The opinion
STATE OF MAINE SUPERIOR COURT
CUMBERLAND, ss CIVIL ACTION
DOCKET NO. PORSC-AP-22-32
GORHAM SAND & GRAVEL, Plaintiff-Bruce Hepler, Esq.
and Ben Hartwell, Esq.
Petitioner, Defendant-John Wall, Esq.
Non-parties Laliberte-David Silk, Esq.
v.
TOWN OF SEBAGO, COMBINED ORDER
ON PENDING MOTIONS
Respondent,
Before the Court are three pending motions: a Motion for Trial filed by Petitioner
Gorham Sand & Gravel ("GSG"), a Motion to Dismiss by Respondent Town of Sebago
("Town"), and another Motion to Dismiss by Robert and Marcella Laliberte ("Lalibertes"), who
are not currently parties to this action.
Background
The following background is taken from the Complaint: 1
In April 2021, GSG purchased a 200-acre lot of undeveloped land in Sebago after
confirming with the Town of Sebago that operating a quarry was an allowed use in the zoning
district but would need Planning Board approval. GSG hired an engineering firm with quarry
experience, Sebago Technics, to help it conduct due diligence and met with the Town of Sebago
about its plans. Then GSG submitted its site review application ("Application") to the Planning
1
M.R. Civ. P. SOB(d)( I) requires that "[w ]here a motion is made for a trial of the facts pursuant to subdivision (d) of
this Rule, the moving party shall be responsible to ensure the preparation and filing of the record and such record
shall be filed with the motion." No record has yet been filed.
1
(
Board in September 2021. The Planning Board held a public hearing on October 12, 2021, at
which it reviewed the Application. At another Planning Board meeting November 9, 2021, the
Planning Board decided to hold a vote on the Application on December 14, 2021, without
objection from GSG.
Before the next meeting, the Town passed a moratorium ("First Moratorium")
disallowing new quarrying permits. At the December 14 meeting, the Planning Board discussed
the recently passed moratorium, and most members did not think it properly applied to the
pending Application. The Planning Board then considered the Application, finding that each of
eighteen requirements had been met. It approved the application upon two conditions: (1) that
GSG obtain a $500,000 reclamation bond and (2) GSG have its sound engineer revise the sound
study to reflect the noise and vibrations at the nearest property lines rather than the nearest
dwellings. The Planning Board issued a Notice of Decision and Findings of Fact the following
day. GSG thereafter obtained the bond and revised the study, which confirmed the quarry would
meet noise limits at the property lines. A town meeting was held on January 25, 2022 where
another moratorium ("Second Moratorium") was adopted.
The Town of Sebago and others, referred to as the "Shute-Laliberte" parties, appealed the
Planning Board decision to the ZBA. The ZBA issued two decisions on the appeals - one on the
Town's appeal and another on the Shute-Laliberte appeals. The decision on the Town's appeal
considered whether the First Moratorium should have governed the Application. The ZBA found
that appeal was moot due to the passage of the Second Moratorium. The decision on the Shute
Laliberte appeals vacated the Planning Board's approval, taking some additional evidence and
finding that certain requirements of the Application had not been met and that the application fee
should have been $43,000, without giving GSG opportunity to be heard on that issue.
2
GSG filed a M.R. Civ. P. SOB Petition for Review of the decision of the ZBA vacating
the approval of GSG' s Application for a proposed quarry. The appeal argues that the ZBA
applied an incorrect standard of review and failed to give proper deference to the Planning
Board's findings, that the ZBA improperly ruled on issues not raised for appellate review, that
substantial record evidence supports the Planning Board's decision, and that the ZBA erred in
concluding GSG had not met requirements in the applicable ordinance. Count I, the Petition for
Review, requests this Court vacate the ZBA's decision. Count II seeks a declaratory judgment
that the two moratoria passed by the Town were fatally defected, unnecessary, and do not
prevent approval of GS G's Application.
The Court has granted Petitioner's unopposed Motion to Specify the Future Course of
Proceedings to allow time for discovery relating to the Petitioner's request for declaratory relief.
Pending are Respondent's Motion to Dismiss both claims, Petitioner's Motion Requesting a Trial
to Permit the Introduction of Evidence, and the Lalibertes' Motion to Dismiss Petitioner's Rule
SOB Appeal for Failure to Join Persons Needed for Just Adjudication. The Court addresses each
of these motions below.
