The opinion
STATE OF MAINE SUPERIOR COURT
PENOBSCOT, ss. CIVIL ACTION
DOCKET NO. CV -08~02(}
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OAK LEAF REALTY, INC.,
Plaintiff,
v. ORDER
TOWN OF HOLDEN, FILED & ENTERED
SUPERIOR COURT
Defendant.
OCT 1 7 2008
PENOBSCOT COUNTY
The plaintiff, Oak Leaf Realty, Inc. (hereinMtlT~rlM~~'';4iJ.eQL.a.;~l:.Cl;junt complaint
seeking declaratory judgments against the defendant, Town of Holden (hereinafter "the Town")
alleging: (l) that the Town improperly assessed an impact fee so as to improperly affect Oak
Leafs rights that had vested prior to the enactment of the ordinance authorizing the fee; and (2)
that the enactment of the ordinance authorizing the impact fee was an ultra vires act by the
Town. The parties have submitted cross-motions for summary judgment upon which the Court
heard oral arguments on September 25,2008.
BACKGROUND
Oak Leaf received approval from the Town Planning Board to construct the Barrett Lane
Subdivision (hereinafter "the subdivision") on August 9, 2006. In constructing the subdivision,
Oak Leaf intended that the road constructed as part of the subdivision, Barrett Lane, be dedicated
as a public way. Prior to such dedication, the Town passed the Town Way Acceptance and
Public Safety Equipment Impact Fee Ordinance, which required the assessment of an impact fee
by the Town Code Enforcement Officer prior to any road being accepted by the Town as a public
way. Oak Leaf was assessed the fee and paid it. The Town thereafter accepted Barrett Lane as a
public way. Oak Leaf now seeks to have the ordinance invalidated and recover what they paid.
DISCUSSION
The Court herein does not reach the merits of the parties' cross-motions for summary
judgment. Rather, the Court addresses a more foundational issue. Oak Leaf has brought a civil
action for declaratory judgments, seeking to recover the impact fee that it has paid to the Town.
However, Oak Leafs claims arise out of governmental action and should have been brought
pursuant to M.R. Civ. P. 80B within 30 days of such action. In light of this issue being raised by
the Town in its pleadings, Oak Leafs complaint is hereby dismissed.
Rule 80B is "the sole means of judicial review of action by all governmental agencies
except those for which the legislature has expressly made a different provision." M.R. Civ. P.
80B(a) advisory committee's note to 1967 amend., 2 Field, McKusick & Wroth, Maine Civil
Practice 305 (2d ed. 1970). See M.R. Civ. P. 80B(a) advisory committee's note to 1983 amend.,
Me. Rptr., 459-466 A.2d XLII (stating that following the enactment of the Administrative
Procedure Act and M.R. Civ. P. 80C, "Rule 80B will continue to serve as the means for review
of all other governmental action, consisting primarily of the decisions of municipal zoning and
planning boards and other local agencies"). A plaintiff wishing to challenge the action of a
municipality must bring his claims by way of a Rule 80B action unless the claim is a truly
independent cause of action. Colby v. York County Comm'rs, 442 A.2d 544, 547 (Me. 1982);
Fisher v. Dame, 433 A.2d 366,372 (Me. 1981). A cause of action is only independent if a Rule
80B action is unavailable or would not provide an adequate remedy. Colby, 442 A.2d at 547;
Fisher, 433 A.2d at 372.
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Oak Leaf could have appealed the imposition of the impact fee to the Town Council
pursuant to section 13 of the Town Way Acceptance and Public Safety Equipment Impact Fee
Ordinance and then subsequently to the Superior Court by way of a Rule 80B action. Through
such appeal Oak Leaf could have challenged the validity of the ordinance, challenged the
application of the ordinance to Oak Leaf, and sought to recover the money it paid pursuant to the
ordinance. A Rule 80B action was available and provided an adequate remedy to Oak Leaf;
therefore, its complaint does not contain any independent actions. A plaintiff may not challenge
a condition placed upon the acceptance of a subdivision plan or a private way as inconsistent
with statutory and constitutional requirements by requesting a declaratory judgment. Sold, Inc.
v. Town o/Gorham, 2005 ME 24, ~ 13, 868 A.2d 172, 176. "Such challenges are the essence of
matters that must be brought pursuant to Rule 80B to question whether the particular action of a
municipal administrative agency is consistent with the requirements of law." Id. The warning of
the advisory committee rings true in this case. "Failure to be aware of the relationship between a
Rule 80B claim and an independent action may cause more serious problems." M.R. Civ. P.
