MAINE	SUPREME	JUDICIAL	COURT	                                       Reporter	of	Decisions	
Decision:	 2018	ME	27	
Docket:	   Cum-17-274	
Argued:	   December	13,	2017	
Decided:	  February	22,	2018	
	
Panel:	    SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD,	GORMAN,	JABAR,	HJELM,	and	HUMPHREY,	JJ.	
	
	
                              FREDERICK	OLSON	et	al.	
                                        	
                                       v.	
                                            	
                            TOWN	OF	YARMOUTH	et	al.	
	
	
HUMPHREY,	J.	

      [¶1]	 	 Frederick	 Olson	 and	 Leora	 Rabin	 appeal	 from	 a	 judgment	 of	 the	

Superior	 Court	 (Cumberland	 County,	 Warren,	 J.)	 affirming,	 pursuant	 to	 M.R.	

Civ.	P.	 80B,	 the	 Town	 of	 Yarmouth	 Planning	 Board’s	 approval	 of	 a	 site	 plan	

application	by	Portland	Cellular	Partnership,	d/b/a	Verizon	Wireless	(Verizon),	

to	install	wireless	communication	equipment	on	a	tower	and	site	owned	by	the	

Yarmouth	Water	District.		Olson	and	Rabin	argue	that	Verizon’s	application	did	

not	 comply	 with	 Yarmouth’s	 Zoning	 Ordinance	 because	 (1)	 the	 Yarmouth	

Water	District	site	was	subject	to	a	presumption	of	unsuitability	that	Verizon	

failed	to	overcome,	and	(2)	Verizon	did	not	present	sufficient	evidence	that	it	

investigated	other	technically	feasible	sites.		Because	the	Board	did	not	err	by	
2	

concluding	that	Verizon’s	application	complied	with	the	relevant	provisions	of	

the	Zoning	Ordinance,	we	affirm	the	judgment.	

                                  I.		BACKGROUND	

      [¶2]	 	 In	 2001,	 Sprint	 Spectrum	 L.P.	 (Sprint)	 submitted	 a	 site	 plan	

application	to	the	 Town	of	Yarmouth	in	which	it	applied	to	install	a	wireless	

communication	antenna	array	on	a	water	tower	owned	by	the	Yarmouth	Water	

District	and	to	install	equipment	cabinets	on	the	ground	near	the	tower.		The	

Planning	Board	denied	the	application	because	it	did	not	meet	zoning	and	site	

plan	ordinance	standards.		In	April	2016,	Verizon	applied	to	the	Planning	Board	

for	a	similar	use	at	the	same	site.			

      [¶3]		At	a	public	meeting	on	May	25,	2016,	the	Planning	Board	reviewed	

Verizon’s	plan.		The	Planning	Board	and	neighboring	residents,	including	Olson	

and	Rabin,	questioned	the	location	of	the	equipment	enclosure	and	the	related	

visual,	noise,	and	health	effects	on	the	neighborhood.		Olson’s	property	abuts	

the	Yarmouth	Water	District	site,	and	Rabin	resides	within	500	feet	of	the	site.		

Verizon	represented	that	it	would	examine	other	sites	and	look	at	the	gaps	in	
                                                                                         3	

coverage	that	led	to	the	selection	of	this	location.		The	Planning	Board	did	a	site	

walk	on	June	15,	2016.			

      [¶4]		On	July	20,	2016,	Verizon	submitted	its	final	site	plan	application	to	

install	equipment	on	the	Yarmouth	Water	District	site.		Verizon	asserted	in	its	

application	that,	by	installing	the	equipment	on	the	Yarmouth	 Water	 District	

site,	 Verizon	 would	 “be	 able	 to	 fill	 the	 substantial	 coverage	 gap	 that	 it	 now	

experiences,	 and	 provide	 improved	 coverage	 and	 capacity	 to	 residents,	

businesses,	and	traffic	corridors	within	sections	of	Yarmouth	that	are	currently	

located	within	deficient	service	areas	of	Verizon	Wireless’[s]	network.”			

