The opinion
STATE OF MAINE SUPERIOR COURT
CIVIL ACTION
KENNEBEC, ss. DOCKET NO. AP-05-66
, icSe
A
,, - $/? u, ' $ . ~ . ' ~ ~ 7
/'
JONATHAN BLUMBERG,
Plaintiff
v. SUMMARY JUDGMENT
TOWN OF VASSALBORO, D O N A L D L. GARBRECHT
LAW LIBRARY
Defendant
OCT 1 6 2006
This matter came on for hearing before the court on a variety of motions by the
parties to this appeal of the decision of the Planning Board for the Town of Vassalboro
et al. pursuant to M.R. Civ. P. 80B. The premiere motion, which if granted would render
moot the other motions and dispose of the appeal, is the motion for summary judgment
filed by the Town of Vassalboro. Tlus motion will be considered first.
Procedural Background
Plaintiff Blumberg brought this action naming as defendants Town of Vassalboro
and Paul Morneau in an appeal pursuant to M.R. Civ. P. 80B from the final decision of
the Vassalboro Planning Board. This decision of December 20, 2004, approved the
Mystic fidge Subdivision being developed by defendant Morneau. Defendant Town of
Vassalboro immediately challenged Blumberg's standing to seek this review, arguing
that he is not an abutting landowner, he resides more than a half mile from the
subdivision with several other properties lying between and he can show no
particularlized injury. In h s regard, the defendant moved for a limited trial of the facts
to develop the factual predicate on h s issue as necessary. That motion was granted on
January 5, 2006, and the requested trial of the facts was ordered unless the parties were
able to stipulate to those facts, as necessary. In February 2006, the town explained that
it had not filed the record on appeal with its previous motion, again bringing to the
court's attention its position that plaintiff Blumberg lacked standing to bring the appeal.
Also in February, defendant Morneau filed a motion to dismiss for failure to state a
claim pursuant to M.R. Civ. P. 12(b), again challengng the standing of plaintiff
Blumberg. This motion was followed by another spate of activity including Blumberg's
attempt to disqualify counsel for the Town of Vassalboro.
Finally, on April 5, 2006, the Town of Vassalboro filed its motion for summary
judgment, bringing to a head the standing issue. Although the town had earlier
brought its motion for a trial of the facts, wluch was granted, h s would not prevent the
town from testing Blumberg's position by bringing the subsequent motion supported
by appropriate affidavits.
Although the town's motion contained the notice that any opposition must be
filed within 21 days and that failure to file a timely opposition would be deemed a
waiver of objections and the motion may be granted without further notice or hearing,
Blumberg made no response. Blumberg filed no affidavits, made no response to the
town's statement of material facts and presented no other facts which would support a
finding that he has particularized damages as the result of the Planning Board's
decision.
The procedure for litigating motions for summary judgment, particularly the
requirement of a defense, is set forth in M.R. Civ. P. 56(e). Included in that subsection is
the following:
When a motion for summary judgment is made and supported as
provided in h s rule, an adverse party may not rest upon the mere
allegations or denials of that party's pleadings, but must respond by
affidavits or as otherwise provided in tlus rule, setting forth specific facts
showing that there is a genuine issue for trial. If the adverse party does
not so respond, summary judgment, if appropriate, shall be entered
against the adverse party.
In the present case, the adverse party - plaintiff Blumberg - did not respond and
the court finds that summary judgment is appropriate. Since the previous motion filed
by defendant Morneau is grounded in the same standing issue, summary judgment will
also be granted in favor of that defendant.
For the reasons stated, the entry will be:
Defendant town's motion for summary judgment is GRANTED
and judgment shall be entered in favor of the town; defendant Morneau's
motion to dismiss is GRANTED.
/I f
Dated: September a k ,2006 c w
S. Kirk Studstrup
Justice, superio; Court
Date Filed I 1!3!n5 UP& Docket No. AP05-66
-
County
Action Perition for Review
80B
Tan- Rlumbprp VS. Inhabitants of the Town of Vassalboro
Plaintiff's Attorney Defendant's Attorney & Paul Morneau
Jonathan Blumberg, Pro Se ALTON C. STEVENS, ESQ
83 South Stanley Hill Road PO BOX 708
Vassalboro, Maine 04989 WATERVILLE, ME 04903-0708
C.H. SPKRLING, ESQ. (FOR PAUL MORNEAU)
TWO CHURCH STREET
GARDINER, ME 04345
Date of
Entry
I Review of Final Governmental Action, filed. s/Blumberg, Pro Se
Application of Plaintiff to Proceed Without Payment of Fees, filed.
s/Blumberg, Pro Se
Indigency Affidavit, filed. s/~lumberg
Received and filed for Defendant and Entry of Appearance by Attorney
Alton C. Stevens, Esq. as of this date.
Plaintiff's Motion for Enlargement of Time, filed.
Certificate of Service, filed. s/Blumberg, Pro Se
Affidavit, filed. s/Blumberg, Pro Se
ORDER ON APPLICATION TO PROCEED WITHOUT FEES, Studstrup, J.
The filing fee and service costs are waived.
Copies mailed to Pltf. and atty of record.
Received and filed by Attorney for Defendant, Alton Stevens, Defendant's
Motion for Trial of Facts with a proposed order thereon, and Defendant's
Memorandum in Opposition to Plaintiff's motion to extend deadlines.
Plaintiff's Motion to Nullify Papers, filed. s/Jonathan Blumberg, Pro Se
Proposed Order, filed.
Certificate of Service, filed. s/Blumberg, Pro Se
Plaintiff's Stipulation to Extension, filed. sl~lumberg,Pro Se
Certificate of Service, filed. s/Blumberg, Pro Se
Plaintiff's Withdrawal of Motion to Enlarge, filed. s/Blumberg, Pro Se
Plaintiff's Ex Parte Motion Rule 4(c), filed. s/Blumberg, Pro Se
Certificate of Service, filed. s/Blurnberg, Pro Se
Defendant Town's Memorandum in Opposition to plaintiff's Motion to Nullify
Papers, filed. s/Stevens, Esq.
ORDER, Studstrup, J.
The time within which defendant may file a motion for trial of the facts
is extended to 12/13/05.
Copies mailed to attys of record.