The opinion
STATE OF MAINE SUPERIOR COURT
CIVIL ACTION
KENNEBEC, ss. DOCKET NO. AP-01-82
LESTER T. JOLOVITZ,
Appellant/Plaintit
v. _ DECISION ON MOTION
Str % ams FOR SUMMARY JUDGMENT
CITY OF WATERVILLE and
CITY OF WATERVILLE
SCHOOL DEPARTMENT,
Appellees / Defendants
This matter comes before the court on the motion of the appellees /defendants’
motion for summary judgment as to count II of the complaint. This count concerns the
plaintiff’s independent claim for relief based on theories of trespass, breach of
restriction and estoppel. Since the plaintiff’s claims fail as a matter of law, the motion
will be granted.
Facts
Plaintiff Jolovitz has owned a home on Oak Knoll Drive in Waterville since 1957.
Located to the south of the Jolovitz’s backyard is City property that became Drummond
Field, an athletic facility for Waterville High School. The Jolovitz and City parcels were
originally separated by a 110-foot deep piece of land belonging to a Mr. Letourneau. In
1965, Letourneau sold his parcel to the City of Waterville and in 1967 Waterville city
government authorized construction of a new track as part of Drummond Field.
According to Jolovitz, in November, 1967 or thereabouts, he was visited at his
home by Waterville City Engineer Ralph Knowlton to discuss the enlargement of
Drummond Field. Knowlton acknowledged Jolovitz’s concern about noise and
inconvenience from the expansion and told Jolovitz that the City would need to use
approximately 60 feet of the former Letourneau parcel, leaving a 50-foot “buffer zone”
between the developed area and the Jolovitz property line. Again according to Jolovitz,
Knowlton revisited him a few days later and stated that officials at “City Hall” had
confirmed the 50-foot buffer zone. Nothing about this agreement was put in writing,
there is no record of any approval by municipal officials and Mr. Knowlton died
approximately 15 years ago.
Life apparently passed peacefully at the Jolovitz estate until June of 2001. The
City had erected a fence to separate the area of the track from the other 50 feet of its
property and the Jolovitz’s parcel. Jolovitz planted some evergreen trees on the City
property and used a portion for storage. However, on June 6, 2001, the City began
cutting trees in the 50-foot wide strip. The purpose of this clearing was to construct
pole vault and high jump facilities as part of Drummond Field. Although the City has
placed a new fence to deter trespassing, the net effect has been to reduce the “buffer
zone” from 50 feet to 20 feet. The decrease in greenery has meant an increase in the
level of noise filtering from the playing fields to Jolovitz’s backyard, especially during
track season.
Discussion
Mr. Jolovitz has filed a two-count complaint. Count I, which is not before the
court on this motion, is a appeal requesting review of the decision of the Zoning Board
of Appeals with regard to the expansion of the field. Count II is an independent count
seeking to enforce a contractual agreement between Jolovitz and the City of Waterville
through its agent Mr. Knowlton. In the alternative, if no contract is found, Jolovitz
seeks relief as a matter of promissory estoppel. Even assuming the facts in the light
most favorable to the plaintiff, neither argument succeeds as a matter of law.
I. Statute of Frauds.
The defendants argue that the plaintiff cannot maintain his contractual
enforcement claim as part of count II because any agreement of the nature described by
Mr. Jolovitz would violate the Statute of Frauds.’ Although Jolovitz refers to the strip of
land abutting his property as a “buffer zone,” in more legal terms he is attempting to
enforce a restrictive easement with regard to the 50-foot stretch of unimproved
municipal property. Assuming there was an agreement between the parties in 1967 as
to how the City was going to use the property at that time, there is nothing in writing —
neither agreement nor action by municipal officials — to give evidence of this agreement
concerning rights to property and which the plaintiff is treating as if it were a restrictive
easement running with the land. This situation is almost a classic example of why the
Statute of Frauds is necessary, particularly when one considers that the only other
possible corroborating witness died 15 years ago. The alleged agreement concerned
rights in land and could not be performed within one year if it is to have the effect the
plaintiff seeks. Therefore, the Statute prevents maintenance of this action on the
agreement and the motion will be granted.
