The opinion
STATE OF MAINE SUPERIOR COURT
CUMBERLAND, ss. CIVIL ACTION
DOCKET NOS AP-04-035
mes AY 27 P 3 33 AP-04-065
tue cit , 4 ¢
EX ap
Francis P. Drake,
Petitioner oa.
Vv. ORDER
City of Portland and
142 Presumpscot, LLC,
Respondants
wee
This case comes before the Court on Plaintiff’s motions for consolidation,
for leave to amend the complaint, for stay, and for orders specifying the future
course of proceedings.
FACTS
Petitioner Francis P. Drake (Petitioner) has filed two 80B appeals of
decisions made by the Respondent City of Portland (the City) regarding site
approval and a building permit issued to Respondent 142 Presumpscot, LLC
(142, LLC). Petitioner owns property at 160 Presumpscot Street. The disputed
business owned by 142, LLC is partly located in a Light Industrial zoning district
and partly located in a Residential zoning district.
I. Petitioner objects to the City’s granting site approval to 142, LLC fora
9,800 foot warehouse addition. Petitioner objected that the site plan’s loading
dock, setback, parking and vehicle use violate the City’s site plan and zoning
ordinances. On June 22, 2004, Petitioner appealed the decision to the City
Planning Board and his appeal was denied. On July 7, 2004, Petitioner then filed
an 80B appeal (CV-04-035) in this Court. On August 13, 2004, this Court ordered
the case remanded after the record below was inadvertently lost. On October 15,
Petitioner ask mend his Complaint to add
mis c
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Court compel action on Petitioner’s appeal regarding the building permit,
described below.
2. Petitioner also objected to the City’s issuing a building permit to 142,
LLC because the proposed loading delivery door, vehicle use, and set back on a
residential side of the property allegedly violate the City’s zoning ordinances.
Although Petitioner sought a hearing in September 2004, it was delayed, first
because of one party’s surgery and then, because the ZBA lacked a quorum. On
November 4, 2004, Petitioner appealed the issuing of the permit before the City’s
Zoning Board of Appeals (ZBA) and his appeal was denied. Petitioner then
brought an 80B appeal of the ZBA’s decision (CV-04-065).
Before the Court are Petitioner’s motions as follows:
a) Petitioner has moved to consolidate his two 80B appeals, one of the site
plan approval and one of the building permit issuance, to which Respondents
object.
b) Petitioner has moved to amend each of his two complaints.
c) Petitioner has moved in each case to specify the future course of
proceedings.
d) Petitioner has moved to stay further construction at 142, LLC pending
the outcome of an appeal to the ZBA.
I. Motion to consolidate.
“a common question of law or fact." Itis within this court's discretion whether to
allow a motion for consolidation. Matetta v. Int’! Harvester Co., 496 A.2d 286, 290-
91 (Me. 1985). “Consolidation of actions involving a common question of law or
fact between the same parties may produce obvious savings” of time and
resources. 1 FIELD, MCKUSICK & WROTH, Maine Civil Practice § 42.4. at p. 586.
Respondents oppose the consolidation, arguing that each appeal concerns the
decision of separate City boards and alleged violations of separate sets of
ordinances.
Here, the two 80B appeals involve identical parties, and pertain to a single
instance of property development. However one appeal is of a decision of the
Planning Board under one set of ordinances and the other, an appeal of the
decision of the Zoning Board of Appeals under another set of ordinances. The
record of each hearing on appeal is separate and the arguments in support of or
in Opposition to the decisions below are also different. Because the two matters
involve separate questions of fact and law, this Court declines to consolidate
them.
Il. Motion to Amend the Complaint
Maine Civil Rule 15 provides that leave to amend pleadings “shall be
freely granted when justice so requires.” M.R. .Civ. P. I5(a). The purpose of
Rule 15 “is to facilitate the disposition of litigation on the merits and to
subordinate the importance of pleading.” AFSCME Council 93 v. Maine Labor
* (a) Consolidation. When actions involving a common question of law or fact are pending
before the court, in the same county or division or a different county or division, it may order a
joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions
consolidated; and it may make such orders concerning proceedings therein as may tend to avoid
unnecessary costs or delay. M.R. Civ. P, 42(a).
Relations Bd., 678 A.2d 591, 592 n1 (Me. 1996)(quotation omitted). The Law Court
has interpreted Rule 15(a) to require “if the moving party is not acting in bad
faith or for delay, the motion will be granted in the absence of undue prejudice.”
Chrysler Credit Corp. v. Bert Cote’s L/A Auto Sales, 1998 ME 53, { 15, 707 A.2d 1311,
1315 (citations omitted). Undue prejudice to the opposing party means
“something more than an increased likelihood of defeat in the lit gation.” Kelly v,
Michaud, 651 A.2d 345, 347 (Me. 1994). However, a motion to amend may also be
denied where the amended complaint would be futile. Glynn v. City of S.
Portland, 640 A.2d 1065, 1067 (Me. 1994). ""Putility'" means that the complaint, as
amended, would fail to state a claim upon which relief could be granted.”
