The opinion
STATE OF MAINE SUPERIOR COURT
PENOBSCOT, SS. oe Docket No. ee] an CV-99- 57
. MYK -PEA- pa ere
SAWYER ENVIRONMENTAL
FACILITIES, INC.,
Plaintiff,
ov. ORDER ON 80B APPEAL
AND MOTION FOR
THE INHABITANTS OF THE _-JMMARY JUDGMENT
TOWN OF HAMPDEN, MAINE,
and RAY PIPES, in his capacity as
Code Enforcement Officer
of said Town,
Defendant.
| FILED AND ENTERE
SUBERIOR COURT
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. PENOBSCOT COUNTY -
This matter is before the Court on Plaintiff’s two 80B Appeals of separate
decisions of the Hampden Zoning Board of Appeals. Also before the Court are
opposing Motions for Summary Judgment and Judgment on the Pleadings on
several related civil claims.
FACTS
This case arises out of a controversial proposal for an expansion of a landfill
located in the Town of Hampden. The factual history spans a twenty-five year
period concerning numerous developments of the landfill. In 1974, the predecessor
of Plaintiff Sawyer Environmental Recovery Facilities (“SERF”) received a permit
from the Town of Hampden to operate a landfill. Although the Hampden Zoning
Ordinance did not specify landfills as a permissible use anywhere in the Town, the
Zoning Board of Appeals (“Zoning Board”) granted a permit for a landfill on Lots 44,
45, and 46.1 On March 12, 1975, the Maine Department of Environmental Protection
(“DEP”) approved the Hampden landfill, pursuant to 38 M.R.S.A. §§ 1301, et seq.
After receiving approval from the Hampden Planning Board on April 16, 1975,
SERF’s predecessor opened the landfill.
In 1979, Hampden enacted a new Zoning Ordinance, which again did not
allow landfills in any section of the Town. In 1985, the Hampden Planning Board
granted site plan approval for another portion of SERF’s landfill. That site opened
thereafter and closed in 1994,
On October, 20, 1998, the DEP issued a permit for construction and operation
of another portion of the Hampden landfill. On January 28, 1999, Ray Pipes, the
Hampden Code Enforcement Officer (“CEO”), issued a decision that allowed SERF’s
vertical expansion but denied lateral expansion of the landfill.2_ Mr. Pipes
determined that because landfills are not allowed anywhere in Hampden, SERF’s
proposed expansion constituted a nonconforming use under the Hampden Zoning
Ordinance, which prohibited expansion of nonconforming uses. As such, Pipes
determined that SERF could not expand the landfill beyond the original footprint
approved by the DEP in 1975. SERF appealed the CEO’s decision to the Zoning
1. Since 1974, Hampden has reconfigured and renumbered the land area at issue here. The parties do not dispute that the land at
issue here is within the boundaries of lots 44, 45, and 46, as they existed in 1974 when the Hampden Zoning Board of Appeals
approved SERF’s landfill. See Defendant’s Memorandum, p. 4, filed August 20, 1999. To avoid confusion over lot numbers,
throughout this opinion the Court refers to these three lots only by the numbers allocated in 1974.
2. The DEP approved SERF’s landfill expansion plan for an area that included land outside the boundaries of lots 44, 45, and 46.
SERF’s application to the Town, which is at the center of this dispute, included only Lots 44, 45, and 46. As such, this order
addresses SERF’s proposed expansion only for the land covered by the application to the Town, Lots 44, 45, and 46. Any proposal
for expansion of land outside of Lots 44, 45, and 46 is not before the Court.
2
Board, which denied the appeal. SERF filed CV-99-57, which consists of an appeal of
the Zoning Board’s decision, pursuant to Rule 80B of the Maine Rules of Civil
Procedure, and three related civi] claims.
Subsequently, the Hampden Planning Board determined, based on the
Zoning Board’s decision, that it lacked jurisdiction to review SERF’s site plan
application. SERF appealed that decision to the Zoning Board, which denied the
appeal. SERF then filed AP-99-26, appealing the Zoning Board’s decision that
affirmed the Planning Board’s lack of jurisdiction, pursuant to Rule 80B. By order
dated June 14, 1999, cases CV-99-57 and AP-99-26 were consolidated. On July 21; 1999,
the parties submitted a stipulated record for Count I of CV-99-57.
