“Justiciability requires a real and substantial controversy, admitting of specific relief through a judgment of conclusive character.” (citation omitted)
How later courts described this case
- “Justiciability requires a real and substantial controversy, admitting of specific relief through a judgment of conclusive character.” (citation omitted)
- holding that because an initiative may never become effective, the court was not “presented with a concrete, certain, or immediate legal problem”
Written by the judges who cited it.
The opinion
STATE OB MAINE SUPERIOR COURT
CUMBERLAND, ss. CIVIL ACTION
DOCKET NO. CV-02-612
REC CUM~ G/o onoe
BARBARA HATHAWAY, og gs, 0: 1 /?
Plaintiff:"4" duh 7 O ioe
v. ORDER ON DEFENDANT’S
MOTION TO DISMISS
CITY OF PORTLAND, CONN Lana a
Defendant. )
tJUN 16 2003
Defendant’s Motion to Dismiss for failure to exhaust administrative remedies is
before the court. me
FACTUAL BACKGROUND
Plaintiff leases an apartment from a third party at 188 Danforth Street in
Portland, Maine (the Unit). Plaintiff also is the sole shareholder of Winter Danforth
Corp. (WDC), which operates a bed & breakfast establishment at 163 Danforth Street.
WDC is party to a zoning agreement with the City of Portland (the City) that
authorizes a 9-room bed & breakfast and owner accommodations in an otherwise
residentially zoned area. Plaintiff rents the Unit on a nightly or weekly basis to persons
in need of accommodations. WDC also handles some reservations for the Unit. In her
complaint, filed December 4, 2002, Plaintiff, as an individual, seeks a declaratory
judgment stating:
Under the instant circumstances, Plaintiff has not violated the code, and
that Plaintiff's activities do not constitute an extension of WDC’s
operations;
or, in the alternative,
Under the instant circumstances, if Plaintiff should cease having WDC
handle reservations for the Unit and cease advertising the Unit on its
brochure and website, that Plaintiffs rental of the unit will not violate the
code, and that Plaintiff’s rental of the Unit will not constitute an extension
of WDC’s operations.
On December 20, 2002, the Zoning Administrator for the City sent a letter to the
Plaintiff, in her capacity as president of WDC, stating that WDC’s rental of the Unit
constituted: (1) a violation of the terms of the zoning agreement, into which the parties
had entered; and (2) a violation of the City of Portland’s Land Use Code (Code), which
prohibits business uses in an R-6 Zone. The letter notified the Plaintiff of WDC’s
violation and indicated that an appeal of the determination was available pursuant to
§14-471(a) of the Code. On December 24, 2002, the City was served with process in the »
present case. Defendant moves for dismissal due to Plaintiff's failure to exhaust the
administrative remedies below. Defendant contends that because appeal of the
violation lies with Board of Appeals, pursuant to § 14-471 of the Code, that this court
lacks jurisdiction due to Plaintiff's failure to exhaust administrative remedies. Plaintiff
asserts that she, as an individual, is not a party to the administrative proceedings.’
DISCUSSION
A motion to dismiss under M.R. Civ. P. 12(b)(6) tests the legal sufficiency of the
complaint. Seacoast Hangar Condominium II Assoc. v. Martel, 2001 ME 112, 16, 775
A.2d 1166, 1171. In examining the sufficiency of the complaint, the court reviews the
alleged facts as having been admitted and views the complaint "in the light most
favorable to the plaintiff to determine whether it sets forth elements of a cause of action
or alleges facts that would entitle the plaintiff to relief pursuant to some legal theory.”
Id. (quoting New Orleans Tanker Corp. v. Dep't of Transportation, 1999 ME 67, { 3, 778
A.2d 673, 674). Dismissal is appropriate if it appears beyond doubt that the plaintiff is
not entitled to any relief as a matter of law. Id.
“The Declaratory Judgments Act [(the Act)], 14 M.RS.A. §§ 5951-5963 (2003),
does not authorize [a] claim in the absence of injury.” Ten Voters of the City of
' This Order is limited to the rights and obligations of Barbara Hathaway, in her individual
capacity, and the City of Portland. Any determination of the rights or responsibilities of WDC is
2
Biddeford v. City of Biddeford, 2003 ME59,] 7,__ A.2d__ (decided Apr. 25, 2003). The
Law Court has consistently held that the Act may only be invoked when there is a
genuine controversy. Id.; Lewiston Daily Sun v. Sch. Admin. Dist. No. 43, 1999 ME 143,
q 20, 738 A.2d 1239. “A party seeking declaratory relief must establish that his case
constitutes an active dispute of real interests between the litigants."
Randlett_v. Randlett, 401 A.2d 1008, 1011 (Me.1979)(quotations omitted); Halfway.
House, Inc. v. City of Portland, 670 A.2d 1377, 1379(Me. 1996) (“Justiciability requires a
real and substantial controversy, admitting of specific relief through a judgment of
conclusive character.” (citation omitted)).
“A genuine controversy exists if a case is ripe for judicial consideration and
action.” Wagner v. Secretary of State, 663 A.2d 564, 567 (Me. 1995) (holding that because
an initiative may never become effective, the court was not “presented with a concrete,
certain, or immediate legal problem”). “An analysis of the ripeness issue involves two
principal points of focus: the fitness of the issue for judicial decision, and the hardship to
_ the parties of withholding court consideration,” Patrons Oxford Mut. v. Garcia, 1998 ME. .
38, { 4, 707 A.2d 384 (quotation omitted).
In the instant case, Plaintiff alleges that the City of Portland has threatened action
against her as an individual. Compl.{ 16. There is no allegation of an action pending
against the Plaintiff. In fact, Plaintiff acknowledges that she has not been served “with
any notice of violation,” Compl. { 17, and that she “is not a party to the administrative
proceedings,” referencing the letter from the City. Pl.’s Opp’n to Mot. To Dismiss at 5.
Under these facts, taken as true, there is no evidence of an “actual controversy”
between the Plaintiff, as an individual, and the City of Portland that is fit for judicial
decision at this time. Furthermore, there is no evidence of any hardship to be suffered
inappropriate because the corporation is not a party to the action. M.R. Civ. P. 19.
tod
by the Plaintiff, as an individual, arising from withholding consideration of Plaintiff's
claim.
Defendant’s Motion to Dismiss is GRANTED for failure of Plaintiff to state a
claim upon which relief, in the form of a declaratory judgment, may be granted.
The entry is
Defendants’ Motion to Dismiss is GRANTED
Dated at Portland, Maine this 6th day of June, 2003.
Robert E. Crowley ~
Justice, Superior Court
4
BARBARA MATHAWAY - PLAINTIFF
Attorney for: BARBARA HATHAWAY
ROBERT HARK
TROUBH HEISLER & PIAMPIANO
511 CONGRESS ST
PO BOX 9711
PORTLAND ME 04104-5011
vs
CITY OF PORTLAND - DEFENDANT
Attorney for: CITY OF PORTLAND
CHARLES LANE
CITY OF PORTLAND
389 CONGRESS STREET
PORTLAND ME 04101
SUPERIOR COURT
CUMBERLAND, ss.
Docket No PORSC-CV-2002-00612
DOCKET RECORD
Minor Case Type: DECLARATORY JUDGMENT