MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions

Decision: 2016	ME	178

Docket: Cum-16-225

Argued: November	10,	2016

Decided: December 8,	2016

Panel: SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD,	GORMAN,	JABAR,	HJELM,	and	HUMPHREY,	JJ.

FRIENDS	OF	THE	MOTHERHOUSE	et	al.

v.

CITY	OF	PORTLAND	et	al.

MEAD,	J.

[¶1]		Friends of	the	Motherhouse,	a	nonprofit	corporation,	and	Raymond	

Foote	 and	 Barbara	 Weed	 (collectively “Friends”)	 appeal from	 a	 summary	

judgment	 entered	 by the	Superior	 Court	 (Cumberland	County, Warren,	J.)	in	

favor	 of	 the	 defendant	 City	 of	 Portland	 and	 intervenors	 Sea	 Coast	 at	 Baxter	

Woods	 Associates,	 LLC, and	 Motherhouse	 Associates LP	 (intervenors	

collectively “Sea	Coast”).		The	court	entered	judgment	 on	Friends’	complaint	

seeking	 a	 declaration	 that	 the	 Portland	 City	 Council’s	 rezoning	 of	 a	 parcel	

owned	by	Sea	Coast	was	invalid.		We	conclude	that	the	Council	acted	within	its	

broad	legislative	authority and	affirm	the	judgment.
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I.		FACTS	AND	PROCEDURE

[¶2]		Although	the facts, drawn	from	the	summary	judgment	record,	are

taken	in	the	light	most	favorable	to	Friends,	see	Sullivan	v.	St.	Joseph’s	Rehab.	&	

Residence,	2016	ME	107,	¶	2,	143	A.3d	1283,	in	this	case Friends	admitted	the	

statement	of	material	facts	filed	by	Sea	Coast in	its	entirety.

[¶3]	 	 Sea	 Coast	 has	 a	 purchase	 and	 sale	 agreement	 to	 buy	 a	 17.5-acre	

parcel	located	on	Stevens	Avenue	in	Portland	(the	property)	that	is	the	site	of	a	

private	high	school; St.	Catherine’s	Hall,	which	is	used	as	a	residence	by	retired	

Sisters	 of	 Mercy;	 and	 the	 vacant	 St.	 Joseph’s	 Convent,	 known	 as	 the	

“Motherhouse.”		Sea	Coast	intends	 to	give	 the	high	school	a	 twenty-five-year	

lease, retain	St.	Catherine’s	Hall’s	current	use, develop	the	Motherhouse	into	a	

multifamily	 dwelling	 consisting	 of	 eighty-eight	 affordable	 and	 market-rate	

senior	housing	units, and	develop	the	surrounding	grounds	into	a	retirement	

community	consisting	of	additional	dwelling	units	and	assisted	living	facilities.

[¶4]		On	March	4,	2015,	Sea	Coast	requested	a	zoning	amendment	that,	

after	some	revision,	sought	to	have	a	13.5-acre	portion	of	the	property	that did	

not	include the	high	school	and	St.	Catherine’s	Hall rezoned	from	R-5 residential	

to	 R-5A	 residential.	 	 As	 described	 in	 Portland’s	 comprehensive	 plan, “[t]he	
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permitted	 residential	 uses	in	 the	R-5a1 zone	are very	 similar	 to	 those	in	 the	

R-5 zone,	 except	 that	 multiplexes	 are	 not	 allowed.	 	 The	 other	 significant	

difference	 is	 that PRUDs	 [planned	 residential	 unit	 developments]	 may	 be	

developed	at	a	higher	density.”

[¶5]		On	May	12,	after	notice	and	a	public	hearing,	 the	Planning	Board	

voted	 unanimously	 to	 recommend that	 the	 Council approve	 a	 zoning	 map	

amendment	 rezoning	 the	 Sea	 Coast	 property	 as	 proposed,	 and	 approve	

amendments	 to	 the	 text	of	 the	zoning	ordinance	having	general	applicability

concerning	 the	 R-5A	 zone.	 	 The	 Planning	 Board’s	 report	 to	 the	 Council

contained	 an	 explicit	 finding that	 the	 amendments	 were	 consistent	 with	

Portland’s comprehensive	plan.