1, CV-99-57 Count I Preemption
The parties have filed opposing motions for judgment on the stipulated
record for Count I. “[T]o stipulate a record for judgment allows the judge to decide
any significant issues of material fact that he discovers,” and to enter judgment
according to those findings. Boston Five Cents Savings Bank v. Secretary of
H.U.D.D., 768 F.2d 5, 11-12 (1st. Cir. 1985).
Plaintiff argues that the Hampden Zoning Ordinance, which, according to the
Town, prohibits expansion of the landfill, is preempted by the Solid Waste
Management Act, 38 M.R.S.A. §§ 1301, et seq. Maine’s home rule statute confers -
upon municipalities the authority to enact ordinances or bylaws as allowed by the
Maine Constitution or general law, except those expressly or impliedly preempted by
statute. See 30-A M.RS.A. § 3001. The statute also provides a rebuttable
“
presumption that municipal ordinances are valid and will not be held preempted
unless the ordinance would frustrate the purpose of any state law. See id. The Law
Court has explained further that “[m]unicipal legislation will be invalidated,
therefore, only when the Legislature has expressly prohibited local regulation, or
when the Legislature has intended to occupy the field and the municipal legislation
would frustrate the purpose of a state law.” International Paper Co. v. Town of Jay,
665 A.2d 998, 1002 (Me. 1995).
Plaintiff argues that Hampden’s Zoning Ordinance, as interpreted by the
Town, frustrates the purpose of sections 1310-U and 1310-X and are, therefore, :
preempted. Section 1310-U prohibits municipalities “from enacting stricter
standards than those contained in this chapter” but allows them to enact reasonable
provisions for numerous purposes, including “compatibility of the solid waste
facility with local zoning and land use controls.” Section 1310-X authorizes the DEP
to license existing disposal facilities for expansion, provided that the applicant meets
specific criteria set forth therein. Defendants do not dispute the DEP’s
determination that SERF’s proposed expansion fulfills these criteria. Rather,
Defendants contend that the exclusion of landfills under the Zoning Ordinance falls
within the scope of the Town’s authority granted in section 1310-U. The Court need
not reach this issue because, as discussed below, Hampden’s Zoning Ordinance as
applied to the facts of this case does not prohibit SERF’s proposed expansion.
2. CV-99-57 Count II Rule 80B Appeal
Plaintiff argues that the Zoning Board’s 1974 decision to allow SERE to
construct a landfill in Hampden constituted a variance for lots 44, 45, and 46. SERF
contends that the variance allows SERF to expand the landfill on these three lots
and that the current Zoning Ordinance does not prohibit such an expansion.
Defendants respond that the approval granted by the Zoning Board in 1974 applied
only to the footprint of the original landfill as approved by the DEP in 1975. As
such, Defendant asserts that the expansion is a nonconforming use, which is
prohibited by the Zoning Ordinance.
A plaintiff seeking a Rule 80B appeal carries the burden of proof. See
Tompkins v. City of Presque Isle, 571 A.2d 235, 236 (Me. 1990). This Court reviews a
decision of a municipal agency for abuse of discretion, error of law, or findings
unsupported by substantial evidence in the record. See id. Courts grant “great
deference” to an agency’s interpretation of an ordinance that it regularly
administers, unless the ordinance “plainly compels a contrary result.” Wright v.
Town of Kennebunkport, 715 A.2d 162, 164 (Me. 1998) (quoting Berube v. Rust Eng’g,
668 A.2d 875, 877 (Me. 1995)). The Court, however, must avoid interpretations that
produce absurd, illogical, or inconsistent results. See id.
The Zoning Board’s finding in this case is inconsistent with its prior decisions
and contrary to the laws of Maine. The Town cannot in hindsight place limitations
on the 1974 variance that were not delineated in the original approval. Sée City of
Portland v. Grace Baptist Church, 552 A.2d 533, 535-36 (Me. 1988). The only . »
restriction placed on the 1974 approval simply requires the applicant to follow DEP
requirements; there are no limitations whatsoever placed on SERF’s development
of a landfill on lots 44, 45, and 46. Additionally, the 1975 footprint was developed
several months after the Zoning Board approval. The Zoning Board could not have
limited the landfill to an area that was as yet undefined at the time of the decision.
