The opinion
STATE OF MAINE SUPERIOR COURT
CUMBERLAND, ss. CIVIL ACTION /
Docket No. RE-07~1~2
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DEBRA SAMPSON, et al.,
Plaintiffs,
v. ORDER
CITY OF SOUTH PORTLAND,
Defendant. .: r. f;
Before the court is plaintiffs' motion for a preliminary and permanent injunction
enjoining the City of South Portland from interfering with plaintiffs' use of Edgewood
Road.
Plaintiffs originally filed this action on July 6, 2007 along with a request for a
temporary restraining order to prevent the City from physically blocking Edgewood
Road. The City acknowledged that it intended to block the road but was willing to
postpone action until this case could be heard. By agreement of the parties, the hearing
on plaintiffs' request for a preliminary injunction was thereafter combined with the
hearing on whether plaintiffs would be entitled to a permanent injunction on Count I of
this complaint,! The facts are essentially undisputed.
FACTS
Plaintiffs Christopher and Joyce Boulos and Debra Sampson own property on
Edgewood Road in Cape Elizabeth very close to the South Portland town line.
Originally plaintiffs' properties could only be accessed through South Portland.
1 Count I of plaintiffs' complaint seeks a declaratory judgment that plaintiffs have permanent
easement rights over Edgewood Road.
Edgewood Road was originally created in the 1950s as part of the Dana Park
Subdivision in South Portland and terminated at the Cape Elizabeth town line.
Subsequently, a private way (the Edgewood Road Extension) was developed to extend
Edgewood Road into Cape Elizabeth to access the house lots now owned by the
Sampson and Bouloses. At that time there was no road access to the Sampson or Boulos
lots through Cape Elizabeth; the only way to reach those lots was via Edgewood Road
in South Portland.
During the 1990s developer Joseph Frustaci purchased a 20-acre parcel in Cape
Elizabeth that included the Edgewood Road Extension. He thereafter proposed to build
a subdivision in Cape Elizabeth that would have connected to Edgewood Road in South
Portland. This proposal was opposed by residents of South Portland, and in late 2000
the City of South Portland considered various plans to discontinue the last 25 feet of
Edgewood Road (thereby severing Edgewood Road short of the Cape Elizabeth town
line and preventing its use for access to the Frustaci subdivision). However, this would
have simultaneously landlocked the Boulos and Sampson lots by depriving them of any
road access.
What the City of South Portland ultimately decided to do was to discontinue the
last 25 feet of Edgewood Road, accept deeds conveying the discontinued portion of
Edgewood Road to the City, and grant access easements over the discontinued portion
of Edgewood Road to the owners of the Sampson and Boulos lots.
On December 18, 2000, the South Portland City Council took two actions. In
Order 85-00/01 (Exhibit 9 to Joint Stipulation) it discontinued the final 25 feet of
Edgewood Road, stating that the City retained an access easement for vehicular and
pedestrian access for the benefit of 59 Edgewood Road (the Sampson Lot) and 60
Edgewood Road (the Boulos Lot), both in Cape Elizabeth. On the same day, in Order
2
89-00/01 (Exhibit 10 to Joint Stipulation) the Council authorized the City Manager to
accept deeds from the abutting landowners to the discontinued portion of the road and
further authorized the City Manager to execute and deliver easement deeds granting
access across the discontinued portion of the road to 59 Edgewood Road and 60
Edgewood Road.
The City does not dispute that the owners of the Sampson and Boulos properties
relied upon the access easements promised by the City in not opposing or appealing the
discontinuance of Edgewood Road and in not seeking damages for the discontinuance. 2
Moreover, plaintiffs Sampson and Boulos have in fact continued to access their
properties by traveling through South Portland over Edgewood Road from 2000 to the
present.
As planned, the City accepted deeds conveying the fee interest in the
discontinued portion of Edgewood Road. However, the City never got around to
delivering easement deeds to the owners of the Sampson and Boulos lots.
Frustaci subsequently developed a subdivision in Cape Elizabeth that had
separate road access through Cape Elizabeth. One of his subdivision roads connected
to the end of the Edgewood Road Extension. As a result, the owners of the Boulos and
Sampson lots can now access their properties from both Cape Elizabeth and South
Portland. In addition, other residents of the Frustaci subdivision can, as a practical
matter, drive to and from their properties over Edgewood Road through South
Portland.
