Sawyer Envtl. Facilities, Inc. Sawyer Envtl. Facilities, Inc. v. Inhabs. of the Town of Hampden, Maine

STATE OF MAINE SUPERIOR COURT

PENOBSCOT, SS. Docket No. AP-99-52 |

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FILED AND ENTERED | AMtPett \e/ae :

SAWYER SUPERIOR COURT ” pana qaeeeonh

ENVIRONMENTAL OcT 2G 2000 ; *

RECOVERY FACILITIES, INC.,

Noy 8s 2000

Plaintiff, | PENOBSCOT COUNTY

v. ORDER ON APPEAL

fee ew

_ INHABITANTS OF THE

TOWN OF HAMPDEN, ET AL,

Defendant.

This matter is before the Court on Plaintiff, Sawyer Environmental Recovery

Facilities, Inc.’s, appeal of Hampden’s Town Council’s denial of a license for Phases

VI, VIL, and VIII-B of its landfill pursuant to Hampden’s Waste Disposal Facility

Licensing Ordinance. For the following reasons, Plaintiff’s Motion for Summary

Judgment on Count III is granted.

FACTS

Sawyer Environmental Recovery Facilities, Inc.’s predecessor initially

obtained approval in 1975 to operate a landfill in the Town of Hampden. In 1996,

Sawyer Environmental Recovery Facilities, Inc., hereinafter SERF, proposed a Long

Range Development Plan and commenced obtaining DEP approval for expansion

Phases VI, VII, and VIII. On November 20, 1998, SERF filed an application before

the Planning Board for site plan approval under the Town’s Zoning Ordinance, and

an application before the Town Council for a Waste Disposal Facility License under

Hampden’s Waste Disposal Facility Licensing Ordinance, hereinafter Licensing

1

Ordinance. On October 4, 1999, Hampden’s Town Council denied the applications

for Phases VI, VII and VIII-B. Phase VIII-A has been approved. The Town Council's

reason for denial is that the use would constitute an illegal expansion of a

nonconforming use under the Zoning Ordinance, and that the expansion did not

meet the provisions set out in Section 5.4! of Hampden’s Licensing Ordinance?

SERF appealed denial based on the Zoning Ordinance in separate litigation. In the

“Zoning Ordinance” litigation, Justice Kravchuk concluded on January 14, 2000 that

Phases VI, VII, and VIII-B complies with the Zoning Ordinance, and granted SERF’s

Rule 80B appeal. The Town’s appeal of Justice Kravchuk’s decision is pending

before the Law Court.

SERF’s timely filed Complaint appealing the Town Council’s license denial

1. Section 5.4.4.2 of Hampden’s Licensing Ordinance contains the following standards:

The applicant shall demonstrate that the proposed landfill has been specifically designed to

be integrated with the existing environment.

Special attention shall be paid to height and location of the proposed

landfill and its integration with such natural features as vegetation,

terrain, drainage ways and wetlands, as well as development patterns

and transportation systems. The proposed landfill shall be designed to preserve the landscape

in its natural state as much as possible by minimizing earthmoving, tree removal and soil

disturbance. ,

2. The Town Council made the following findings and conclusions concerning SERF’s failure to

satisfy the requirements of Section 5.4.A.2:

1. Not preserving landscape in its natural state.

2. Project proposes man made, barren mounds in an existing environment of gentle rolling

landscape with trees, fences, and vegetation. Proposal not properly integrated with existing

environment.

3. Landfill at maximum height does not integrate with the existing environment of this area.

4. Proposed vegetation doesn’t match with existing vegetation.

5. Clear that project designed to achieve maximum development allowed

under Ordinance, not specifically designed to integrate with existing environment.

6. Not compatible with transportation system of area, which consists of a secondary through

road with an “S” curve and minimal visibility and line of sight in vicinity of entrance to

proposed landfill. Heavy truck traffic not compatible with transportation system.

2

based on Section 5.4.A.2 of the Licensing Ordinance includes independent claims for

declaratory judgment, including injunctive relief, and review pursuant to MLR. Civ.