[¶6]	 	 The	 Council	 held	 a	 public	 hearing	 and	 voted	 to	 adopt	 the	 text	

amendments,	 while	 tabling	 the	 proposed	 map	 amendment.	 	 Sea	 Coast	 then	

reduced	the	portion	of	the	property	to	be	rezoned	as	R-5A	to	7.51	acres,	in	the	

process	 reducing	 the	 number	 of	 potential	 housing	 units	 on	 the	 property	 by	

eighty-five.		The	Council	unanimously	approved	the	revised	map	amendment	

on	July	6,	rezoning	the	7.51-acre	portion	of	the	property to	R-5A.

 1		The	comprehensive	plan	designates	the	zone	as	“R-5a”;	the	zoning	ordinance,	Planning	Board,	

City	Council,	and	Superior	Court	designate	the	zone	as	“R-5A.” We	will	use	“R-5A” throughout	the	

remainder	of	this	opinion.
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[¶7]	 	Following	 the	 Council’s	 rezoning	action,	Sea	 Coast	applied	 to	 the	

Planning Board for	a	 four-lot	subdivision	of	 the	entire	property,	as	well	as	a	

subdivision	 in	 the	 Motherhouse	 consisting	 of	 sixty-six	 affordable	 and	

twenty-two	market-rate	senior	housing	units.		The	Planning	Board	approved	

the application	on	August	11,	2015.		No	appeal	from	that	action	has	been	taken.

[¶8]	 	 On	 October	 23,	 2015,	 Friends	 filed	 a	 two-count	 complaint	 for	

declaratory	judgment in	the	Superior	Court seeking	to	invalidate	the Council’s	

rezoning	action.		The	complaint	asserted	that the	comprehensive	plan required	

that	R-5A	zones	be	created	only	by	contractual	or	conditional	rezoning,	and	that	

the	 map	 and	 textual	 amendments	 were	 “substantively	 inconsistent	 with	 the	

Comprehensive	 Plan’s goals	 and	 policies	 for	 the	 Deering	 Center/Stevens	

Avenue	neighborhood.”

[¶9]		Sea	Coast	moved	for	summary	judgment	and the	City	joined	in	the	

motion.		In	a judgment dated	April	19,	2016,	the	court	concluded	that

the	 zoning	 code	 and	 map	 amendments	 at	 issue	 are	 “in	 basic	

harmony”	 with	 Portland’s	 Comprehensive	 Plan .	 .	 . and	 .	 .	 . the	

rezoning	of	7.51	acres	of	the	St.	Joseph’s	convent	site	to	R-5A	did	

not	 have	 to	 be	 accomplished	 by	 conditional	 or	 contract	 zoning.		

Accordingly,	 Intervenors	 are	 entitled	 to	 summary	 judgment	

granting	declaratory	relief	to	that	effect.

Friends	appealed.
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II.		DISCUSSION

[¶10]	 	We	 review the	entry	 of	a	 summary	judgment	 de	 novo,	and	will	

“affirm	 the	grant	of	summary	judgment	if	 the	record	reflects	 that	 there	is	no	

genuine	issue	 of	material	 fact	and	 the	movant	is	entitled	 to	a	judgment	as	a	

matter	of	law.”		Remmel	v.	City	of	Portland,	2014	ME	114,	¶	11,	102	A.3d	1168	

(quotation	 marks	 omitted).	 	 In	 Remmel we set	 out	 the	 standards	 of	 review	

applicable to	this	case,	in	which	we	are again	called	upon	to	review	a	zoning	

decision	of	the	Portland	City	Council:

Our	review	of	the	City	Council’s	action	must	respect	that	zoning	is	

a	 legislative	 act	 and	must	 give	 deference	 to	 the	 legislative	 body.		

Judicial	 review	 of	a	 .	 .	 .	 rezoning	decision	is	ultimately	limited	 to	

determining	 whether	 the	 City	 Council could	 rationally	 have	

adopted	the	[new]	zone	in	light	of	the	evidence	presented	to	it,	the	

various	 policies	 articulated	 in	 the	 comprehensive	 plan,	 and	 the	

mandate	of	[the	applicable	statute].

