Murray v. City of Portland

301 A.3d 777

2023 ME 57

Peter L. MURRAY et al. v. CITY OF PORTLAND et al.

Docket: Cum-22-271

Supreme Judicial Court of Maine.

Argued: May 9, 2023

Decided: August 22, 2023

Elizabeth A. Boepple, Esq., and Michael D. Traister, Esq. (orally), Murray, Plumb & Murray, Portland, for appellants Peter L. Murray, Deborah D. Murray, Carol Connor, Michael Hoover, and Jean McManamy

Natalie L. Burns, Esq. (orally), and Mark A. Bower, Esq., Jensen Baird, Portland, for appellee 37 Montreal LLC

Amy R. McNally, Esq. (orally), City of Portland, Portland, for appellee City of Portland

Panel: STANFILL, C.J., and JABAR, HORTON, and LAWRENCE, JJ., and HJELM, A.R.J.

STANFILL, C.J.

[¶1] Peter L. Murray, Deborah D. Murray, Carol Connor, Michael Hoover, and Jean McManamy (collectively, the neighbors) appeal from a judgment of the Superior Court (Cumberland County, O'Neil, J. ) denying their Rule 80B petition for review of government action, see M.R. Civ. P. 80B, and thus affirming the Portland Planning Board's decision that approved 37 Montreal LLC's application to construct a multi-unit residential building. The neighbors contend the Planning Board erred in approving the application because the proposed development fails to meet the height, setback, and design-review requirements of the City's Code of Ordinances (Code). Because we conclude that the Planning Board's findings are insufficient to enable meaningful appellate review, we vacate the Superior Court's judgment and remand with instructions to remand the matter to the Planning Board for findings of fact.

I. BACKGROUND

[¶2] "We draw the following facts from the administrative record before the Planning Board, the municipal body that issued the operative decision." Friends of Lamoine v. Town of Lamoine , 2020 ME 70, ¶ 2, 234 A.3d 214 ; see M.R. Civ. P. 80B(f).

[¶3] In August 2019, 37 Montreal LLC filed an initial site plan, subdivision, and inclusionary-zoning application with the Planning Board. In its application, 37 Montreal LLC proposed to replace what had been three single-family houses with a four-story, multi-unit residential building at 19 Willis Street. ¹ The property is located in the R-6 residential zone and the Munjoy Hill Neighborhood Conservation Overlay District as established in the Code. See Portland, Me., Code § 14-140.5(a) (May 4, 2015). The Planning Board accepted comments and provided its feedback on the proposal a month later, during a workshop. ²

[¶4] After a pause in activity, 37 Montreal LLC filed a new set of plans with the Planning Board in April 2021. The City's urban designer, lead planner, and historic preservation program manager conducted a design review of the proposed development, issuing a memorandum authored by the urban designer on May 18, 2021. Soon after 37 Montreal LLC responded to the memorandum, the Planning Board held a public hearing on July 13, 2021. Before the hearing, residents from the area submitted comments that focused primarily on the proposed development's height, character, and setbacks.

[¶5] By early December 2021, 37 Montreal LLC submitted its final application and plans to construct a four-story, twelve-unit residential building. ³ The proposed building would be forty-five feet in height as measured from a finished grade created by adding fill to the sloping lot. ⁴ The building itself would meet the Code's setback requirements. See Portland, Me., Code § 14-140.5(c) (June 5, 2018) (requiring a five-foot side-street setback and a ten-foot side-yard setback). Walls, however, would be constructed within the setbacks to contain the fill upon which the building would sit.

[¶6] Planning and urban development staff issued a report to the Planning Board on December 10, 2021, concluding that the development satisfied all zoning requirements and recommending that the Planning Board approve the application subject to certain conditions.

[¶7] The Planning Board held its final hearing on December 14, 2021. Comments submitted before and during the hearing focused on three primary concerns: the development's compliance with the Code's height requirement, the development's compliance with the setback requirements, and the Planning Board's compliance with the Code's historic-preservation design-review requirement.

[¶8] Specifically, the neighbors argued that the building would exceed the maximum height allowed by the Code of forty-five feet above grade. See Portland, Me., Code § 14-140.5(c). The Code defines the height of a building as "[t]he vertical measurement from grade, or the predevelopment grade on the islands, to the highest point" of the building. Portland, Me., Code § 14-47 (Feb. 20, 2019). The neighbors asserted that this provision requires a building's height to be measured from the natural, unfinished grade, which means that the proposed building's height would exceed forty-five feet from grade. In contrast, as noted above, 37 Montreal LLC's final plan measured the building's height from the finished grade created by the imported fill.