P. 80B.° In Count III, SERF alleges that the Licensing Ordinance on its face and as

applied does not provide an applicant with fair notice of what standards are applied,

and fails to provide due process to an applicant. Specifically, Plaintiff's Count III

asserts that Section 5.4.A.2 requiring SERF to show that the expansion “integrates

with the environment” is void for vagueness. The Court accepts Hampden’s

position that the license was denied only on SERF’s noncompliance with Section

5.4.A.2.

DISCUSSION

The Court agrees with SERF that the terminology “integrate with the

environment” in Section 5.4.A.2 of its Licensing Ordinance is void for vagueness ©

and, thus, unconstitutional. Accordingly, it is not necessary to address SERF’s

Counts I, I, IV, and V.

I, PROCEDURAL ISSUE

The town first argues that SERF may not now raise the “void for vagueness”

argument because it did not raise it before the Town Council. Maine Real Estate

Commission v. Kelby, 360 A.2d 528 (Me. 1976). Litigants do not have to raise

constitutional issues before an administrative body when that body does not have

3. SERF’s Complaint contained the following Counts:

Count I - Declaratory Judgment - Preemption

Count II - Rule 80B - Appeal

Count III - Declaratory Judgment and Civil Rights Violation - Void for Vagueness/Due Process

Count IV - Declaratory Judgment and Civil Rights Violation - Commerce Clause.

Count V - Inverse Condemnation - Requests compensation under Article I, §§ 6 and 21.

jurisdiction to decide the meaning of a statute or determine its constitutionality. 30-

A M.RS.A. § 4353 (1996 & Supp. 1999); Berry v. Bd. of Trustees, Retirement Sys., 663

A.2d 14, 19 (Me. 1995). Thus, SERF may raise its void for vagueness argument for

the first time in Superior Court because the Town Council does not possess the

statutory authority to determine the validity of a legislative enactment. Minster v.

Town of Gray, 584 A.2d 646, 648 (Me. 1990); see also Mayberry v. Town of Old

Orchard Beach, 599 A.2d. 1153 (Me. 1991) (holding interpretation of provisions in a

zoning ordinance is a question of law for the court).

II. VOID FOR VAGUENESS ISSUE 7

“All legislative enactments are presumed constitutional.” Vella v. Town of

Camden, 677 A.2d 1051 (Me. 1996). “This presumption, however, is not absolute;

legislation which violates an express mandate of the constitution is invalid even

though it is expedient or is otherwise in the public interest." Maine Beer & Wine

Wholesalers v. State, 619 A.2d 94, 97 (Me. 1993) (citations omitted).

SERF bears the burden of proof in challenging the Licensing Ordinance as

unconstitutional. Gorham v. Town of Cape Elizabeth, 625 A.2d 898, 900 (Me. 1993).

That burden requires the Plaintiff to establish the statute’s unconstitutionality "to

such a degree of certainty as to leave no room for reasonable doubt." Orono-Veazie

Water Dist. v. Penobscot Cty. Water Co., 348 A.2d 249, 253 (Me. 1975). SERF argues

that the “integrate with the environment” requirement is an unconstitutional

delegation of legislative authority because it does not “furnish a guide which will

enable those to whom the law is to be applied to reasonably determine their rights.”

Stucki v. Plavin, 291 A.2d 508, 510 (Me. 1972).

In determining whether an ordinance provides sufficient guidance, the

Maine Law Court has found several ordinances void for vagueness. For example, in

Waterville Hotel Corp. v. Board of Zoning Appeals, 241 A.2d 50, 51 (Me. 1968), the

Court found an ordinance stating: “all major changes of uses of land, buildings or

structures in this zone shall be subject to the approval of the Board of Zoning

Appeals” to be an unconstitutional grant of power to a zoning board. Id. In Cope v.

Town of Brunswick, 464 A.2d 224, 225 (Me. 1983), the Court held that provisions in

Brunswick’s ordinance that the use requested will not adversely affect the health,

safety, or general welfare of the public, and that the use requested will not tend to

devalue or alter the essential characteristics of the surrounding property void for

vagueness because the provisions required the board to perform legislative policy-

making. Id. In Stucki v. Plavin, the Law Court held that a zoning ordinance could

not grant complete discretion to the board to decide whether a less restrictive

regulation applicable to one portion of a parcel could be applied to a portion of the

same lot located in a more restrictive area when a lot spanned greater than one

zone. Stucki v. Plavin, 291 A.2d 508 (Me. 1972).