The Planning Board’s 1985 approval of SERF’s expansion is consistent with
this interpretation. The Secure II landfill approved by the Planning Board in 1985
involved expansion beyond the original footprint. Although the CEO was not
involved at that time, the Planning Board did make factual findings that the
expansion conformed with all applicable Town ordinances and the comprehensive
plan. Essentially, the Planning Board found that the expansion of the landfill to an
area outside the original footprint did not constitute a nonconforming use under
the Town Zoning Ordinance. As the 1984 determination by the Planning Board was
not appealed, the decision has become a final judgment and may not now be
revisited because it is barred by administrative collateral estoppel. See Crosby v.
Town of Belgrade, 562 A.2d 1228, 1230 (Me. 1989).
Furthermore, although the Maine Law Court has not addressed the issue,
most jurisdictions have established that a use allowed by a variance does not
constitute a nonconforming use and is not subject to zoning limitations on
expansion. See Angel Plants, Inc. v. Schoenfeld, et al., 946 N.Y.S.2d 112, 113 (N.Y.
App. Div. 1989); James, et al. v. Town of New Hartford, 373 N.Y.S.2d 938, 940-41
(N.Y. App. Div. 1975). The variance in this case, granted in 1974, was granted at a
time when the existing ordinance prohibited landfills in the industrial zone, and all
subsequent ordinances, including the current one, have prohibited landfills. TA]
“
use established or maintained pursuant to a variance granted by an administrative
body is not a nonconforming use.” ROBERT M. ANDERSON, AMERICAN LAW OF ZONING §
6.01 (3d. ed. 1986). Thus, under all successive ordinances, the landfill is a use
permitted by the variance and does not constitute a nonconforming use.
Accordingly, SERF’s expansion of the landfill within lots 44, 45, and 46 is nota
nonconforming use subject to zoning restrictions; rather, the 1974 variance allows
SERF to expand the landfill within the boundaries of those lots, as they existed at the
time of the variance approval.
3. CV-99-57 Count III Inverse Condemnation and Count IV Section 1983
In Counts III and IV, Plaintiff asserts an inverse condemnation and a
violation of 42 U.S.C. § 1983, both based on the Town’s prohibition of SERF’s
proposed expansion. Because the Court holds that the Zoning Ordinance does not
prohibit SERF’s expansion on lots 44, 45, and 46, these claims are moot for lack of a
justiciable controversy. See Maine Civil Liberties Union v. City of S. Portland, 734
A.2d 191, 194-95 (Me. 1999). These claims are, therefore, dismissed.
4. AP-99-26 Rule 80B Appeal
SERF also asserts a Rule 80B appeal of the Zoning Board’s affirmance of the
Planning Board’s rejection of SERF’s site plan application for lack of jurisdiction. In
light of this Court’s determination that the Zoning Ordinance does not bar SERF’s
proposed expansion, the Court finds that the Planning Board did have jurisdiction
to review SERF’s application. As such, the Court grants SERF’s appeal of this
decision.
—
The docket entry is: -
Plaintiff's Rule 80B Appeals are GRANTED on Count II of CV-99-57 and
Count I of AP-99-26 . Counts I, IIL, and IV of CV-99-57 are dismissed. This matter is
remanded to the Hampden Zoning Board of Appeals for further proceedings
consistent with this opinion.
Dated: . [7 Zrv¢v
Date Filed___ 3/25/99 PENOBSCOT Docket No, CV-99-57
County
CONSOLIDATED WITH AP-99-26
Action CIVIL -— INJUNCTIVE RELIEF
80B APPEAL added
ASSIGNED TO JUSTICE MARSANO
SAWYER ENVIRONMENTAL RECOVERY INHABITANTS OF THE TOWN OF HAMPDEN &
FACILITIES, INC. Vs RAY PIPES, CODE ENFORCEMENT OFFICER
Plaintiff's Attorney Defendant’s Attorney
Farrell, Rosenblatt & Russell
61 Main Street
PO Box 738
Bangor, Maine 04402-0738
BY: Thomas A. Russell, Esq.
Nathaniel M. Rosenblatt, Esq.
FOR: Defendants
PIERCE ATWOOD
ONE MONUMENT SQUARE
PORTLAND ME 04101-1110
BY: Philip Ahrens, Esq.
Catherine R. Connors, Esq.
Helen L. Edmonds, Esq.
