Holub v. City of Portland

STATE OF MAINE SUPERIOR COURT

CUMBERLAND, ss Civil Action

Docket No. AP-23-15

COURTNEY HOLUB, JENIROSE

FRIEDKIN, CHRISTOPHER HAVEY,

CHESTER HOJACK, KAITLIN

O’CONNOR GEE, BRANNEN GEE,

MATTHEW ANDERSON, LOUIS ORDER ON CITY OF PORTLAND AND

GARCIA, MONICA GARCIA, MARIN FALLBROOK COMMONS

MAGAT, BRYN ARBUCKLE, GAVIT DEVELOPMENT, LLC’S JOINT MOTION

PROTAS, JOEL MICILWAIN, and TO DISMISS

DIANE SHEA,

Petitioners,

v.

CITY OF PORTLAND,

Respondent,

and

FALLBROOK COMMONS

DEVELOPMENT LLC,

Party-in-Interest.

Ne eee ee ee ee ee ee ee ee ee ee ee ee ee ee ee ae

Before the court is Respondent City of Portland and Party-in-Interest Fallbrook

Commons Development, LLC’s (“Fallbrook Commons”) Joint Motion to Dismiss the Complaint

filed by Courtney Holub, Jenirose Friedkin, Christopher Havey, Chester Hojack, Kaitlin

O’Connor Gee, Brannen Gee, Matthew Anderson, Louis Garcia, Monica Garcia, Marin Magat,

Bryn Arbuckle, Gavit Protas, Joel Micilwain, and Diane Shea (collectively “Petitioners”)

pursuant to MLR. Civ. P. 12(b)(1} and 12(b)(6). Petitioners, proceeding pro se, filed a Complaint

for Review of Government Action pursuant to M.R. Civ. P. 80B seeking review of a final

decision of the City of Portland Planning Board denying the Petitioners’ appeal of a blasting

permit the City granted to Fallbrook Commons. For the reasons discussed below, the City of

Portland and Fallbrook Commons’s Joint Motion to Dismiss is GRANTED.

FACTS

The following facts are drawn from the Complaint,’ which must be taken as true at this

stage of the proceedings.

The Fire Department of the City of Portland issued a Blasting Permit (FIRE2022-01299)

on December 30, 2022 for drilling and blasting at the Fallbrook Commons Assisted Living

Facility located at 368 Ray Street. (Compl. 1; Notice of Decision |] 1.) Blasting began on

January 4, 2023. (Compl. 41.) The blasting was disruptive to Petitioners, who live on Florida

Avenue in Portland in close vicinity to the property at 368 Ray Street. (See Compl. § 2.) The

blasting caused property damage to Petitioners’ property. (/d.) Petitioners were not given proper

notice of the pending blasting permit or the blasting schedule after the permit was issued.

(Compl. 4] 3.)

Petitioners appealed the Blasting Permit on January 30, 2023. (Compl. 76.) Petitioners

sought to be heard on their concerns about the Blasting Permit during a February 3, 2023 public

meeting of the Zoning Board of Appeals. (Compl. 7.) The Blasting Permit was not on the

agenda for the February 2, 2023 meeting, although a related appeal of a permit issued for the

same project was on the agenda. City of Portland, Maine Zoning Board of Appeals, Appeal

Agenda (February 2, 2023), https://portlandme. portal. civiccierk.com/event/6122/files (last

1 The court also draws facts from certain record documents filed by Petitioners and from public documents that are

central to Petitioners’ claim and referred to in the Complaint to aid in recounting the facts and the court’s analysis.

These documents are central to the Petitioners’ claim and are referred to in their Complaint, therefore they merge

into the pleadings and do not convert this Motion to Dismiss into a motion for summary judgment. Moody v. State

Liquor & Lottery Comm'n, 2004 ME 20,4 10, 843 A.2d 43.

visited Sept. 27, 2023). Petitioners were not heard at the February 2, 2023 meeting. (Compl. |

6.)

Petitioners aiso moved in this court for injunctive relief on January 31, 2023. Plaintiffs’

Motion for Injunctive Relief, Holub v. City of Portland, CV -23-42 (Me. Super. Ct. Cumb. Cnty.,

Jan. 31, 2023). This court denied the motion for preliminary injunctive relief on February 16,

2023 because the blasting was over, making the request for mjyunctive relief moot. Holub v. City

of Portland, CV-23-42, slip op. at 2-3 (Me. Super. Ct. Cumb. Cnty., Feb. 16, 2023).

The City of Portland Planning Board held a public hearing via Zoom in accordance with

applicable Maine law on Petitioners’ appeal of the Blasting Permit on April 11, 2023. (Notice of

Decision 4 1, 4.) Petitioners were unsatisfied with the way City Zoom hearings had gone in the

past, so they requested an in-person meeting. (Compl. ff 12-13.) The Planning Board meeting

was ultimately held via Zoom, so the petitioners decided not to attend. (Compl. Jf 12, 14;

Notice of Decision § 8.) At the meeting, the Planning Board received evidence in support of the

issuance of the Blasting Permit, including testimony that the blasting was completed in a timely

matter. (Notice of Decision ff 9-10.) The Planning Boatd voted 5-0 to deny the administrative

appeal of the Blasting Permit. (Notice of Decision.)

Petitioners received notice of the decision on April 21, 2023 (Email from Matt Grooms to

Petitioners dated April 21, 2023,) and filed this Complaint for Review of Government Action

pursuant to M.R. Civ. P. 80B on May 15, 2023. (Compl) The Complaint seeks review of the

Planning Board’s April 12, 2023 decision denying Petitioners’ appeal of the Blasting Permit.

(Compl. 6.) Petitioners are requesting remedies including remanding the matter for an in-person

hearing and ordering evaluation for radon gas in the blast area. (Compl. 6.) The City of Portland

and Fallbrook Commons filed their Joint Motion to Dismiss on July 19, 2023. (Mot. Dismiss.)

ANALYSIS

The City and Fallbrook Commons seek dismissal on two grounds: lack of subject matter

jurisdiction under M.R. Civ. P 12(b)(1), and failure to state a claim upon which relief can be

granted under M.R. Civ. P. 12(b)(6), arguing that Petitioners’ claim is moot and is barred by res

judicata. (Mot. Dismiss 1-4.)

A motion to dismiss pursuant to MLR. Civ. P. 12(b)6) tests the legal sufficiency of the

complaint. State v. Weinschenk, 2005 ME 28, 4 10, 868 A.2d 200, When ruling on a motion to

dismiss the court views the "facts alleged in the complaint as if they were admitted." Nadeau v.

Frydrych, 2014 ME 154, 4/5, 108 A.3d 1254 (per curiam) (quotation marks omitted), A

complaint must set forth the “elements of a cause of action or allege[] facts that would entitle the

plaintiff to relief pursuant to some legal theory.” Jd. Facts are read in the light most favorable to

the plaintiff. fd.

acd

An 80B appeal is moot when “‘the passage of time and the occurrence of events deprive

the litigant of an ongoing stake in the controversy,’” even if the case “‘raised a justiciabie

controversy at the time the complaint was filed.’”” Carroll F. Look Constr. Co., Inc. v. Town of

Beats, 2002 ME 128, 4] 6, 802 A.2d 994 (quoting Halfway House, Inc. v. City of Portland, 670

A.2d 1377, 1379-80 (Me. 1996)). When reviewing a claim for mootness, courts look to whether

“sufficient practical effects can flow from the litigation to justify the use of limited judicial

resources.” Ld.

Here, even if Petitioners’ allegations are true, the blasting they object to is already

complete. Even if the City did not lawfully grant the Blastmg Permit or follow procedural rules

for Petitioners’ appeal of the Blasting Permit, a decision from this court on the matter would

have no practical consequences attached. See id. 7; Wolfram v. Town of N. Haven, 2017 ME

114, § 20, 163 A.3d 835 (“Procedural errors are harmless and will not be grounds to vacate a

decision unless they are inconsistent with substantial justice and result in prejudice.”).

Preventing this court from using limited judicial resources to make an abstract decision that

would not have any practical result is exactly what the mootness doctrine is designed to do, 7

Carroll F. Look Constr. Co, Inc., 2002 ME 128, 97, 802 A.2d 994.

ORDER

For the reasons discussed above, the City of Portland and Fallbrook Commons’s Joint

Motion to Dismiss is GRANTED,

The Clerk is requested to enter this Order on the docket for this case by mcorporating it by

reference. M.R. Civ. P, 79({a).

DATED ff 24 U2 te A fy yf

Thomas R. McKeon

Justice, Maine Superior Court

* Mootness on ifs own is sufficient to grant this Joint Motion to Dismiss, therefore the court does not reach the other

srounds argued for dismissai.