Fred Fitanides v. City of Saco

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2015 ME 32
Docket: Yor-14-298
Submitted
On Briefs: December 18, 2014
Decided: March 17, 2015

Panel: SAUFLEY, C.J., and MEAD, GORMAN, JABAR, and HJELM, JJ.

FRED FITANIDES

v.

CITY OF SACO et al.

HJELM, J.

[¶1] Fred Fitanides appeals from a judgment of the Superior Court

(York County, Fritzsche, J.) affirming two decisions of the Saco Zoning Board of

Appeals (ZBA). The ZBA affirmed the Saco Planning Board’s issuance of

conditional use permits to Wayne and Michelle McClellan for construction of a

disc-golf course on property abutting a campground owned by Fitanides. Because

the permits were issued in compliance with the City of Saco Zoning Ordinance,

and because Fitanides was not prejudiced by procedural irregularities in the

administrative process, we affirm the judgment.
2

I. BACKGROUND

[¶2] In March 2013, Wayne and Michelle McClellan applied for a

conditional use permit to build a disc-golf course1 in Saco on land abutting a

campground owned by Fred Fitanides. The proposed site for the course is located

on two parcels of land, one owned by Elegant Homes, Inc., and the other by the

Gordon O’Donnell Living Trust. Michelle McClellan is the principal beneficiary

of the trust and the manager of Elegant Homes.

[¶3] The proposed site is situated in several different zoning districts. It is

located partially in the B-6 district and partially in the B-2a district, and an area

surrounding a stream that runs through the property is in the Resource Protection

(RP) district. In addition, a portion of the project site is within a Mobile Home

Parks (MHP) Overlay district. The B-2a and B-6 districts require a conditional use

permit for “[o]utdoor commercial recreational facilities,” see Saco, Me., Zoning

Ordinance §§ 410-6A, 410-9A (April 7, 2003), and the RP district requires a

conditional use permit for “[r]ecreation uses involving minimal structural

development,” Saco, Me., Zoning Ordinance § 410-15 (April 5, 2002). The

1
According to one of the conditional use applications,

Disc golf is played like conventional golf, with one exception: instead of clubs and balls
the player uses a disc. The game starts at the first tee where the player selects a disc that
is suited for the terrain and obstacles. The player will continue to throw discs until the
target is reached. The target is a basket on a pole with chains suspended above it, to stop
the disc and allow it to drop into the basket. The play for the hole ends when the disc is
in the basket. Game play continues through the course until each of the 18 holes have
been played.
 3

McClellans applied for both types of conditional use permits. Later, the Planning

Board determined that an additional conditional use permit was necessary in the

RP district for a footbridge that the McClellans planned to construct over the

stream, and the McClellans submitted an application for that permit in July 2013.

No application was submitted for conditional approval in the MHP Overlay

district.

[¶4] The Planning Board held two public hearings on the disc-golf project,

and Fitanides spoke at both meetings. At the end of the second meeting, on May 7,

2013, the Planning Board voted to grant conditional approval for the project and

issued conditional use permits for construction in the RP and B-6 districts.2 One of

the conditions of approval was that “[n]o deviations from the approved plans are

permitted without prior approval from the Planning Board for major changes, and

from the City Planner for minor changes. The determination of major or minor

shall be made by the City Planner.” On June 5, 2013, Fitanides appealed the

conditional use approval to the ZBA, contending, among other things, that the

project did not comply with the requirements of the MHP Overlay district and that

the Board improperly delegated review of minor changes to the City Planner.

2
The Planning Board did not issue a conditional use permit for construction in the B-2a district. We
need not determine whether such a permit was necessary, however, because Fitanides does not challenge
that decision on appeal, and, in any event, the standards for obtaining a permit in the B-2a district are
identical to those for obtaining a permit in the B-6 district.
4

[¶5] Prior to the ZBA’s consideration of the appeal, the City Planner sent an

email to the ZBA stating that “[Fitanides] has demonstrated numerous times in the

past that litigation is little more than a hobby of his” and urging the ZBA not to

“compound the injury inflicted on the applicant by [Fitanides] by dragging this

unfounded appeal on any longer.” After the ZBA held a public hearing on the

appeal on July 1, 2013, it voted to affirm all aspects of the Board’s decision except

the delegation of authority to the City Planner to approve minor changes to the

approved plans. The ZBA issued a written decision on July 16, 2013, remanding

the matter to the Board with instructions “to amend Condition of Approval #2 [the

delegation to the City Planner] to comply with the Saco Zoning Ordinance.”

Fitanides filed a complaint in the Superior Court pursuant to M.R. Civ. P. 80B,

seeking review of the ZBA’s decision.

