The opinion
STATE OF MAINE SUPERIOR COURT
SAGADAHOC, ss. CIVIL APPEAL
DOCKET N9. AP-OS-04 / /__
GRIMMEL INDUSTRIES, INC.,
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Plaintiff
V.
INHABITANTS OF THE
TOWN OF TOPSHAM,
Defendant
ORDER ON MOTIONS
In this case, Grimmel Industries, Inc. (Grimmel) has filed a Complaint for Declaratory
Judgment And Alternatively For Review of Governmental Action Under Me. R. Civ. P. soB.
Pursuant to Rule soB of the Maine Rules of Civil Procedure, Grimmel has also filed a Motion
for Trial of Facts and a Motion To Specify Future Course ofProceedings. The Town has filed
a Motion to Dismiss Plaintiffs Declaratory Judgment Claims. The parties have also filed a
Joint Record Submission regarding the proceedings before the Topsham Zoning Board of
Appeals.
Oral argument was held May 7, 201.'3.
Based on the filings and oral argument, the court finds and concludes as follows:
Background
For purposes of the present motions only, the background facts may be summarized as
follows:
Since 1992, Grimmel has owned and operated a scrap metal recycling facility at the
former Pejepscot Mill in the Town ofTopsham. Grimmel's facility began operating after
receiving site plan approval for its operation from the Topsham Planning Board. The Planning
Board written approval is dated August 14, 1992.
In 1995, several structures on Grimmel's property were destroyed by fire and were not
rebuilt.
In 2008 the Town code enforcement officer (CEO) notified Grimmel that it was in
violation of a site plan approval condition limiting after-hours trucking activity into or out of
the facility to "incidental" trips and imposed a limit of one after-hours truck entry or exit per
week. Grimme} appealed the CEO's action to the Topsham Board of Appeals and thereafter to
this court. See Grimmel Industries, Inc. v. Inhabitants of the Town ofTopsham, Me. Super. Ct., Sag.
Cty, Docket No BATSC-AP-08-04. In a written decision dated May 26, 2009, this court
vacated the Town's action against Grimmel, essentially because a flat limit of one entry or exit
per week was an unreasonable interpretation of the term "incidental." The ruling became final
by virtue of the expiration of the appeal period.
In a letter to Grimmel dated December 28, 2011, the Town CEO (not the same holder
of that office who had acted in 2008) notified Grimmel that, by conducting recycling operations
outside, Grimmel was in violation of the 1992 site plan approval conditions, and would need
either to cease outside operations or seek amendment of the site plan approval. The letter also
notified Grimmel that, if it proposed to keep scrap materials outside, it would need a new
permit to operate a "junkyard," as defined by state statute. See 30-A M.R.S. § 37 52-53
(definition of"junkyard"; requirement ofpermit from municipality).
Grimme} appealed the December 28, 2011 notice of violation to the Topsham Board of
Appeals. The Board of Appeals held a hearing December 17, 2012, and voted to deny
Grimmel's appeal. A stipulated transcript of the hearing has been filed as part of the Joint
Record Submission by Plaintiff and Defendant. In a letter to Grimmel dated December 18,
2012, the Board of Appeals chair notified Grimmel that the Board of Appeals appeal of the
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CEO's determination and upheld the CEO's action. Grimmel then filed an appeal under Rule
SOB, adding a declaratory judgment count to its appeal.
Discussion
Under Rule SOB(i), the filing of Plaintiffs Motion To Specify Future Course of
Proceedings operated to suspend the running of the Rule SOB time periods. The parties'
respective motions, as well as the Joint Record Submission, raise questions about the scope and
direction of this proceeding. This Order is intended to address at least the questions that are
ready to address, and to define a procedure for those that are not ready.
The court has jurisdiction under Rule soB, as the Town acknowledged at oral
argument. Moreover, because Rule soB explicitly permits joinder of independent claims,
Grimmel' s assertion of a declaratory judgment count cannot be said to be facially insufficient as
a matter oflaw.
The Town's Motion To Dismiss appears to be premised on the assumption that
Grimmel's declaratory judgment claim is intended to raise an equitable estoppel issue that, as
the Town points out, can only be raised as a defense. See Tarason v. Town cif South Berwick,
2005 ME SO,~ 16, 868 A.2d 230; Buker v. Town cif Sweden, 644 A.2d 1042, 1044 (Me. 1994).
However, Grimmel's complaint does not explicitly limit its request for declaratory relief to
equitable estoppel issues. At this stage of the case, the court cannot say that Grimmel has no
basis on which to seek declaratory relief, so the Town's motion will be denied without
prejudice. However, as just noted, the court agrees with the Town that equitable estoppel is
not in the case, so if there proves hereafter to be no other basis for declaratory relief, the Town
may revive the same issue in a future motion.
