Judge backs planning board approval of Lincolnville shore-front subdivision

LINCOLNVILLE – It may be Maine’s most contentious cow pasture.

Owners of a 50-acre parcel with a spectacular view of Penobscot Bay and the islands around Islesboro have scored their strongest victory in their bid to build 14 upscale homes on the hillside alongside U.S. Route 1.

“It’s the best news I’ve heard in three years,” owner Richard Nightingale said Wednesday after learning that Waldo County Superior Court Justice Andrew Mead had upheld the Lincolnville planning board’s approval of his subdivision of Munroe Field.

“We’ve been working on this project since 1998 and we’ve had to fight every step of the way,” Nightingale said as a bulldozer carved into the hillside overlooking the field. “We’re ready to go ahead.”

Mead’s ruling was made public Wednesday. At issue: the constitutionality of the town’s subdivision ordinance and whether the planning board adequately protected the view from the field that takes in Penobscot Bay when it granted Nightingale and James Munroe a permit for a 14-lot subdivision.

Nightingale said one lot already is sold and two others are under option. In each case, he said, the potential buyers took options on adjoining lots. If that trend continues, he said, it is unlikely there will be construction on all 14 lots.

The Conservation Law Foundation, an environmental advocacy group based in Rockland, had contested the board’s permit on behalf of Chris Osgood and Corelyn Senn, Lincolnville residents opposed to the field being opened up for development.

In his ruling, Mead stated he was “satisfied” that the town’s subdivision ordinance did “not run afoul” of state or federal mandates for clarity. Mead said the subdivision approved by the planning board fulfilled the requirements of both the town’s ordinance and comprehensive plan.

“I’m pleased. I think it is the correct legal result,” Lincolnville Town Attorney Terry Calderwood said of the ruling. “I’m particularly pleased that the court found the portion of the ordinance dealing with scenic views to be constitutional. It’s hard to fashion language about views that is constitutional.”

The ordinance and comprehensive plan require the planning board to ensure that scenic views are protected when approving projects. Opponents of the field’s development had argued that the view from Route 1 across the field was unique and should not be permitted to be blocked by houses.

Nightingale and Munroe have argued that they kept that in mind when they designed their subdivision. Instead of opening the entire field up for development, they confined the building lots to the shore and also agreed to grant the town an easement to preserve a 250-foot-wide view corridor from the highway to the water.

Mead concluded that the view corridor was adequate to meet the requirements of the ordinance. He said “the fact that the subject property has unique and valuable visual properties is uncontroverted. Likewise, the parties agree that constructing structures near the shoreline will impede some lines of sight. Accordingly, the issue is not so much as the subjective aesthetics of the situation, [as in those cases where ordinances have been held unconstitutionally vague], as the availability of an unobstructed view of the vista. The ordinance provisions are not unconstitutionally vague.”

Carol Blasi, a lawyer the Conservation Law Foundation, said Wednesday that while the foundation was “disappointed” with the ruling, it also was “pleased” that Mead found the town’s ordinance to be constitutional.

“We are disconcerted with the court’s finding that a 250-foot strip somehow mitigated” the portion of the ordinance aimed at preserving scenic views. She noted that the planning board reached the same conclusion when it denied Nightingale and Munroe a permit in 1998. That decision was overturned in Superior Court in 1999 and sent back to the board for another hearing. It was at that hearing that the board accepted the view corridor and granted the permit.

Mead’s ruling has left opponents with only one other option, appealing the ruling to the Maine Supreme Judicial Court. When asked, Blasi declined to speculate on whether the project’s opponents would be taking that final step.

“We are reviewing the decision and will be making a decision on appeal shortly,” Blasi said.