[¶6] On July 23, 2013, the Planning Board held a hearing to consider the

McClellans’ application for a conditional use permit for the footbridge. Fitanides

spoke in opposition, but the Board voted to approve the permit. At the same

meeting, the Planning Board considered the ZBA’s order remanding the permit for

amendment of the condition delegating approval to the City Planner. The Board,

however, voted to reaffirm its May decision without change. Fitanides filed

appeals of those decisions with the ZBA, and after a public hearing held on

October 7, 2013, the ZBA voted to deny both appeals.
 5

[¶7] On November 4, 2013, Fitanides filed a Rule 80B complaint seeking

judicial review of the ZBA’s October 2013 decision. The court consolidated the

two Rule 80B actions, and, following oral argument, affirmed both ZBA decisions.

Fitanides filed a timely appeal of that judgment pursuant to M.R. Civ. P. 80B(n),

14 M.R.S. § 1851 (2014), and M.R. App. P. 2.

II. DISCUSSION

[¶8] When reviewing a challenge to a municipal decision pursuant to

M.R. Civ. P. 80B, “we review directly the operative decision of the municipality.”

Gensheimer v. Town of Phippsburg, 2005 ME 22, ¶ 7, 868 A.2d 161 (quotation

marks omitted). The operative decision here is that of the Planning Board because

the Ordinance authorizes the ZBA to act only in an appellate capacity, see Saco,

Me., Zoning Ordinance § 901-10 (June 18, 1987), and because the ZBA did so in

this case. See Mills v. Town of Eliot, 2008 ME 134, ¶¶ 14-16, 955 A.2d 258. We

review the Planning Board’s decision for “error of law, abuse of discretion or

findings not supported by substantial evidence in the record.” Sproul v. Town of

Boothbay Harbor, 2000 ME 30, ¶ 8, 746 A.2d 368 (quotation marks omitted).

Fitanides bears the burden of persuasion on appeal because he seeks to vacate the

Planning Board’s decision. See Bizier v. Town of Turner, 2011 ME 116, ¶ 8,

32 A.3d 1048.
6

[¶9] The Planning Board voted twice on the conditional use permits for the

disc-golf course—once when the permits were issued in May and again in July

following the ZBA’s remand. Although there were two votes, however, the Board

issued the permits only once, merely voting the second time to keep the permits

unchanged. There is therefore only one operative decision for our review: the

Board’s decision to grant conditional approval and issue the permits to the

McClellans.

A. Procedural Error

[¶10] Fitanides contends that the Planning Board improperly disregarded

the ZBA’s order to amend the permit. Because the ZBA has appellate authority

over the Board, we agree that the Board acted improperly when it disregarded the

ZBA’s instructions to amend the permit. See Crosby v. Town of Belgrade,

562 A.2d 1228, 1230-31 (Me. 1989) (holding that the Town was bound by a prior

adjudication of the zoning board of appeals). That error has no bearing on the

outcome of this appeal, however, because we review directly the decision of the

Planning Board to grant conditional approval to the project, and that decision was

not affected by the Board’s procedural error. Similarly, we do not consider

Fitanides’s argument that the ZBA lacked authority to remand the permit to the

Planning Board for amendment because we review the decision of the Planning
 7

Board directly, and any error in the decision by the ZBA is irrelevant to that

review.

B. Delegation of Authority to the City Planner

[¶11] Fitanides contends that the Planning Board erred in issuing a

conditional use permit with a condition that allowed the City Planner to approve

minor changes to the project plans. He argues that no provision of the Ordinance

or any statute authorizes the City Planner to make decisions regarding minor

changes to conditional use plans.

[¶12] Title 30-A M.R.S. § 4352 (2014) gives municipalities the authority to

“provide for any form of zoning” consistent with the statute. State law, embodied

in section 4352 and elsewhere, does not directly control delegation of zoning

decisions among municipal boards, departments, or officers, leaving those matters

to individual town ordinances.3 Consequently, the Planning Board erred only if the

condition delegating authority to the City Planner violated the Saco Zoning

Ordinance.

3
We have held that it is unconstitutional for a zoning ordinance to delegate decision-making to a
Planning Board or other entity “without a sufficiently detailed statement of policy to[] furnish a guide
which will enable those to whom the law is to be applied to reasonably determine their rights thereunder,
and so that the determination of those rights will not be left to the purely arbitrary discretion of the
administrator.” Cope v. Inhabitants of Town of Brunswick, 464 A.2d 223, 225 (Me. 1983) (quotation
marks omitted). We have recognized, however, that a specific conditional use contained in an ordinance
provides such a guide, see id. at 226-27, and here the City of Saco goes further by providing a
comprehensive list of standards for determining whether a conditional use should be approved, see
Saco, Me., Zoning Ordinance § 901-4 (April 30, 2007). Thus, constitutional concerns regarding the
delegation of legislative authority are not implicated in this case.
8

[¶13] Interpretation of the Ordinance is a question of law that we review de

novo. See Wister v. Town of Mount Desert, 2009 ME 66, ¶ 17, 974 A.2d 903.

