The Maine Supreme Judicial Court has decided in favor of Westport Island in a lengthy battle against two residents contesting the proposed public landing improvement project.
First Selectman George Richardson said, “I’m happy, and I got it on my birthday.”
Richardson said he got a call from town’s lawyer Atty. James Katsiaficas about the outcome earlier this month.
“I thought it was a wonderful birthday present,” he said.
The town has a possible $285,000 grant for the project, according to Richardson.
The tug of war began when Paul Nergaard and Michael Stern, both of Westport Island, sought an appeal of a planning board decision to approve the town’s only public boat launching site on Ferry Road.
They based their right of appeal, arguing they have standing to do so because of a board vote granting them party status.
However, the state court found they actually did not have standing to appeal the board decision because the zoning board of appeals did not err in deciding they were without standing. Therefore, the court affirmed the judgment of Lincoln County Superior Court on the matter.
The state court examines the local tribunal when the Superior Court acts as an intermediate court of appeals as it did in this case, according to the June 2 court brief.
The controversy began after selectmen submitted an application in the fall of 2006 to improve the boat launch site. The proposal called for improving the boat ramp and the site access road, and expanding the parking area.
The project would increase daily trips to and from the site by roughly 36 vehicles during the peak season in August, according to local projections. A state Dept. of Transportation study estimated 1638 vehicles pass through the intersection of Rt. 144 (the main thoroughfare) and Ferry Road daily.
The court determined that neither Nergaard nor Stern’s properties directly abuts the site nor are they within any proximity of the site and should not have been granted party status.
Yet the board at that time voted to grant the two men and two other men who attended the Oct. 10, 2006 planning board meeting party status because they all frequently travel Rt. 144 and have to pass by the site.
The men argued the project would endanger their safety on the road due to worsening traffic conditions. They question the width of the road and its capacity to accommodate the traffic changes.
Subsequently, after four public hearings, the board approved the project May 14, 2007 after which Nergaard and Stern appealed the decision to the zoning board. The state court upheld the argument the town attorney gave stating only aggrieved parties can make appeals.
The pair claimed they were aggrieved parties because their personal property was threatened because of increased risk of traffic accidents near the site along the main road. However, the zoning board rejected the argument and dismissed the appeals based on a finding the men lacked standing.
The zoning board concluded at that time neither of them owns property abutting the town’s property and both failed to prove any “potential injury different from that suffered by the general public traveling over Rt. 144.”
Then, on Aug. 17, 2007, Nergaard and Stern appealed the zoning board decision to Lincoln County Superior Court, and the town filed opposition Sept. 12, 2007 through Atty. Katsiaficas. The men then filed a motion to disqualify Katsiaficas as counsel for the town on the claim he had a conflict of interest, since he served as legal counsel for the zoning board.
Later the superior court denied the motion, however, reasoning that the lawyer did not function as a judge or a non-judicial adjudicative officer in advising the zoning board and therefore did not violate the Maine Bar Rules.
The state court upheld the decision stating the attorney’s advising the zoning board and representing the town in the rule proceeding did not conflict.
“The zoning board is a branch of the town,” the brief states. “Attorney Katsiaficas was simply doing his job as the town’s legal representative when he advised the zoning board at its hearing. He did not act in a judicial or quasi-judicial capacity, and Rule 3.4 is not implicated here.”
The court also determined the pair lacked standing because neither owns abutting property nor would sustain a “particularized injury” as required under the town’s shoreland zoning ordinance.
Nergaard and Stern argued they do have a particularized injury because they live on the island and drive by the site frequently, but the state court determined they do not, since more than 1600 people drive by the site daily.
“A particularized injury occurs when a judgment or order adversely and directly affects a party’s property, pecuniary, or personal right,” the state court brief stated citing various court decisions in support of its argument.