80B(i) advisory committee's note to 1983 amend., Me. Rptr., 459-466 A.2d XLVI.
This issue was not raised by the Town in a motion to dismiss pursuant to M.R. Civ. P.
12(b)(6) or addressed in its motion for summary judgment. However, the Town did raise it as an
affirmative defense in its answer. In Colby, the Law Court approved of dismissal based upon
such a defense when it was raised in the pleadings. In that case the plaintiff affirmatively raised
in the pleadings the timeliness of two claims that should have been brought under Rule 80B.
Colby, 442 A.2d at 546. The plaintiff then filed a motion to dismiss the first count and a motion
for summary judgment on the second count. Id. The Superior Court granted both motions. !d.
The Law Court reversed the granting of summary judgment on the second count but remanded
3
the case to the Superior Court with directions to dismiss the claim for noncompliance with Rule
80B. Id. at 549. Although the plaintiff did not raise this issue in a motion to dismiss, the Court
held that dismissal was required because the issue was "raised by the pleadings." Id. In the
present case, the Town raised the issue of noncompliance with Rule 80B in its pleadings and Oak
Leaf has not brought any claims independent of Rule 80B; therefore, Oak Leafs complaint is
dismissed.
CONCLUSION
Oak Leafs claims are dismissed for failure to bring them in an action pursuant to Rule
80B. The Court questioned counsel for the respective parties with regards to this issue when
they appeared for oral argument on the cross-motions for summary judgment. Neither side was
able to present plenary arguments at that time with regards to this issue. In light of this, the
Court invites Oak Leaf to file a motion for reconsideration pursuant to M.R. Civ. P. 7(b)(5) if it
wishes to fully brief the issue. Upon such filing the Town would be afforded an opportunity to
respond as provided by M.R. Civ. P. 7(c)(2).
The entry is:
1. The plaintiffs complaint is DISMISSED.
2. This order is incorporated into the docket by
reference pursuant to M.R. Civ. P. 79(a).
Dated: -!,-u_\-"----'----\_'" , 2008
M. Michaela Murphy
Justice, Superior Court
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10/17/2008 MAINE JUDICIAL INFORMATION SYSTEM ksmith
PENOBSCOT COUNTY SUPERIOR COURT mjtvi001
PAGE P - PARTY VIEW
OAK LEAF REALTY INC VS TOWN OF HOLDEN
UTN:AOCSsr -2008-0010378 CASE #:BANSC-CV-2008-00020
SEQ TITLE NAME DOB ATTY
001 PL OAK LEAF REALTY INC BY JOHN HAMER ESQ T
002 DEF HOLDEN TOWN OF BY THOMAS RUSSELL ESQ T
A=Addr B+Seq#=Brs C=Create D+Seq#=Disp M=More N=Mnr S+Seq#=Seal V+Seq#=Void:
Select the EXIT KEY for page selection line.
STATE OF MAINE SUPERIOR COURT
PENOBSCOT, ss. CIVIL ACTION
DOCKET NO. CV-P8-020
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OAK LEAF REALTY, INC.,
Plaintiff,
v. ORDER
TOWN OF HOLDEN, Fj ~:: 1.' (
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Defendant.
D.:C 0 L iJS
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I PENOBSCOT COUNTY
This matter is before the Court on a mQ!iQuJof-..xeconsid0Fafien--fiiedby the
plaintiff, Oak Leaf Realty, Inc. (hereinafter "Oak Leaf'). Oak Leaf asks the Court to
reconsider its October 16, 2008 order dismissing Oak Leaf s complaint against the
defendant, the Town of Holden (hereinafter "the Town"). See Oak Leaf Realty, Inc. v.
