Norton v. Town of Long Island

STATE OF MAINE p55. | s 22 SUPERIOR COURT

CUMBERLAND, ss. 6 CIVIL ACTION

> % ay Sit {2 DOCKET NO. RE-02-014

laf ous iV BR r . ce

JOHN NORTON, SR.,

Plaintiff,

v. ORDER ON DEFENDANT'S

MOTION TO DISMISS

TOWN OF LONG ISLAND, MAINE, « . :

DONALDE :

Defendant. : LAW. . ;

JUL 2

ORDER !

The underlying complaint arises out of the plaintiff's assertion that the Town

of Long Island is impermissibly allowing and encouraging the public use of: (1)

those portions of two roads (Island Avenue and Marginal Street) that are located on

the plaintiff’s land, and (2) submerged wetlands located adjacent to the parcel the

plaintiff obtained from the United States in 1964. The defendant seeks dismissal of

the entire cause of action based on an assertion that the plaintiff’s claims are barred

under the doctrine of res judicata. The defendant grounds this assertion in two

previous lawsuits brought by the plaintiff with respect to the Town’s treatment of

the subject property.’

Prior Lawsuits

In the first lawsuit (United States District Court Civ. No. 88-0147-P), the

plaintiff asserted that the defendant violated his procedural and substantive due

1 Although the previous cause of action was brought against the City of

Portland, both parties concede that the Town of Long Island and the City of Portland

are the same parties for purposes of res judicata analysis.

STATE OF MAINE 2 i SUPERIOR COURT

CUMBERLAND, ss. cE reise CIVIL ACTION

OCeEENO Rema

MMAR -9 Ag 29 EC CM 419 2005

JOHN NORTON ~ DEN Oe iA

Plaintiff

v. ORDER ON DEFENDANT STATE OF

MAINE’S MOTION TO DISMISS &

DEFENDANT TOWN OF LONG

ISLAND’S MOTION FOR JUDGMENT

TOWN OF LONG ISLAND, and ON THE PLEADINGS

STATE OF MAINE

Defendants.

Before the court is a Motion to Dismiss made by Defendant State of Maine

(“State”) and a Motion for Judgment on the Pleadings made by Defendant Town of

yes, $F men “T

Long Island (“Town”). CORALEE, pane a

LA ae

FACTUAL BACKGROUND

way 12 2004

Plaintiff's complaint alleges the following: Plaintiff owns a 5.6 acre parcel of land

with buildings and improvements located on Long Island (“the Norton property”). The

Norton property was a portion of a Naval Fuel Annex of the United States Navy. The

United States acquired the property during World War II through eminent domain

proceedings resulting in a judgment entered March 31, 1943 by United States District

Court Judge John A. Peters. The United States also obtained the State’s interest in the

submerged land adjacent to the Norton property in 1944, as reflected in a judgment

entered on April 6, 1945.

After the war, the Norton property was deeded to Plaintiff and Peter K. Lannon

via quitclaim deeds from the General Services Administration (“GSA”) dated February

14, 1964 and May 28, 1965. Mr. Lannon subsequently deeded his property to Plaintiff

on September 5, 1967. On October 22, 1986, via a quitclaim deed, the United States

conveyed to Plaintiff and Plaintiff’s now deceased wife a pier in the submerged lands

designated as “Pier H” and an adjacent breakwater, which were part of the Naval Fuel

Annex. The Navy states in the 1986 deed that it had intended to convey the same in the

1964 and 1965 deeds. In addition, on April 18, 1989, the United States quitclaimed its

interest in the submerged lands adjacent to the property previously conveyed to

Plaintiff. The Plaintiff refers to the submerged lands in these deeds as “the Small Boat

Pool.”

Plaintiff alleges that the Town of Long Island (“Town”) has asserted interests in

the Small Boat Pool adverse to his ownership interests. In addition, Plaintiff alleges that

the State may in the future assert an interest in the Small Boat Pool adverse to his

ownership interests. Plaintiff is bringing this action to quiet title. He prays that the

court enjoin the Town and State from utilizing the Small Boat Pool or aiding or

encouraging any public use thereof. In addition, Plaintiff seeks judgment against the

Town in a sum to fairly compensate him for his losses, as well as for other relief as it

may deem just and equitable.

DISCUSSION

Sovereign Immunity

Defendants assert that Maine’s sovereign immunity bars Plaintiff's claim against

the State. There are no Maine Statutes or Court Rules declaring that the State is

immune from quiet title actions. Similarly, Maine’s Constitution does not exempt the

state from such actions. Finally, the Law Court and Superior Court cases cited by

Defendant do not support this proposition.

The State relies primarily on Cushing v. Cohen to argue that sovereign

immunity is applicable to bar suits where title to real estate is at issue. See Cushing v.

