conclusion regarding the
tower's effect on the natural characteristics of the land.  Section 3(3) of the
ordinance states "the natural characteristics of the site, including
topography, drainage, and relationship to ground and surface waters and
flood plains, shall not be such that the proposed use when placed on the site
will cause undue harm to the environment or to neighboring  properties." 
The Board heard testimony from WMTW's engineering and planning
consultant that the soil on the land of the proposed tower was workable for
the project type; that the site had no wetlands on it; and that WMTW would
incorporate erosion control provisions, including sedimentation barriers and
drainage control devices, to minimize any environmental impact. 
	[¶19]  When considering the conditional use application, the Board
discussed every criteria required by the Land Use Ordinance.  Substantial
evidence supported the Planning Board's finding that WMTW established to
the satisfaction of the Planning Board that the Tower plan met the necessary
criteria for the conditional use permit.  Thus, the court did not err in
denying Adelman's Rule 80B appeal. 
	[¶20]  Adelman further argues that the amendments to Baldwin's
Land Use Ordinance that added communications towers as a conditional use
in the highlands and rural areas are inconsistent with Baldwin's
Comprehensive Plan.  The Town and WMTW both assert that the court
properly granted a summary judgment because the amendments to the
ordinance are consistent with the comprehensive plan.
	[¶21]  We review the grant of a summary judgment for errors of law
and independently examine the record to determine if a genuine issue of
material fact exists.  See Nevin v. Union Trust Company, 1999 ME 47, ¶ 5,
726 A.2d 694, 696.  We view the evidence in "a light most favorable to the
party against whom the judgment has been granted." Id. 
	[¶22]  Section 4352(2) of Title 30-A requires all zoning ordinances
to be consistent with the comprehensive plan adopted by the town's
legislative body.  See 30-A M.R.S.A. § 4352(2) (1996).  Adelman bears the
burden of proving that the communications tower amendments are
inconsistent with Baldwin's Comprehensive Plan.  See Vella v. Town of
Camden, 677 A.2d 1051, 1053 (Me. 1996).  We review the record to
determine whether the Town's legislative body (in this case the town
meeting) could have found the amendments to the Land Use Ordinance to
be in basic harmony with the comprehensive plan.  See id.  We will not
substitute our judgment for that of the legislative body.  See id.
	[¶23]  Adelman does not carry his burden of proving that the
ordinance is inconsistent with the comprehensive plan.  To assert the
inconsistency between the amendments and the comprehensive plan,
Adelman relies on four sections of the comprehensive plan stating (1) that
development should be restricted in the highlands where elevations of 700-
feet sustain slopes of 25%; (2) that the use of the highlands should be
primarily for natural resources and very low density residential uses; (3) that
74% of the residents think the town should acquire land to protect scenic
beauty or environmental importance; and (4) that the rural areas are
intended to preserve Baldwin's character and to insure that any
development will occur in a manner that preserves the aesthetics of the
rural character of the community.  These sections do not mandate action but
merely suggest recommended conduct.  Three of the four sections use the
permissive term should, but none of sections use mandatory language such
as must or shall.  Thus, these sections do not prohibit the construction of a
communications tower. 
	[¶24]  Additionally, Adelman does not consider other sections of the
comprehensive plan which may be interpreted to encourage the
development of the communications tower.  These sections state (1) that
the comprehensive plan aims to serve the needs of all the townspeople
while minimally restricting the rights of landowners; (2) that the Town
must have a clear and compelling reason to limit the property rights of
landowners; (3) that the plan should encourage new commercial, service,
and light industrial uses in certain areas "to diversify the tax base and
promote local job opportunities," and (4) to "identify and seek to preserve
significant parcels of land by landowners' voluntary actions to help maintain
Baldwin's rural character."  The legislative body adopting the tower
amendments could have construed the amendments to be in basic harmony
with the comprehensive plan because by encouraging development of
communications towers, the Town diversifies its tax base; increases local job
opportunities; addresses the needs of all the townspeople; and protects the
rural community by preserving 320 acres of undeveloped land for hiking and
hunting.  See Vella, 677 A.2d at 1053 (stating that the Court will not
substitute its judgment for that of the legislative body drafting the
amendments).  The record supports a conclusion that the Land Use
Ordinance amendments are consistent with Baldwin's Comprehensive Plan;
there are no genuine issues of material fact and the court did not err as a
matter of law.  See Nevin, ¶ 5, 726 A2d. at 696.  We, therefore, affirm the
Superior Court's grant of a summary judgment.  
	The entry is:

Judgment affirmed.

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