.	.	.	.

By	 statute,	 zoning	 ordinances	 and	 subsequent	 rezoning	 actions	

must	be	 “pursuant	 to	 and	 consistent	with	 a	 comprehensive	 plan	

adopted	by	the	municipal	legislative	body.”	30-A	M.R.S.	§ 4352(2)	

[(2015)].	 When	 considering	 whether	 a	 rezoning	 action	 is	

“consistent	 with”	 a	 city’s	 comprehensive	 plan,	 a	 court	 must	

determine	whether	the	City	Council could	have,	from	the	evidence	

before	it,	 found	 that	 the	rezoning	was	in	basic	harmony	with	 the	

comprehensive	plan.	 The	challenger	bears	the	burden	of	proving	

that	the	amendment	is	inconsistent	with	the	comprehensive	plan.	

A	zoning	or	rezoning	action	need	not	perfectly	fulfill	the	goals	of	a	

comprehensive	plan;	it	may	be	in	basic	harmony	with	the	plan	so	
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long	 as	it	 strikes	 a	 reasonable	 balance	 among	 the	municipality's	

various	 zoning	 goals	 or	 overlaps	 considerably	 with	 the	 plan.	 	 In	

addition,	 a	 comprehensive	 plan	 is	 considered	 as	 a	 whole;	 a	

municipality	may	conclude	that	a	rezoning	action	is	consistent	with

a	comprehensive	plan	when	it	is	in	harmony	with	some	provisions	

of	 the	 plan,	 even	 if	 the	 action	 appears	 inconsistent	 with	 other	

provisions	of	the	plan.

Id. ¶¶	1,	12-14	 (alterations,	citations	and	quotation	marks	omitted);	see	 also	

Golder	v.	City of	Saco, 2012	ME	76,	¶	11,	45	A.3d	697.		We	review	the	Council’s	

factual	 determinations	 for	 clear	 error.	 	 Remmel,	 2014	 ME	 114,	 ¶	 21	 n.5,	

102 A.3d	1168.

[¶11]	 	The	 evidence	 before	 the	 Council included	 the	 Planning	 Board’s

report.		In	that	report,	the	Planning	Board	found	that	the	Sea	Coast	project	was	

consistent	with	the	purpose	of	the	R-5A	zone	as set	out	in	the	comprehensive	

plan,	which	is

[t]o	 provide	 for	 moderate-density residential	 development	 in	

off-peninsula	sections	that	can	provide	a	unique	residential living	

experience	 with	 a	 high	 degree	 of	 natural	 site	 amenities;	 and	 to	

provide	areas	of	the	city	in	the	general	proximity	of	the	peninsula	

that	 have	 the	 ability	 for	 adequate	 municipal	 services,	 including	

traffic	 corridors	 with	 adequate	 traffic	 capacity,	 that	 can	

appropriately	 accommodate	 a	 more	 intensive	 use	 of	 land	 than	

other	 lower-density	 zoned	 land	 and	 be	 compatible	 with	

surrounding	 neighborhoods;	 and	 to	 increase	 affordable	 housing	

opportunities	in	off-peninsula	locations	by	providing	a	moderate	

density zone.
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The	Planning	Board	additionally	identified	“[g]oals	and	policies”	stated	in	the	

comprehensive	 plan that	 it	 found	 to	 be	 relevant to	 the	 Sea	 Coast	 proposal,	

including	several	focusing	on	the	need	for	an	adequate	housing	supply	for	the	

City’s	 residents	 in	 general,	 and	 for	 senior	 citizens at	 all	 income	 levels	 in	

particular.