Date of
Entry
3/25/99 Complaint for Declaratory and Injunctive Relief filed - Exhibits 1, 2,
3, 4 -& 5 attached.
3/25/99 Case File Notice and Pretrial Scheduling Statement and Jury Demand form
forwarded to Plaintiff's counsel.
3/29/99 Acknowledgement of Service of Process on behalf of Defendant
Ray Pipes by Thomas A. Russell, Esq. Filed. (S.D. 3/25/99)
3/29/99 Acknowledgement of Service of Process on behalf of Defendant
Town of Hampden by Thomas A. Russell, Esq. Filed. (S.D. 3/25/99)
4/13/99 - Answer and Affirmative Defenses Filed by Defendants.
4/13/99 Appearance entered of Thomas A. Russell, Esq., and Nathaniel M. Rosenblat'
Esq. on behalf of Defendants Filed.
4/14/99 Acceptance of Service of Process by Jeff Pid--#1401 for Attorney General
General for the State of Maine Filed. (S.D. 3/31/99) (signature not
legible)
4/14/99 Pretrial Scheduling Statement Filed by Plaintiff.
4/23/99 Expedited Pretrial Order filed. Discovery to be closed by 8/23/99.
This case will be placed on the non-jury trial list 30 days after
close of discovery. This Order is incorporated into the docket by
reference at the specific direction of the court. (Pierson, J.)
L Copy forwarded to attorneys of record. Report of Conference of
Counsel form forwarded to Plaintiff's counsel.
4/28/99 : Amendment to Answer and Affirmative Defenses Filed by Defendants.
* Date Filed 6/11/99 PENOBSCOT Docket No. AP-99-26
County
CONSOLIDATED WITH CV-99-57
Action __80B APPEAL
Assigned to Justice Francis C. Marsano
SAWYER ENVIRONMENTAL THE INHABITANTS OF THE TOWN OF HAMPDEN,
RECOVERY FACILITIES, INC, | - , a MAINE and THE PLANNING BOARD
De A RERECHT
if
Plaintiff’s Attorney HAR 6 2000 Defendant’s Attorney
PIERCE ATWOOD FARRELL ROSENBLATT & RUSSELL
ONE MONUMENT SQUARE P O BOX 738 - 61 Main Street
PORTLAND ME 04101-1110 BANGOR ME 04402-0738
BY: CATHERINE R. CONNORS, ESQ. BY: Thomas A. Russell, Esq.
HELEN L. EDMONDS, ESQ. Nathaniel M. Rosenblatt, Esq.
PHILIP AHRENS, ESQ.
Date of
Entry
6/11/99 Complaint for Review of Governmental Action Pursuant to M.R. Civ.P. 80B
filed.
6/11/99 Agreed Upon Motion to Consolidate Pursuant to M.R. Civ.P. 42 and Consolidate
Memorandum of Law filed (with CV-99-57)
6/14/99 Order on Agreed-upon Motion to Consolidate Pursuant to M.R. Civ.P. 42
filed. It is hereby Granted in the interests of justice and the
convenience of the parties. The above-captioned matters are consoli-
dated. These consolidated matters shall proceed according to the
Court's Order Specifying the Future Course of Proceedings dated
May 18, 1999. Plaintiff shall file a supplement to the Rule 80B
record on the date that it files its Rule 80B Brief together with
any motion and accompanying supporting materials for summary dis-
position of Counts I, III or IV of the Amended Complaint. The
supplement to the Rule 80B record will contain any additional record
documents related to Plaintiff's Rule 80B appeal captioned Sawyer
Environmental Recovery Facilities, Inc. v The Inhabitants of the Town
of Hampden, Maine and the Planning Board of Said Town dated 6/10/99.
(Hjelm, J.) Copy forwarded to attorneys of record.
6/16/99 Entry of Appearance of Nathaniel M. Rosenblatt, Esq. and Thomas A.
Russell, Esq. as counsel for Defendants filed.
6/24/99 Acknowledgement of Service of Process. by Nathaniel M.: Rosenblatt, Esq:
on behalf of the Town of Hampden. filed. (s.d. 6415/99)
6/24/99 Acknowledgement of Service of Process by Nathaniel M. Rosenblatt, Esq.
oe on behalf of the’Planning Board of the Town of Hampden filed. (s.d. 6/17/99
f sorty
( fuer)