Cohen, 420 A.2d 919 (Me. 1980). Cushing involved the rights of owners of land in

certain unorganized townships to cut timber on public lots. Id. at 921. The suit was

originally brought against state officers, but not against the state of Maine. Id. After

recognizing that the State had a sovereign interest in the public lots, see id. at 923, the

case was remanded to the lower court for a determination of whether (1) the state was

an indispensable party, (2) the attorney general abandoned the sovereign’s immunity,

and (3) the action was precluded by sovereign immunity. Id, at 927-28. Although the

Cushing case was appealed a second time, the Law Court never reached the issue of

whether the state’s assertion of title to the public lots automatically exempted it from

suit. Instead, the legislature, by resolve, expressly gave consent to the suit before the

Law Court undertook review of the matter. See Cushing v. State, 434 A.2d 486, 489

(Me. 1981). Hence, contrary to the Defendant's assertion, Cushing does not stand for

the proposition that sovereign immunity bars all quiet title actions. See Bell v. Town of

Wells, 510 A.2d 509, 519 n.19 (1986) (“We note that “Cushing did not hold that

sovereign immunity bars a quiet title action”).

In addition, the Defendants rely on several Superior Court decisions, all of which

cite to Cushing, to support their position. See Welch v. State, RE-02-066 (Cum. Cty. July

21, 2003) (Warren, J.); Bohnson v. Hamblet, et al., CV-81-1324 (Cum. Cty. Feb. 13, 1985)

(Wernick, J.); Alexander v. State, et al, CV-89-429 (Cum. Cty. Sept. 19, 1990) (Fritzsche,

J.). However, in the present action, unlike in the Superior Court cases cited by

Defendants, there is a legitimate dispute about whether the State presumptively holds

title to the submerged lands. Here, although the State claims it holds title to the

submerged lands under the Federal Submerged Land Act (43 U.S.C.S. §§ 1301-1315) and

Maine’s submerged land statute (1 M.R.S.A. § 3), Plaintiff claims that the submerged

land in question is excepted from these statutes because it was conveyed to him by the

federal government after the federal government obtained the land through a 1943

eminent domain proceeding.’ The court finds that the parties’ dispute over who

presumptively holds title to the land in question critical, and that the existence of such a

dispute warrants a distinction from other Superior Court decisions on point.

Finally, the Defendants argue that the State is entitled to sovereign immunity by

distinguishing the present action from Bell v. Town of Wells, 510 A.2d 509. The

Defendants argue that whereas in Bel] the State was not entitled to sovereign immunity

because its interest was a mere “public trust interest” over privately owned intertidal

_ land, here, the State is entitled to sovereign immunity because it is asserting its title to

the submerged lands. While Bell does stand for the proposition that the Law Court

won't allow the State to simply assert an interest “at its whim” to prevent a quiet title

action, see id. at 518, Bell does not stand for the opposite conclusion, viz: that where the

State asserts title, it is entitled to sovereign immunity.

Based on the foregoing analysis, the court denies the State’s motion to dismiss on

the ground of sovereign immunity.

Rule 12(b)(6)

A motion to dismiss for failure to state a claim under M. R. Civ. P. 12(b)(6) tests

the legal sufficiency of the complaint. Plimpton v. Gerard, 668 A.2d 882, 885 (Me. 1995).

Dismissal under Rule 12(b)(6) is proper only when the non-moving party fails to state a

claim for which relief may be granted. M. R. Civ. P. 12(b)(6). When ruling on the

motion, the court must view 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

' The Federal Submerged Lands Act opressly exempts from the Act “all lands acquired by the United States by eminent

domain proceedings.” See 43 U.S.C.S. § 1313 (2004).

would entitle the plaintiff to relief pursuant to some legal theory.” In re Wage Payment

Litigation, 2000 ME 162, { 3, 759 A.2d 217, 220.

Defendant State asserts that the present action should be dismissed pursuant to

Rule 12(b)(6) because Plaintiffs complaint does not comply with Maine’s quiet title law

as outlined in 14 M.R.S.A. §§ 6651-6658 and M. R. Civ. P. 80A and, hence, Plaintiff has

failed to state a claim upon which relief can be granted” Specifically, Defendant argues

that Plaintiffs complaint fails to describe the land claimed by Plaintiff with sufficient

particularity and fails to establish the Plaintiffs uninterrupted possession of the land for

four or more years.

In real actions, including actions to quiet title, “Rule 80A(c) requires a clear

description of the demanded real estate for the purpose of ‘providing a defendant with

notice of what lands are involved to such a reasonable degree of certainty that he may

identify the property at issue and protect his interests by proper pleading or disclaimer

at

as the case may be.

Lewien v. Cohen, 432 A.2d 800, 802 (Me. 1981) (quoting Sargent v.