[¶12]	 	Given	 the	portions	 of	 the	 comprehensive	 plan identified	 by	 the	

Planning Board	and	considered	by	the	Council,	and	applying	Remmel	and	the	

deference	 to	 the	 Council’s	 decision that	 it	 requires,	 2014	 ME	 114,	 ¶	 12,	

102 A.3d 1168,	 Friends	 did	 not	 meet	 its	 burden	 to	 prove	 that	 the	 Council’s	

action	rezoning	part	of	the	Motherhouse	property	to	allow	the development	of	

senior	housing—while	retaining	the	high	school	and	St.	Catherine’s	Hall	in	their	

original	 zone—was	 not	 “in	 basic	 harmony	 with	 the	 comprehensive	 plan.”		

Id. ¶ 13	(quotation	marks	omitted).

[¶13]		Friends’	argument	that	the	amendments	are inconsistent	with	the	

comprehensive	plan because	the	Council	did	not	employ	conditional	or	contract	

zoning	is	not	persuasive.		The	comprehensive	plan does	not	specify	a	particular	

method	for	rezoning	a	property	as	R-5A,	and	says	nothing	about	conditional	or	

contract	zoning	at	all in	the	section	defining	the	R-5A	zone.		It	says only	that
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“[t]he	R-5a	is	applied	though	rezoning	when	a	site	and	development	proposal	

meets	the	intent	of	this	zoning	classification.”

[¶14]	 	 The	 zoning	 ordinance—not	 the	 comprehensive	 plan—formerly	

required	 conditional	 or	 contract	 zoning	 in	 order	 to	 create	 an	 R-5A	 zone	

containing a	planned	 residential	 unit	 development,	 but	 the	Council chose	 to	

follow	the	recommendation	of	the	Planning	Board	and	changed	the	ordinance	

to	 eliminate	 that	 requirement.	 	 As	 the	 Planning	 Board	 noted,	 the	

comprehensive	 plan explicitly	 allows	 such	 a	 change	 in	 providing	 that	

“[p]otential	text	amendments	will	be	considered	to	update	the	residential	zones

in	 conformance	 with	 the recommendations	 of	 [the	 comprehensive	 plan].”	

“[B]asic	harmony	with	the	comprehensive	plan,”	not	harmony	with	the	former	

zoning	ordinance,	is	the	test	that	we	apply when	reviewing	the	Council’s	zoning	

decision.		Remmel,	2014	ME	114,	¶¶	13-14,	102	A.3d	1168 (quotation	marks	

omitted).	 	Because	that test	is	 satisfied	in	 this	 case,	 the	 court	 did	 not	 err	in	

finding	that	Sea	Coast	was	entitled	to	judgment	as	a	matter	of	law.

[¶15]	 	 Having	 concluded	 that	 summary	 judgment	 was	 appropriately	

granted,	we	do not	reach	the alternative	argument	advanced	by	Sea Coast	and	

the	 City	 that	 even	 if	 the	 Council’s	 rezoning	 action	 conflicted	 with	 the	
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comprehensive	plan,	the	Planning	Board’s	approval	of	Sea	Coast’s subdivision	

application	remains valid	because	Friends	did	not	appeal from that	action.

The	entry	is:

Judgment	affirmed.

On	the	briefs:

David	 A.	 Lourie,	 Esq.,	 Cape	 Elizabeth,	 for	 appellants Friends	 of	 the	

Motherhouse,	Raymond	Foote,	and	Barbara	Weed

Danielle	P.	West-Chuhta,	Esq.,	City	of	Portland,	Portland,	for	appellee	City	

of	Portland

Natalie	L.	Burns,	Esq.,	and	Mark	A.	Bower,	Esq.,	Jensen	Baird	Gardner	&	

Henry,	Portland,	for	appellees	Motherhouse	Associates	LP	and	Sea	Coast	

at	Baxter	Woods	Associates

At	oral	argument:

David	 A.	 Lourie,	 Esq.,	 for	 appellants	 Friends	 of	 the	 Motherhouse,	

Raymond	Foote,	and	Barbara	Weed

Danielle	P.	West-Chuhta,	Esq.,	for	appellee	City	of	Portland

Natalie	L.	Burns,	Esq.,	for	appellees	Motherhouse	Associates	LP	and	Sea	

Coast	at	Baxter	Woods	Associates

Cumberland	County	Superior	Court	docket	number	CV-2015-480

FOR	CLERK	REFERENCE	ONLY