On the other hand, as noted at oral argument, Grimmel also argues that this court's
prior decision on "incidental" truck trips precludes the Town from issuing the notice of
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violation. The elements of res judicata and collateral estoppel (or claim preclusion and issue
preclusion, as they are sometimes called) are different than the elements of equitable estoppel,
although all three doctrines are usually characterized as defenses rather than as grounds for
affirmative relief
Thus, two issues oflaw appear to be presented by Grimmel's position on the effect of
this court's 2009 ruling: First, can Grimmel raise res judicata or collateral estoppel in this case
or must those issues be deferred along with equitable estoppel? Second, if those issues are
cognizable in this appeal, is the Town barred by either preclusive doctrine from issuing the
notice of violation?
A third issue raised by Grimmel's Motion for Trial ofFacts is whether any proceeding
in the nature of a trial is necessary to enable the court to consider the preclusion issues to the
extent they are even ripe for consideration. Plaintiffs Motion for a Trial of Facts includes a
three-paragraph offer ofproofthat appears to be focused on Grimmel's claim that the Town is
estopped or otherwise precluded from taking the positions articulated in the CEO's December
28, 2011 notice ofviolation letter.
As an aside, the court also invites the parties to consider whether the Board of Appeals
decision is ripe for judicial review. The Board of Appeals notice of decision letter dated
December 18,2012, notes that Grimmel raised three issues: "(1) Is the facility a junk yard
which requires a permit? (2) Is the applicant required to update the site plan approval, based on
the fact that the original facility was required to be located inside a building which burned
down in 1995, and S) due to lack of action by the Town for 16 years, does the CEO still have a
right to issue a notice ofviolation for the listed issues?" The three votes enumerated in the
notice of decision letter seem intended to address the first two listed issues, but there is nothing
in the findings or conclusions or the votes specifically addressing the third listed issue. It is
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thus not clear whether the Board rejected Grimmel's contention on its merits, or refused to
consider it, or felt it did not have jurisdiction to consider it. Admittedly, the transcript
suggests the last possibility is the correct one, but the notice of decision itself is ambiguous.
Another question raised by the Board decision is whether it contains sufficient findings of fact
to explain and support the Board's vote to the effect that Grimmel's facility constitutes a
junkyard as defined by state law.
All of questions make it appropriate for there to be another conference of counsel before
the court acts definitively on the Motion to Specify Future Course of Proceedings and Motion
for Trial of Facts.
For all of these reasons, it is hereby ORDERED as follows:
1. The Defendant Town's Motion to Dismiss Plaintiffs Declaratory Judgment Claims
is denied without prejudice.
2. Decision on Plaintiffs Motion for Trial of Facts is deferred until after the court
determines whether (1) the issues that Plaintiffproposes for trial are cognizable, and (2) if so,
whether a trial offacts is necessary in light of the issues to be raised.
S. Plaintiffs Motion to Specify Future Course of Proceedings will be granted, but the
court will defer issuing a further order regarding a schedule or format ofproceedings until after
a conference of counsel regarding the areas discussed in this Order and any other relevant
matters either party wishes to advance at the conference.
Pursuant M.R. Civ. P. 79(b ), the Clerk is hereby directed to incorporate this Order by
reference in the docket.
DATED: May 14,2013
A. M. Horton, J ust1ce
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GRIMMEL INDUSTRIES INC - PLAINTIFF SUPERIOR COURT
80 MAIN STREET PEJEPSCOT VILLAGE SAGADAHOC, ss.
TOPSHAM ME 04086 Docket No BATSC-CV-2013-00005
Attorney for: GRIMMEL INDUSTRIES INC
BRYAN DENCH - RETAINED
SKELTON TAINTOR & ABBOTT DOCKET RECORD
95 MAIN STREET
AUBURN ME 04210
vs
INHABITANTS OF THE TOWN OF TOPSHAM - DEFENDANT
100 MAIN STREET
TOPSHAM ME 04086
Attorney for: INHABITANTS OF THE TOWN OF TOPSHAM
MARY ELIZABETH COSTIGAN - RETAINED 02/27/2013
BERNSTEIN SHUR SAWYER & NELSON
100 MIDDLE ST
PO BOX 9729
PORTLAND ME 04104-5029
Filing Document: COMPLAINT Minor Case Type: DECLARATORY JUDGMENT
Filing Date: 01/31/2013