	     [¶5]	 	 The	 Town	 of	 Yarmouth	 Director	 of	 Planning	 and	 Development	

(Director)	submitted	a	report	to	the	Planning	Board	on	September	 23,	2016.		

The	Director	detailed	how	Verizon’s	application	complied	with	individual	site	

plan	 and	 zoning	 standards	 and	 concluded	 that	 the	 project	 conformed	 to	 the	

Town’s	 comprehensive	 plan	 and	 submission	 requirements.	 	 As	 to	 the	

Ordinance’s	 requirement	 that	 Verizon	 investigate	 other	 technically	 feasible	

sites,	he	concluded	that	Verizon	had	“described	[its]	site	selection	process,”	and	

the	 Yarmouth	 Water	 District	 site	 allows	 “the	 antenna	 to	 be	 located	 on	 an	

existing	 water	 tower	 which	 avoids	 the	 need	 to	 construct	 a	 new	 tower.”	 	 The	
4	

Director	 recommended	 that	 the	 Planning	 Board	 approve	 the	 application	 if	

Verizon	accepted	the	conditions	that	he	proposed	in	his	report.			

	       [¶6]		The	Director’s	report	included	the	2001	letter	denying	Sprint’s	site	

plan	application	and	the	Planning	Board’s	findings	on	Sprint’s	application.		The	

2001	Planning	Board	report	stated	that	“[t]he	size	and	configuration	of	the	lot	

on	which	the	water	tower	is	located	and	upon	which	equipment	is	located	is	too	

small	 in	 area	 and	 too	 narrow	 in	 width	 and	 therefore	 too	 constrained	 for	

‘adverse	impacts’	of	the	proposed	equipment	installation	on	the	ground	to	be	

adequately	minimized,	per	[Yarmouth,	Me.,	Zoning	Ordinance,	art.	II(Z)(1)],	in	

the	residential	context	and	close	proximity	to	adjacent	and	nearby	residences	

involved.”1			

	       [¶7]		On	September	28,	2016,	the	Planning	Board	considered	Verizon’s	

final	site	plan	application	at	a	public	meeting.		The	Planning	Board	asked	about	

alternative	 sites	 that	 Verizon	 had	 considered,	 and	 a	 Verizon	 representative	

explained	that	it	looked	at	the	gaps	in	its	area	of	coverage	and	then	looked	for	

sites	that	could	fill	the	gaps	with	a	minimal	impact	on	the	Town.		The	Verizon	



    1		The	2001	Planning	Board’s	written	findings	included	a	section	entitled	“Presumption	of	inability	

to	 accommodate	 similar	 equipment”	 that	 was	 stricken	 by	 hand.	 	 Because	 the	 record	 is	 devoid	 of	
evidence	 concerning	 the	 rationale	 for	 removing	 this	 language	 and	 we	 review	 the	 Ordinance’s	
provision	creating	a	presumption	of	unsuitability	de	novo,	see	Osprey	Family	Tr.	v.	Town	of	Owls	Head,	
2016	ME	89,	¶	9,	141	A.3d	1114,	we	accord	no	weight	to	this	section	of	the	Planning	Board’s	findings.	
                                                                                                             5	

representative	 told	 the	 Planning	 Board	 that	 Verizon’s	 “[g]oal	 at	 this	 site	 has	

been	to	.	.	.	comply	with	the	primary	goal	of	the	Town’s	wireless	ordinance,	and	

that	is	to	avoid	the	need	for	new	towers.”		Verizon’s	search	revealed	that	the	

Yarmouth	Water	District	site	was	the	only	appropriate	location	because	other	

buildings	 in	 the	 area	 were	 not	 tall	 enough	 and	 a	 Central	 Maine	 Power	 pole	

would	not	fill	the	coverage	gap	and	posed	administrative	hurdles.		The	Planning	

Board	 unanimously	 gave	 conditional	 approval	 to	 Verizon’s	 application	 after	

finding	 that	 the	 plan	 conformed	 to	 the	 Site	 Plan	 Review	 Ordinance.	 	 The	

Planning	Board	issued	a	written	approval	letter	on	October	7,	2016.			