Coolidge, Me., 399 A.2d 1333, 1338-39 (1979); Accord, Merrow v. Norwav Village Corp.,

118 Me. 352, 354, 108 A. 325, 326 (1919). In the present case, the submerged land

claimed by Plaintiff is described in Plaintiff's complaint as “submerged lands located

adjacent to the parcel he obtained from the United States in 1964.” See Compl. J 13 &

{ 20. The land is also described in similarly vague language in Plaintiff’s Exhibits E

through I. See Pl.’s Exs. E, F, G, H, and I. Accordingly, the court finds that Plaintiff’s

complaint fails to clearly describe the demanded real estate.

* In addition, Defendant asserts that if Plaintiff seeks relief under Maine’s Declaratory Judgment Act (14 M.R.S.A. §§

5951-63), Plaintiffs complaint still fails to comply with the applicable laws and rules and accordingly, has failed to

state a claim upon which relief may be pranted. Because the Plaintiffs complaint only seeks to quiet title, and does not

seek a declaratory judgment, the court does not address this argument.

In addition, Defendant correctly asserts that in quiet title actions, 14 M.R.S.A. §

6655 (2003) requires that Plaintiff establish that he has been in uninterrupted possession

of the said land for four or more years. Although Defendant’s complaint discusses

ownership of the said land for the requisite period, it does not specifically assert

uninterrupted possession of the land as required by statute.

While the court agrees that Plaintiff's complaint should have been pled with

more particularity, it elects not to dismiss Plaintiff's complaint on this ground. At the

January 13, 2004 hearing on this matter, Plaintiff expressed a willingness to amend his

complaint to address these procedural deficiencies. Accordingly, the court grants

Plaintiff leave to amend his Complaint under MLR. Civ. P. 15.

Motion for Judgment on the Pleadings

The issues raised by the Defendant Town of Long Island in its Motion for

Judgment on the Pleadings are identical to those raised by Defendant State in its Motion

to Dismiss and have been addressed above. Consequently, the Town’s Motion for

Judgment on the Pleadings is denied.

DECISION

Pursuant to M. R. Civ. P. 79(a), the Clerk is directed to enter this Order on the

Civil Docket by a notation incorporating it by reference and the entry is:

Defendant State’s Motion to Dismiss is DENIED;

Defendant Town’s Motion for Judgment on the Pleadings is DENIED; and

Plaintiff's request for leave to oe his complaint is GRANTED.

Dated at Portland, Maine this 3th day of March 2004.

Robert E. Crowley ~~

Justice, Superior Court

JOHN NORTON SR. - PLAINTIFF

38 PROVIDENCE AVENUE

SOUTH PORTLAND ME 04106

Attorney for: JOHN NORTON SR.

JOHN S CAMPBELL

CAMPBELL & ASSOCIATES

183 MIDDLE STREET, 4TH FLOOR

PO BOX 369

PORTLAND ME 04112-0369

Vs

TOWN OF LONG ISLAND, MAINE - DEFENDANT

Attorney for: TOWN OF LONG ISLAND, MAINE

ROBERT CRAWFORD

BERNSTEIN SHUR SAWYER & NELSON

100 MIDDLE ST

PO BOX 9729

PORTLAND ME 04104-5029

Attorney for: TOWN OF LONG ISLAND, MAINE

GREGORY CUNNINGHAM

BERNSTEIN SHUR SAWYER & NELSON

100 MIDDLE ST

PO BOX 9729

PORTLAND ME 04104-5029

Attorney for: TOWN OF LONG ISLAND, MAINE

TODD HOLBROOK

BERNSTEIN SHUR SAWYER & NELSON

100 MIDDLE ST

PO BOX 9729

PORTLAND ME 04104-5029

Attorney for: TOWN OF LONG ISLAND, MAINE

JOHN WHITMAN

RICHARDSON WHITMAN LARGE & BADGER

465 CONGRESS ST, SUITE 900

PO BOX 9545

PORTLAND ME 04112-9545

Attorney for: TOWN OF LONG ISLAND, MAINE

CAROL EISENBERG

RICHARDSON WHITMAN LARGE & BADGER

465 CONGRESS ST, SUITE 900

PO BOX 9545

PORTLAND ME 04112-9545

Attorney for: TOWN OF LONG ISLAND, MAINE

PAUL R JOHNSON

RICHARDSON WHITMAN LARGE & BADGER

465 CONGRESS ST, SUITE 900

PO BOX 9545

PORTLAND ME 04112-9545

Page

1

of 14

SUPERIOR COURT

CUMBERLAND, ss.

Docket No PORSC-RE-2002-00014

DOCKET RECORD

Printed on:

03/09/2004

STATE OF MAINE

Attorney for:

DENNIS HARNISH

OFFICE OF THE ATTORNEY GENERAL

6 STATE HOUSE STATION

AUGUSTA ME

Filing Document:

Filing Date:

04333-0006

Docket Events:

02/08/2002

02/08/2002:

02/08/2002

03/04/2002

03/04/2002

03/04/2002

03/04/2002

03/07/2002

03/07/2002

03/07/2002

FILING DOCUMENT - COMPLAINT FILED ON 02/08/2002

COMPLAINT

02/08/2002

- DEFENDANT

STATE OF MAINE

WITH EXHIBITS A-I.

