Morrill's Corner Neighborhood Association v. City of Portland

STATE OF MAINE SUPERIOR COURT CUMBERLAND, ss. - . : - CIVIL ACTION DOCKET NO. CV-04-784 -- - - .. ..- I r , C.

. -- i /_ 2 PtC i/~k.~lj~a/ BRETT MCMILLAN, JOHN DAY, JOANNE KENNEDY, and DEBRA KEENAN

ORDER ON DECLARATORY JUDGMENT ACTION THE CITY OF PORTLAND, MAINE

Defendant, and

PACKARD DEVELOPMENT, LLC,

On November 15 and 16,2005, a jury-waived trial was held on Comts, I, 11,

- and 111of Plaintiffs' complaint. These counts request a declaratory iudment that a - ,

conditional zoning contract approved by the City Council of City of Portland ("City Council") on November 29, 2004, rezoning approximately 20 acres of land in Morrill's Comer, ("Site") (I) violates Portland's Land Use Ordinance §§14-60 to 14-62, (11) is inconsistent with Portland's Comprehensive Plan, and (ID) violates the requirements of 30-A M.R.S.A. 5 4352(8). In an opinion dated May, 9 2005, tlus court granted Party-in-Interest Packard Development, LLC's ("Packard") motion to dismiss counts IV through IX of Plaintiffs1complaint.

BACKGROUND

The named plaintiffs ("Plaintiffs") are residents of neighborhoods adjacent to the Site. One of the plaintiffs, Ms. Kennedy, abuts the Site, and the other two plaintiffs live on streets off of Allen Avenue in the immediate vicinity of the Site. Plaintiffs express concern mainly with traffic safety on Allen Avenue if the Site is developed on the scale proposed by Packard. Plaintiffs also express concern with a lack of buffering between the residential area and the Site, operations noise from the Site, and future attempts to access the development from the adjacent residential area rather than the designated access point.

The Site is comprised of several contiguous parcels of land, bounded on the South by the Guilford Rail Line, on the East by industrial warehouses, and on the North by established single-family residences. It has street frontage to the West on Allen Avenue north of the confluence of Forest, Stevens and Allen Avenues, all of whch are heavily-trafficked streets, and one of whch, Forest Avenue, is a major Portland arterial. Packard's plan creates a single access point to the proposed development from its frontage on Allen Avenue.' This access point is 300 feet from the Guilford railway. Trains cross this railway approximately four times a day and several times during the night.

Packard's plan is for a "mixed-use" development that includes a 65,000 square-foot anchor store to be occupied by a Stop-and-Shop supermarket, several smaller retail establishments, a limited amount of office space, three and a half acres of dedicated green space with a pedestrian/bicycle trail, and approximately 31 residential units. The total development proposed on the Site has a footprint of approximately 130,000 square feet. The traffic engineers hred by Packard have estimated that the development will generate an additional 525 vehcle trips per how through Allen Avenue to the Site on weekdays, up from 85 trips per hour currently.

'The plan also calls for a one-way access into the Site from the Northeast corner, through Morrill Street in the residential neighborhood.

Prior to rezoning, approximately 80% of the Site had been designated as an J-L, or industrial low-impact zone, with the remaining 20% of the site zoned as R-5 residential and B-2 commercial. The Site is currently mostly developed, with a strip of woods on the northern edge of the site adjacent to the residential community. Many of the structures on the Site, whch are warehouse-like, have been vacated, and the area has fallen prey to weeds and brush growth, vandalism, and dumping. The Site also contains five residential units that will be demolished.

Packard's plans for development of the Site began in 2002. Initially, the plan was to create a solely commeraal development. However, after a failed attempt to purchase two parcels on the Site owned by the City, Packard revised its proposal to include residential, office, and green spaces as well, and reduced the size of the planned supermarket from 75,000 square feet to 65,000 square feet. Even after the revision of its plans, the City's Planning Board failed to recommend the development and the conhtional zone, returning a vote of 3-3 to the City Council. Notwithstanding t h s input, on November 29, 2004, after a public hearing, the City Counal voted 9-0 to approve Order # 98-04/05, authorizing a conditional rezone of the Site for the development proposed by Packard. Subsequently, the City Council also approved sale of its Site parcels to Packard. Plaintiffs brought ths action for declaratory relief subsequent to the City Council's approval of the Site's conditional zone.