“We examine an ordinance for its plain meaning” and “construe undefined or

ambiguous terms reasonably with regard to both the objects sought to be obtained

and to the general structure of the ordinance as a whole.” Friends of Congress

Square Park v. City of Portland, 2014 ME 63, ¶ 9, 91 A.3d 601 (quotation marks

omitted).

[¶14] Fitanides concedes that the Ordinance does not contain any provision

that prohibits the Planning Board from delegating some tasks to the City Planner.

He argues, however, that the Ordinance does not affirmatively grant the Planning

Board power to authorize the City Planner to approve minor deviations from

conditional use plans, and that it is thus prohibited from doing so. That argument

is not supported by the plain language of the Ordinance, which provides that “[t]he

Planning Board may attach such conditions, in addition to those required elsewhere

in this Ordinance, that it finds necessary to further the purposes of this Ordinance.”

Saco, Me., Zoning Ordinance § 901-6 (June 18, 1987). The condition delegating

decision-making to the City Planner furthers the purposes of the Ordinance by

ensuring that even minor deviations from the approved plans will be subject to

municipal review for compliance with zoning and building laws, without unduly

burdening the Planning Board.
 9

[¶15] Furthermore, authorizing the City Planner to approve minor changes

is consistent with other provisions of the Ordinance that delegate similar tasks to

that official. For example, the City Planner is responsible in the first instance for

approving “minor conditional uses,” see Saco, Me., Zoning Ordinance § 901-12

(June 18, 1987), as well as “minor site plan[s],” see Saco, Me., Zoning Ordinance

§ 1103(7) (Feb. 19, 2002). In addition, the permit condition at issue here is almost

identical to the provision governing changes to site plans, which states that “[a]ny

changes in the plan after approval must be approved by the Planning Board,” but

that “[m]inor changes during construction can be approved by the City Planner.”

Saco, Me., Zoning Ordinance § 1109 (1985). Therefore, the condition delegating

authority for approval of minor changes to the City Planner is consistent with the

Ordinance, and the Planning Board did not err in including it in the permit issued

to the McClellans.4

C. Mobile Home Parks Overlay Zone

[¶16] Fitanides argues that the Planning Board erred by failing to issue a

conditional use permit for the MHP Overlay zone. “Whether a proposed use falls

4
Fitanides argues that delegating authority for approving minor changes to the City Planner deprives
abutters and other interested parties of an opportunity to be heard regarding those changes. Pursuant to
30-A M.R.S. § 4353(1) (2014), however, every zoning board of appeals “shall hear appeals from any
action or failure to act of the official or board responsible for enforcing the zoning ordinance, unless only
a direct appeal to the Superior Court has been provided by municipal ordinance.” That provision suggests
that Fitanides could appeal the City Planner’s decision to the ZBA and thus have an opportunity to be
heard.
10

within the terms of a zoning ordinance is a question of law that we review de

novo.” Lane Const. Corp. v. Town of Washington, 2008 ME 45, ¶ 13,

942 A.2d 1202.

[¶17] The relevant section of the Saco Zoning Ordinance provides: “Once a

mobile home park is approved by the Planning Board, the uses in the parks are

limited to the following permitted and conditional uses . . . .” Saco, Me., Zoning

Ordinance § 410-18 (May 9, 1990). This language clearly demonstrates that the

MHP Overlay district does not apply before a mobile home park has been

approved for construction. Because no park was ever approved for the proposed

site of the disc-golf course, the property was not subject to the requirements of the

MHP Overlay district.

[¶18] This construction of the Ordinance is further supported by the

provision allowing property approved for use as a mobile home park to be

converted to other uses, including uses that would be conditional or prohibited in

the MHP Overlay district. See Saco, Me., Zoning Ordinance § 704-1

(May 9, 1990). That provision would not make sense if land in the MHP Overlay

district remained subject to those restrictions even if a mobile home park did not

exist there. Moreover, if the MHP Overlay restrictions always applied to land in

the district, even where mobile home parks had not been approved, it would be

illogical to include that same land in the B-2a and B-6 districts. See Adams v.
 11

Town of Brunswick, 2010 ME 7, ¶ 11, 987 A.2d 502 (stating that “[t]he provisions

of the Ordinance should be construed harmoniously” (quotation marks omitted)).

Therefore, we hold that the Planning Board did not err by failing to apply the

restrictions of the MHP Overlay to the McClellans’ project.