Party(s):

ATTORNEY -

JOHN NORTON SR.

RETAINED ENTERED ON 02/08/2002

Plaintiff's Attorney: JOHN S CAMPBELL

Party(s):

NOTE - OTHER CASE NOTE ENTERED ON 02/08/2002

TOWN OF LONG ISLAND, MAINE

Minor Case Type: QUIET TITLE

PORSC-RE-2002-00014

DOCKET RECORD

ACCEPTANCE OF SERVICE OF SUMMONS AND COMPLAINT BY GREG CUNNINGHAM, ESQ. ON BEHALF OF TOWN

OF LONG ISLAND, MAINE FILED.

Party(s):

MOTION - MOTION TO DISMISS FILED ON 03/04/2002

TOWN OF LONG ISLAND, MAINE

DEFENDANT TOWN OF LONG ISLAND'S MOTION TO DISMISS (MEMORANDUM INCORPORATED) WITH EXHIBITS

1 - 3, REQUEST FOR HEARING, AND PROPOSED ORDER.

Party(s):

ATTORNEY -

TOWN OF LONG ISLAND, MAINE

RETAINED ENTERED ON 03/04/2002

Defendant's Attorney: ROBERT CRAWFORD

Party(s):

ATTORNEY -

‘

TOWN OF LONG ISLAND, MAINE

RETAINED ENTERED ON 03/04/2002

Defendant's Attorney: GREGORY CUNNINGHAM

Party(s):

ATTORNEY -

TOWN OF LONG ISLAND, MAINE

RETAINED ENTERED ON 03/04/2002

Defendant's Attorney: TODD HOLBROOK

Party(s):

RESPONSIVE

OF TOWN OF

Party(s):

ATTORNEY -

TOWN OF LONG ISLAND, MAINE

PLEADING - ANSWER FILED ON 03/07/2002

LONG ISLAND MAINE.

TOWN OF LONG ISLAND, MAINE

RETAINED ENTERED ON 03/07/2002

Defendant's Attorney: JOHN WHITMAN

Party(s):

ATTORNEY -

TOWN OF LONG ISLAND, MAINE

RETAINED ENTERED ON 03/07/2002

Defendant's Attorney: CAROL EISENBERG

“Page 2 of 14

Printed on:

03/09/2004

process rights, and his right to equal protection, in failing to enforce the law as to the

public use of Island Avenue.* The United States District Court for the District of

Maine (Carter, J.) approved the Recommended Decision of the Magistrate and

granted summary judgment in favor of the defendant. See Def.’s Ex. 1.

In the second lawsuit (United States District Court Civ. No. 96-250-P-H), the

plaintiff again complained about the Town’s improper use, and its encouragement

of public use, of Island Avenue and Marginal Street, and requested, among other

things, that the court order the Town to acknowledge that Island Avenue and

Marginal Street are not public ways. The United States District Court for the District

of Maine (Hornby, J.) granted summary judgment in favor of the defendant, and the

United States Court of Appeals for the First Circuit affirmed on the ground of issue

preclusion because “[iJn a prior suit, the appellant was given the opportunity to fully

litigate whether his claims are cognizable under the Civil Rights Act [and t]he

judgment against the appellant in the prior suit bars him from re-litigating the issue

here.” See Def.’s Exs. 2-3.

Res Judicata

Res judicata, or claim preclusion, bars relitigation of a claim if “(1) the same

parties or their privies are involved in both actions; (2) a valid final judgment was

entered in the prior action; and (3) the matters presented for decision in the second

action were, or might have been litigated in the first action.” Camps

2 Although the public’s use of Marginal Street was mentioned, the court

determined, and the plaintiff apparently conceded that his complaint was limited to

unauthorized parking conducted on Island Avenue.

Newfound/Owatonna Corp. v. Town of Harrison, 1998 ME 20, J 11, 705 A.2d 1109,

1113. Maine applies a transactional test to “determine whether the matters

presented for decision in the instant action were or might have been litigated in the

prior action.” Id. The Law Court has written:

the measure of a cause of action is the aggregate of connected operative

facts that can be handled together conveniently for purposes of trial. A

prior judgment bars a later suit arising out [of] the same aggregate

operative facts even though the second suit relies on a legal theory not

advanced in the first case, seeks different relief than that sought in the

first case, and involves evidence different from the evidence relevant

to the first case.

Id. (quoting Connecticut Nat'l Bank v. Kendall, 617 A.2d 544, 547 (Me. 1992)).