The zoning ordinance struck down in Wakelin gave the ZBA discretion to

deny special exception applications because the proposed use was not “compatible

with existing uses in the neighborhood, with respect to physical size, visual impact,

intensity of use, proximity to other structures and density of development.”

Wakelin v. Town of Yarmouth, 523 A.2d 575, 576 (Me. 1987). The Court found the

absence of specifics giving content to the term “intensity of use” clarifying whether

the term means “two persons per acre” or “twenty persons per acre,” or something

else entirely; or to the term “density of development” clarifying whether the term

signifies a ratio of built upon acreage to unbuilt-upon acreage, or the number of

structures on a particular lot, or something else entirely, is a matter of conjecture

and void for vagueness. Id. at 577. Similarly, in June, 2000, the Law Court held that

an ordinance requiring a zoning board to determine that a proposed conditional use

“conserve natural beauty” is an unconstitutional delegation of authority. Kosalka v.

Town of Georgetown, 2000 ME 106 {11,752 A.2d 183. The ordinance in Kosalka

provided additional factors to be considered for conditional use permits, but did not

add specifics to clarify the term “natural beauty.”

Seemingly similar ordinances and statutes, however, have been upheld. For

example, in In re Spring Valley Development, 300 A.2d 736 (Me. 1973), the Court,

upheld the Site Location of Development Act because the Legislature had “pointed

out the specific respects in which the development must not offend the public

interest ....” In re Spring Valley Development, 300 A.2d 736, 751 (Me. 1973). The

Court found the additional terms were “capable of being understood in the context

of the entire bill.”* Id. Provisions to protect ground water and surrounding surface

4. The Act’s terminology which the Court upheld includes:

(1) The proposed development has the financial capacity and technical ability to meet state

air and water pollution control standards, has made adequate provision for solid waste disposal, the

control of offensive odors, and the securing and maintenance of sufficient and healthful water supplies.

(2) The proposed development has made adequate provisions for loading, parking and traffic

movement from the development area onto public roads.

(3) No adverse affect on natural environment. The proposed development has made adequate

provision for fitting itself harmoniously into the existing natural environment and will not adversely

6

waters were upheld because the statute, when read as a whole, listed specific

resources to be protected that provided the specificity needed for the board to

evaluate the application.” Secure Environments v. Norridgewock, 544 A.2d. 319

(Me. 1988). Reading the town of St. George’s ordinance as a whole, the Court upheld

language providing that a wharf facility “shall be no larger in dimension than

necessary to carry on the activity and be consistent with existing conditions, use, and

character of area.” Lentine v. Town of St. George, 599 A.2d 76 (Me. 1991). These

terms provided the specificity required so that the ordinance withstood the

constitutional challenge.

A "well-distributed stand of trees" to remain after any timber harvesting

activities has also been held to provide specific criteria such that the ordinance

survived a constitutional challenge. Freeport v. Brickyard Associates, 594 A.2d. 556,

558 (Me. 1991). The Court found that absent a definition in the ordinance of the

term, the terms would be given their everyday meaning. Id. In Gorham v. Town of

Cape Elizabeth, 625 A.2d 898, 900 (Me. 1993), the Court found Gorham’s zoning

ordinance, allowing conditional use if use does not adversely affect value of

adjacent properties, constitutional because “the maintenance of property values is a

legitimate interest served by zoning restrictions, and .. . property values [are] a

affect existing uses, scenic character, natural resources or property values in the municipality or in

adjoining municipalities. In re Spring Valley Development, 300 A.2d 736 (Me. 1973

(4) The proposed development will be built on soil types which are suitable to the nature of the

undertaking.

.5. The ordinance provided for examination by the board of "the soils, bedrock foundation, and

ground contours" and made provision for erosion control to protect the town’s water supplies.