Discussion
ill The Town's Motion to Dismiss
The Town moves this Court to dismiss both counts in GSG's Complaint.
a. Count I: SOB Petition
The Town argues that the ZBA did not issue a final judgment and therefore no decision is
appealable. GSG responds that the appeal should be heard because it is explicitly authorized by
statute and town ordinance, a final judgment exists, an exception to the final judgment rule
applies, and the ZBA exceeded its authority.
3
"Ajudgment is final only ifit disposes of all the pending claims in the action, leaving no
questions for the future consideration of the court." Bank ofNY. v. Richardson, 2011 ME 38, ,r
7, 15 A.3d 756. The final judgment rnle prevents appeals until a final judgment has been
rendered in a case, with a few exceptions. Doe v. Roe, 2022 ME 39, ,r 13, 277 A.3d 369. The rule
conserves judicial resources and minimizes interference with the trial court, among other
purposes. Id The rnle may prevent appeals even where appeal is expressly provided for in a
Town ordinance. Bryant v. Town a/Camden, 2016 ME 27, ,r 14, 132 A.3d 1183 ("[T]he
legislative power vested in a municipality through home rnle may not supplant the power of the
courts to determine whether a justiciable controversy has been presented.").
GSG's argument that town ordinance authorizes the appeal fails in light of Bryant, 2016
ME 27, ,r 14, 132 A.3d 1183, and the cited statute, 30-A M.R.S. § 2691(3)(G) does not repeal the
final judgment rule in this context but establishes a time period for appeal. 2 GSG cites
Gensheimer v. Town ofPhippsburg, 2005 ME 22, ,r 4, 868 A.2d 161, for the proposition that the
Planning Board decision is reviewable because the ZBA 's prescribed role is appellate.
Gensheimer only directed courts which decision, the appellate or underlying decision, they
should review when considering an appeal from a final agency action. This Motion raises a prior
consideration - whether there is a final agency decision ready for review . The parties agree that
the matter of GSG's Application has not been finally settled by the Planning Board. Because the
matter is still pending, the Court finds that the decision of the ZBA was not a final judgment. The
ZBA decision is not appealable unless GSG is correct that the judicial economy exception
applies.
2 "Any party may take an appeaL within 45 days of the date of the vote on the original decision, to Superior Court
from any order, relief or denial in accordance with the Maine Rules of Civil Procedure, Rule 80B. This time period
may be extended by the court upon motion for good cause shown. The hearing before the Superior Court must be
without a jury."§ 2691(3)(0).
4
The judicial economy exception to the final judgment rule is only available "in those rare
cases in which appellate review of a non-final order can establish a final, or practically final,
disposition of the entire litigation." Hearts with Haiti, Inc. v. Kendrick, 2019 ME 26,118,202
AJd 1189 (quoting US. Dep 't ofAgric., Rural Haus. Serv. v. Carter, 2002 ME 103, 113, 799
A.2d 1232). The exception also requires a conclusion that "the interests of justice require that
immediate review be undertaken." Maples v. Compass Harbor Vil/. Condo. Ass 'n, 2022 ME 26,
117, 273 A.3d 358 (quoting Quirion v. Veilleux, 2013 ME 50, 19, 65 AJd 1287).
The Court concludes that the first prong is met. If the Court were to grant GSG's Petition
in full, reversing the ZBA's order, the matter would be resolved because the application would
be finally approved. See Maples v. Compass Harbor Viii. Condo. Ass'n, 2022ME26,117 n.9,
273 A.3d 358 ("[W]ith respect to the first requirement, a party need only demonstrate that, in at
least one alternative, our ruling on appeal might establish a final, or practically final, disposition
of the entire litigation."). The Court fmds, however, that the second prong is not met. GSG has
not shown that the de nova review was improper. See 30-A M.R.S. § 269l(C)(3) (stating that
when a board of appeals established after September 23, 1971 is directed to conduct an appellate
review rather than de novo, the board may not accept new evidence). If the Court were to apply
the cited statute, it is unclear whether it would govern the ZBA because it is not clear from the
current record when the ZBA was established.
Moreover, the Law Court has explained that once a town malces a final decision on a
certain application, an appeal may include arguments "raised with respect to those components
of the administrative process that led to the final decision on the proposed use." Bryant, 2016
ME 27,120, 132 A.3d 1183. If this Petition for Review is dismissed because there is no final
decision and no exception to the final judgment rule applies, GSG will be able to raise its
5
arguments regarding the ZBA's actions in a future appeal. The Court concludes that the interests
of justice do not require excepting this Petition for Review from the final judgment rule. The
Court grants the Motion to Dismiss with respect to Count I, Petition for Review.
b. Count IL Declaratory Judgment
As to Count II, the Town argues that there is no live dispute regarding the moratoria.