Discussion

In the instant lawsuit, the plaintiff seeks to quiet title to Island Avenue and

Marginal Street (Count I); to quiet title to the submerged lands (Count II); and an

award of damages (Count III). As to Count I, the plaintiff complains that the

defendant has encouraged public use of Island Avenue and Marginal Street, and has

used Island Avenue and Marginal Street as public ways. Complaint 1 7-8. These

are the same complaints asserted in the first lawsuit. See Def.’s Ex. 1.2 The plaintiff

argues that the current action does not arise out of the same operative facts because

the damage claim is limited to those damages caused by actions occurring after both

of the previous lawsuits. However, if the court accepted the plaintiff’s argument,

the “plaintiff [could] bring successive claims of [trespass] after repeated holdings by

3 The plaintiff asserts that res judicata is inapplicable to bar the current cause

of action because the United States District Court abstained from deciding the issue

of title in the first lawsuit. The court finds this assertion unpersuasive.

3

the courts that the activities at issue did not constitute a [trespass], merely because

the activities continued unchanged after each such finding.” Barth v. Town of

Sanford, 2001 WL 136157 (D. Me. 2001). The point is this - in the original lawsuit the

plaintiff complained that the defendant encouraged public use of Marginal Street

and Island Avenue, which were alleged to be non-public’; in the second lawsuit, the

plaintiff complained that the defendant encouraged public use of Marginal Street

and Island Avenue, which were alleged to be non-public; and in the present action,

the plaintiff is complaining that the defendant encouraged public use of Marginal

Street and Island Avenue, which again are alleged to be non-public. In the first

lawsuit, the plaintiff alleged that the defendant’s encouragement of public use

violated his due process and equal protection rights; he “might have” brought a

cause of action to quiet title at that time because there was a dispute as to whether

there was a public easement over Island Avenue and Marginal Street. The

combination of claims would have been easy for a court to handle in one case

because the issues of title and public rights would have been preliminary

determinations in the due process and equal protection claims - that is, if the public

had a right to use the ways, then the plaintiff had no constitutional claims.

Furthermore, the plaintiff has not alleged an increase in use that might exceed the

4 The plaintiff specifically alleges that the United States reserved an easement,

but that the easement extends only to use by the United States and does not cause

Island Avenue and Marginal Street to become public ways. Thus, the plaintiff

argues, the public has no right to use these ways.

4

public use permitted under any public easement.° The plaintiff had the opportunity

to quiet title during the first cause of action, and had he done so, would be permitted

to sue for continuing trespasses. However, having failed to assert the cause of

6

action, he has lost the right to do so.° Accordingly, Count I of the plaintiff’s

complaint is dismissed.

The defendant argues that the doctrine of res judicata also bars Count II, in

which the plaintiff seeks to quiet title to the submerged lands. The exhibits

provided by the defendant that relate to the previous lawsuits do not demonstrate

that the defendant’s conduct with respect to the submerged lands was at issue in

either of the previous cases. In fact, the exhibits to not demonstrate that the

defendant was engaging in any conduct with respect to the submerged lands.’

5 Such an increase in use might take the present controversy out of the “same

operative facts” as the previous lawsuits, and thus would arguably fall outside the

bounds of res judicata.

6 This inability to quiet title is understandably frustrating to the plaintiff, who

now must wait for a change in circumstances to create a new set of operative facts

before he can bring a cause of action to fully settle the scope of public rights:

associated with Island Avenue and Marginal Street. However, the court supposes

that most parties barred from litigating a seemingly valid cause of action would be

similarly frustrated. The doctrines of res judicata and collateral estoppel are

important in furthering the interests of judicial economy and the finality of

litigation, and cannot be ignored merely because a party, who was fully capable of

raising issues in a previous case, is inconvenienced.

? The defendant seems to suggest that the plaintiff could have asked the court

in the original proceeding to determine ownership of the submerged lands. This

may be true, however, it is not determinative of the question at hand. The

defendant must establish that the present cause of action arises out of the same set of

operative facts as the previous lawsuit. To accept the defendant's argument would

expand the bar of res judicata beyond all reason. For instance, in a case where two

Accordingly, the defendant has not established that Count II is barred under the

doctrine of res judicata. The defendant’s motion to dismiss Count II is denied.

properties abut on two boundaries - the west and north; if there is a dispute about

the westerly line, the defendant argues that the complaining property owner should

also bring suit to decide where the northerly line lies. If the complained of activity

only affects the westerly line, a subsequent complaint regarding the northerly line

would not arise out of the same operative facts. The court is not convinced that the

complaining party could even ask the court to make a ruling as to the northerly line

unless there were an actual case or controversy with respect to that line.

6

The entry is

The defendant’s motion to dismiss Count I is GRANTED;

The defendant’s motion to dismiss Count II is DENIED; and

The defendant’s motion to dismiss Count III is GRANTED to the extent the

plaintiff seeks damages associated with Count I.

Dated at Portland, Maine this 2nd day of July 2002.

Lb Mélak

Robert E. Crowley

Justice, Superior Court

JOHN NORTON SR. - PLAINTIFF

38 PROVIDENCE AVENUE

SOUTH PORTLAND ME 04106

Attorney for: JOHN NORTON SR.