DISCUSSION

I. Procedure and Standard of Review

The court's charge in h s action seelung declaratory relief is to assess whether the City Council's vote to approve the conditional zone is valid under the 1aw governing condtional zones.

30-A M.R.S.A. § 4351 et seq. provides express limitations on municipal

home rule authority. 5 4352(8) imposes conditions on a municipality's grant of conditional and contract rezoning. T h s section states in pertinent part:

A zoning ordinance may include provisions for conditional or contract zoning. All rezoning under h s subsection must: A. Be consistent with the local growth management program adopted under h s chapter; B. Establish rezoned areas that are consistent with the existing and permitted uses w i h n the orignal zones;

In addition to these limitations, Portland's Zoning Ordinance §§ 14-60 to 14-62 states that the City Council has authority to rezone a parcel of property if, due to "the unusual nature or uiliyue location of the development proposed, the city council finds it necessary or appropriate to impose, by agreement with the property owner or otherwise, certain conditions or restrictions in order to ensure that the rezoning is consistent with the city's comprehensive plan."

The parties agree that, under h s law, the questions presented to the court are whether the City Council correctly determined that the conditional zone is consistent with the existing and permitted uses withn the original zones as well as with the City's comprehensive plan ("Comprehensive Plan.")

The Comprehensive Plan is a compilation of policy directives and goals for the development of the City, developed by various departments w i h n the City government. Among other h n g s , the policies address infrastructure, transportation resources, industry and commerce, residential housing, and the development of recreational open spaces.

It is the job of the City Council to integrate and balance these policies when it is faced with a proposal for a conditional zone. See Adelman v. Tou~nof Baldwin, 2000 ME 91, ql 24; 750 A.2d 577, 585; La Bonta v. City of Waterville, 528 A.2d 1262, 1264 (Me. 1987). The court's assessment of the City Council's action in adopting a conditional zone is limited to reviewing the record evidence presented to the City Council in order to determine if it supports the Council's conclusion that the conditional zone is consistent with the Comprehensive 131an and with the existing and permitted uses w i h n the original zones. See Adelman, 2000 ME 91 at <n 24; Vella v. Town ofcamden, 677 A.2d 1051,1053 (Me. 1996); La Bonta, 528 A.2d at 1264.

The parties proceeded to a jury-waived trial in h s action, which trial presented in a vivid, interactive format largely the same information that was presented to the Gty Council at its November 2004 conditional rezone hearing. However, because of the task before the court, the evidence presented at trial can have no significance independent of what the parties have established was presented to the City Council. T h s is because the City Council's action is either lawful or unlawful with respect solely to the information it had before it.2 See LaBonta, 528 A.2d at 1265. Zoning is a legislative function, Benjamin v. Hou.le, 431 A.2d 48,49 (Me. 1981), and it would violate the separation of powers if the court were to act as a super-legislature, and take independent evidence on the substantive zoning issue before the City Council. Cf:Adelman, 2000 ME 91 at ¶ 22; LaBonta, 528 A.2d at 1265.

Thus, even- though the caption of h s action is one for "declaratory

judgment," the action is essentially an appeal, and differs from an action under 2 This is not a case in which the plaintiffs have due process or bias claims. Plaintiffs were afforded all of the process that was due with regard to participation in the City Council's decision, and there is no allegation that any members of the City Council were compromised.

