vs. Stream and Marsh
by Ron Davis
A developer’s seemingly dead plans for a new shopping center near a scenic area in Bangor, ME, have suddenly found new life, thanks to a recent ruling by the Maine Supreme Judicial Court.
The developer, Widewaters Stillwater Co., LLC, proposes to build the shopping center in an area zoned as a "shopping and personal-service district." Another shopping center, Bangor Mall, is also located in that same area. But the new shopping center would abut the Penjajawoc Stream and the Penjajawoc Marsh in Bangor, and many conservation-minded local residents argue that the development would harm the environment there.
The developer responded to the criticism by revising the original site plan. The revision includes placement of all buildings and parking areas more than 250 feet from the Penjajawoc.
The local planning board then conducted a hearing, at which opponents and advocates of the development testified. Afterwards, the planning board voted three to two to deny the site development application of the developer, though they did vote to allow a "conditional-use" building permit.
Apparently dissatisfied with the restrictions such a permit would impose, the developer asked the courts to review the planning board’s action on grounds that it was an "unconstitutional delegation of legislative power."
In fact, the planning board, prior to voting at the public hearing, failed to include in the record any written decision or findings of fact. Instead, the discussion primarily focused on a detention pond on the property and the "irreplaceable natural beauty" of the Penjajawoc.
The Maine Supreme Judicial Court refused to accept the decision of the planning board, explaining, "When a board’s findings of fact are insufficient to apprise us of the basis of the board’s decision, it is impossible for us to determine whether that decision is supported by substantial evidence…."
Added the justices, "This case has the additional aspect of a constitutional challenge to the Bangor Land Development Code."
The planning board must now conduct further hearings to, first, properly assess and record the facts of the case and, second, to learn from the courts whether the Bangor Land Development Code is constitutional. (Widewaters Stillwater Co. v. BACORD, 790 A.2d 597 [Me.2002])
Decision: February 2002
Published: March 2002