JOHN S CAMPBELL

CAMPBELL & MCARDLE PA

PO BOX 369

183 MIDDLE ST, 4TH FLOOR

PORTLAND ME 04112-0369

vs

TOWN OF LONG ISLAND, MAINE - DEFENDANT

Attorney for: TOWN OF LONG ISLAND,

ROBERT CRAWFORD

BERNSTEIN SHUR SAWYER & NELSON

100 MIDDLE ST

PO BOX 9729

PORTLAND ME 04104-5029

Attorney for: TOWN OF LONG ISLAND,

GREGORY CUNNINGHAM /

BERNSTEIN SHUR SAWYER & NELSON

100 MIDDLE ST

PO BOX 9729

PORTLAND ME 04104-5029

Attorney for: TOWN OF LONG ISLAND,

TODD HOLBROOK

BERNSTEIN SHUR SAWYER & NELSON

100 MIDDLE ST

PO BOX 9729

PORTLAND ME 04104-5029

Attorney for: TOWN OF LONG ISLAND,

JOHN WHITMAN

RICHARDSON WHITMAN LARGE & BADGER

465 CONGRESS ST, SUITE 900

PO BOX 9545

PORTLAND ME 04112-9545

Attorney for: TOWN OF LONG ISLAND,

CAROL EISENBERG

RICHARDSON WHITMAN LARGE & BADGER

465 CONGRESS ST, SUITE 900

PO BOX 9545

PORTLAND ME 04112-9545

Filing Document: COMPLAINT

Filing Date: 02/08/2002

Docket Events:

MAINE

MAINE

MAINE

MAINE

MAINE

Minor Case Type:

02/08/2002 FILING DOCUMENT - COMPLAINT FILED ON 02/08/2002

WITH EXHIBITS A-I.

Page

1 of 5

SUPERIOR COURT

CUMBERLAND,

Docket No

ss.

PORSC-RE-2002-00014

DOCKET RECORD

QUIET TITLE

Printed on: 07/03/2002

STATE OF MAINE SUPERIOR COURT

CUMBERLAND, ss. CIVIL ACTION

DOCKET NO. RE-02-014 \/ |

JOHN NORTON Hoy 2> - 3049 REC -CUMN@ % leer

Plaintiff

Vv. ORDER ON DEFENDANT

TOWN OF LONG ISLAND’S

/ MOTION FOR SUMMARY

TOWN OF LONG ISLAND, and oy mene JUDGMENT ON COUNT II

STATE OF MAINE poe OF PLAINTIFF’S COMPLAINT

Defendants. \re<

Jun 8 7008

Before the court is the Town of Long Island’s motion for summary judgment on

Plaintiff's damages claim (Count III).

FACTUAL BACKGROUND

Plaintiff's complaint alleges the following: Plaintiff owns a 5.6 acre parcel of land

with buildings and improvements located on Long Island (“the Norton property”). The

Norton property was a portion of a Naval Fuel Annex of the United States Navy. The

United States acquired the property during World War II through eminent domain

proceedings resulting in a judgment entered March 31, 1943 by United States District

Court Judge John A. Peters. The United States also obtained the State’s interest in the

submerged land adjacent to the Norton property in 1944, as reflected in a judgment

entered on April 6, 1945.

After the war, the Norton property was deeded to Plaintiff and Peter K. Lannon

via quitclaim deeds from the General Services Administration (“GSA”) dated February

14, 1964 and May 28, 1965. Mr. Lannon subsequently deeded his property to Plaintiff

on September 5, 1967. On October 22, 1986, via a quitclaim deed, the United States

conveyed to Plaintiff and Plaintiff's now deceased wife a pier in the submerged lands

designated as “Pier H” and an adjacent breakwater, which were part of the Naval Fuel

Annex. The Navy states in the 1986 deed that it had intended to convey the same in the

1964 and 1965 deeds. In addition, on April 18, 1989, the United States quitclaimed its

interest in the submerged lands adjacent to the property previously conveyed to

Plaintiff.

Plaintiff alleges that the Town of Long Island (“Town”) has asserted interests in

the submerged lands adverse to his ownership interests. In Count III of his Complaint,

Plaintiff seeks damages from the Town related to its use of his submerged lands.’

Although Count III of his complaint does not explicitly state the grounds on which he

seeks damages, the Count states that Defendant’s actions have caused Plaintiff losses

and that Defendant has been unjustly enriched through the use of Plaintiff's property

without just compensation.

DISCUSSION

I. Standard of Review

Summary judgment is proper where there is no genuine issue of material fact.

Rogers v. Jackson, 2002 ME 140, 9 5, 804 A.2d 379, 380. In considering a motion for

summary judgment, the court gives the party opposing summary judgment the benefit

of any inferences that might reasonably be drawn from the facts presented. Curtis v.

