The opinion
STATE OF MAINE SUPERIOR COURT
WALDO, SS. Docket No. CV hel
j
Inhab. of Town of Northport, )
Plaintiff,
ORDER ON MOTIOMTO°DISMISS
Waldo County Superior Court
y P
fu) ana
Northport Village Corpor. JUL 16 200i
Defendant.
Nee’ Nee eee Se”
REC'D AND FILED
Joyce M. Page, Clerk
This matter is before the Court on the Defendant’s Motion to Dismiss.
That motion was filed after the complaint was served in accord with Rule
4(c)(1). No answer has been filed.
Simultaneously, Defendant filed materials outside the record and
asserted that this matter is before the Court as one for summary judgment
as well. See Rule 12(b) and Rule 56(b) M.R.Civ.P!. The Plaintiff in its
responses has dealt with the materials filed which are outside the Rule
12(b)(6) motion and to that end has suggested that there are other matters
which it would file if the motion for dismissal is not granted.
The undisputed facts demonstrate that the Plaintiff is a town with all
of the municipal authority which towns have under Maine law. The
Defendant is a summer community, for the most part, which is a successor
to the Northport Wesleyan Grove Campmeeting Association2 which
1. Defendant’s responsive filing demonstrates that matters outside the
record were to be filed notwithstanding the description of the motion as
“DEFENDANT’S MOTION PURSUANT TO Me.R.CIV.P. 12(b)(6).”
2. See Northport Weslayan Grove Campmeeting Association v. Andrews,
104 Me. 342 (1908).
2.
originated in the 19th century as a prayer colony. It is picturesquely
situate on a hill on the west side of Penobscot Bay near a wharf which,
years ago, offered Bangor residents the opportunity to travel down the
Penobscot River and across the mouth of Belfast Harbor by steamship for
their summer meeting.
The attachment of several cases demonstrate that the power and
authority of the Defendant has been challenged in various ways from time
to time. The unreported case of Lucerne in Maine Village Corporation v.
Blackmer, Mem 00-039 includes interesting language suggesting that the
authority of village corporations is available through special legislation
under the Maine Constitution, Article IV, pt. 3, § 14.
In its argument the Defendant has taken the position, in this Court’s
view, that it is easier for the Court to analyze its position by reviewing
matters presented by affidavit or otherwise. The Plaintiff says it is being
deprived of its procedural rights by not having the benefit of the
Defendant’s answer which would require the Defendant to address each
point raised by the Plaintiff in its complaint. Moreover, the Plaintiff says it
would take relevant depositions which would strengthen its case. It argues
convincingly that it is at this point denied that opportunity.
In this Court’s view, the Defendant has a subsumed premise that it
will prevail as a result of matter presented which are beyond the scope of
the pleadings. It demonstrates what the Law Court said some years ago in
analyzing Rule 12(b)(6) and Rule 12(c) motions that “extra-pleading
matters presented must be either deposition, admissions or affidavits.”
Westman _v. Armitage, 215 A.2d 919,921 (Me. 1966). This Court believes
that the Plaintiff is entitled to Defendant’s answer and to do discovery by
deposition if it wishes before the issue can be properly before the Court.
That is because the Plaintiff is not required to respond in the procedural
way devised by the Defendant without full agreement between counsel.
Accordingly, because matters outside the record were presented for
the Court’s consideration, the Motion to Dismiss is DENIED and the Motion
for Summary Judgment is STAYED pending Defendant’s Answer and such
discovery as the parties, meaning Defendant as well, wish to do thereafter.
At any appropriate time, either party may move for summary judgment.
The Clerk is directed to incorporate this Order into the docket by
reference pursuant to M.R.Civ.P Rule 79 (a).
Dated: July 16, 2001 [
rye
FRANCIS C. MARSANO
JUSTICE, SUPERIOR COURT
Date Filed May 2, 2001
WALDO Docket No. CV-01-22
County
Action Declaratory Judgment & Perm. Inj. Relief
INHABITANTS OF THE TOWN OF NORTHPORT
vs. NORTHPORT VILLAGE CORPORATION
Plaintiff's Attorney
William S. Kelly, Esq.
96 High St.
Belfast, ME 04915
Tel: 338-2702
Defendant's Attorney
Judy A.S Metcalf, Esq.
EATON, PEABODY, BRADFORD & VEAGUE, PA
PO Box 9
Brunswick, ME 04011-0009
Tel: 729-1140
Date of
Entry
05/02/01 Complaint for Declaratory Judgment and Request for Permanent Injunctive
Relief dtd. Apr. 6, 2001, filed.