7

specific and discernible standard.” Id. at 902. The key factor is “not whether the

ordinance could have provided more specific guidance to applicant by defining

every term in the ordinance, but whether the ordinance contains sufficient

qualitative standards to guide the applicant.” Britton v. Town of York, 673 A.2d 1322

(Me. 1996) (holding that the terms “interfere with developed areas” and

“navigational use” when given their plain meaning provided sufficient guidelines).

Here, Hampden’s Licensing Ordinance requires that the landfill be specifically

designed to: (1) be integrated with the existing environment; and (2) to preserve the

landscape in its natural state as much as possible by minimizing earthmoving, tree

removal, and soil disturbance. Section 5.4.A.2 of the Hampden Licensing Ordinance

however, also directs the applicant to pay special attention to height and location of

the proposed landfill and its integration with such natural features as vegetation,

terrain, drainage ways and wetlands, as well as development patterns and

transportation systems when designing its expansion. These provisions, though not

qualitative, provide some guidance to SERF, as well as specific factors to guide the

Town Council in determining whether the expansion “integrates with the

environment.” See Lentine v. Town of St. George, 599 A.2d 76 (Me. 1991).

Hampden’s specific provisions distinguish its Licensing Ordinance from the

ordinance in Kosalka v. Town of Georgetown, 2000 ME 106, 752 A.2d 183, which

lacks any provisions to clarify “natural beauty.”

Comparing terminology in Hampden’s Licensing Ordinance with

terminology in other ordinances, Section 5.4.4.2’s “development patterns”

provision is similar to the intensity/density provisions found unconstitutional in

Wakelin. “Development patterns” in the context of Hampden’s Licensing

Ordinance is not similar to the provision that the wharf not “interfere with

developed areas” which withstood a constitutional challenge in Britton v. Town of

York, 673 A.2d 1322, 1325 (Me. 1996) because the Licensing Ordinance only provides

that special attention be given to development patterns and transportation systems,

not that the expansion not interfere with them. Similarly, “transportation system”

differs from both the Site Location of Development provision “adequate provision

for loading, parking, and traffic movement” upheld in In re Spring Valley

Development, 300 A.2d 736 (Me. 1973); and the ordinance provision requiring a

proposed wharf not “interfere with existing navigational uses” upheld in Britton v.

Town of York, 673 A.2d at 1325. Additionally, when compared with ordinances

containing clarifying provisions, Section 5.4.4.2 does not contain provisions as

specific as “well-distributed stand of trees” in Brickyard Associates or “no larger in

dimension than necessary to carry on the activity and be consistent with existing

conditions, use, and character of area” in Lentine. Because the provisions of Section

5.4.A.2 are not quantitative measurements, Hampden’s Licensing Ordinance is also

distinguishable from Cape Elizabeth’s quantitative property value provision.

The plain and ordinary meaning of the terms in the provision “integrate with the

environment” supports the finding that Section 5.4.A.2 is in the category with

Wakelin and Kosalka rather than in the category with Spring Valley, Britton, and

Gorham.®

Whether the Licensing Ordinance as a whole provides the quantitative

parameters necessary to withstand the void for vagueness challenge must also be

determined. In re Spring Valley Development, 300 A.2d 736 (Me. 1973). Other parts

of Hampden’s section five add additional factors such as buffers, traffic, height, and

visual impact. Because the denial was based solely on Section 5.4.A.2, however,

which does not contain specific qualitative factors, the ordinance read as a whole

still does not contain measurable qualities. Nobody can advise SERF based on the

criteria in Section 5.4.4.2 what to do or how much integration will meet the

Licensing Ordinance’s “integrate with the environment” provision. SERF could

make several smaller hills, plant more trees, or perform numerous other activities

in attempts to “integrate with the environment” and the Town Council could still

deny the license because of lack of guidance in Section 5.4.4.2. Section 5.4.A.2 allows

the Board “to express a legislative-type opinion about what is appropriate for the

community.” Wakelin v. Town of Yarmouth, 523 A.2d at 577.

This Court finds that SERF has carried its burden to show that Section 5.4.A.2

of Hampden’s Licensing Ordinance does not:

[S}pell out [Hampden’s] policies in sufficient detail to furnish a

guide which will enable those to whom the law is to be applied

to reasonably determine their rights thereunder, and so that the

determination of those rights will not be left to the purely arbitrary

discretion of the administrator.

