The opinion
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STATE OF MAINE SUPERIOR COURT
CUMBERLAND, ss CIVIL ACTION
DOCKETNO. AP-14-11
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JONATHAN MONRO, et al.,
Plaintiffs,
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Cumberl~,--.,
M~t~~ffi('£,
·' · · ·
v. ORDER
JUN 1 :) 2014
CITY OF PORTLAND, et al, RECE~VED
Defendants
Pursuant to this court's order dated June 5, 2014 plaintiffs have submitted further
authority with respect to Count III of their complaint.
Only one of the two cases plaintiffs have submitted bears any similarity to the
case at bar. In Mutton Hill Estates Inc. v. Town of Oakland, 468 A.2d 989 (Me. 1983),
opponents of a subdivision had engaged in ex parte meetings with members of the
Planning Board to prepare findings which the Oakland Planning Board then adopted
without discussion.
In this case plaintiffs' complaint alleges that the Portland Planning Board voted
to approve the project on January 14, 2014 even though the stormwater drainage plan
was incomplete, and that a written decision was issued on January 28, 2014. Complaint
cncn 31-32, 47. Plaintiffs also allege that "subsequent to the Pl-anning Board's approval,"
planning board staff met ex parte with the developer on the subject of stormwater
drainage. Complaint en 49. This leaves open the possibility that those meetings were
held after the January 14 vote and before the January 28 written decision and that those
meetings contributed to the written findings in the decision.
Based on that possibility, the court will deny the motion to dismiss Count III. In
so doing, it construes Count III as alleging that there were procedural improprieties
with respect to stormwater drainage. The court does not agree that a constitUtional
violation has been alleged.
Plaintiffs are entitled to challenge the Planning Board's decision on the theory
that the stormwater drainage plan was incomplete. They are also entitled to challenge
the Planning Board's decision based on alleged procedural improprieties with respect to
stormwater drainage. 1 However, a right to have stormwater properly addressed does
not constitute a property interest for purposes of the due process clause of the Maine
and U.S. Constitutions. Unlike the developer in Mutton Hill Estates, which was denied
the right to develop a 12-acre subdivision, plaintiffs have not been deprived of any
constitutionally protected property interest by the Planning Board's approval.
The entry shall be:
For the reasons set forth above, defendants' motion to dismiss Count III of the
complaint is denied. The Clerk is directed to incorporate this order in the docket by
reference pursuant to Rule 79(a).
Dated: June~ 2014
Thomas D. Warren
Justice, Superior Court
1
The court reserves decision on whether and to what extent the Planning Board was required to
consider stormwater drainage.
~Lt:~ OF C01J;RTS
Cumbe.dand Co~nty
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