Glassman v. Computervision Corp., 90 F.3d 617, 623 (1st Cir. 1996). In a analysis of
“futility,” the court "applies the same standard of legal sufficiency as in a Rule
12(b)(6) motion." Id. Thus, a “dismissal should only occur when it appears
‘beyond doubt that a plaintiff is entitled to no relief under any set of facts that he
might prove in support of his claim.” McAfee v. Cole, 637 A.2d 463, 465 (Me. 1994)
(quoting Hall v. Bd. of Envtl. Prot., 498 A.2d 260, 266 (Me. 1985)).
Here Petitioner asks to supplement his pleading in the matter of the City’s
site approval decision by the Planning Board (AP-04-035) to include a mandamus
claim compelling the ZBA to hear Petitioner’s appeal of issuance of a building
permit to 142, LLC and to enjoin 142, LLC from further construction pending
that appeal. Because the ZBA heard Petitioner’s appeal in the matter of the
building permit on November 4, 2004, and Petitioner has appealed that decision
(AP-04-065), Petitioner’s motion to supplement the pleadings to add Counts II
and III in (AP-04-035) is moot and should be denied. Similarly, Petitioner's
Motion to Stay construction pending the outcome of the ZBA hearing should,
likewise, be denied.
Petitioner also seeks to amend his pleadings in the matter of the City’s
issuance of the building permit (AP-04-065) to include an independent claim in
nuisance. Respondents argue that Petitioner's claim is futile because no theory of
nuisance applies to these facts.
In Maine, to establish a cause of action for public nuisance, a private
individual “must show that he has ‘suffered therefrom some special and peculiar
damages other and greater than those sustained by the public generally.’”
Charlton v. Town of Oxford, 2001 ME 104, 7 27, 774 A.2d 366, 375 (citing Brown v.
Watson, 47 Me. 161, 162 (1859)). A plaintiff showing special damage may then
bring a cause of action “[n]o matter how inconsiderable the injury.” Id. The
leading Maine decision on the meaning of special damage is Brown v. Watson.
Simmons, Zillman & Gregory, Maine Tort Law § 14.03 at 424. There the Court
found that a defendant who obstructed a public roadway road certainly
interfered with the right of the general public to pass; however, an individual
plaintiff who was blocked from actually passing down the road to go home
suffered “special damage,” and was entitled to bring a public nuisance action. Id.
(citing Brown at 163-64).
Here, Petitioner’s property is located on Grafton Street which is also the
primary means of access to the warehouse. Petitioner alleges in his pleadings
that he suffers special damage from the truck traffic, and from 142, LLC’s failure
to improve the portion of Grafton Street it uses. Taking the facts as alleged in the
pleadings to be true, Petitioner has alleged “damages different from those
suffered by the community” by virtue of his property’s location on Grafton Street
and has sufficiently plead special damages and a cause of action in public
nuisance. Because Petitioner is bringing an independent claim pursuant to MR.
Civ. P. 80B(), Petitioner’s motion to specify the future course of proceedings in
the matter of the building permit (AP-04-065), will likewise be granted.
Petitioner Francis P. Drake’s Motion to Consolidate is hereby DENIED.
Because it is not clearly futile, Petitioner Francis P. Drake’s Motion to
Amend Pleadings in AP-04-065 to add an independent claim for public nuisance
is hereby GRANTED. This Court further GRANTS Petitioner’s Motion to
Specify the Future Course of Proceedings in the matter of that independent
claim.
Because they are moot, Petitioner Francis P. Drake’s Motion to Amend the
Pleadings in the matter of AP-04-035, Petitioner’s Writ and Motion to Stay AP-04-
035, and Petitioner’s Motion to Specify the Future Course of eedings in AP-
04-035 are hereby DENIED. /,
Ly
Date__//U/ wy 27, Loo S fe f
nS () } Justice [Superior Court
11-29-04 Cumberland AP~-04-65
Date Filed Docket No.
County
Action 80B Appeal
FRANCIS P. DRAKE CITY OF PORTLAND and :
142 PRESUMPSCOT, LIMITED LIABILITY COMP
VS.
Plaintiff’s Attorney Defendant’s Attorney
David A. Lourie, Esq. Roy T. Pierce, Esq.
189 Spurwink Avenue One City Center
Cape Elizabeth, ME 04107-9604 PO Box 9546
Portland, Me. 04112-9546
Penny Littel, Esq. City of Portlar
389 Congress St.
Portland, Me. 04101
Date of
Date Filed _7-7-04 CUMBERLAND Docket No. APO4-35
County
Action 80B APPEAL
FRANCIS P. DRAKE
CITY OF PORTLAND
142 PRESUMPSCOT LTD. LIABILITY C
VS,
Plaintiffs Attorney Defendant’s Attorney
David Lourie Esq. Penny Littell, Esq. (City of Portland)
189 SPURWINK AVENUE City of Portland
CAPE ELIZABETH ME 04107-9604 Portland City Hall
389 Congress Street
Portland, ME 04101
207-874-8480
Brenda Buchanan, Esq. (142 Presumscot)
27 Exchange St. Roy Pierce, Esq.
Date of Portland, ME 04101 one City Center
- a | 772-1262, __Portiand, ME 041] 12-
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