M.R.Civ.P. 80B only to the extent the decision appealed from is one based in the City's decision in its legslative capacity, rather than in its administrative or quasijudicial capacity. Under 8ClB, the parties present a record on appeal to the court, and the court's review is limited to the record except under special circumstances. Such should also be the case in an action for a declaratory judgment that a municipality has legislated in derogation of the law. In such an action, a motion for summary judgment would function in the same capacity as an BOB appeal and would be the proper procedure for obtaining review of the record by the court. Although either party might move for summary judgment, presentation of a record of the public hearing and the evidence presented to the law-malung body in such cases remains the plaintiff's burden. T h s limitation on the court's ability to take independent evidence is necessary to preserve both the role of the court and

- the legislative power delegated to the City Council in the area of zoning. -

Additionally, as h s is a review of legislative action and not of quasijudicial or administrative action, the court's standard of review is different than in an 80B appeal. The City Council is not charged by law, as is a Planning Board or a

Zoning Board of Appeds, with making specific findings of fact x ~ concl~sions d of

law. See e.g. Carroll v. Town of Rockport, 2003 ME 135, ¶¶ 26 - 31; 837 A.2d 148,156-157; see also 30-A M.R.S.A. 2691(3)(E). Related to h s , there is also no provision whereby t h ~ scourt may remand the City Council's decision for further findings of fact or conclusions of law. See M.R.Civ.P. 80B(c). Thus, the sole province of the court in h s action is to determine whether the Clty Council could rationally have adopted the conditional zone in light of the evidence presented to it, the various policies articulated in the Comprehensive Plan, and the statutory charge under 30-A M.R.S.A. 5 4352(8) that the zone be consistent with existing and permitted uses s v i h n the original zones. Finally, under this standard, it is the Plaintiffs' burden to prove inconsistency, i.e. that the condrtional zone is not consistent with any rational view of the Comprehensive Plan or of the existing and permitted uses w i h n the original zones. See City of Old Town v.Dimoulas, 2002 ME 133, ¶ 18; 803 A.2d 1018, 1023; Adelman, 2000 ME 91 at 9 22; LaBon ta, 528 A.2d at 1265.

The parties have stipulated that the evidence contained in Joint Exhbits 9, 12,13, 14,67,68,69,80, and 81, and City Edubits 1 and 2 constitute the universe of evidence presented to the City Council for the conditional zone hearing. In malung its determination as to the City Council's action, the court will confine itself to a consideration of h s evidence. 11. Was the City Council's Approval of the Conditional Zone Lawful?

The parues agree that, from the cases and dictionary definitions, "consistent" means "in basic harmony with," Dimoulas, 2002 ME 133 at q[ 18; Adelman, 2000 ME 91 at 9 22; LaBonta, 528 A.2d at 1265, or more expansively, "coexisting and showing no noteworthy opposing, conflicting, inharmonious, or contradictory qualities or trends." Webster's Thrd New International Dictionary (1986). The City Council's approval of the conditional rezoning is lawful if the zoning is consistent with the comprehensive plan and if the rezoned area is consistent with the existing and permitted uses w i h n the original zones.

(a) Consistency w i t h the Comprehensive Plan

A stated goal of the Comprehensive Plan, found in Housing: Sustaining Portland's Future, is:

Portland's Comprehensive Plan encourages a manageable level of growth that will sustain the city as a healthy urban center in whch to live and work and to a h e v e a shared vision for Portland. Portland should encourage sustainable development patterns and

opportunities w i h n the city by promoting efficient land use, conservation of natural resources, and easy access to public transportation, services and public amenities.

Evidence was presented to the City Council that Packard's revised development plan would be consistent with the goal of sustaining the city as a healthy urban center in which to live and work. It contains both residential and green spaces as well as commercial development, and is located next to a major Portland arterial, Forest Avenue, whch is regularly serviced by public transportation. The City Council also had information that bus service would be brought into the development. The City Counal was also presented with evidence that h s area was constrained on one side by the railroad and on the other by a residential area, with minimal street access to Allen Avenue, and that, in spite of an earlier solicitation by the City for bids for redevelopment, the Site had remained unimproved for decades. The Gty Council could rationally have determined that h s conditional zone provides an appropriate solution for promoting efficient land use in h s complex area of the city.