[¶9] The neighbors also maintained that the proposed development would violate the Code's setback requirements. The Code defines "setback" as "[t]he required distance and the land resulting therefrom between a street line and the closest possible line of conforming structure ." Portland, Me., Code § 14-47 (emphasis added). The Code defines "structure" as "[a]nything constructed or erected of more than one (1) member which requires a fixed location on the ground or attached to something having a fixed location on the ground." Portland, Me., Code § 14-47. The Code does not define "member." The neighbors argued that the setbacks should be measured from the proposed "retaining walls," ⁵ and not from the building, because the walls are "structures" as that term is defined by the Code. The neighbors contended that although the building itself would meet all setback requirements, the retaining walls would not, and the development therefore would not comply with the Code.

[¶10] Finally, the neighbors argued that the Planning Board could not approve the application because it had not received a written analysis from historic preservation staff as required by the Code's design-review standards. See Portland, Me., Code § 14-526(c)(5)(b) (Nov. 7, 2016) (requiring an advisory, historic-preservation design review when a property falls within 100 feet of the Munjoy Hill Historic District.)

[¶11] At the close of the hearing, the Planning Board unanimously voted to approve 37 Montreal LLC's application. The Planning Board issued a written decision on December 17, 2021. ⁶ The Planning Board stated that its decision was "based upon the application, documents and plans as submitted" as well as the findings in the December 10 report that planning and urban development staff prepared. Although the Planning Board concluded generally that the proposed development met the Code's site plan, subdivision, and inclusionary-zoning standards, the Planning Board did not include any specific findings related to the challenges that the neighbors raised.

[¶12] On January 14, 2022, the neighbors filed a Rule 80B petition for review of the Planning Board's decision, naming 37 Montreal LLC as a party in interest. ⁷ See M.R. Civ. P. 80B. The neighbors asserted that the Planning Board erred because 37 Montreal LLC's proposed development failed to meet the height, setback, and historic-preservation design-review requirements under the Code. In a judgment issued on August 5, 2022, the Superior Court concluded that the Planning Board did not err and affirmed the Planning Board's decision. The neighbors timely appealed to us. See M.R. App. P. 2B(c)(1) ; M.R. Civ. P. 80B(n) ; 14 M.R.S. § 1851 (2023).

II. DISCUSSION

[¶13] We review the Planning Board's decision directly because the Superior Court acted in an intermediate appellate capacity. See Fitanides v. City of Saco , 2015 ME 32, ¶ 8, 113 A.3d 1088 ; Friends of Cong. Square Park v. City of Portland , 2014 ME 63, ¶ 7, 91 A.3d 601. "We review the Planning Board's decision for error of law, abuse of discretion or findings not supported by substantial evidence in the record." Fitanides , 2015 ME 32, ¶ 8, 113 A.3d 1088 (quotation marks omitted). Because the Planning Board did not make findings of fact sufficient for us to determine the basis for its approval, however, we cannot meaningfully review its decision.

[¶14] The Planning Board was required to make findings of fact adequate for judicial review. See Christian Fellowship & Renewal Ctr. v. Town of Limington , 2001 ME 16, ¶¶ 15-16, 769 A.2d 834. The Code itself directs that "[e]very final decision of the planning board ... shall include written findings of fact, and shall specify the reason or reasons for such decision." Portland, Me., Code § 14-27(b) (Aug. 7, 1989). We have also explained that

[m]eaningful judicial review of an agency decision is not possible without findings of fact sufficient to apprise the court of the decision's basis. In the absence of such findings, a reviewing court cannot effectively determine if an agency's decision is supported by the evidence, and there is a danger of judicial usurpation of administrative functions. Adequate findings also assure more careful administrative considerations, help parties plan cases for rehearing or judicial review and keep agencies within their jurisdiction.

Chapel Rd. Assocs. v. Town of Wells , 2001 ME 178, ¶ 10, 787 A.2d 137 (alteration, citations, and quotation marks omitted); see also Mills v. Town of Eliot , 2008 ME 134, ¶¶ 18-20, 955 A.2d 258.

[¶15] Here, because the Planning Board's decision does not contain any of the required findings, meaningful judicial review is impossible. The Planning Board did not explain its conclusions or reasoning related to the proposed development's height or setbacks. Further, its decision does not mention or discuss the historic-preservation design-review requirement.

[¶16] Although the parties argue the facts to us as though the...