Background
Chip and Anne Andrews applied to the Town of Kittery Planning Board for approval of a major conservation subdivision. Their application included requests to waive certain street design standards set out in Table 1 of the Town’s Land Use and Development Code — specifically, standards governing right-of-way width, street gradient, maximum street length, and sidewalk width. The applicants sought to build Class III private streets that would deviate in several respects from the Code’s default specifications, contingent on obtaining signoff from the Police and Fire Chiefs.
Judith Andrews, an abutting landowner, opposed the application on the ground that the Planning Board had no authority to grant those waivers. She argued that the street standards were zoning requirements, and that only the Town’s Board of Appeals could excuse compliance with them — and only then upon a showing of undue hardship under 30-A M.R.S. § 4353. The Planning Board approved the subdivision 5-2, finding that the waivers satisfied the special-circumstances and public-welfare criteria in Code § 16.8.7. The York County Superior Court affirmed, and Andrews appealed to the Maine Supreme Judicial Court.
The SJC reviewed the Planning Board’s decision directly, applying de novo construction to the relevant ordinance provisions. Andrews bore the burden of persuasion as the party seeking to vacate the approval.
The Court’s Holding
The court affirmed the Planning Board’s approval, holding that the street design standards in Table 1 of Code chapter 16.8 are general, town-wide subdivision standards — not zone-specific zoning requirements — and therefore fall within the Planning Board’s express waiver authority under § 16.8.7. Because the standards apply uniformly across the municipality rather than regulating distinct zones differently, they do not constitute “zoning” within the meaning of 30-A M.R.S. § 4301(15-A), and a planning board may waive them without encroaching on the Board of Appeals’ exclusive variance jurisdiction under § 4353.
The court distinguished its prior decisions in Perkins v. Town of Ogunquit, Sawyer v. Town of Cape Elizabeth, and York v. Town of Ogunquit, all of which involved planning boards purporting to waive requirements embedded in or directly tied to zone-specific zoning ordinances. Here, although the R-RL Zone’s regulations cross-reference the street standards, the standards themselves are codified in the general performance and subdivision-review chapters that apply across zones. That structure, the court held, is consistent with § 4353’s limitations and places the waiver authority squarely with the Planning Board.
The court also rejected Andrews’s argument that a standard’s general, town-wide applicability automatically makes it a nonwaivable zoning regulation. The key distinction is whether the standard divides the municipality into districts with differing requirements — zoning — or imposes uniform site-specific restrictions to protect public health and safety — subdivision regulation. The street standards at issue fell into the latter category.
Key Takeaways
- A planning board may waive general, uniform subdivision street standards under an express waiver provision without implicating the Board of Appeals’ exclusive authority to grant zoning variances under 30-A M.R.S. § 4353.
- The critical distinction is whether a standard is zone-specific (zoning, requiring a variance) or town-wide in application (subdivision regulation, waivable by planning board); a zoning ordinance’s mere cross-reference to general standards does not transform those standards into nonwaivable zoning requirements.
- Standards of general applicability are not inherently zoning regulations — what matters is whether the standard is part of a scheme that divides the municipality into districts with differing rules.
- Where a town provides inaccurate notice of the appeal deadline and the matter proceeds without a timeliness challenge, the SJC will assume without deciding that the appeal period was tolled and address the merits.
Why It Matters
This decision clarifies the boundary between a planning board’s waiver authority over subdivision standards and a board of appeals’ exclusive variance jurisdiction in Maine. Municipal planning boards and applicants now have clearer guidance that general, cross-zone design standards — such as road width and grade tables — can be waived by a planning board without forcing applicants through the more demanding hardship-variance process before a board of appeals, so long as the waiver provision itself is properly structured to vindicate the underlying public interests.
The ruling also serves as a practical reminder to municipalities that ordinance architecture matters: embedding street standards in a general subdivision-review chapter rather than in zone-specific provisions preserves planning board flexibility. Conversely, when a zoning ordinance specifies requirements for a particular zone — even if they concern streets — those requirements remain exclusively within the Board of Appeals’ variance jurisdiction.