Summary Sheet filed.
Acceptance of Service, Waiver and Entry of Appearance dtd. Apr. 27, 2001,
filed by Judy A. S. Metcalf, Esq. for Northport Village Corporation with
Summons and Acknowledgement attached.
05/03/01 Case File Notice to Atty. Kelly.
05/15/01 | Deft's Motion to Extend Time to Respond to Plff's Complaint dtd. May 14,
2001, filed with proposed order thereon.
05/22/01 Deft's Motion to Dismiss pursuant to M.R.Civ.P. 12(b) (6) dtd. May 18,
2001, filed.
Deft's Memo of Law in Support of Motion to Dismiss, filed.
Statement of Material Facts as to which there is no Genuine Issue, filed.
Affidavit of Peter R. Allen, filed.
Request for Hearing on Motion and Proposed Order, filed.
06/01/01 05/31/01: Motion to Extend Time to Respond to PI1ff"s Complaint granted.
Time to file responsive pleading extended to May 24, 2001. (Marsano, J.
06/01/01 | Notice of entry and copy Order on Motion to attys. Kelly and Metcalf.
06/05/01 P1ff's Motion to Extend Time to Respond to Deft's Motion to Dismiss
and Motion for Summary Judgment dtd. June 5, 2001, filed.
06/07/01 Order signed, filed and entered. (Mead, C.J.
Motion granted. P1ff. shall file responsive pleadings to Deft's Motion
to Dismiss and Motion for Summary Judgment on or before June 15, 2001.
06/07/01 | Notice of entry and copy Order to attys. Kelly and Metcalf.
06/11/01 Plff's Responsive Pleadings to Deft's Motion to Dismiss and Motion for
Summary Judgment dtd. June 7, 2001, filed.
06/11/01 Plff's Response to Deft's Statement of Material Facts dtd. June 7, 2001,
filed.
06/11/01 Affidavit of Frank Therio dtd. June 7, 2001, filed by P1ff.
06/11/01
Affidavit of Denise Lindahl dtd. June 7, 2001, filed by P1ff.
STATE OF MAINE SUPERIOR COURT
CIVIL ACTION
WALDO, ss. DOCKET NO. CV-01-022
RA wht VarfarcS
INHABITANTS OF THE yy DLS
TOWN OF NORTHPORT, LAW LIBRARY
Plaintiff FEB 5 200
v. DECISION AND ORDER
NORTHPORT VILLAGE STATE OF MAINE
, NTY
CORPORATION, ~ SUPERIOR COURT
Defendant JAN 31 2003
RECEIVED AND FILED
L. Introduction. Joyce M. Page, Clerk
In this matter, the Inhabitants of the Town of Northport (town) brought an action
seeking a declaratory judgment that the Northport Village Corporation (NVC or
“village”) has no legal authority to appoint its own code enforcement officer (CEO) and
that only the town’s selectpersons may appoint such an official to enforce land use
ordinances within the town and the village. The town also seeks an injunction
permanently barring NVC from appointing a CEO until the Legislature gives it the
authority to do so.
The parties filed cross-motions for summary judgment seeking favorable
disposition in this dispute as to the respective authority of each to enforce NVC’s land
use ordinances within its boundaries. As the issue has been briefed and argued, it is in
order for disposition.
II. Facts.
The facts, which are material to this dispute, are not contested and can be
restated as follows:
The town is an incorporated municipality and NVC is an incorporated village
corporation whose territory lies entirely within the boundaries of the town. The latter
exists by virtue of the Private and Special Laws of 1915, chapter 136, which authorized
its charter. This Act was amended in 1919 and 1957. P. & S.L. 1919, ch. 146; P. & S.L.
1957, ch. 155. NVC is overseen by a president, a clerk, a treasurer, and seven overseers
who are elected by residents of the village.
NVC adopted a zoning ordinance (ZO) on August 22, 2000. It provides for the
appointment of a CEO by the Board of Overseers to enforce the ZO. The ZO further
provides: “[rJeference to the Code Enforcement Officer may be construed to include
Building Inspector, Plumbing Inspector, Electrical Inspector and the like where
applicable.” Zoning Ordinance of The Northport Village Corporation (ZONVC), § 2.2.
It also stipulates that a plumbing permit from the town is necessary before building a
sanitary plumbing facility and an electrical permit must be obtained from the town
before NVC will issue a building permit “involved in the installation of wiring or
electricity.” Id. § 6.3(1), (2). If the CEO finds a violation of the ZO, which persists after
he has ordered it corrected, the village attorney may institute an enforcement action in
the name of the NVC. Id. §§ 6.5, 6.6. On January 20, 2002, NVC appointed a CEO to
enforce its ZO.