        [¶8]	 	 On	 November	 8,	 2016,	 Olson	 and	 Rabin,	 who	 both	 appeared	 and	

commented	at	the	Planning	Board	meetings,	filed	a	complaint	and	petition	for	

review	 of	 final	 municipal	 action	 pursuant	 to	 M.R.	 Civ.	 P.	 80B	 in	 the	 Superior	

Court.2	 	 Verizon	 intervened	 in	 the	 action.	 	 The	 court	 affirmed	 the	 Planning	

Board’s	decision	on	June	1,	2017.			

        [¶9]		Olson	and	Rabin	filed	a	timely	appeal.		See	M.R.	Civ.	P.	80B(n);	M.R.	

App.	P.	2(b)(3)	(Tower	2016).3			



   2	 	 Pursuant	 to	 Yarmouth,	 Me.,	 Site	 Plan	 Review	 Ordinance,	 art.	 I(F)(3)	 (June	 2017),	 site	 plan	

decisions	of	the	Planning	Board	are	appealed	to	the	Superior	Court	in	Cumberland	County.			
   3		This	appeal	was	commenced	before	September	1,	2017,	and	therefore	the	restyled	Maine	Rules	

of	Appellate	Procedure	do	not	apply.		See	M.R.	App.	P.	1.	
6	

                                  II.		DISCUSSION	

      [¶10]		Olson	and	Rabin	raise	two	issues	on	appeal.		First,	they	argue	that	

the	 Planning	 Board	 erred	 in	 its	 approval	 of	 Verizon’s	 site	 plan	 application	

because,	pursuant	to	article	II(Z)(4)(a)(3)	(Sept.	2016)	of	the	Yarmouth	Zoning	

Ordinance,	 the	 Yarmouth	 Water	 District	 site	 was	 presumed	 to	 be	 unsuitable	

and	Verizon	failed	to	overcome	that	presumption.		Second,	they	contend	that	

there	was	not	substantial	evidence	in	the	record	to	support	the	Board’s	finding	

that	 Verizon	 investigated	 other	 technically	 feasible	 sites,	 as	 required	 by	

Yarmouth,	Me.,	Zoning	Ordinance,	art.	II(Z)(9)(c)	(Sept.	2016).			

      [¶11]	 	 “We	 review	 the	 Planning	 Board’s	 approval	 of	 the	 [site	 plan	

application]	 directly	 for	 error	 of	 law,	 abuse	 of	 discretion	 or	 findings	 not	

supported	by	substantial	evidence	in	the	record.”		Osprey	Family	Tr.	v.	Town	of	

Owls	 Head,	 2016	 ME	 89,	 ¶	 9,	 141	 A.3d	 1114	 (quotation	 marks	 omitted).		

“Substantial	 evidence	 exists	 when	 a	 reasonable	 mind	 would	 rely	 on	 that	

evidence	as	sufficient	support	for	a	conclusion.”		Id.	(quotation	marks	omitted).		

“Although	 interpretation	 of	 an	 ordinance	 is	 a	 question	 of	 law,	 we	 accord	

substantial	 deference	 to	 the	 Planning	 Board’s	 characterizations	 and	

fact-findings	as	to	what	meets	ordinance	standards.”		Bizier	v.	Town	of	Turner,	

2011	ME	116,	¶	8,	32	A.3d	1048	(quotation	marks	omitted).		When	interpreting	
                                                                                      7	

an	 ordinance	 de	 novo,	 “we	 first	 evaluate	 the	 plain	 meaning	 of	 the	 Ordinance	

and,	if	the	meaning	is	clear,	[we]	need	not	look	beyond	the	words	themselves.		

