Posted by: Patricia Salkin | May 30, 2009

Comprehensive Plan Goal May Not Be Used to Deny Facility that Meets Ordinance Standards

After Nestle built a bolting plant for water in the Town of Fryeburg, it desired to drill a well in the nearby Town of Denmark, and then pipe the water to a water-loading station in a residential area of the Town of Fryeburg. The planning board issued a permit for a water loading facility on three acres of a 59-acre parcel on a major thoroughfare in a rural residential district. The facility will load water from a silo into as many as 50 trucks per day. The board determined that the facility was an “omitted use” in the district and met the standards for omitted uses. The zoning board of appeals reversed. The trial court remanded for a determination of whether the use would meet a comprehensive plan requirement that businesses in the district be “low impact.” The planning board then determined that the business would not be low impact and denied a permit. The board of appeals and trial court affirmed.

The Maine Supreme Court vacated, reasoning that the “low impact” requirement was part of the comprehensive plan, not one of the mandatory ordinance standards. The plan contains goals, not concrete standards. Having determined that there was substantial evidence that the proposal met ordinance standards, the court should not have remanded on the issue of low impact. The Court determined that the proposed use satisfied soil, location, and lot requirements and included measures relating to buffering, lighting, and noise to prevent unreasonable interference with adjacent landowners. Further, the Court found that it is consistent with the purposes of the district in that it involves a natural resource-based business, maintains 56 acres of forest land, has limited visual impact, and is non-intensive.

Nestle Waters of North America, Inc. v. Town of Fryeburg, 2009 WL 705693 (ME, 3/19/2009).

The opinion can be accessed at:

http://www.courts.state.me.us/court_info/opinions/2009%20documents/09me30ne.pdf
For a blog by activists who attempted to stop the water bottling project see: http://stopnestlewaters.org/communities/fryeburg-me

This abstract is based on one appearing in Planning and Environmental Law (May 2009).


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