NVC’s ZO recites that the town’s shoreland use ordinance of 1991, with
amendments, applies to NVC “only to the extent that land within the Village lies within
the Town’s Shoreland Zone.” ZONVC § 1.12.
The town has never adopted a charter, but enjoys “home rule” authority and is
governed by three elected selectpersons. The town also collects taxes on behalf of the
NVC. It has adopted a shoreland zoning ordinance (SZO), which extends from the
high-water mark inland for 250 feet. The parties agree that the town’s SZO applies to
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NVC and is enforceable there by the town’s CEO. The town has appointed a CEO to
enforce the SZO; he also serves as the building inspector, electrical inspector, and local
plumbing inspector. The town has advised NVC that the former’s CEO is available to
enforce the ZONVC.’ NVC refuses to accept the town’s CEO to enforce the former's
ZO.
III. Discussion.
A. Standing/Justiciability.
NVC challenges the standing of the town to pursue this action, claiming that
there is no justiciable controversy for the court to address because only the potential of -
future harm may occur by virtue of NVC’s hiring of a CEO, and that this action has not
yet harmed the town.
The Declaratory Judgments Act, 14 M.R.S.A. §§ 5951-63, provides that, “Any
person ... whose rights, status or other legal relations are affected by a statute [or]
municipal ordinance ... may have determined any question of construction or validity
arising under the . .. statute [or] ordinance... and obtain a declaration of rights, status
or other legal relations thereunder.” 14 M.R.S.A. § 5954. This statute is to “be liberally
construed to provide a simple and effective means by which parties may secure a
binding judicial determination of their legal rights, status or relations under statutes
and written instruments where a justiciable controversy has arisen.” Hodgdon v.
Campbell, 411 A.2d 667, 669 (Me. 1980).
Our law, however, requires the plaintiff seeking declaratory relief to demonstrate
that “the controversy between the parties is sufficiently ‘real’ so as to avoid the
' The defendant denies this fact as to its materiality. The court finds that this fact is properly supported
by a record reference and is “material” in that its existence is capable of affecting the outcome of the case,
particularly as to the existence of a justiciable controversy. See Levine v. R.B.K. Caly Corp., 2001 ME 77, [ 4,
n.3, 770. A.2d 653, 655, n.3 (citing Burdzel v. Sobus, 2000 ME 84, J 6, 750 A.2d 573, 575) (“A fact is material
if it has the potential to affect the outcome of the case under governing law.”)
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constitutional prohibition against rendering advisory opinions...” Perry v. Hartford
Accident and Indemnity Co., 481 A.2d 133, 136 (Me. 1984). “A real controversy is present
where the plaintiff ‘set[s] forth a claim of right or obligation buttressed by a sufficiently
substantial interest to warrant judicial protection and assert|s] it against a defendant
having an adverse interest in contesting it’” Id. (quoting Allstate Insurance Co. v. Lyons,
400 A.2d 349, 351 (Me. 1979)). “A case is fit for judicial decision when there exists a
genuine controversy between the parties that presents a ‘concrete, certain and
immediate problem.’” Waterville Industries, Inc. v. Finance Authority of Maine, 2000 ME
138, { 22, 758 A.2d 986, 992 (quoting Wagner v. Secretary of State, 663 A.2d 564, 567 (Me.
1995)).
In this case, the parties dispute the interpretation and application of several
statutes. First among them is the private and special law which chartered the NVC and
created its system of governance. Does the charter permit the president and overseers
to appoint a CEO, as municipal officials do in regular municipalities? By their actions,
the NVC officials have answered that question affirmatively by adopting an ordinance
which provides for a CEO and then filling that position. The town contests this action,
arguing that it alone has the authority to hire a CEO who is to enforce the ordinances
within both NVC and the town. In doing so, they rely on statutory provisions which
v
can be read to limit the authority to appoint CEO’s to “municipal officers,” and a
statutory definition of that phrase which would exclude the governing officers of a
village corporation so that they would not have this authority. See 30-A M.R.S.A.
§§ 2001(10); 2601-A.