II. Promissory Estoppel.
In the event the plaintiff cannot enforce a contract, he seeks relief by application
of the doctrine of promissory estoppel, citing Chapman v. Bowman, 381 A.2d 1123 (Me.
1978). The plaintiff is correct that in Chapman the Law Court adopted the doctrine of
“As applicable to this case, 33 M.R.S.A. § 51 provides as follows:
No action shall be maintained in any of the following cases:
(4) Contract for sale of land. Upon contract for the sale of lands, tenements or
hereditaments, or of any interest in or concerning them;
(5) Agreement not to be performed within one year. Upon any agreement that is not
to be performed within one year from the making thereof; .... Unless the promise,
contract or agreement on which such action is brought, or some memorandum or note
thereof, is in writing and signed by the party to be charged therewith, or by some person
thereunto lawfully authorized. ..
promissory estoppel as set forth in Section 90 of the RESTATEMENT (2“°) OF CONTRACTS.
‘However, Chapman has to be distinguished. The agreement being tested in Chapman
was an agreement by one party to sell land to another party, upon which the first party
reneged. The agreement was not the sales contract itself, which would bump more
squarely into the Statute of Frauds considerations. In the present case, the plaintiff is
attempting to enforce in perpetuity an agreement which deprives the City of Waterville
of rights in its own property and which cannot stand on its own under the Statute of
Frauds. Furthermore, there is an absolute lack of any evidence of any consideration to
support the claimed agreement, necessary to establish a contract if there ever was one.
There is explanation of why the City would promise to limit its use of its own property
with no quid pro quo and in possible violation of principles concerning use of public
property for private purposes. Nor is the plaintiff’s claim of reliance sufficient that a
factfinder could find that plaintiff is prejudiced today as the result of any promise by
the City in 1967, particularly in light of plaintiff’s acknowledgment that the “Knowlton
‘agreement” concerned only the 1967 enlargement of Drummond Fieid.
For the reasons stated above, the entry will be:
Defendants’ motior: is GRANTED and summary judgment will be
entered as to count II of the complaint.
a?
Dated: August €@ , 2003 Mid thay
S. Kirk Studstrup :
Justice, Superior Court
Date Filed 11/21/01 Kennebec Docket No. AP01-82
County
Action Petition for Review
80B
co a
J, STUBSTRUP
Lester Jolovitz VS. City of Waterville & Waterville School
Plaintiff's Attorney Defendant’s Attorney Board
Michael J. Levey, Esq. William Lee, Esq.
161 Main St., Suite IA 112 Silver Street
P.O. Box 7 P.O. Box 559
Winthrop, Maine 04364 Waterville, Maine 04903
- Peter B. Bickerman, Esq.
45 Memorial Circle
P.O. Box 5307
Augusta,Maine 04332-5307
Date of
Entry
11/21/01 Complaint: Rule 80B Review of Governmental Action; Action for Independent
Relief, filed. s/Levey, Esq.
Original Summons with return service made upon City of Waterville; Zoning
Board of Appeals; School Departament.
11/27/01 Notice of briefing schedule mailed to attys of record.
12/4/01 Motion for Specification of Future Course of Proceedings (MRCP 80B(i)),
filed. s/Levey, Esq.
12/10/01 Acceptance.of Service, filed. s/Lee, Esq.
12/13/01 Answer, filed. s/Lee, Esq.
12/20/01 Plaintiff's Motion for a Trial on the Facts, filed. s/Levy, Esq.
Proposed Order, filed.
12/31/01 Response to Plaintiff's Motion for Trial on the Facts, filed. s/Lee, Esq.
4/24/02 Letter from attorney Lee requesting that the motion to determine future
course of proceedings be dealt with on 5/7/02 along with the other motion.
5/2/02 Entry of Appearance, filed. s/Bickerman, Esq.
Certificate of Service, filed. s/Bickerman, Esq.
5/8/02 Agreement put on record on 5/7/02 with Justice Studstrup, Presiding;
Michael Levey, Esq. for Plaintiff and William Lee, Esq. for Defendants.
Electronic Recording Tape 605 Index 4279-4653. Proposed stipulations
and agreements to be prepared and filed by Michael Levey, Esq.
8/7/02 Notification of Discovery Service, filed. s/Lee, III,.Esq.