South Portland residents thereafter began to complain about traffic from the
Frustaci subdivision over Edgewood Road. As a result, the South Portland City Council
2 The discontinuance, however, led to several lawsuits between the City of South Portland and
developer Frustaci. See, e.g., Frustaci v. City of South Portland, 2005 ME 101, 879 A.2d 1001.
3
again began to consider whether it could physically close off Edgewood Road or limit
access solely to the Sampson and Boulos lots. In May 2006 the City's counsel wrote to
Sampson and the Bouloses offering to purchase their easement rights for $3,200. In
other communications the City (apparently unaware that no easement deeds had ever
been delivered) also stated that 59 and 60 Edgewood Road "have private easements
which were granted to them at the time of [the 2000] discontinuance." Exhibit 17 to Joint
Stipulation. See Joint Stipulation <jI 50.
At a City Council workshop on November 27, 2006, two options were discussed
(1) to dead end Edgewood Road at the Cape Elizabeth town line and take the easement
rights of Sampson and the Bouloses by eminent domain or (2) to install a speed table on
the town line as a traffic-calming device. A third option - an amendment to Order 85
00/01 purporting lito eliminate the rights of vehicular and pedestrian access reserved
for 59 Edgewood and 60 Edgewood" - was on the City Council's agenda on December
4, 2006. The City Council voted to adopt this third option, and a public hearing on this
proposal was then scheduled.
On January 22, 2007, notwithstanding the vote it had taken on December 4,2006,
the City Council held a workshop to consider an alternative proposal to slow traffic
along Edgewood Road by placing a vegetative traffic island at the South Portland
Cape Elizabeth border. Exhibits 21A and 21B to Joint Stipulation.
On February 21,2007 the City Council voted to reject the traffic-calming plan and
voted to approve an amendment to the 2000 discontinuance order by deleting any
reference to retaining an access easement for the benefit of 59 Edgewood Road and 60
Edgewood Road. Exhibit 22C to Joint Stipulation. On March 21, 2007 counsel for
plaintiffs wrote to the City demanding that the City issue the easement deeds referred
to in Order 89-00/01. At that time the City apparently first discovered that the
4
easement deeds had never been drafted or delivered. 3 On April 2, 2007 counsel for
plaintiffs again wrote to the City, noting that the City attorney had stated that the
failure to draft or deliver the easements had been an "administrative oversight" and
requesting that the oversight be corrected.
On May 10, 2007 the attorney for the City emailed the Bouloses, declining to
issue easement deeds based on the City's Council's action in February. Exhibit 28 to
Joint Stipulation.
This action was filed on July 6,2007.
DISCUSSION
This dispute turns on whether the plaintiffs were obligated to seek review under
Rule 80B of either (1) the City Council's February 21, 2007 amendment of Order 85
00/01 or (2) the subsequent refusal by the City - communicated on May 10, 2007 - to
provide the easement deeds requested by plaintiffs in March. If plaintiffs' exclusive
remedy lies under Rule 80B, this action is barred because it was not filed within 30 days
of any of the above actions. See M.R.Civ.P. 80B(b).4
On the other hand, if Rule 80B did not constitute plaintiffs' exclusive avenue for
relief, the court would find that plaintiffs have a meritorious promissory estoppel
argument in that the City's promise to provide them with an easement induced them to
forbear from challenging the 2000 discontinuance or seeking damages at that time. See,
3 It appears that the plaintiffs had looked for and been unable to find any such deeds shortly
before that. See Exhibit 25 to Joint Stipulation.
4 To the extent that it can be argued that the 60 day time limit under 23 M.R.S. § 3029 would
have applied to any appeal from the City's failure to award damages to plaintiffs when it
amended the 2000 discontinuance order in February 2007, plaintiffs also did not file suit within
that deadline. However, because the February 2007 amendment to the discontinuance order did
not affect plaintiffs' private easement rights as discussed below, the court concludes that 23
M.R.S. § 3029 is not applicable here.