While this restatement may oversimplify the dispute, it does illustrate that it is
real and subject to a live controversy. Thus, the circumstance that the NVC has
appointed a CEO who, presumably, is currently enforcing its ordinances means that the
town and its CEO are expected to leave enforcement of the ZONVC to the village’s
CEO. Does the town’s CEO respect this exclusion, or does he attempt to enforce the
ZONVC pursuant to the authority he and the town officers believe he possesses? To
leave these questions unanswered means that two officials, exercising different
discretionary judgments, answering to different superiors, and referring cases to
different attorneys, are in a position to enforce the same ordinance in the same
geographical, political entity. As one of these officials may lack any authority to enforce
the ZONVC, not only do the officials of these two government entities have a stake in
resolving this dispute, so do their residents who may, conceivably, be subject to an
enforcement action by an official without authority to so act.
In the court's view, this case presents a conflict over the interpretation of statutes
and an ordinance, which presents a current and real controversy. The parties to this
controversy are adverse and have a real interest and stake in its resolution, which will
yield specific relief. Madore v. Maine Land Use Regulation Comm’n, 1998 ME'178, {{ 7, 8,
715 A.2d 157, 160. Under such circumstances, reliance on the Declaratory Judgment Act
is appropriate and the court must undertake the task of resolving the dispute.
Accordingly, the merits of this controversy will be addressed in this Decision and
Order.
B. NVC’s Authority to Appoint a CEO.
“Towns ... are mere agencies of the State. They are purely creatures of the
Legislature and their powers and duties are within its control. ... [That control] is
absolute and all embracing except as expressly or by necessary implication limited by
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the Constitution.” City of South Portland v. State, 476 A.2d 690, 693 (Me. 1984) (quoting
Opinion of the Justices, 133 Me. 532, 535, 178 A. 613, 615 (1935)). “Being a creature of
statute, [a village corporation] had only such powers as were conferred by statute
expressly or by necessary implication.” Phillips Village Corp. v. Phillips Water Co., 104
Me. 103, 106, 71 A. 474, 475 (1908) (cited with approval in City of South Portland v. State,
id.). Thus, the question to be addressed is whether or not the village charter, as affected
by the general statutes which concern the powers of municipalities, authorizes NVC to
appoint a CEO. If not, the law here cited would prohibit the exercise of this authority.
The charter for NVC provides for the election of corporate officers, namely a
president, a clerk, a treasurer, and seven overseers. P. & S.L. 1915, ch. 136, sec. 7. The
overseers “shall be the general municipal officers of said corporation and shall have
general charge of its affairs and of the expenditures of its moneys, except so far as the
same may be committed to other officers or persons.” Id., sec. 10
NVC is also authorized to raise money for a variety of purposes; the detailed list
of these, however, makes no mention of expending village funds to hire a CEO. Id., sec.
2. The money for these enumerated items is to be assessed and collected by the town,
which, in turn, pays over these sums to the village treasurer. Id., secs. 6, 11.
NVC also has the same powers and duties as possessed or imposed on towns
“with respect to buildings located within the territorial limits of said village, and their
use or occupancy...” P. &S.L. 1919, ch. 46, sec. 2. As a village corporation, it also has
the authority to enact ”. . . land use regulation ordinances, subject to the same
guidelines and standards which apply to municipalities under chapter 187.2, When a
2 Chapter 187 is lengthy, but three sections are relevant to this case: §§ 4406, 4451, and 4452. They allow
a municipality to enforce its subdivision ordinance, prescribe the standards for training and certification
of CEOs, and describe the authority of a municipal official who is designated to enforce ordinances, such
6
conflict exists between a land use regulation ordinance of a village corporation and an
ordinance of the municipality of which it is a part, the municipal ordinance prevails.”
30-A M.R.S.A. § 6303. From all this, it is plain that NVC has the authority to enact
ordinances affecting land use as the Legislature has specifically ascribed that power to
village corporations, including NVC, via its charter and this general grant of authority.
The Legislature has also made express provisions as to the appointment of
municipal officials. Thus, “[e]xcept where specifically provided by law, charter or
ordinance, the municipal officers shall appoint all municipal officials and employees
required by general law, charter or ordinance...” 30-A M.R.S.A. § 2601(1) (emphasis
supplied). In this regard, “[m]unicipal officers may appoint code enforcement officers
..” 30-A M.R.S.A. § 2601-A; 38 M.R.S.A. § 441. “Municipal officers” are defined as
“the selectmen or councilors of a town; or [t]he major and aldermen or councillors if a
city.” 30-A M.R.S.A. § 2001(10)(A), (B).
From this it must be concluded that the Legislature has expressly conferred on
“municipal officers” the authority to appoint a CEO and that village corporation
officials, because they are not included in the definition of “municipal officers,” were
denied that power. Because a village corporation, and its officials only have the
authority expressly or impliedly granted to them, their exclusion from the provisions
which directly address the authority to appoint CEO’s must be seen as an intent to limit
such authority to “municipal officers” as the Legislature has defined that phrase.
“When the Legislature has intended to treat village corporations as municipalities, it
has done $0 explicitly.” Rackliffe v. Northport Village Corp., 1998 ME 114 ¥ 7, 711 A.2d
1282, 1284. Because it has not “specifically” done so here, 30-A M.R.S.A.§ 2601(1), it
as a CEO. The chapter does not specifically address the authority to appoint a CEO, but if NVC does
have such authority, it must meet the standards and guidelines within chapter 187.
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must be concluded that village corporation officials lack the necessary legislative grant
of authority to appoint a CEO.
A fair reading of the village charter is not inconsistent with this conclusion. In it,
the overseers are to be the municipal officers of the corporation “with general charge of
its affairs . . . except so far as the same may be committed to other officers or persons.” P. & S.L.
1915, ch. 136, sec. 10. So, while the overseers are to act as NVC’s municipal officers,
they may not do so when its municipal “affairs” are committed to others. Because the
Legislature has chosen to assign the “affair” of appointing a CEO to “municipal
officers,” which are defined as selectmen, 30-A M.R.S.A. § 2001(10)(A), it must be
deduced that the legislative intent was to give the authority to appoint a CEO in NVC
to the town’s selectmen.
This conclusion is also consistent with the current governance of these two
entities. NVC can determine how much money it needs for its corporate purposes,
upon which the town must assess this amount upon the estates within NVC, collect this
sum, and pay it over to NVC’s treasurer. P. & S.L. 1915, ch. 136, sec. 11. So too, NVC
can enact land use ordinances which, because they affect land wholly within Northport,
can be enforced by the town’s CEO.
Thus understood, this case is distinguishable from those in which the Law Court
has found village authority to act when such power proceeded by necessary implication
from a provision in its charter or enabling legislation. See, e.g., Mayo v. Dover Foxcroft
Village Fire Company, 96 Me. 539, 555-57, 53 A. 62 (1902); Paul v. Huse, 112 Me. 449, 450,
92 A.520 (1914). In these cases the village corporations were given legislative authority
to act on particular matters, but not the specific legal tools to carry out such authority.
In such instances the Law Court found that it necessarily followed that a village
corporation must be able to act on its authority otherwise, presumably, such a grant of
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authority would be meaningless. In the case at bar, however, while NVC has been
given the power to enact land use ordinances, but none to enforce them, such power is
not an empty one as the town does have the authority to enforce NVC’s ordinance.
Thus, NVC’s land use ordinances are enforceable and the legislative purpose in
granting this village the power to enact them is not frustrated.
By the same reasoning, because the Legislature has specifically assigned the
power to appoint CEO’s and enforce land use ordinances to certain, defined officials,
those officials, per force, can act on NVC’s ordinance so that it is enforced. That is:
because, unless otherwise specifically provided by law, the “municipal officers” appoint
all those municipal officials required by law, a charter or an ordinance. 30-A M.R.S.A. §
2601(1). So, it may be concluded that because a fair reading of NVC’s ordinance
requires the appointment of an enforcement official, the town’s selectmen, as
“municipal officers” are to do so, there being no specific provision in law to the
contrary. Id. Moreover, as the court has here concluded, that authority belongs to the
town’s selectmen, to the exclusion of NVC’s overseers 3
IV. Conclusion.
Based on the foregoing, the court has determined that there is no material fact in
dispute and that the plaintiff is entitled to judgment as a matter of law on its complaint.
MLR. Civ. P. 56(c).
Accordingly, the clerk will make the following entries:
Judgment is ENTERED for the plaintiff.
The court FINDS and DECLARES that the Northport Village
Corporation has no authority to appoint a Code Enforcement Officer to
enforce its land use regulation ordinances and, further, that only the Town
> Residents of NVC are not without power to effectuate enforcement of the village’s ordinances. First,
they are also voters in the town and therefore have a say in its governance. P. & S.L. 1915, ch. 136, sec. 12.
They also have access to this court to seek action. M.R. Civ. P. 80B(a).
9
of Northport’s municipal officers have the authority to appoint a Code
Enforcement Officer to enforce land use regulation ordinances within the
Northport Village Corporation and/or the Town of Northport.
The Northport Village Corporation and its municipal officials are
hereby ENJOINED from appointing a Code Enforcement Officer until
such time as the Legislature may otherwise specifically provide.
So ordered.
Dated: January ZT, 2003 oe LEZ
hn R. Atwood
Justice, Superior Court
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