Cochran v. Inhabitants of City of Portland

CYNTHIA COCHRAN, et al, Petitioners v. THE INHABITANTS OF THE CITY OF PORTLAND, Respondents and HAMMOND HOUSE, LLC, and KEVIN O'ROURKE Parties-in-Interest

Civil Action No. AP-19-13

Superior Court of Maine, Cumberland

March 15, 2020

ORDER AND DECISION

Harold Stewart, II Justice

Before the Court is Petitioners Cynthia Cochran, Carolyn Treat Jessica Lockhart, Edith Woodward, Ellen Bailey, Catherine Clay, Steven Oldford, Kerry MacDonald, Elizabeth Freeman, and Martha Voland ("Petitioners")'s Rule 8OB appeal of Respondent City of Portland's April 9, 2019 decision. Portland's Planning Board (the "Board") approved Parties-in-Interest Hammond House, LLC and Kevin O'Rourke (the "Applicants")'s site plan to construct a new building located on Hammond Street. For the following reasons, the Board's decision is affirmed.

I. Factual Background

Petitioners are residents and property owners in the East Bayside neighborhood in Portland, Maine. (Compl. ¶¶ 1-10.) Respondent City of Portland is a municipality located in Cumberland County, Maine, (Compl. ¶ 11.) Party-in-Interest Hammond is a Maine limited liability company that seeks to redevelop properties on Hammond Street. (Compl. ¶ 12); (R. 659.) Party-in-Interest Kevin O'Ronrke is the owner of the properties at issue in this proceeding, which are located at 4, 6, 8, and 10 Hammond Street, Portland, Maine. (Compl. ¶ 13.)

On November 26, 2018, Acorn Engineering Inc. submitted a Level III Site Plan Application (the "Initial Plan") on behalf of the Applicants d/b/a The Preserve at Sonth Ridge LLC.^[1] (R. 186.) The Initial Plan proposed a project that seeks to redevelop multiple parcels totaling 15, 433 square feet located in an R-6 Residential Zone (the "Proposed Project"). (R. 659.) The Proposed Project seeks to construct a three story, sixteen unit, residential condominium with subsurface parking. (R. 186.) The neighborhood around the Proposed Project consists of a high proportion of single-family structures that are typically one and two stories, though there are several three-story buildings within a block radius of the Proposed Project. (R 659.)

Level III Site Plan reviews in Portland are required on "any new structures having a total floor area of ten thousand (10, 000) square feet or more in all zones except the Industrial zones and IS-FBC zone." Portland, Me. Code § 14-523(f)(1); (R. 51.) The Proposed Project's floor area is planned to be well over 10, 000 square feet and is located in an R-6 Residential Zone. (R. 659.) As the project is in an R-6 Residential Zone it most comply with the standards contained in Portland's Zoning Ordinance section 14-526(d)(9). Portland Zoning Ordinance section 14-526(d)(9)(a) states that "certain zones ... are subject to design standards in addition to the provisions of Section 14-526(a) in order to ensure designs that contribute to and enhance the goals and policies for specific districts of [Portland]." Portland, Me. Code § 14-526(d)(9)(a); (R. 95.) Portland's R-6 Residential Zone is one of the "certain zones" that is subject to additional design standards. Portland, Me. Code §§ 14-526(d)(9)(a)(v) & (vi)(d); (R. 97.) The additional design standards for an R-6 Residential Zone are found in Appendix 7 of the City of Portland Design Manual labeled, "the R-6 Infill Development Design Principles & Standards" ("R-6 Design Standards").^[2] (R. 169.)

The Proposed Project was reviewed under the R-6 Alternative Design Review found in section IV of the R-6 Design Standards. (R. 176-77, 417, 463.) The R-6 Design Standards contains seven broad Design Principles and each individual Design Principle contains more specific Design Standards. (R. 170-77.) The R-6 Alternate Design Review, which was used by the Board for the Proposed Project states:

The [R-6 Design] Standards [] are time-honored ways of achieving the Design Principles. With exceptional care, though, it is possible to apply a design approach that meets the Principles through alternatives that vary from the Standards, while maintaining and relating to the predominant character-defining architectural elements of the neighborhood, such as the building location on the site, its relationship to the street, and its mass, form, and materials. The guiding principle for new construction under the alternative design review is to be compatible with the surrounding buildings in a two block radius, in size, scale, materials and siting, as well as the general character of the established neighborhood.