We	 construe	 the	 terms	 of	 an	 ordinance	 reasonably,	 considering	 its	 purposes	

and	structure	and	to	avoid	absurd	or	illogical	results.”		Fryeburg	Tr.	v.	Town	of	

Fryeburg,	2016	ME	174,	¶	5,	151	A.3d	933	(citation	omitted)	(quotation	marks	

omitted).		Olson	and	Rabin	bear	the	burden	of	persuasion	on	appeal	because	

they	seek	to	vacate	the	Planning	Board’s	decision.		See	Bizier,	2011	ME	116,	¶	8,	

32	A.3d	1048.	

A.	   Application	of	the	Presumption	of	Unsuitability	

	     [¶12]	 	 We	 first	 consider	 Olson	 and	 Rabin’s	 argument	 that,	 pursuant	 to	

article	 II(Z)(4)(a)(3)	 of	 the	 Ordinance,	 the	 Planning	 Board’s	 2001	 denial	 of	

Sprint’s	 application	 to	 install	 a	 wireless	 communication	 antenna	 array	 and	

associated	equipment	cabinets	on	the	Yarmouth	Water	District	site	created	a	

rebuttable	presumption	that	the	site	was	unsuitable	to	accommodate	Verizon’s	

proposal.			

      [¶13]		Article	II(Z)(4)(a)(3)	states:	

            Once	 the	 Planning	 Board	 has	 determined	 that	
      telecommunications	equipment	proposed	by	the	applicant	cannot	
      be	accommodated	on	an	existing	or	approved	tower	or	Alternative	
      Tower	 Structure,	 each	 tower	 or	 Alternative	 Tower	 Structure	 so	
      found	is	presumed	unable	to	accommodate	similar	equipment	that	
      may	be	proposed	in	the	future	unless	the	Board	determines,	after	
8	

     additional	 information	 is	 provided,	 that	 new	 technology	 or	 other	
     considerations	 enables	 the	 existing	 or	 approved	 tower	 or	
     Alternative	Tower	Structure	to	accommodate	the	equipment.	
     	
Yarmouth,	Me.,	Zoning	Ordinance,	art.	II(Z)(4)(a)(3).			

	         [¶14]	 	 Olson	 and	 Rabin	 argue	 that	 Yarmouth,	 Me.,	 Zoning	 Ordinance,	

art.	II(Z)(4)	 (Sept.	 2016)4	 broadly	 addresses	 co-location	 requirements	 and	 is	



     4		Article	II(Z)(4)	provides:			


          4.		Co-location	requirements	

           	 a.	 On	existing	towers:	

             	 (1)	 Applicants	for	site	plan	review	for	a	new	wireless	communication	tower	
                    must	send	written	notice	by	pre-paid	first	class	United	States	mail	to	all	
                    other	such	tower	and	Alternative	Tower	Structure	owners	and	licensed	
                    wireless	communication	providers	in	the	Town	utilizing	exi[s]ting	towers	
                    and	 Alternative	 Tower	 Structures	 and	 to	 owners	 of	 such	 towers	 and	
                    Alternative	 Tower	 Structures	 within	 a	 1	 mile	 search	 radius	 of	 the	
                    proposed	tower,	stating	their	siting	needs	and/or	colocation	capabilities.	
                    Evidence	 that	 this	 notice	 requirement	 has	 been	 fulfilled	 shall	 be	
                    submitted	 to	 the	 Planning	 Board	and	shall	include	a	 name	 and	 address	
                    list,	copy	of	the	notice	which	was	sent,	and	a	statement,	under	oath,	that	
                    the	notices	were	sent	as	required.	An	application	for	a	new	tower	must	
                    include	 evidence	 that	 existing	 or	 previously	 approved	 towers	 and	
                    Alternative	 Tower	 Structures	 within	 the	 Town	 and	 search	 area	 cannot	
                    accommodate	 the	 communications	 equipment	 (antennas,	 cables,	 etc.)	
                    planned	for	the	proposed	tower.	Such	evidence	would	be	documentation	
                    from	a	qualified	and	licensed	professional	engineer	that:	
             	   	
