The opinion
STATE OF MAINE SUPERIOR COURT
PENOBSCOT, ss. CIVIL ACTION
Docket No. CV-05-233
1 --
THE LANE CONSTRUCTION
CORPORATION, 1
)
Plaintiff 1
OPINION: ORDER ON MOTION
v. FOR SUMMARY JUDGMENT
1 AND REQUEST FOR
TOWN OF WASHINGTON, 1 PERMANENT INJUNCTION
)
)
Defendant
and )
1
LAND ASSOCIATION OF
WASHINGTON, ROBERT MARKS, )
PAULAGREEN:SANDRA 1
AND GUY BOURRIE
Intervenors
BACKGROUND
l'he matters before this Court are Plaintiffs Motion for Summary Judgment and
Request for Permanent Injunction. This case surrounds the Lane Construction
Corporation's (hereinafter "Lane") proposal to operate a hard rock quarry, rock crusher,
concrete batch plant and bituminous hot-mix (asphalt) plant on a parcel of land in the
Tocm of liJashington's Farm and Forestry district. On March 22, 2001, Lane filed an
application with the Town, requesting a conditional use permit for the aforementioned
activities. On May 10, 2001, the Washington Planning Board held the frrst of thirteen
public hearings on the application. At these hearings, both Lane and the Land Association
of washington (hereinafter "LAW") provided testimony and documentary evidence in
support of their differing views as to the legality of the proposal in light of the applicable
Land Use Ordinance. On August 5, 2002, the Planning Board issued a decision granting
the Plaintiff a permit to operate and maintain mineral extraction and crushing operations
at the site. Aspects of this decision were appealed to the Superior Court by both parties.
On March 29, 2005, the Superior Court affirmed the mineral extraction permit (Knox
County Docket Number AP-03- 13).
The Town of Washington adopted a separate Mining Ordinance with an effective
date of March 23, 2002. The new ordinance requires applicants to obtain a conditional
use permit under the Land Use Ordinance, and a permit under the Mining Ordinance.
The Mining Ordinance limits extraction to 5,000 cubic yards per year. The Mining
Ordinance does not contain an express provision making it retroactive to pending
applications. Pursuant to the Court's March 29,2005 Order, Lane began the site work i n
early July, including clearing the soil and other preparatory work. On September 22,
> .
2005, the Town issued an immediate Stop Work Order, stating Lane was in violation of
the Mining Ordinance, due to Lane's failure to obtain a permit under the Mining
Ordinance enacted in March of 2002. A temporary restraining order was granted on
October 6,2005. Lane now seeks a declaration that it is not subject to the 2002 Mining
Ordinance and an order permanently restraining the Town from enforcing the Stop Work
Order.
DISCUSSION
Plaintiff's Motion for Summary Judgment and Request for Permanent Injunction
1. Standard of Review
A party is entitled to summary judgment when the record shows that there is no
genuine issue of material fact and the party is entitled to judgment as a matter of law.
M.K. Civ. P. 56(c); See e.g., DurLings v. Ford Motor Co., 2003 NIE 21, l J 14, 817 A.2d
877, 879. To survive a motion for a summary judgment, the opposing party must
produce evidence that, if produced at trial, would be sufficient to resist a motion for a
judgment as a matter of law. Rodrigue v. Rodrigue, 1997 M E 99, g 8,694 A.2d 924,926.
"'A fact is material when it has the potential to affect the outcome of the suit."' Prescott
v. State Tax Assessor, 1998 ME 250,9 5,721 A.2d 169, 172. An issue is genuine "when
sufficient evidence requires a fact-finder to choose between competing versions of the
truth at trial." MP Assocs. v. Liberty, 2001 ME 22,912,771 A.2d 1040, 1044.
Essentially the Court determines whether there is a genuine issue of material fact
by comparing the parties' statement of material facts and corresponding record
references. See e.g., Corey v. Norrrran, Hanson & DeTroy, 1999 M E 196, 8,742 A.2d
933, 938. The court will view the evidence in light most favorable to the non-moving
party. See e.g., Steeves v. Bernstein, Shur, Sawyer & NeLron, P.A., 1998 M E 210,911,
718 A.2d 186.
2. Anulysis
Both parties agree that there are no material facts in dispute. The question is
whether the Plaintiff is entitled to a permanent injunction restraining the Town from
enforcing the Stop Work Order. Specifically, the issue addressed by the Court was
whether the Washington Mining Ordinance effective March 23,2002 applies to Lane's
mineral extraction operation on the Vanner Road in Washington.
1 1 M.R.S.A. 5 302 (2004) provides that actions and proceedings pending at the
I time an ordinance passes are not affected by the ordinance. A "proceeding" includes
applications for licenses or permits required by law at the time of their filing. The
Plaintiffs utilize Littlefield v. Town of Lyman, 447 A.2d 1231 (Me. 1982) to support their
contention that an application for a permit shall be considered a pending proceeding
within the meaning of 5 302 if the reviewing authority has conducted at least one
substantive review of the application.