5
e.g., Cottle Enterprises v. Town of Farmington, 1997 ME 78 <]I 17 at n.6, 693 A.2d 330, 335
356 at n.6; Restatement 2d Contracts § 90(1).5
In the court's view, plaintiffs' claim for relief here is not a claim as to which their
exclusive remedy lay under Rule 80B. First, the parties agree that the discontinuance of
a public road does not effect private easements. As a result, the City Council's
amendment of its discontinuation order did not legally terminate any private easement
rights (or any equitable claims to private easement rights) possessed by the plaintiffs.
Since plaintiffs' rights were not legally affected by the City Council's February 21, 2007
amendment of its December 18, 2000 discontinuance order, plaintiffs were not obligated
to seek Rule 80B review of that action.
The discontinuance of Edgewood Road did not in and of itself create any private
easement for the benefit of plaintiffs. It was the City's accompanying promises and
assurances (repeated at late as mid-2006, see Joint Stipulation Exhibits 17 and 18) that
easements would be or had been given that are the source of plaintiffs' rights here. In
refusing to honor those promises and assurances and in preparing to take action to
physically block plaintiffs' access to Edgewood Road, the City is not acting in a quasi
judicial capacity and Rule 80B does not apply. Lyons v. Board of School Administrative
District No. 43, 503 A.2d 233, 236 (Me. 1986).
With or without the amendment to the December 2000 discontinuance order, the
fundamental issue in this case remains - whether the City can promise an easement and
then renege on that promise. As a result, this case falls within a small category of cases
carved out by the Law Court where parties challenging governmental conduct are not
required to proceed under Rule 80B. That category consists of cases involving "a
5 For this reason the court does not need to reach plaintiffs' theory that they also had vested
rights in the easements.
6
complex course of executive and legislative conduct by governmental officials as to
which a remedy is impossible through ... subsequent direct judicial review." York
County Board of Realtors v. York County Commissioners, 634 A.2d 958, 960 (Me. 1993),
quoting Fisher v. Dame, 433 A.2d 366, 374 (Me. 1981).
This case presents such a complex course of executive and legislative conduct,
and simply obtaining judicial review of the City Council's February 21, 2007 action
would not provide plaintiffs with a remedy. This is because plaintiffs' claims are not
based on the City's February 21, 2007 amendment but on a course of conduct and
promises extending back to December 2000. As to those contractual and equitable
claims, Rule 80B is not applicable.
Put another way, if a city council were to vote not to honor a city contract or a
city official were to formally decline to perform a contractual obligation, would the city
be entitled to argue that the contractor's sole remedy lies under Rule 80B? If the answer
is no, the court does not see a significant distinction in this case. Moreover, balancing
the equities in this case, the court concludes that any fault or inaction by plaintiffs - in
failing to sue for delivery of the easement deeds at an earlier point - is outweighed by
the inequity of the City's position. If plaintiffs had no alternative access, the court
cannot imagine the City would contemplate sealing off Edgewood Road. The fact that
alternative access is now available may affect the value and the importance of the
Edgewood Road easement to plaintiffs, but it does not affect whether plaintiffs have
such an easement.
The City in fact argues that, because plaintiffs now have access to their properties
through Cape Elizabeth (via Blueberry Road), the value of plaintiffs' easement rights
over Edgewood Road is nonexistent. This mayor may not be correct, but the way to
test that proposition is for the City to use its power of eminent domain to acquire
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plaintiffs' easement rights. If the City is correct and those rights have minimal
economic value or no economic value,6 then the City will not be required to provide
much or any just compensation. If the City is wrong, then the plaintiffs will be entitled
to appropriate compensation for the loss of their easement rights.
The entry shall be:
Plaintiffs' motion for a preliminary and permanent injunction is granted and the
City is enjoined from taking action to physically block plaintiffs' vehicular access to
Edgewood Road. The clerk is directed to incorporate this order in the docket by
reference pursuant to Rule 79(a).
DATED: February 2' , 2008
Thomas D. Warren
Justice, Superior Court
6 Obviously those easement rights have some utility or value in the eyes of plaintiffs or this
action would not have been brought. In addition, testimony was offered before the South
Portland City Council that on one occasion emergency access from Cape Elizabeth through
Edgewood Road had been necessary to save a life. Stipulation <j[ 42.
8
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