The City Council also had evidence before it that the Morrill's Corner area is particularly problematic in terms of traffic congestion, and that the conditional zone would allow for a development that would increase seven-fold the number of daily t i p s through the area. The Portland Industry and Commerce Plan Recommendations Report (June 1994), incorporated into the Comprehensive Plan, stated, "with the exception of a few isolated locations, . .. there is adequate capacity to handle additional traffic at acceptable operating levels on all Portland arterials. The isolated locations include Morrills Corner." However, Plaintiffs have pointed to nothng in the Comprehensive Plan that states that when a proposed conditional zone would exacerbate already congested traffic the ability to weigh the relative importance of the many goals articulated w i h n the Comprehensive Plan is taken out of the hands of the City Council. Nor does the Comprehensive Plan require the City Council to find that Packard's proposal is the best possible use of the Site. It is merely required to find that the proposed condtional zone is consistent with the Comprehensive Plan.

Upon review, it is apparent from the evidence presented to the City Council that its determination that the conditional zone is consistent with the comprehensive plan was rational. Moreover, that the City Council did in fad consider the various parts of the Comprehensive Plan and weigh them together in a responsible and rational manner is underscored by the Gty Council's preamble to its conditional zone contract with Packard, which states in part:

"The purpose of h s contract rezoning is to provide for a mixed use development, including a community shopping center, residential units, offices and a boxing and fitness facility.. . Substantial public improvem&ts will be requirLd to support any redevelopment of the property, including but not limited to traffic improvements in Morrill's Corner.. . Packard has developed a traffic improvement plan, whch plan has been reviewed by the City... The City, by and through its City Council has determined that said rezoning would be and is pursuant to and consistent with the City's comprehensive land use plan and will establish uses that are consistent with the uses in the original zones and the surrounding areas. . . The City has determined that the proposed development will be designed and operated so that it will prevent undue adverse environmental impacts, substantial diminution of the value or utility of neighboring structures, or sigmficant hazards to the health or safety of neighboring residents by controlling noise levels, emissions, traffic, lighting, odors, and any other potential negative impacts of the proposal through the design and implementation of significant public traffic improvements, stormwater drainage improvements, landscaping and buffering.. . The City has determined that because of the unusual nature and unique location of the proposed development and the need for significant public improvements it is necessary and appropriate to have imposed the following conditions and restrictions in order to

ensure that the rezoning is consistent with the City comprehensive land use plan..."

@) Consistency with "Existing and Permitted Uses" Under 30-A M.R.S.A. 9 4352(8)

5 4352(8) states in part: "All conditional zoning must establish.. . rezoned areas that are consistent with the existing and permitted uses witlun the orignal

zones." Ths requirement does not prohbit the introduction of new uses in an area. As the court already stated in its May 9, 2005 opinion, this section cannot be construed to prohbit, for example, the rezoning of an I-L zone to a B-2 zone, for such a reading would render the zoning amendment process superfluous. Rather, t h ~ ssubsection requires only that the legslative body consider whether any rezoning would be in basic harmony with existing and permitted uses w i h n the area to be rezoned.

Here, the contract zone contains two existing and permitted establishments, a restaurant and a boxing club. The City Council could rationally have concluded on the evidence presented to it that the proposed mixed-use commercial/residential development for which they were approving the conchtional zone would be in harmony with these existing and permitted uses.

Moreover, to the extent § 4352(8) requires the legslative body to look outside the boundaries of the proposed conditional zone, the City Council had evidence before it that the development w i h n the zone would adequately buffer the sensitive residential area to the north by placing landscaping and a walkway, and multi-family residences between the commercial development and the existing single-f amily residences outside of the zone. Where traffic congestion and safety issues were concerned, the City Council could rationally have concluded that the proposed contract zone would be consistent with existing and permitted uses based on the peer review, commissioned by the City Council, of Packard's traffic study, whch concluded that "the Packard Development project at Morrill's Corner. . . can satisfy requirements for the issuance of a MaineDOT Traffic Movement Permit." The entry is:

The court declares that the City of Portlmd Council's Order # 98-04/05 is valid and consistent with applicable law governing conditional zones.

Dated at Portland, Maine this 2/ull day of / I ! ,2005.

J

Justice, Superior Court

MORRILL'S CORNER NEIGHBORHOOD ASSOC-DISMISSED - PLAINTIFF SUPERIOR COURT BRETT MCMILLAN - PLAINTIFF CUMBERLAND, s s . Docket No PORSC-CV-2004-00784 Attorney for: BRETT MCMILLAN PEGGY MCGEHEE - RETAINED 12/30/2004 PERKINS THOMPSON HINKLEY & KEDDY DOCKET RECORD ONE CANAL PLAZA PO BOX 426 PORTLAND ME 04112-0426

Attorney for: BRETT MCMILLAN DAVID MCCONNELL - RETAINED 09/01/2005 PERKINS THOMPSON HINKLEY & KEDDY ONE CANAL PLAZA PO BOX 426 PORTLAND ME 04112-0426

JOHN DAY - PLAINTIFF

Attorney for: JOHN DAY PEGGY MCGEHEE - RETAINED 12/30/2004 PERKINS THOMPSON HINKLEY & KEDDY ONE CANAL PLAZA PO BOX 426 PORTLAND ME 04112-0426

Attorney for: JOHN DAY DAVID MCCONNELL - RETAINED 09/01/2005 PERKINS THOMPSON HINKLEY & KEDDY ONE CANAL PLAZA PO BOX 426 PORTLAND ME 04112-0426

JOANNE KENNEDY - PLAINTIFF

Attorney for: JOANNE KENNEDY PEGGY MCGEHEE - RETAINED 12/30/2004 PERKINS THOMPSON HINKLEY & KEDDY ONE CANAL PLAZA PO BOX 426 PORTLAND ME C4112-0426

Attorney for: JOANNE KENNEDY DAVID MCCONNELL - RETAINED 09/01/2005 PERKINS THOMPSON HINKLEY & KEDDY ONE CANAL PLAZA PO BOX 426 PORTLAND ME 04112-0426

DEBRA KEENAN - PLAINTIFF

Attorney for: DEBRA KEENAN PEGGY MCGEHEE - RETAINED 12/30/2004 PERKINS THOMPSON HINKLEY & KEDDY ONE CANAL PLAZA PO BOX 426 Page 1 of 10 Printed on: 11/28/2005

PORSC-CV-2004-00784 DOCKET RECORD

PORTLAND ME 04112-0426

Attorney for: DEBRA KEENAN DAVID MCCONNELL - RETAINED 09/01/2005 PERKINS THOMPSON HINKLEY & KEDDY ONE CANAL PLAZA PO BOX 4 2 6 PORTLAND ME 04112-0426

VS THE CITY OF PORTLAND, MAINE - DEFENDANT

Attorney for: THE CITY OF PORTLAND, MAINE GARY C WOOD - RETAINED 01/25/2005 OFFICE OF CORPORATION COUNSEL 389 CONGRESS STREET PORTLAND ME 04 101

Attorney for: THE CITY OF PORTLAND, MAINE PENNY LITTELL - RETAINED 01/25/2005 CITY OF PORTLAND 389 CONGRESS STREET PORTLAND ME 04101

PACKARE DEVELOPMENT. LLC - PARTIES IN INTEREST

Attorney for: PACKARE DEVELOPMENT, LLC ROY PIERCE - RETAINED 02/10/2005 PRETI FLAHERTY BELIVEAU PACHIOS & HALEY ONE CITY CENTER PO BOX 9546 PORTLAND ME 04112-9546

Attorney for: PACKARD DEVELOPMENT, LLC MATTHEW B GILDART - RETAINED 02/10/2005 PRETI FLAKERTY BELIVEAii PACBIOS & HALEY ONE CITY CENTER PO BOX 9546 PORTLAND ME 04112-9546

Filing Document: COMPLAINT Minor Case Type: DECLARATORY JUDGMENT Filing Date: 12/29/2004

Docket Events: 12/30/2004 FILING DOCUMENT - COMPLAINT FILED ON 12/29/2004

12/30/2004 Party(s): BRETT MCMILLAN ATTORNEY - RETAINED ENTERED ON 12/30/2004 Plaintiff's Attorney: PEGGY MCGEHEE

Party(s): JOHN DAY Page 2 of 10 Printed on: 11/28/2005