Notice to Take Oral Deposition of Lester Jolovitz served on J. Michael
J. Levey, Esq. and Peter B. Bickerman, Esq. on 7/6/02.
10/4/02 Notification of Discovery Service, filed. s/Lee, III, Esq. (filed 10/3/02)
of Documents Propounded by Defendants to Plaintiff served on Michael J.
Levey, Esq. on 10/1/02:
Interrogatories Propounded by Defendants to Plaintiff Request for Production
STATE OF MAINE SUPERIOR COURT
CIVIL ACTION
KENNEBEC, ss. DOCKET NO. AP-01-82
Sig- KEN ~@ [8 aucH
LESTER T. JOLOVITZ,
Plaintiff / Appellant
Vv. DECISION ON APPEAL
CITY OF WATERVILLE
and WATERVILLE SCHOOL
DEPARTMENT,
Defendants / Appellees
This matter comes before the court on appeal from a decision of the Waterville
Zoning Board of Appeals (Board).’ The court has reviewed the record of the
proceedings before the Board to determine whether there was any error of law, abuse of
discretion or findings not supported by substantial evidence. Finding none of these
flaws, the decision will be affirmed.
Background
Extended findings have already been made in the court’s decision on motion for
summary judgment dated August 26, 2003, which will be incorporated herein. For
purposes of this appeal, it is sufficient to note that the City of Waterville received a
substantial parcel of undeveloped land from Albert Drummond in 1961 for the purpose,
among other things, of serving as an athletic field for the Waterville Senior High School.
This facility was subsequently constructed. In 1965, the city’s parcel was increased in
size by a parcel conveyed by a Mr. Letourneau immediately adjacent to the Jolovitz
property. In 1967, the Waterville Board of Alderman authorized some new
' This appeal pursuant to MLR. Civ. P. 80B is count I of the complaint. Count II of the complaint, alleging
trespass, breach of restriction and estoppel, was the subject of a summary judgment by the court dated
August 26, 2003, and is no longer before the court.
developments at the Drummond Field site, including construction of a new track. The
parties have stipulated that no Zoning Board approval was requested or given for the
1967 development. Although these developments were discussed with the Code
Enforcement Officer (as set forth in the summary judgment decision) no formal
objections were raised by Jolovitz or any other abutting landowner.
The next of the series of events incurred in June of 2001 when the city decided to
improve its track and field facilities by moving the existing pole vault, long and high
jump pits out of the infield area of the track. In order to make room for this move, the
city cleared trees and vegetation closer to the Jolovitz property, though still on City
property. As a result, the screen of vegetation between the playing fields and the
Jolovitz property was decreased from 50 feet to 20 feet. Again, no building permits or
other permission was sought or obtained from the Zoning Board prior to beginning
construction. Asa result, Jolovitz and other neighbors petitioned the Board to review
the work being done, including the movement of the jumping pits which is the primary
issue before the court.’ After hearing on October 10, 2001, the Board determined that
the pits were part of a permitted activity and no prior approval was necessary for their
movement from one part of the field to another. Jolovitz filed this timely appeal.
Discussion
In its deliberations, the Board properly identified the two separate issues before
it. The first concerns whether the change in location of the jumping pits constituted a
* In addition to the movement of the pole vault and long and high jump pits, the city and school
department were also improving the bleachers and building a new utility building for bathrooms and
ticket and refreshment sales. These other structures, for which the Zoning Board determined building
permits should have obtained, are on a different portion of the Drummond Field property and are not the
primary subject of the Jolovitz appeal.
new use of the property or a use which would otherwise require application for a use
permit. The second is whether moving the pits required a building permit.
On the first issue, the Board found “that Drummond Field has always been a
recreation field, athletic field.” (R-54). By “always” the court interprets the Board’s
finding as meaning that from the time that this property was deeded by Mr.