6. The definition of “integrate” is “to make into a whole by bringing all parts together.”

Webster's II New Riverside Universal Dictionary 636 (1988). Environment is defined as “the complex

of social and cultural conditions affecting the nature of the individual or community.” Id. at 436.

10

> Stucki v. Plavin, 291 A.2d 508, 510 (Me. 1972). SERF has established that the

Licensing Ordinance is void for vagueness and unconstitutional “to such a degree of.

certainty as to leave no room for reasonable doubt.” Orono-Veazie Water Dist. v.

Penobscot Cty. Water Co., 348 A.2d at 253.

The docket entry is:

Plaintiff's Motion for Summary Judgment on Count III is granted.

Defendants’ Motion for Summary Judgment on Count I, III, IV, and V is

denied. This matter is REMANDED to the Hampden Zoning Board of Appeals to

grant SERF a license to expand under Phases VI, VII, and VIII-B.

Dated: October 20, 2000

D Hon hon “I —

CHIEF JUSTICE, SUPERIOR COURT

Date Filed

Action

Meee 2

11/3/99 PENOBSCOT Docket No. AP-99-52

County

Basi ht CARRE:

80B APPEAL ae ALD 1. GAPRBREGHT

Assigned to Justice Francis C. Marsano- RECUSED

Reassigned to Chief Justice Andrew M. Mead 5/25/00

nov 8 2000

INHABITANTS OF THE TOWN OF HAMPDEN, MAINE

SAWYER ENVIRONMENTAL RECOVERY and TOWN COUNCIL OF SAID TOWN

FACILITIES, INC. VS. ST

Plaintiff's Attorney Defendant’s Attorney

PIERCE ATWOOD FARRELL, ROSENBLATT & RUSSELL

77 WINTHROP STREET 61 MAIN STREET

AUGUSTA ME 04330-5552 P O BOX 738

BY: Helen L. Edmonds, Esq. BANGOR, ME 04402-0738

Date of

Entry

BY: NATHANIEL M. ROSENBLATT, ESQ.

THOMAS RUSSELL, ESQ. ‘

11/3/99

11/3/99

10/10/99

11/12/99

11/12/99

11/16/99

_11/16/99

11/16/99

Complaint for Review of Governmental Action Pursuant to M.R. Civ.P. 80B

and Independent Claims, including Injunctive Relief filed - Exhibits A -

G attached)

Agreed-upon Motion to Stay Proceedings and Consolidated Memorandum of

Law filed.

Order filed. Without objection by Defendants, Plaintiff Sawyer Environ-

mental Recovery Facilities, Inc.'s Agree-Upon Motion to Stay Proceedings

is hereby GRANTED. All time periods in this action shall be tolled until

20 days after the date upon which the Hampden Town Council issues its

written decision in the license application proceeding that is the subject

of SERF's appeal. (Kravchuk, J.) Copy forwarded to Plaintiff's counsel.

Defendants’ Application for Extension of Time within which to Respond

to Plaintiff's Complaint filed.

Appearance of Nathaniel Rosenblatt, Esq. and Thomas Russell, Esq. for

Defendants.

Upon Defendants’ Application for Extension fo Time within Which to Respond

To Plaintiff's Complaint, order filed. There being no objection, Applicatior

Granted. The time for the defendants to file their answer or other

responsive pleading to the plaintiff's complaint is hereby extended to

twenty (20) days after the court issues an order specifying the future

course of proceedings in this matter. (Kravchuk, J) Copy forwarded

to attorneys of record.

Acknowledgement of Service of Process as to Inhabitants of the Town of

Hampden filed (s.d. 11/10/99 by Nathaniel M. Rosenblatt, Esq.)

Acknowledgement of Service of Process as to Defendant Town Council of the

Town of Hampden filed (s.d. 11/10/99 by Nathaniel M. Rosenblatt, Esq.)