                    (a.) Planned	necessary	equipment	would	exceed	the	structural	capacity	
                           of	existing	and	approved	towers	and	Alternative	Tower	Structures,	
                           considering	 the	 existing	 and	 planned	 use	 of	 those	 towers	 and	
                           Alternative	Tower	Structures,	and	the	existing	and	approved	towers	
                           cannot	 be	 reinforced	 to	 accommodate	 planned	 or	 equivalent	
                           equipment	at	a	reasonable	cost;	

                       (b.) Planned	 equipment	 will	 cause	 electromagnetic	 frequency	
                            interference	 with	 other	 existing	 or	 planned	 equipment	 for	 that	
                            tower	or	Alternative	Tower	Structure,	and	the	interference	cannot	
                            be	prevented	at	a	reasonable	cost;	
                                                                                                        9	

not	limited	to	applicants	seeking	to	construct	a	new	tower.		They	contend	that	

although	 article	 II(Z)(4)(a)(1)	 applies	 only	 to	 new-tower-construction	

applicants,	 article	 II(Z)(4)(a)(3)	 applies	 both	 to	 new-tower-construction	


                     (c.)   Existing	or	approved	towers	and	Alternative	Tower	Structures	do	
                            not	have	space	on	which	planned	equipment	can	be	placed	so	it	can	
                            function	 effectively	 and	 at	 least	 in	 parity	 with	 other	 similar	
                            equipment	in	place	or	approved;	or	
                        	
                    (d.) Other	 documented	 reasons	 that	 make	 it	 technically	 or	 financially	
                          unfeasible	 to	 place	 the	 equipment	 planned	 by	 the	 applicant	 on	
                          existing	and	approved	towers	and	Alternative	Tower	Structures.	
                        	
               (2)	 Shared	 use	 shall	 be	 conditioned	 on	 the	 applicant’s	 agreement	 to	 pay	 a	
                    reasonable	fee	and	costs	of	adapting	existing	facilities	to	the	proposed	use.	
       	
               (3)	 Once	 the	 Planning	 Board	 has	 determined	 that	 telecommunications	
                    equipment	 proposed	 by	 the	 applicant	 cannot	 be	 accommodated	 on	 an	
                    existing	or	approved	tower	or	Alternative	Tower	Structure,	each	tower	or	
                    Alternative	 Tower	 Structure	 so	 found	 is	 presumed	 unable	 to	
                    accommodate	 similar	 equipment	 that	 may	 be	 proposed	 in	 the	 future	
                    unless	 the	 Board	 determines,	 after	 additional	 information	 is	 provided,	
                    that	 new	 technology	 or	 other	 considerations	 enables	 the	 existing	 or	
                    approved	 tower	 or	 Alternative	 Tower	 Structure	 to	 accommodate	 the	
                    equipment.	
       	
               (4)	 The	 Planning	 Department	 will	 maintain	 a	 list	 of	 existing	 and	 approved	
                    towers	and	Alternative	Tower	Structures,	including	name	and	address	of	
                    owner(s),	within	the	Town	of	Yarmouth.	
       	
           b.	 Construction	of	new	towers		
               A	proposal	to	construct	a	new	co-located	communication	tower	taller	than	the	
               maximum	height	permitted	for	a	single	wireless	communication	service	must	
               include	evidence	that	the	tower	can	structurally	support	a	minimum	of	three	
               (3)	antenna	arrays	for	each	anticipated	co-locating	entity.	(See	Section	II.Z.3.a	
               Tower	Height,	above.)		
                 	
               Prior	to	the	issuance	of	any	Building	permits	for	a	co-located	tower	in	excess	of	
               the	 height	 of	 a	 single	 user	 tower,	 the	 applicant	 will	 submit	 to	 the	 Code	
               Enforcement	 Officer	 executed	 agreements	 documenting	 commitments	 to	
               co-locate	from	the	number	of	co-locators	approved	by	the	Planning	Board.	
      	
Yarmouth,	Me.,	Zoning	Ordinance,	art.	II(Z)(4)	(Sept.	2016).			
10	

applicants	and	to	co-location	applicants	seeking	to	install	similar	equipment	on	

an	existing	structure.		Based	on	this	reading	of	the	Ordinance,	Olson	and	Rabin	

assert	 that	 the	 presumption	 of	 unsuitability	 attaches	 to	 a	 site	 whenever	 the	

Planning	Board	has	determined	that	the	site	is	unsuitable	for	co-location.		Olson	

and	 Rabin	 contend	 that	 the	 Planning	 Board’s	 2001	 determination	 that	 the	

Yarmouth	Water	District	site	was	“too	small	in	area	and	too	narrow	in	width”	

to	accommodate	Sprint’s	proposal	made	the	site	presumptively	unsuitable	for	

any	later	application	to	install	similar	equipment	at	that	site,	and	that	Verizon	

needed	to	rebut	that	presumption	before	its	application	could	be	approved.			

      [¶15]	 	 The	 question	 to	 be	 answered	 is	 whether	 the	 presumption	 of	

unsuitability	 attaches	 to	 a	 co-location	 site	 only	 when	 an	 applicant	 initially	

proposes	 to	 construct	 a	 new	 tower,	 or	 whether	 it	 also	 attaches	 when	 the	

applicant’s	initial	proposal	is	to	co-locate	by	installing	equipment	on	that	site.		

If	the	latter,	a	rebuttable	presumption	of	unsuitability	attached	to	the	Yarmouth	

Water	District	site	after	the	Planning	Board	denied	Sprint’s	application	in	2001.	

      [¶16]	 	 As	 is	 the	 case	 with	 statutes,	 our	 single	 goal	 in	 interpreting	 an	

ordinance	is	to	give	effect	to	the	Town’s	intent	in	enacting	the	ordinance.		See	

Dickau	v.	Vt.	Mut.	Ins.	Co.,	2014	ME	158,	¶	19,	107	A.3d	621.		We	first	determine	

if	 the	 language	 of	 the	 ordinance	 is	 plain	 and	 unambiguous.	 	 See	 id.	 	 Our	
                                                                                     11	

interpretation	 of	 the	 plain	 language	 is	 guided	 by	 “taking	 into	 account	 the	

subject	matter	and	purposes	of	the	statute,	and	the	consequences	of	a	particular	

interpretation.”	 	 Id.	 ¶	 21.	 	 We	 must	 construe	 the	 terms	 of	 article	 II(Z)(4)	

reasonably,	 by	 considering	 the	 purposes	 and	 structure	 of	 the	 Ordinance	 to	

avoid	absurd	or	illogical	results.		See	Fryeburg	Tr.,	2016	ME	174,	¶	5,	151	A.3d	

933.		After	examining	the	entirety	of	the	Ordinance,	we	conclude	that	the	plain	

and	 unambiguous	 language	of	the	Ordinance	 makes	 clear	 that	 article	 II(Z)(4)	

applies	only	to	new-tower-construction	applicants.			

      [¶17]		At	the	outset,	article	II(Z)	announces	that	one	of	the	purposes	of	

the	Ordinance	is	to	encourage	co-location	and	“[p]ermit	the	construction	of	new	

towers	 only	 where	 all	 other	 reasonable	 opportunities	 have	 been	 exhausted.”		

See	Yarmouth,	Me.,	Zoning	Ordinance,	art.	II(Z)(1).		Accordingly,	article	II(Z)(4)	

describes	 the	 process	 that	 new-tower-construction	 applicants	 must	 use	 to	

exhaust	 their	 opportunities	 for	 co-location	 before	 they	 can	 obtain	 Planning	

Board	approval	of	their	new-tower-construction	application.			

      [¶18]		No	language	in	article	II(Z)(4)	states	that	the	provisions	apply	to	

co-location	 applicants.	 	 Instead,	 article	 II(Z)(4)(a)(1)	 expressly	 requires	

new-tower-construction	 applicants	 to	 undertake	 a	 search	 for	 existing	 and	

previously	 approved	 co-location	 sites	 that	 can	 accommodate	 the	 applicant’s	
12	

proposed	communications	equipment;	article	II(Z)(4)(a)(2)	requires	payment	

of	 fees	 if	 a	 co-location	 site	 is	 found	 in	 that	 search;	 and	 article	 II(Z)(4)(a)(3)	

creates	 a	 presumption	 of	 unsuitability	 if	 the	 Planning	 Board	 agrees	 with	 the	

new-tower-construction	applicant	that	a	co-location	site	is	unsuitable,	and	the	

effect	of	the	presumption	is	that,	unless	additional	information	is	provided	to	

the	Planning	Board,	and	the	Board	determines	“that	new	technology	or	other	

considerations	 enables	 the	 existing	 or	 approved	 tower	 or	 Alternative	 Tower	

Structure	 to	 accommodate	 the	 equipment,”	 later	 new-tower-construction	

applicants	 proposing	to	install	“similar	[communications]	equipment”	do	 not	

have	to	submit	any	evidence	to	the	Planning	Board	about	the	unsuitability	of	

that	 particular	 co-location	 site	 when	 attempting	 to	 comply	 with	 article	

II(Z)(4)(a)(1).	 	 Finally,	 article	II(Z)(4)(a)(4)	 requires	 the	 Town	 to	 maintain	 a	

list	 of	 existing	 and	 approved	 co-location	 sites.	 	 We	 reject	 Olson	 and	 Rabin’s	

interpretation	of	the	Ordinance	because	it	would	increase	the	burden	for	co-

location	 applicants,	 produce	 the	 illogical	 result	 of	 decreasing	 the	 number	 of	

sites	 available	 to	 co-location	 applicants,	 and	 ultimately	 result	 in	 the	

construction	of	more	new	towers.5		See	Desfosses	v.	City	of	Saco,	2015	ME	151,	


    5	 	 The	 Superior	 Court	 affirmed	 the	 Planning	 Board’s	 decision	 by	 concluding	 that	

article	II(Z)(4)(a)(3)	 applies	 only	 “when	 there	 has	 been	 a	 Planning	 Board	 determination	 that	
‘telecommunications	equipment	.	.	.	cannot	be	accommodated	on	an	existing	or	approved	tower	or	
Alternative	Tower	Structure’”	and	because	the	2001	denial	of	Sprint’s	application	expressly	found	
                                                                                                             13	

¶	16,	 128	 A.3d	 648	 (“[W]e	 must	 interpret	 [the	 Ordinance]	 to	 avoid	 absurd,	

illogical,	 unreasonable,	 inconsistent,	 or	 anomalous	 results	 if	 an	 alternative	

interpretation	avoids	such	results.”	(quotation	marks	omitted)).	

        [¶19]		The	Planning	Board	did	not	err	in	declining	to	require	Verizon	to	

rebut	a	presumption	of	unsuitability.			

B.	     Investigation	of	Other	Technically	Feasible	Sites	

	       [¶20]		Olson	 and	Rabin	next	assert	that	we	should	 vacate	the	Planning	

Board’s	decision	or	remand	for	further	fact-finding	because	the	Board	did	not	

receive	 substantial	 evidence	 that	 Verizon	 investigated	 other	 “technically	

feasible	sites,”	as	required	by	article	II(Z)(9)(c)	of	the	zoning	ordinance.			