(R. 176-77.) The R-6 Alternative Design Review section continues:

An applicant may propose an alternative design approach and request an Alternative Design Review. The Planning Authority under an Alternative Design Review may approve a design not meeting on or more of the individual standards provided that all of the conditions listed below are met. . . .

A. The proposed design is consistent with all of the Principle Statements.

B. The Majority of the Standards within each Principle are met.

C. The guiding principle for new construction under the alternative design review is to be compatible with the surrounding buildings in a two block radius in terms of size, scale, materials and siting, as well as the general character of the established neighborhood, thus Standards A-1 through A-3 shall be met.

D. The design plan is prepared by an architect registered in the State of Maine.

(R. 177.) Under the R-6 Alternative Design Review, apart from Design Standards A-1, A-2, and A-3, no single Design Standard must be met, yet a proposed design must be consistent with each Design Principle, and the majority of the Design Standards contained in each Design Principle must be met.

Specifically, at issue in this proceeding are Design Principles A and B. (See Pet'rs' Br. 30- 37.) Design Principle A addresses the overall context of a proposed building design. (R. 170.) The overview of Design Principle A provides that:

A building design shall contribute to and be compatible with the predominant character-defining architectural features of the neighborhood.

Explanatory Note: The central idea behind good design in an established neighborhood is to reinforce positive features of the surrounding area, which provide its unique identity. To a large degree, the scale, mass, orientation, and articulation of an infill building should be compatible with that of the buildings that surround it. .. .

While there is no specific solution for a given setting, there are a number of building characteristics which can be used to gange visnal compatibility of new residential construction in an existing neighborhood. These characteristics include design elements such

as:

1. Scale and Form, . . 2. Composition of Principal Facades ... 3. Relationship to the Street.

(R. 170-71 (emphasis added).) Petitioners point to Design Principle A, Design Standard A-l: Scale and Form, as a specific Design Standard that the Proposed Project did not meet. (Pet'rs' Br. 30.) Design Standard A-l states:

Scale and Form - Relate the scale and form of the new building to those found in residential buildings within a two-block radius of the site, that contribute to and are compatible with the predominant character-defining architectural features of the neighborhood. Special attention shall be given to the existing building forms on both sides of the street within the block of the proposed site.

(R. 171.) As stated above this Design Standard must be met in order for a project to comply with the R-6 Alternative Design Review.

Additionally, Petitioners point to Design Principle B which deals with the massing of proposed building designs. (Pet'rs' Br. 30-31.) The overview of Design Principle B states:

The massing of the building reflects and reinforces the traditional building character of the neighborhood through a well composed form, shape and volume.

Explanatory Note: Massing is a significant factor that contributes to the character of a building. The building's massing (as defined by its bulk, size, physical volume, scale, shape and form) should be harmonious with the massing of existing buildings in a two block radius. The massing of a building can be defined as the overall geometry (length, width, and height) of its perceived form. The overall height of the form (actual and perceived) as well as the geometry of its roof is of particular importance in defining the massing of a building.

(R. 171 (emphasis added), ) Petitioners highlight Design Standard B-l as a standard that the Proposed Project did not meet. (Pet'rs' Br. 30-32.) Design Standard B-1 states:

Massing - The building's massing (as defined by its bulk, size, physical volume, scale, shape and form) should be harmonious with the massing of existing buildings in a two block radius.

(R. 172 (emphasis added).) As made clear by the R-6 Alternate Design Review, a building design need not meet this specific Design Standard as long as the project is consistent with Design Principle B as a whole and meets a majority of the Design Principle B Design Standards.

On February 19, 2019, Portland's Urban Designer Caitlin Cameron issued a review of the Initial Plan, finding that the Proposed Project as presented in the Initial Plan did not pass all of the criteria of the R-6 Alternate Design Review. (R. 417-22.) Urban Designer Cameron described the Context of the neighborhood as "predominately single and two-family buildings with simple forms, one and a half to two and a half stories in height.. . Larger multifamily buildings typically are 3 stories, use balconies or bay windows, flat roofs, and vertical proportions." (R. 418.) The report continued stating that in the "rare instances where a larger scale, wider building has been built, the scale is mitigated by keeping setbacks as a buffer and through massing variation...