Porter, 2001 ME 158, 9, 784 A.2d 18, 22. When the defendant seeks summary

judgment, it bears the burden of showing that the evidence fails to establish a prima

facie case for each element of the plaintiffs cause of action. Stewart v. Aldrich, 2002 ME

16, { 8, 788 A.2d 603, 606; Corey v. Norman Hansen & DeTroy et al. 1999 ME 196, { 9,

* The Court notes that Count I of Plaintiff’s Amended Complaint, which sought to quiet title to

certain roadways on Plaintiffs land, has already been dismissed on res judicata grounds. See

Order on Def.’s Mot. to Dismiss (July 2, 2002). That order expressly dismissed damages claims

742 A.2d 933, 938. “A judgment as a matter of law in a defendant’s favor is proper

when any jury verdict for the plaintiff would be based on conjecture or speculation.”

Champagne v. Mid-Maine Med. Ctr., et al., 1998 ME 87, 7 9, 711 A.2d 842, 845.

Il. Compliance M.R. CIV. P. 56(h)

Preliminarily, the court notes that many of the statements of material facts

submitted by Defendant on December 23, 2003 fail to comply with M.R. Civ. P 56(h).

See Def. Town of Long Island’s Statement of Material Facts in Support of Motion for

Partial Summ. J. (“SMF”) ¥ 1, 2, 3, 4, 5, 6, 7, 8, 11, 18 & 19, Specifically, a number of

Defendant’s statements either in whole or in part are not accompanied by a specific

record citation, see SMF { 2, 3, 4, 5, 8, 11 & 19, or cite to record material that does not

support the statements made. See SMF { 6, 7, 18; see also MLR. Civ. P. 56(h)(4) (stating

that the “court may disregard any statement of fact not supported by a specific citation

to record material”); Doyle v. Dep't of Human Servs., 2003 ME 61, J 12, 824 A.2d 48, 53

(holding that statements of material facts must contain specific record references). In

addition, Defendant’s record citation for its first statement of material fact is overly

broad. See M.R. Civ. P. 56(h)(4) (“An assertion of fact set forth in a statement of

material facts shall be followed by a citation to the specific page or paragraph of

identified record material supporting the assertion).

Defendant’s argument that there is no evidence to support these statements

because no evidence exists is unavailing. Affidavits and deposition testimony could

have been used to support the alleged statements. For example, in SMF { 3, Defendant

asserts: “Plaintiff has not complied with the notice provisions of the Maine Tort Claims

Act. He has not alleged such compliance, and has no evidence that he provided the

arising out of the use of the roadways. Since Plaintiff has pled no other causes of action seeking

damages, Plaintiff's damage claim applies only to damages arising out of the submerged lands.

to

requisite notice to the Town within 180 days of the accrual of his causes of action.” This

statement could have been supported by an affidavit from an appropriate Town official.

Accordingly, SMF {{ 1, 2, 3, 4, & 5 in their entirety, and parts of SMF {{ 6, 7, 8,

11, 18 & 19, will not be considered by the court in its review of Defendant's motion. See

MR. Civ. P. 56(h)(1); Doyle, 2003 ME 61, { 10-11, 824 A.2d at 52-53 (holding that the

court need not consider statements of material facts that do not comply with Rule 56).

Ill. Damages for Regulatory Taking

Both the Constitution of the United States and the Maine Constitution prohibit

uncompensated takings by the government. See Me. Const. art. I, § 21; U.S. Const.

Amend. V. Maine’s Constitution provides that “[p]rivate property shall not be taken

for public uses without just compensation; nor unless the public exigencies require it.”

Me. Const. art. I, § 21. Similarly, the Fifth Amendment of the United States Constitution

prohibits the taking of private property “for public use without just compensation.”

U.S. Const. Amend. V. States are subject to the Fifth Amendment via the incorporation

clause of the Fourteenth Amendment. See Dolan v. City of Tigard, 512 U.S. 374 (1994).

Regulations authorizing physical occupation of a person’s property, no matter

how minor, require compensation. Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1015

(1992). To determine whether a regulatory taking has occurred, both the United States

Supreme Court and the Maine Law Court look at the following three factors: (1) the

economic impact of the regulation on the claimant (2) the extent to which the regulation

has interfered with distinct investment-backed expectations; and (3) the character of the

governmental action. See Daley v. Comm’r, Dep't of Marine Res., 1997 ME 183, J 7, 698

A.2d 1053, 1056, n.7 (citing Connolly v. Pension Benefit Guar. Corp., 475 U.S. 211, 224-25

(1986)).

In the present case, Plaintiff claims that the Town’s regulation of his submerged

lands amounts to a regulatory taking and entitles him to damages under the United

States and Maine Constitutions. Defendant argues that Plaintiff has failed to show that

anyone acting in an official capacity for the Town has taken any of his submerged lands

for a public use, and hence, Plaintiff is not entitled to pursue his constitutional damages

claims. See generally Michaud v. City of Bangor, 196 A.2d 106 (Me. 1963). However,

Plaintiff's opposing statement of material facts establishes that the Town’s

Harbormaster, acting in his official capacity, told people that they had the right to moor

their boats on the submerged lands. See OSME { 12. In addition, Plaintiff's opposing

statement of material facts establishes that several of the Town Selectmen have asserted

the right to control the submerged lands. See OSMF 4 6. These statements create a

genuine issue of material fact as to whether there was a regulatory taking by

individuals who were acting in their official capacities as agents for the town, as well as

whether Plaintiff is entitled to damages for a regulatory taking of his property.