Drummond to the city in 1961, it was intended that the property be used for and was
used for athletic facilities for the Waterville High School. The Board also found that at
the time this athletic use by the school began, “that it was a principal permitted use in
the 1960’s under the Zoning Ordinance at that time and has continued to be a permitted
use through all the changings in the Zoning Ordinance to date. That it has not changed
in use in all that time, therefore it did not require a hearing before the Board as a Special
Exception.” (R-54). Implicit in this finding is a finding and conclusion by the Board
that the athletic fields were an integral part of the school and therefore a permitted
principal use in either the residential A or B zones pursuant to the 1963 Waterville
Zoning Ordinance. (R-60). This finding is supported in the record by the Drummond
deed itself which restricted the use of the property to “an athletic and track field for the
new Waterville Senior High School to be constructed near said area” among other
things. (R-5). The record also supports the finding that there has been no change in
this use by the activities of the city and school department in question. Moving the
jumping pits from inside the track area to outside the track, but still within the city’s
property, is not a change in use and the Board’s conclusion that no new use application
was necessary is not an error of law.
On the second issue concerns whether, even though a permitted use, the city and
school board should have applied for a building permit as part of the process of moving
the jumping pits. The appellant has argued in his brief that the failure of the school
department to apply for a building permit for the movement of the jumping pits is an
alternative ground for relief. However, this argument seems to ignore the fact that the
appellant appeared to limit his “building permit” argument during the hearing to the
bleachers and buildings, not the track and jumping facilities. (Hearing of October 10,
2001, Transcript, p. 78). This limitation is presumably why the Board did not address
the jumping pits in the second half of its decision concerning building permits, and the
appellant should not be allowed to renew the argument now on appeal. However, even
if the issue had been preserved, the court agrees with the legal interpretation of the city
attorney that the pits do not constitute “structures” under the Waterville Building
Permit Ordinance and no building permits would have been required.
For the reasons stated above, the entry will be:
Appeal DENIED. Decision of the Zoning Board of Appeals is
AFFIRMED.
Dated: June !] , 2004 Madar
9. Kirk Studstrup /
Justice, Superior Court
Date Filed
Action __ Petition for Review
11/21/01 Kennebec Docket No. AP01-82
County
80B
@ a
}, STUDSTRUP
Lester Jolovitz VS. City of Waterville & Waterville School
Plaintiff's Attorney Defendant’s Attorney Board
Michael J. Levey, Esq. William Lee, Esq.
161 Main St., Suite LA / 112 Silver Street
P.O. Box 7 P.O. Box 559
Winthrop, Maine 04364 Waterville, Maine 04903
Peter B. Bickerman, Esq.
45 Memorial Circle
P.O. Box 5307
Augusta,Maine 04332-5307
Date of
Entry
11/21/01 Complaint: Rule 80B Review of Governmental Action; Action for Independent
Relief, filed. s/Levey, Esq. .
Original Summons with return service made upon City of Waterville; Zoning
Board of Appeals; School Departament.
11/27/01 Notice of briefing schedule mailed to attys of record.
12/4/01 Motion for Specification of Future Course of Proceedings (MRCP 80B(i)),
filed. s/Levey, Esq. -
12/10/01 _Acceptance.of Service, filed. s/Lee, Esq.
12/13/01 Answer, filed. s/Lee, Esq.
12/20/01 Plaintiff's Motion for a Trial on the Facts, filed. s/Levy, Esq.
Proposed Order, filed.
12/31/01 Response to Plaintiff's Motion for Trial on the Facts, filed. s/Lee, Esq.
4/24/02 Letter from attorney Lee requesting that the motion to determine future
course of proceedings be dealt with on 5/7/02 along with the other motion.
5/2/02 Entry of Appearance, filed. s/Bickerman, Esq.
Certificate of Service, filed. s/Bickerman, Esq.
5/8/02 Agreement put on record on 5/7/02 with Justice Studstrup, Presiding;
Michael Levey, Esq. for Plaintiff and William Lee, Esq. for Defendants.
~ Electronic Recording Tape 605 Index 4279-4653. Proposed stipulations
and agreements to be prepared and filed by Michael Levey, Esq.
8/7/02 Notification of Discovery Service, filed. s/Lee, TII,.Esq.
Notice to Take Oral Deposition of Lester Jolovitz served on J. Michael
J. Levey, Esq. and Peter B. Bickerman, Esq. on 7/6/02.
10/4/02 Notification of Discovery Service, filed. s/Lee, III, Esq. (filed 10/3/02)
Interrogatories Propounded by Defendants to Plaintiff Request for Productic
of Documents Propounded by Defendants to Plaintiff served on Michael J.
Levey, Esq. on 10/1/02: