The opinion
IN T f Rf D FEB 2 7 ?015
STATE OF MAINE BUSINESS AND CONSUMER COURT
CUMBERLAND, ss Location: Portland
Docket No.: BCD-14-35 Y
[A{f\;\-MMJI1- DI-VI-15
)
HUGHES BROS., fNC., )
)
Plaintiff, )
) FINDINGS AND ORDER FOR ENTRY
v. ) OF JUDGMENT ON COUNTS I AND II
) OF PLAINTIFF'S COMPLAINT
TOWN OF EDDINGTON, )
)
)
Defendant. )
I. INTRODUCTION
Befot·e the Comt are Counts land II of Plaintiff's Complaint. Judgment on Count
III was entered by the Court on August 7, 2014. 1 Plaintiff alleges in Coull( I thnt the
Town cond\Jcted an illegal executive session on January 29,2014. Count II is a
Declaratory Judgment in which Plaintiff alleges that the Town adopted an illegal
moratorium against a quarry owned by the Plaintiff in the Town of Eddington. The
pflrties submitted n stipulated tl'ialt·ecord in the fm·m of a "Stipulated Timellnc and
Relevant Facts" dated September 29, 20 14. 2 The parties also ftled wt·itten arguments,
the last ofwWch was received by the Comt on November 12,2014.
The facts of this case are well set out in the stipulated record, and the Co,nt herein
adopts those facts ns having been proven by a preponderance of evidence. While there
1
A subsequent orde•· captioned "First Order on Motion to Reconsider" was entered on August I3,
201 tl that addressed certain documents that were omltled from the privilege log which wns
inspected by the Court in camera on Count 111. The Court Is advised that the Town has produced
nil documents ordered released by the Court In these two orders. The Court hereby corrects on Its
own motion the date "August6, 20 13" in parngrnph one of the latter order which now will read
"Augus16, 2014."
2
An amended stipulnted record was filed October 14, 2014.
arc certain pamgraphs (see, e.g. paragraphs 12, 13, and 14) in the Stipulated Timeline that
reference the ability ofthe parties to supplement the record, the parties confit·med with
the Business and Consumer Comt on January 2, 2015 that they would be relying on the
Stipulated Timeline and Exhibits as the trial record. The Com·t has reviewed the
stipttlated tl'ialrecord, considered the parties' wl'itten arguments, and issues the following
findings and order for entry of judgment on Counts I and II.
ll. FINDINGS AND CONCLUSIONS
A, COUNT I - Claim of Illegal Executive Session l/2911 4
On Janumy 29, 2014 the Eddington Board of Selectmen and Phtm1ing Board
conducted a joint executive session, ostensibly to cons\1lt with Town legal counsel
pursmmt to 1 M.R.S.A § 405(6)(0). Selectmen minutes from a 11Special Joint Plamting
Board and Selectmen's Meeting" indicate t!1e meeting was called to order at 5:45p.m.
Roll call was conducted and a motion Wfls made and apt>roved (3-0) to go into Executive
Session. (Ex. 9.) By 7:07p.m. a motion was made to return to Regulat· Session. The
meeting adjourned at 7:08 p.m. The mumtes ftu·ther indicate that "Othe1' Business"
consisted of the following: "Moratorium Ordinance. No Action Taken., The meeting
was adjo\U'ncd at 7:08p.m. ld.
Exhibit I0 contains the minutes from the Plmming Bom·d, 3 which met jointly with
the Board of Selectmen. Again, it nppeat·s that the meeting began around 5:38p.m., after
which roll cnll was taken. The Board moved and approved the joint Executive Session,
and Regulat· Session began again at 7:08p.m.
3
These minutes are in the Court's view cletwly labeled as Planning Board minutes. However, the
Town's Attorney refers to these minutes as "the actual Selectmen's minutes" on page 8 of its
Brief. The Court conferred with counsel by phone on December 23, 2014 and the parties agreed
I hill Exhibit 9 represents the minutes of the Board of Selectmen, nnd Exhibit I0 represents the
minutes of the Planning Board.
2
Plaintiff makes a number of arguments as to why tWs Executive Session was
illegal. First~ Plaintiff argues that the Town failed to follow Maine's Ft·eedom of Access
Act's ("FOAA") requirements for going into Executive Session~ speciflcnlly as to the
adequacy of the motion made. Second 1 Plaintiff claims that vote to go into the joint
session by the Board of Selectmen was insufficient. Thil'd, Plaintiff claims that the joint
session was illegal. Fom1h1 the Plaintiff clahns that during the Executive Session they
deliberated on legislative matters and that this does not fall within any ofFOAA's
exceptions to the open meeting requirement. Fifth 1 Plaintiff claims that the moratorium
at issue in the· case was approved in the Exec\ttive Session.
i. Adequacy o[lhe Motion for Execullve Session
Plaintiff contends that the motion made by both bodies (Bmml of Selectmen and
Platming Board) insufficiently described the nat\\l'e of the business to be conducted
dming the closed session. Howevet·, as the Town points out, a si.milat· notice was upheld
as sufficient by the Law Court in Vella v. Town qf'Camdcm. 677 A.2d 105l, 1055 (Me.
!996). In addition, given the clear notice from six days before, on January 23,2014,
there can be little doubt that the public was aware of the purpose of the Executive
Session, which would be the "only thing on the agenda11 fo1· the Jnnuary 29, 2014
meeting. (Ex.. 8.) The Comt is unpersuaded that the notice pmvided in the joint motion
wns legally insufficient.
ii. Adequacv o{the Vote Taken by the Board o[Selectmen to go Into
Executive Session
Plaintiff argues that Exhibit I 0 proves that there were not enough members from
the Board of Selectmen to constitute n quorum ot· to vote to go into Executive Session 1 or
that this exhibit when rend in conjunction wilh Exhibit 9 raises questions as to whethel'
3
there wct·c enough votes by Selectmen to authorize the session. However, as noted
previo\lsly, the Court interprets Exhibit 9 to be the actual Boanl of Selectmen minutes as
the members listed for the mil call (Brooks, Goodwin, Lyford) a1·e the same Selectmen
listed in Exhibit 7. The Court finds Exhlbit 9 unambiguously establishes that that these
three members voted to go into Executive Session, and so concludes that the Plaintifrs
m·gument on tWs issue is without merit.
iii. Leg(l{ify o[Jolm Execllflve Session
The Town l'ightfully notes that the Plaintiff cites no case law in supp01t of its
position that the joint Executive Session was not authorized by FOAA. However, the
Court would note that the public was provided notice six days pl'iol' that the Town
intended to follow this procedure (Ex. 8) so it could hardly be snid this process was n
secret ti·mn anyone. The Court would fnrthel' note that Plaintiff seems to imply that if the
two bodies conducted joint Executive Sessions that were otherwise independently legal,
that would be permissible.
The Co~lrt, having found no improprieties in the ptocedme followed by both
Boards as to notice and votes tnken to go into Executive Session" concludes that the joint
meetings were legal. The Plaintiff does not argue that the advice given to both Boards by
the Town's attorney would have been different, and the Co·urt concludes that undet· these
circumstances no violation of FOAA has occurred.
iv. 111e Subjectlvlaller o{lhe Executive Session
The Court has reviewed 1 M.R.S.A §405(6)(E) nnd disagrees with Plaintiff's
Mgumcnt regarding the exceptions to Maine's open meeting law. Subsection E contaius,
4
The Plaintiff does not contest the leg11lity of the votes taken by the Plmming Board to go into
Executive Session.
4
as the Town points Oltt, a mm1ber of disjunctive clauses which include the following as a
discreet exception: "[c]onsultafions between a body or agency and its attomey concerning
the legnl rights nnd duties of the body or agency .... " The Court finds thnt the Town has
met i(s burden to prove that the subject matter of the Executive Session (which was
explicitly defmed in the January 23,2014 notice (Ex. 8) as a request for their attorney "to
expand on the basis for his wording in the proposed Momtol'ium Ordinance") falls within
this exception to Maine's open meeting requirement. Underwood v. City ofPJ'esque Isle,
715 A.2d 148 (Me. 1998).
v. Whether the Momlor/um was Approved In the Execullve Session
The Plaintiff reJies upon a statement made by the Planning Board Chairman at a
Selectmen's Meeting on March 4, 2014 in which he mentions the Executive Session in
question. He stated ccquestions were asked dmlng it in order to help them decide on bow
to proceed with wording of such moratorium ordinance." (Ex. 15.) The Comt construes
this statement as entirely consistent with the plJblicly stated reason for the Executive
Session, nnd concludes that this isolated statement does not support the m·gument that the
Moratol'ium was actually approved in the Executive Session. To the contrary, othet·
exhibits including Exhibits 15 indicate that the Selectmen sent the issue to a Town
Meeting where the Moratorium was voted upon and approved by citizens of the Town.
B. COUNT fl - Challe11ge to Momtorium
Plaintiff raises a number of m·guments regarding the Moratol'ium5 enacted by the
Town against quarry developmetll, including that there was no basis for its enactment,
but also that euncti.ng a moratorium with relt·oactive effect violates Maine law given the
5
The Town enacted the momtorium ordinance on Ap1·il 8, 2014 at a Special Town Meeting. The
six-month moratorium wns extended on Sept. 23, 2014 by the Selecunen pursuant to 30-A
M.R.S.A § 4356(3). (Exs. 27 and 27(A-D).)
5
plain language of the statute which states that a momtorium "may be adopted on an
emergency bnsis and given immediate effect." 30-A M.R.S.A § 4301(11). The Town
argues that the reasons nsserted by proponents for the moratorium are sufficient
justification for it, and also that a moratorium can be retroactive since it is defined in part
as "a land use ordinance or other regulation," and unde1· Maine law ordinances can be·
retroactive assuming ce1·tain criteria are met.
30~A M.R.S.A § 4356 establishes the requirements for imposition of moratol'la by
municipalities. It states, in applicable pm1, that the moratorium must be needed
"[b]ecause the application of existing comprehensive plans, land use ordinances Ol'
reg1.dations or other applicable law, if any, is inadequate to prevent serious public harm
fi'Olll residential, commercial or industrial development in the affected geographic area.,
Fmther, 30-A M.R.S.A § 4301(1 t) defines n moratorium as:
[A] land ltse ordinance m· othet· regulation approved by a munlcipallegislativc
body, that if necessary, may be adopted on an emet·geucy basis and given
immediate effect and that temporarily defers all development, or a type of
development, by withholding any permit, authol'ization Ol' appmval necessary fo1·
the specified type or types of development.
ld
i. Refroactlvlfv o[Mom/orfum
The Court could find no case in whlch the issue of retroactivity has been squarely
addressed by the Superior Court or the Lnw Court. Howevet·, the statute by its own terms
permits a nnmicipnlity to withhold "any permit, nuthol'izatiou, or approval necessary fot·
the specific type or types of development (emphasis added)." While the parties focus on
the phmse "given immediate effect" the Court believes thnt the Town was allowed to
withhold approval -by delaying finalization of the approval process ww dul'ing the
moratorium period. The statute distinguishes among permits, authorization, and
6
approval, S\lggesting to the Court that they mef!n different things. A permit would be
something thnt has ~th·eady been granted, and approv~tl suggests to the Cmu1 the process
of obtaining a permit (ot· authorization). The Comt concludes that the Town was entitled
to stay or defer completion of the permit approval process by the express terms of this
statute.
The Court also reads the phrase 11given immediate effect" to mean just that. If a
moratorium is duly approved, it takes immediate effect, and the 6-month clock slat·ts
rurming. The Comt does not agree with the Pl~tintiffthat this phrase prohibits
"retroactivity" pnrticulnrly where the Legislnture h~ts in the Court's view empowered
mtmiciptliities to defer, tempomrlly, cet·tnin types of development "by withholding ...
approval» for a specified type of development.
Tt is quite understandable to the Court that the Plaintiff would be un..lmppy with
the decision on "reh·oactivity" given assmances unfortunately made by some Town
representatives. In addition, the imposition of the momtorlum has no doubt created a
financial burden and at least uncertainty fo1·the Plaintiff. Such bmdens and uncertainty
m·e likely by-products of any moratorium, however, which is why the Legislature has
strictly time-limited them. The Comt trusts that the Town undct·stands that this
moratorium CEUUlot act as a permanent end-run around fair consideration ofPlnintifr s
permitnpplicntion, but the extended 11\0I'atOI'ium will soon expire, and the Plaintiff can
press fonvard at that time.
ii. Sufflcienc11 ofEvidence to Jusl/{y the Moratorium
Plaintiff's final argument is that there is insufficient evidence in the record
justifying the imposition of a morntorium on quarries. However, it is the Plaintiffs
7
burden to 11 establish the complete absence of any state of facts that would sttpport !he
need for a moralol'ium." Minster v. Town of Gray, 584 A.2d 646, 649 (quoting Tlsei v.
Town of Ogunquit, 491 A.2d 564,569 {Me. !985). It is clear to the Court based on the
stipulated record that there was significant opposition to the quarry from members of the
Town, and they arlicttlated their reasons fot· their positions. These reasons included
effects on air quality, watet· quality, traffic, and pi'Opet·ty vahtes. One could t·ensonnbly
disagree with the reasons asserted by the quarry opponents, as well as their view of what
is best for the Town. However, proponents of the quarry were also given an oppot·nmity
to make their case fllld to provide justification fot· their positions, and a vote was taken.
Fundamentally, it would not be appropriate for this Court to inject itself into tllis
sort of legislative process given the ample opportunity provided to both sides to make
their case in an open process. Disagreement with the outcome of the vote is not
equivalent to establishing 11 the complete absence of ~my state of facts" supporting this
moratorimn.
ITI. CONCLUSION
Based on the foregoing the entry will be:
Judgment on Counts I nnd II cntcJ•ccl for Defendant, Towu of Eddington.
·~
DATE JUSTICE, BUSINESS
CONSUMER COURT
Entered on the Dockel:_i:z.is:__
8
Copies sent via Maii_Eiectronically~
Hughes Bros., Inc. v. Town of Eddington
BCD-CV-14-35
TD Bank, N.A.
Plaintiff
Counsel: William Devoe, Esq.
80 Exchange St.
PO Box 1210
Bangor, ME 04402-1210
Tuscon, Inc., More Properties, Inc., Craig D. Morency and Scott P. Morency
Defendants
Counsel: Charles Gilbert, Ill, Esq.·
82 Columbia St.
PO Box 2339
Bangor, ME 04402-2339