Accordingly, Defendant is not granted summary judgment on any damages

claims brought under the theory that the Town’s regulation of his property amounts to

a taking under Maine and United States Constitutions.

IV. Maine Tort Claims Act

Defendant asserts that any claim for damages under the Maine Tort Claims Act

must be dismissed for the following reasons: (1) the Town has immunity under the Act;

(2) the Plaintiff has failed to plead, and has set forth no evidence of compliance with the

notice provisions of the Act; (3) the Act expressly prohibits Plaintiff's claims; and (4) the

claims are barred by the applicable statute of limitations.

nn

Town's Immunity

The Maine Tort Claims Act governs all tort claims against any governmental

entity, including all political subdivisions such as the Town of Long Island. 14 M.R.S. §

8102(3) (2003). Under the Act, all governmental entities are immune from suit on any

and all tort claims seeking recovery of damages unless immunity is removed by one of

the exceptions to absolute immunity. 14 M.R.S. § 8103 (2003). The exceptions to

absolute immunity are as follows: (1) the ownership, maintenance or use of vehicles; (2)

public buildings; (3) discharge of pollutants; and (4) road construction, street cleaning,

or repair. 14 M.RS. § 8104-A (2003).

In the case at bar, based on the statements of material facts before the court,

Defendant correctly asserts that the Town is immune from any tort claims brought by

Plaintiff. None of the alleged acts of the Town or its officials falls under any of the four

exceptions. Accordingly, Defendant is entitled to summary judgment on all tort-based

damages claims.

Compliance With Notice Provisions, Express Prohibition of Plaintiff's Claims, Statute of

Limitations

Given that the court has determined that Defendant is entitled to summary

judgment on all tort-based damages claims, it does not reach Defendant’s additional

arguments for barring Plaintiff’s damages claims under the Maine Tort Claims Act.

DECISION

Pursuant to M. R. Civ. P. 79(a), the Clerk is directed to enter this Order on the

Civil Docket by a notation incorporating it by reference and the entry is:

The Town’s Motion for Summary Judgment on Plaintiff's Count III claim for

damages pursuant to a regulatory takings theory is DENIED.

The Town’s Motion for Summary Judgment on Plaintiff’s Count III claim for

tort-related damages is GRANTED.

Dated at Portland, Maine this 26th day of May 2004.

LALA

“ Robert E. Crowley

Justice, Superior Court

.

JOHN NORTON JR. - PLAINTIFF

38 PROVIDENCE AVENUE

SOUTH PORTLAND ME 04106

Attorney for: JOHN NORTON JR.

JOHN S CAMPBELL

CAMPBELL & ASSOCIATES

183 MIDDLE STREET, 4TH FLOOR

PO BOX 369

PORTLAND ME 04112-0369

vs

TOWN OF LONG ISLAND, MAINE - DEFENDANT

Attorney for: TOWN OF LONG ISLAND, MAINE

ROBERT CRAWFORD

BERNSTEIN SHUR SAWYER & NELSON

100 MIDDLE st

PO BOX 9729

PORTLAND ME 04104-5029

Attorney for: TOWN OF LONG ISLAND, MAINE

GREGORY CUNNINGHAM

BERNSTEIN SHUR SAWYER & NELSON

100 MIDDLE st

PO BOX 9729

PORTLAND ME 04104-5029

Attorney for: TOWN OF LONG ISLAND, MAINE

TODD HOLBROOK

BERNSTEIN SHUR SAWYER & NELSON

100 MIDDLE st

PO BOX 9729

PORTLAND ME 04104-5029

Attorney for: TOWN OF LONG ISLAND, MAINE

JOHN WHITMAN

RICHARDSON WHITMAN LARGE & BADGER

465 CONGRESS ST, SUITE 900

PO BOX 9545

PORTLAND ME 04112-9545

Attorney for: TOWN OF LONG ISLAND, MAINE

CAROL EISENBERG

RICHARDSON WHITMAN LARGE & BADGER

465 CONGRESS ST, SUITE 900

PO BOX 9545

PORTLAND ME 04112-9545

Attorney for: TOWN OF LONG ISLAND, MAINE

PAUL R JOHNSON

RICHARDSON WHITMAN LARGE & BADGER

465 CONGRESS ST, SUITE 900

PO BOX 9545

PORTLAND ME 04112-9545

Page

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of 16

SUPERIOR COURT

CUMBERLAND, ss.

Docket No PORSC-RE-2002-00014

DOCKET RECORD

Printed on: 05/26/2004