MC Assocs. v. Inhabs. of the town of Cape Elizabeth

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STATE OF MAINE ae _ SUPERIOR COURT

CUMBERLAND, ss. ey CIVIL ACTION

DOCKET NO. AP-97-059

VM ~Cum-% | as / Qoote

MC ASSOCIATES,

Plaintiff

ORDER ON DEFENDANTS'

VS. MOTION FOR SUMMARY

JUDGMENT

INHABITANTS OF THE TOWN OF

CAPE ELIZABETH, et al.,

Defendants

The defendants seek a summary judgment on all counts (count II: due

process; count III: promissory estoppel; count IV: taking; count V: void as excessive

regulation; count VI: declaratory judgment; count VII: injunctive relief) of the

plaintiff's complaint. For the following reasons, the motion is granted.

By decision filed 7/16/98, the superior court affirmed the decisions of the

Cape Elizabeth Planning Board and Zoning Board“of Appeals, which were the

subject of the plaintiff's Rule 80B appeal in count I of the second amended

complaint. See Sprague vy. Washburn, 447 A.2d 784, 786-87 (Me. 1982) (law of case).

In the decision and order on the plaintiff's Rule 80B complaint, the court

determined that the Planning Board did not err in determining that the boundary of

the RPI-CWZ wetland at issue in this case was north of the Dyer Road. The court

further determined that the Zoning Board of Appeals did not err in declining to

hear the plaintiff's administrative appeal from the Planning Board's decision.

D

Finally, the court determined that the Zoning Board of Appeals did not err in

denying the plaintiff's request for a variance. See Decision and Order filed 7/16/98.

It is undisputed that the plaintiff’s parcel contains less than 20,000 square feet

and that any home constructed will require private sewerage. See Stipulation of

Facts, {7 5-6. As of the date the plaintiff acquired the parcel which is the subject of

this lawsuit, the parcel was too small for any proposed residential construction

pursuant to the Town's ordinance then in effect. See Stipulation of Facts, {{ 1, 4-6,

40. The fact that Mitchell Cope, general partner of the plaintiff, was involved in

other entities that owned the parcel since 1964 does not affect that conclusion. See

Stipulation of Facts, {{ 39-41; see also 12 M.R.S.A. § 4807-D (1994). Accordingly, all

of the plaintiff's claims fail.

COUNT II: DUE PROCESS

The plaintiff has abandoned its challenge to the adequacy of the notice it

received regarding the rezoning. See Pl.’s Mem. at 10; Crispin v. Town of

Scarborough, 1999 ME 112, ¥ 18, 736 A.2d 241, 247 “(adoption and amendment of

zoning ordinances are legislative actions); Stipulation of Facts, ¢Q7 7-9. On this

record, there was no due process violation. See Seven Islands Land Co. v. Maine

Land Use Regulation Comm/’n, 450 A.2d 475, 483 (Me. 1982); see also F.S. Plummer

Co., Inc. v. Town of Cape Elizabeth, 612 A.2d 856, 859-60 (Me. 1992); Decision and

Order filed 7/16/98.

o

COUNT III: PROMISSORY ESTOPPEL

The plaintiff admits that the Town has never made any promises about the

buildability of the parcel which is the subject of this lawsuit. See Stipulation of

Facts, { 33; Cottle Enterprises, Inc. v. Town of Farmington 1997 ME 78, J 17, 693 A.2d

330, 335-36 & n.6

COUNTS IV & V: TAKING & VOID AS EXCESSIVE REGULATION

The plaintiff's federal just compensation claim is premature. See

Williamson County Regional Planning Comm'n v. Hamilton Bank, 473 U.S. 172,

194-95 (1985); Drake v. Town of Sanford, 643 A.2d 367, 369 (Me. 1994). With regard to

the plaintiff's state claim of inverse condemnation, the wetlands provisions at issue

in this case serve a legitimate public interest. See F.S. Plummer, 612 A.2d at 860

(protection of environment and water quality valid object of exercise of police

power). Further, the plaintiff's property continues to have value. See Stipulation of

Facts, | 52; see also Concrete Pipe & Products of California, Inc. v. Construction

Laborers Pension Trust for Southern California? 508 U.S. 602, 645-46 (1993)

(reasonable investment-backed expectations); Stipulation of Facts, 7 42.

COUNTS VI & VII: DECLARATORY JUDGMENT & INJUNCTIVE RELIEF

The court presumes that the ordinance is constitutional. See Warren _v.

Municipal Officers of Town of Gorham, 431 A.2d 624, 628 (Me. 1981). There is no

clear and irrefutable evidence on this record that the ordinance is invalid. See F.S.

Plummer, 612 A.2d at 859-60; Warren, 431 A.2d at 628-29.

The entry is

The Defendants’ Motion for Summary Judgment is

GRANTED. Judgment is entered in favor of the

Defendants and against the Plaintiff on Counts II-VII of

the Plaintiff's Second Amended Complaint.

Date: August 27, 2000 (dees rae

Nancy Mills

Justice, senior fo urt

CUM AP-97-059

Date Filed 06-19-97 CUMBERLAND AP97-059

Docket No.

County

Action _80B APPEAL

MC ASSOCIATES INHABITANTS OF THE TOWN OF CAPE

ELIZABETH

CAPE ELIZABETH PLANNING BOARD

GERALD DAIGLE

VS.

Plaintiff's Attorney . Defendant’s Attorney

JAMES A. HOPKINSON ESQ MICHAEL H. HILL ESQ

511 CONGRESS STREET STE 801 PO BOX 7046

PORTLAND ME 04101 PORTLAND ME 04112-7046

772-5845 774-3906

DONALD L. GARBRECHT

LAW LIBRARY

oct 11 2000

Date of

Entry

1997

June 19 Received 06-19-97:

Complaint Summary Sheet filed.

" 80B Appeal with Exhibit A filed.

June 20 On 6-20-97.

Briefing schedule mailed. Plaintiff's brief due 7-29-97.

July 14 Received 07/14/97:

Summons with Acknowledgment of receipt filed.

Defendant Inhabitants of the town of Cape Elizabeth served 07/01/97 to

Michael Hill, Esq..

Defendant Cape Elizabeth Planning Board served 07/01/97 to Michael Hill,

Esq.

Defendant Inhabitants of the town of Cape Elizabeth, Cape Elizabeth |

planning Board and Gerald Daigle served 07/01/97 to Michael Hill, Esq.

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July 22 | Received 07/21/97:

Stipulation filed.

July 31 On 07/31/97:

Conference call regarding stipulation held.

Aug. 05 Received 08-05-97:

Order filed. (Mills, J.)

It is upon consideration, ORDERED as follows: 1. That this matter is stayec

until 9/2/97. 2. That the Plaintiff shall file its Amended Complaint on

or before 9/2/97. 3. That the filing of the Amended Complaint shall

commence the itme requirements set forth in Rule 80B with regard to

appearances, motions for trial of the facts, motions to determine

the course of this proceeding, briefing adn the further court of this case.

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