-OVER-

STATE OF MAINE SUPERIOR COURT

PENOBSCOT, ss. Civil Action

Docket No. AP-99-

Amy P. GNM Alm it}ogfa000

SAWYER ENVIRONMENTAL

RECOVERY FACILITIES, INC., FILED AND ENTERED

SUPERIOR COURT

Plaintiff

NOVO8 2000

VS.

THE INHABITANTS OF THE TOWN

OF HAMPDEN, MAINE, and THE

)

)

)

)

)

)

PENOBSCOT COUNTY

)

)

TOWN COUNCIL OF SAID TOWN, )

)

)

Defendants

ORDER ON DEFENDANTS' MOTION TO AMEND JUDGMENT

The defendants’ motion to amend judgment pursuant to M.R.Civ.P. 59{e) is

GRANTED.

The docket entry at the conclusion of the Court's order dated October 20,

2000, is hereby amended to read as follows:

1. Defendants’ Motion for Summary Judgment on Counts I, Ill, 1V and V is

denied.

2. Plaintiff's Motion for Summary Judgment on Count Ill is granted. Section

5.4.A.2 of Hampden’s Waste Disposal Facility Licensing Ordinance is

declared to be void for vagueness.

3. Counts I, Il, IV and V are dismissed without prejudice.

4. This matter is remanded to the Hampden Town Council to grant SERF a

license under Hampden's Waste Disposal Facility Licensing Ordinance for

Phases VI, VIl and VIII-B.

Date: Nov. {\ 2G) LIN woah)

Chip f Justice, "Superior Court

ew M. Mead

‘om

tee te

- Pate Filed 11/3/99 PENOBSCOT Docket No. AP-99-52

County

Action __80B APPEAL DONALD L. GARBRESHT

Assigned to Justice Francis C. Marsano- RECUSED LAW LIBRARY

Reassigned to Chief Justice Andrew M. Mead 5/25/00

nov 14 2000

INHABITANTS OF THE TOWN OF HAMPDEN, MAINE

SAWYER ENVIRONMENTAL RECOVERY and TOWN COUNCIL OF SAID TOWN

FACILITIES, INC.

VS.

Plaintiff's Attorney Defendant's Attorney

PIERCE ATWOOD FARRELL, ROSENBLATT & RUSSELL

77 WINTHROP STREET 61 MAIN STREET

AUGUSTA ME 04330-5552 P O BOX 738

BY: Helen L, Edmonds, Esq. BANGOR, ME 04402-0738

BY: NATHANIEL M. ROSENBLATT, ESQ. +

THOMAS RUSSELL, ESQ.

x

Date of

Entry

11/3/99 Complaint for Review of Governmental Action Pursuant to M.R. Civ.P. 80B

and Independent Claims, including Injunctive Relief filed - Exhibits A -

G attached)

11/3/99 Agreed-upon Motion to Stay Proceedings and Consolidated Memorandum of

Law filed.

10/10/99 Order filed. Without objection by Defendants, Plaintiff Sawyer Environ-

mental Recovery Facilities, Inc.'s Agree~Upon Motion to Stay Proceedings

is hereby GRANTED. All time periods in this action shall be tolled until

20 days after the date upon which the Hampden Town Council issues its

written decision tn the license application proceeding that is the subject

of SERF's appeal. (Kravchuk, J.) Copy forwarded to Plaintiff's counsel.

11/12/99 Defendants’ Application for Extension of Time within which to Respond

to Plaintiff's Complaint filed.

11/12/99 Appearance of Nathaniel Rosenblatt, Esq. and Thomas Russell, Esq. for

Defendants.

11/16/99 Upon Defendants’ Application for Extension fo Time within Which to Respond

To Plaintiff's Complaint, order filed. There being no objection, Application

Granted. The time for the defendants to file their answer or other

responsive pleading to the plaintiff's complaint is hereby extended to

twenty (20) days after the court issues an order specifying the future

course of proceedings in this matter. (Kravchuk, J) Copy forwarded

to attorneys of record.

11/16/99 Acknowledgement of Service of Process as to Inhabitants of the Town of

Hampden filed (s.d. 11/10/99 by Nathaniel M. Rosenblatt, Esq.)

11/16/99 Acknowledgement of Service of Process as to Defendant Town Council of the