Posted by: Patricia Salkin | April 1, 2015

ME Supreme Judicial Court Upholds Conditional Use Permit for Disc Golf Couse and Finds City Planner’s E-Mail to the ZBA Did Not Constitute a Violation of Adjacent Property Owner’s Due Process Rights

In March 2013, Wayne and Michelle McClellan applied for a conditional use permit to build a disc-golf course 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. 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. One of the conditions of approval was that “no 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 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, and the Superior Court affirmed.

The court found Fitanides’s argument that the ZBA lacked authority to remand the permit to the Planning Board for amendment irrelevant because it reviewed the decision of the Planning Board directly. Fitanides next argued that the Saco Zoning Ordinance did not affirmatively grant the Planning Board power to authorize the City Planner to approve minor deviations from conditional use plans, and that it was thus prohibited from doing so.  However, that argument was 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.” Therefore, the court held that 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.

Finally, Fitanides contended that the ZBA denied him due process during the appeals process by basing 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. Although the court concluded that the City Planner’s email to the ZBA was wholly inappropriate, the record did not demonstrate that the ZBA was influenced or affected by the email. Because 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, the court affirmed the Superior Court’s holding in favor of issuing the conditional use permit.

Fitanides v City of Saco, 2015 WL 1198605 (ME 3/17/2015)

The opinion can be accessed at: http://www.courts.maine.gov/opinions_orders/supreme/lawcourt/2015/15me32fi.pdf


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