	       [¶21]		The	Board	did	not	make	specific	findings	on	Verizon’s	compliance	

with	particular	aspects	of	the	zoning	and	site	plan	ordinances	and	made	only	

the	following	finding:	“On	the	basis	of	the	application,	plans,	reports	and	other	

information	submitted	by	the	applicant,	information	from	the	public	hearing,	

information	and	the	findings	and	recommendations	contained	in	[the]	Planning	




that	the	water	tower	itself	was	an	appropriate	structure	and	the	denial	was	because	of	the	equipment	
on	the	ground,	the	rebuttable	presumption	did	not	apply.		We	agree	with	Olson	and	Rabin	that	this	
interpretation	was	incorrect	because	the	term	“telecommunications	equipment”	encompasses	not	
only	 the	 antennae	 on	 the	 water	tower,	 but	 also	 the	 equipment	 on	 the	 ground.	 	 However,	 it	 is	 the	
decision	of	the	Planning	Board	that	we	review,	not	the	decision	of	the	Superior	Court.		See	Osprey	
Family	Tr.,	2016	ME	89,	¶	9,	141	A.3d	1114.		
14	

Board	Report	dated	September	23,	2016	.	.	.	the	Planning	Board	finds	that	the	

plan	is	in	conformance	with	Chapter	702,	Site	Plan	Review	Ordinance	.	.	.	.”			

       [¶22]	 	 Planning	 Board	 findings	 must	 be	 supported	 by	 substantial	

evidence	in	the	record.		See	Osprey	Family	Tr.,	2016	ME	89,	¶	9,	141	A.3d	1114.		

The	 Planning	 Board	 had	 substantial	 evidence	 that	 Verizon	 had	 investigated	

other	 technically	 feasible	 sites	 and	 concluded	 that	 none	 was	 available.		

Although	Verizon’s	written	submissions	to	the	Planning	Board	did	not	contain	

information	about	alternative	sites	that	it	had	considered,	Verizon’s	application	

included	detailed	information	about	its	site	selection	process,	and,	during	the	

May	 and	 September	 meetings,	 the	 Planning	 Board	 asked	 the	 Verizon	

representative	 about	 alternative	 sites	 that	 Verizon	 had	 considered.	 	 At	 the	

September	28	Planning	Board	meeting,	a	Verizon	representative	explained	that	

its	 site	 selection	 process	 consisted	 of	 looking	 for	 gaps	 in	 coverage	 and	

identifying	 sites	 that	 would	 fill	 those	 gaps	 and	 have	 a	 minimal	 effect	 on	 the	

Town.	 	 Verizon’s	 representative	 reported	 that	 the	 only	 feasible	 site	 for	

co-location	was	the	Yarmouth	Water	District	site	because	other	sites	were	not	

tall	 enough	 or	 would	 not	 fill	 the	 coverage	 gap.	 	 The	 Director’s	 report	 to	 the	

Planning	Board	referred	to	the	requirement	of	article	II(Z)(9)(c)	and	Verizon’s	

description	of	its	site	selection	process,	and	noted	that	“[t]his	site	allow[s]	the	
                                                                                   15	

antenna	to	be	located	on	an	existing	water	tower[,]	which	avoids	the	need	to	

construct	a	new	tower.”			

	        [¶23]		Because	the	Planning	Board’s	finding	was	supported	by	substantial	

evidence,	we	will	not	disturb	the	Board’s	conclusion	that	the	application	met	

ordinance	standards.		See	Bizier,	2011	ME	116,	¶¶	8,	12,	32	A.3d	1048	(“[W]e	

accord	 substantial	 deference	 to	 the	 Planning	 Board’s	 characterizations	 and	

fact-findings	 as	 to	 what	 meets	 ordinance	 standards.”)	 (quotation	 marks	

omitted)).			

         The	entry	is:	

                            Judgment	affirmed.		
	
	      	     	     	      	     	
	
Nathaniel	A.	Bessey,	Esq.	(orally),	Brann	&	Isaacson,	Lewiston,	for	appellants	
Frederick	Olson	and	Leora	Rabin	
	
Philip	R.	Saucier,	Esq.	(orally),	Bernstein	Shur,	Portland,	for	appellee	Town	of	
Yarmouth	
	
Scott	 D.	 Anderson,	 Esq.	 (orally),	 Verrill	 Dana,	 LLP,	 Portland,	 for	 appellee	
Verizon	Wireless	
	
	
Cumberland	County	Superior	Court	docket	number	AP-2016-48	
FOR	CLERK	REFERENCE	ONLY	