In Littlefield, the Law Court held the mere presentment of a plan for
consideration is not, in and of itself, a pending application for purposes of
5 302. However, when a municipality takes the threshold step of acting on
the proposal, the application process has commenced. When the
municipality accepts the plan for purposes of evaluating the substance of
the proposal, manifests the plan is adequate to begin the review process, or
fails to advise an applicant of any restriction on the significance of
acceptance of the plan, an application can be said to be pending,
Pl.'s Mot. Summ. J. at 5.
Plaintiff further contends that they submitted a complete application andapproximately
10 hearings had already taken place prior to the effective date of the Mining Ordinance,
including the first public hearing. Also, the Board had already voted to deny portions of
the application concerning asphalt and concrete plants in January of 2002, three months
before the Mining Ordinance became effective. Essentially, Plaintiff argues that there is
no question the Board already took a substantial step toward acting on the substance of
the proposal.
The Defendant Town relies on Larrivee v. Timmons, 549 A.2d 744 (Me. 1988), in
which the Law Court addressed for the first time whether steps for obtaining multiple
land use approvals from different ordinances or statutes can be considered a single
I 'proceeding' under the grandfathering provision of § 302. Essentially, the Defendant
argues the Mining Ordinance requires a separate application, a new review process and
different permit, and is considered a separate 'proceeding' for purposes of 3 302. Further
they contend the enactment of the Mining Ordinance did not affect the conditional use
I proceeding, and because Lane had not commenced any work at the time the Mining
I Ordinance went into effect, Lane is not entitled to summary judgment.
The Larrivee case can be distinguished from the case at hand.. Lane only needed a
conditional use permit to conduct its mineral extraction activities when it applied for the
permit in 2001; there was only one step required as opposed to the facts in Larrivee.
Plaintiff is correct that the application in this case was pending for the purposes of 3 302,
and the application is not subject to the newly enacted ordinance.
For the foregoing reasons, Plaintiff's Motion for Summary Judgment and Request
- . -- . . . . .
~ . ... . . . . . . .... . .. . .- . . . .
for Permanent Tnjunction are granted. 'The Town of Washington is hereby permaner~tly
enjoined from enforcing the Stop Work Order issued on September 12,2005. The Court
hereby declares that the conditional use permit granted to Plaintiff is not subject to the
mining ordinance that became effective March 23, 2002.
Accordingly, the entry shall be: Motion for Summary Judgment GRANTED.
Permanent Injunction GRANTED. The Clerk may incorporate this Decision and Order
into the docket by reference.
Maine Superior Court
L 'X;E L W E CONSTRUCTION CORPORqTION - PLAINTIFF SUPERIOR COURT
P 0 BOX 103 PENOBSCOT, s s .
BANGOR ME 04402 Docket No BANSC-CV-2005-00233
~ t t o r n efor:
~ THE LANE CONSTRUCTION CORPOFATION
DAVID C KING - RETAINED 09/29/2005
RUDMAN & WINCHELL DOCKET RECORD
84 HARLOW ST
PO BOX 1401
BANGOR ME 04402-1401
Attorney for: THE LANE CONSTRUCTION CORPORATION
EDMOND BEAROR - RETAINED 09/29/2005
RUDMAN & WINCHELL
84 HARLOW ST
PO BOX 1401
BANGOR ME 04402-1401
vs
WASIiINGTON TOWN OF - DEFENDANT
P 0 BOX 408,
WASHINGTON ME 04574
Attorney for: WASHINGTON TOWN OF
MICHAEL HODGINS - RETAINED 10/05/2005
BERNSTEIN SHUR SAWYER & NELSON
150 CAPITOL ST
PO BOX 5057
AUGUSTA ME 04332-5057
THE LAND ASSOCIATION OF WASHINGTON - INTERVENOR
Atrrorney for: THE LANE ASSOCIATION OF WASiiINGTON
ROBERT MARKS - RETAINED 11/02/2005
KCt3EKT MARKS LAW OFFICE
3 . _ , l ? h K ' l Y RD
PO BOX 326
WASBINGTON ME 04574
ROBERT MARKS - INTERVENOR
Attorney for: ROBERT MARKS
ROBERT MARKS - RETAINED 11/02/2005
ROBERT MARKS LAW OFFICE
3 LIBERTY RD
PO BOX 326
WASHINGTON ME 04574
PAULA GREEN - INTERVENOR
Attorney for: PAULA GREEN
ROBERT MARKS - RETAINED 11/02/2005
ROBERT MARKS LAW OFFICE
3 LIBERTY RD
PO BOX 326
WASHINGTON ME 04574
Page 1 of 7 Printed on: 03/21/2006