The opinion
| DONALD L. GAR@RECHT
# LAW LIBRARY
i.
STATE OF MAINE | WAY 3 2000 SUPERIOR COURT
t CIVIL ACTION
YORK, ss. DOCKET NO. CV-90-624
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TAWN FICHTER, Adrhinistratrix of the
Estate of James Fichter, Deceased, et al.
Plaintiffs
ORDER ON
Vv. PROCEDURAL MOTIONS
STATE OF MAINE,
BOARD OF ENVIRONMENTAL PROTECTION,
Defendant
This 1990 case is set for trial starting May 15, 2000 on the plaintiffs’ inverse
condemnation claims under the United States and Maine Constitutions resulting
from the denial by the State of Maine of a sand dune permit which is needed in
order to construct an oceanfront home on the plaintiffs’ real estate in Biddeford. A
number of pre-trial motions have been filed and a conference call lasting nearly an
hour was held to fully discuss the motions.
MOTION FOR VIEW - The plaintiffs’ motion for view of the property is
granted.
PLAINTIFES’ FIRST MOTION IN LIMINE - This motion has two parts. The
first seeks to exclude evidence that the construction of a single-family residence on
the plaintiffs’ property would constitute a nuisance and thus preclude a takings
claim. The State has indicated that it will not proceed on a nuisance defense. This
portion of the motion is moot.
The second part of the motion deals with the scope of the evidence that
would be allowed on the takings claim. The state constitutional provisions on
inverse condemnation, see Larrabee v. Town of Knox, 2000 Me. 15, n.3 (February 1,
2000) for a definition of inverse condemnation as “a shorthand description of the
manner in which a landowner recovers just compensation for a taking of his
property when condemnation proceedings have not been instituted.” quoting
United States v. Clarke, 445 U.S. 253, 257 (1980), are clear. See Wyer v. Board of
Environmental Protection, 2000 Me. 45, (March 10, 2000). They impose a
requirement on the landowner to show that the governmental action has ”. . .
rendered the property substantially useless and stripped it of all practical value.”
SeeWyer at 7 1.
The federal constitutional provisions for regulatory takings leading to an
inverse condemnation claim are more complex. After a review of the
comprehensive opinion of Justice Calkins of January 9, 1997 in this case, Penn
Central Transportation Co. v. City of New York, 438 U.S. 104,124 (1978), Lucas v.
South Carolina Coastal Council, 505 U.S. 1003, 1019 n.8 (1992), and City of Monterey
v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687 (1999) I must conclude that the
federal takings provision has been interpreted more broadly than the generally
equivalent state provisions and that the evidence to be permitted, or not excluded,
must be broader to allow the plaintiffs to present and the defendants to defend a
Penn Central type federal takings claim.
DEFENDANT'S FIRST, THIRD AND FOURTH MOTIONS IN LIMINE -
These motions seek to prevent these plaintiffs from re-litigating issues surrounding
the denial of a sand dune permit, the scope of restrictive deed covenants, and the
denial of variances by the City of Biddeford. These motions will be granted
generally but documents or other evidence from those other proceedings will be
admitted if relevant to the takings issues.
DEFENDANT'S SECOND MOTION IN LIMINE - The State has requested that
the question of liability be decided by the presiding justice and that the role of the
jury be limited to determining damages if liability is established. The case has been
on the jury track since 1995 and only recently has the state objected to a jury trial. I
agree with the State that if there is no right to trial by jury on the liability issues the
plaintiffs should not get a jury trial simply because the State was slow in objecting.
I have read Del Monte Dunes which, while it is not directly applicable since it
was a Seventh Amendment case dealing with the right to a jury trial in cases
brought in a federal trial court under 42 U.S.C. §1983, was very helpful. After
reviewing the many cases of the last decade involving the right to a jury trial under
the Maine Constitution in civil cases I believe that a jury trial is available as a matter
of right under the Maine Constitution. Therefore the defendant's request to remove
the liability issue from the jury is denied. Since inverse condemnation cases did not
exist when Maine became a state and since eminent domain cases are not the “pre-
1820 analogue” a right to a jury trial exists under the Maine Constitution. City of
Portland v. DePaolo, 531 A.2d 669, 671 (Me. 1987).
The entries are:
Plaintiffs’ motion for view of plaintiffs’ property is
granted.
Plaintiffs’ first motion in limine is dismissed in part as
moot and granted in part as it relates to the decision of
Justice Calkins. The exact evidence to be admitted will be
deferred to trial but the framework ordered by Justice
Calkins and allowed under Penn Central will be followed.
Defendant’s first, third and fourth motions in limine are
granted subject to the limitations that evidence relevant
to a takings claim will be considered for admission.
Defendant’s second motion in limine is denied.
Plaintiffs’ renewed motion to use deposition of Robert Cyr
at trial is deferred as the motion is likely to be dismissed as
moot.
Dated: May 1, 2000
PLAINTIFFS:
Christopher Branson, Esq.
MURRAY PLUMB & MURRAY
PO BOX 9785
PORTLAND ME 04104-5085
Lewis Seiler, Esq.
2056 EASTERN Ave.
CINCINNATI OHIO 45202
DEFENDANTS-CITY OF BIDDEFORD
Harry B. Center, II, Esq.
SMITH ELLIOTT SMITH & GARMEY
PO BOX 1179
SACO ME 04072
DEFENDANT-STATE OF MANIE-BEP
Dennis Harnish, AAG
6 STATE HOUSE STATION
AUGUSTA ME 04333-0006
(Stak te ZApece
Paul A. Fritzsche
Justice, Superior Court