D. Due Process

[¶19] Fitanides also contends that the ZBA denied him due process during

the appeals process in two ways: that it based its decision to deny his second

appeal on a copy of an email that was not in the record before the Planning Board,

and that the ZBA was biased by the City Planner’s email encouraging it to deny

Fitanides’s appeal in part because of his history of litigation.

[¶20] First, Fitanides has not demonstrated that he was prejudiced by the

ZBA’s consideration of a copy of an email that was not found in the Planning

Board record. At the October 2013 hearing on Fitanides’s appeal of the footbridge

conditional use permit, the ZBA could not locate an email that Wayne McClellan

sent to the Planning Board requesting a waiver of certain application requirements,

and it requested that McClellan retrieve the email from his computer. Fitanides

does not dispute, however, that the Planning Board received McClellan’s waiver

request before its July 2013 meeting and that it considered and voted on the

request. Fitanides has therefore not shown any prejudice due to the ZBA’s

consideration of a copy of the waiver request when the contents of the email were
12

not new or extrinsic to the record. See White v. Town of Hollis, 589 A.2d 46,

48 (Me. 1991) (affirming the town zoning board’s decision because the plaintiff

had not shown that she would have prevailed had the board followed the proper

procedure).

[¶21] Second, as the City acknowledges in its brief, the City Planner acted

unprofessionally when he sent an email to the ZBA disparaging Fitanides’s

assertion of his rights in the zoning proceedings and encouraging the ZBA to rule

against Fitanides because of his involvement in prior litigation with the Town.

Such comments from a municipal official have no place in municipal proceedings

because they create a public perception of bias and may raise questions about a

municipality’s willingness to consider the contentions of its citizens in a fair and

responsible way. As the trial court observed, Fitanides has the right to

“vigorous[ly]” protect his property interests and in fact “has often been successful

in his appeals,” including his appeals to this Court. See Fitanides v. City of Saco,

2004 ME 32, ¶ 36, 843 A.2d 8.

[¶22] Although we conclude that the City Planner’s email to the ZBA was

wholly inappropriate, we must review the record to determine if it caused prejudice

to Fitanides.5 “A party before an administrative board is entitled to a fair and

5
As discussed above, the operative decision that we review is that of the Planning Board, not the
ZBA. We have not had the opportunity to address the effect of a ZBA’s due process violation on the
 13

unbiased hearing . . . .” Lane Const. Corp., 2008 ME 45, ¶ 29, 942 A.2d 1202.

Here, however, the record does not demonstrate that the ZBA was influenced or

affected by the email. See Duffy v. Town of Berwick, 2013 ME 105, ¶ 20,

82 A.3d 148. A biased statement by a municipal officer who is not a member of

the ZBA is not sufficient to impute bias to the ZBA, see Gorham v. Town of

Cape Elizabeth, 625 A.2d 898, 902 (Me. 1993), and Fitanides has not presented

any evidence of bias harbored by any of the ZBA members themselves. To the

contrary, Fitanides was given ample opportunity to fully participate in the permit

process and to present arguments during the ZBA hearing. The ZBA discussed all

of the issues in Fitanides’s appeal “with a view toward making a sincere effort to

fairly decide the issue before them,” id. at 903, and even after receiving the email,

the ZBA ruled in Fitanides’s favor on the issue of delegation to the City Planner.

Therefore, we conclude that Fitanides has not demonstrated that the City Planner’s

inappropriate actions violated his due process rights in the ZBA’s proceedings.

III. CONCLUSION

[¶23] Fitanides was not prejudiced by any procedural mistakes that occurred

during the municipal proceedings, and the Planning Board did not err in

interpreting and applying the Ordinance. Further, we find no merit in Fitanides’s

outcome of an appeal in which we are reviewing directly the decision of a planning board, and we need
not reach that issue here because we conclude that Fitanides’s due process rights were not violated.
14

remaining contentions that the Planning Board’s findings of fact lacked support in

the record. See Summerwind Cottage, LLC v. Town of Scarborough, 2013 ME 26,

¶ 18, 61 A.3d 698.

The entry is:

Judgment affirmed.

On the briefs:

Fred Fitanides, appellant pro se

Timothy S. Murphy, Esq., Prescott, Jamieson, Nelson &
Murphy, LLC, Saco, for appellee City of Saco

Susan B. Driscoll, Esq., Bergen & Parkinson, LLC, Saco, for
appellees Gordon O’Donnell Living Trust, David Ordway,
Elegant Homes, Inc., Cascade Flea Market, LLC, Wayne
McClellan, and Michelle McClellan

York County Superior Court docket numbers AP-13-24, 39
FOR CLERK REFERENCE ONLY