Town of Holden, BANSC-CV-2008-00020 (Me. Super. Ct., Pen. Cty., Oct. 16, 2008)
(Murphy, l). The facts surrounding this case and the reasons for dismissal are set forth
in the Court's prior order and are not repeated here.
Oak Leaf contends in the present motion that the Court erred in dismissing count
two of its complaint because M.R. Civ. P. 80B "is not the sole means of challenging the
validity and prospective application of an ordinance." (PI.' s Mot. for Recons. at 2).
The declaratory judgment law does permit anticipatory challenges to a
regulation or ordinance to resolve a dispute regarding a planned action,
before the matter actually proceeds and the challenged ordinance is
applied to the detriment of the plaintiffs. Such anticipatory challenges
pursuant to the declaratory judgment law have been allowed to seek
clarification of the applicability of laws, ordinances, and administrative
regulations to impending projects. Accordingly, if a plaintiff was
developing a new subdivision and desired to challenge the new impact fee
ordinance as it would apply prospectively to that subdivision, a
declaratory judgment action would be proper, assuming the other
prerequisites for standing were met.
Sold, Inc. v. Town ofGorham, 2005 ME 24, , 14, 868 A.2d 172, 177 (citations omitted).
Oak Leaf is correct in stating that the Rule 80B is not the sole means for prospectively
challenging a municipal ordinance. In fact, Rule 80B cannot be used at all for the sole
purpose of prospectively challenging an ordinance in as far as Rule 80B actions entail the
review of some past governmental act or refusal to act. M.R. Civ. P. 80B(a).
Notwithstanding the accuracy of the rule of law stated by Oak Leaf, such rule is
inapplicable in this case. Nowhere in its complaint did Oak Leaf allege the possibility of
any future injury from the application of the challenged ordinance. If, as the Law Court
suggested in Sold, Inc., Oak Leaf had alleged that it was in the process of developing a
new subdivision and that it would be prospectively subject to the impact fee authorized
by the challenged ordinance then declaratory relief could be available. Sold, Inc., 2005
ME 24, , 14,868 A.2d at 177.
Oak Leaf requests that the Court declare the impact fee ordinance invalid but does
not do so in the context of seeking to prevent future injury. Oak Leaf's complaint reveals
that it only seeks to be reimbursed for a past application of the ordinance not to avoid a
future one. I The challenge in this case was not made "before the matter actually
proceed[ed] and the challenged ordinance [was] applied to the detriment of the
I In its complaint, Oak Leaf prays for relief as follows.
WHEREFORE, Plaintiff Oak Leaf Realty, Inc., respectfully requests that this Court issue
a declaratory judgment that the Defendant Town of Holden's "Town Way Acceptance
and Public Safety Equipment Impact Fee Ordinance" is ultra vires of its authority under
30-A M.R.S.A. § 4353 and therefore invalid, and Order Defendant Tow of Holden to
repay to Plaintiff the Barrett Lane Subdivision impact fee paid under protest, and costs
plus such other and further relief as the Court deems proper.
(PI.'s Compl. at 3).
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plaintiffs." Id. Oak Leaf's suit relates to what has happened in the past not about what
will happen in the future; therefore, relief in the form of a declaratory judgment is not
available.
The entry is:
1. The plaintiff's motion for reconsideration is
DENIED.
2. This order is incorporated into the docket by
reference pursuant to M.R. Civ. P. 79(a).
Dated: December L, 2008
Justice, Superior Court
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12/03/2008 MAINE JUDICIAL INFORMATION SYSTEM
PENOBSCOT COUNTY SUPERIOR COURT
PAGE P - PARTY VIEW
OAK LEAF REALTY INC VS TOWN OF HOLDEN
UTN:AOCSsr -2008-0010378 CASE #:BANSC-CV-2008-00020
SEQ TITLE NAME DOB ATTY
001 PL OAK LEAF REALTY INC BY JOHN HAMER ESQ T
002 DEF HOLDEN TOWN OF BY THOMAS RUSSELL, ESQ. T