GSG disagrees, arguing that the Law Court allows anticipatory challenges to ordinances such as
a moratorium, that the Town argued on the basis of the moratoria before the ZBA, and that the
moratorium in place relates to the decision of the Planning Board on remand. It also argues that
if it prevails before the Planning Board, the Second Moratorium will prevent the issuance of a
permit from the Code Enforcement Officer, and that judicial economy would be served by
considering the moratoria now due to the potential for multiple appeals based on the same issue.
The Town responds, arguing that if the Planning Board finds GSG's application fails to meet
requirements, the moratoria will never be applied to GSG's application.
When seeldng preventative relief under the Declaratory Judgment Act, 14 M.R.S. §§
5951-5963, plaintiffs do not need to establish a particularized injury to show a justiciable
controversy. Blanchardv. Town ofBar Harbor, 2019 ME 168,, 12,221 A.3d 554. Instead, the
plaintiff must only show that "he has some private or particular interest to be subserved, or some
particular right to be pursued or protected ..., independent of that which he holds in common
with the public at large." Buck v. Town ofYarmouth, 402 A.2d 860, 861 (Me. 1979). This
declaratory judgment action seeks preventative relief because it asks that the Court find the
moratoria will not affect GSG. GSG aims to protect its interest in the proposed quarry, as it has
an application pending to open the quarry and the Second Moratorium is specifically targeted at
preventing quarries from opening. The Court finds that GSG has shown a sufficient unique
6
interest such that Count II will withstand the justiciability challenge. It denies the Town's
Motion as to Count II.
ill Lalibertes' Motion to Dismiss
The Court notes that the Lalibertes are not currently parties to this action. If they wish to
file substantive motions, they must take the procedural steps to accomplish party status. Town of
Arundel v. Dubois Livestock, Inc., 2019 ME 104, 17,211 A.3d 202. Moreover, dismissal is not
the proper remedy for failure to join parties whenjoinder is feasible. See M.R. Civ. P. 19.
Therefore, the Court denies the Laliberte Motion to Dismiss. The Court also notes that because it
granted the Town's Motion as to Count I, the Laliberte Motion would be moot if it were properly
before the Court.
ill Plaintiffs Motion for Trial
Plaintiffs Motion for Trial, which is directed at Count II, has already been addressed by
the Court's Order on GSG's Motion to Specify the Future Course of Proceedings, which allows
time for discovery on Count II. See Baker's Table, Inc. v. City ofPortland, 2000 ME 7, 1 11 n.7,
743 A.2d 237 (advising Petitioners who bring independent counts in a Rule SOB action to file a
Motion to Specify the Future Course of Proceedings rather than a Motion for Trial). Plaintiff's
Count II for declaratory relief is not bounded by the procedural rules of a Rule SOB Petition. The
Court finds that the Motion for Trial is moot and clarifies that Plaintiff has the opportunity for
discovery and a trial on its Count II.
7
The entry is:
Plaintiff Gorham Sand & Gravel's Motion for Trial is MOOT. The Town's
Motion to Dismiss is GRANTED IN PART and DENIED IN PART. Count I of
the Complaint is DISMISSED, and Count II withstands the Motion. The Laliberte
Motion to Dismiss is DENIED.
The Clerk is directed to enter this Order on the docket for this case by incorporating it by
reference. M.R. Civ. P. 79(a).
J / ').. I '>-7
,d-
DATE SUPERIOR COURT JUSTICE
M. Michaela Murphy/
Entered on the Docket:. oitoz.g":3
8
STATE OF MAINE SUPERIOR COURT
Cumberland, ss. Civil Action
Docket No. AP-22-32
Gorham Sand & Gravel, Inc.,
Plaintiff,
•ORDER ON PLAINTIFF'S
v. MOTION REQUESTING COURT TO
SPECIFY THE FUTURE COURSE OF
PROCEEDINGS
Town of Sebago,
Defendant
~~~- ~~
After coAsideration of P aintiffs Motion Requesting Court to Specify the Future Course
of Proceedings/ tjie Motion is hearby ACCEPTED and hereby GRANTED. The Court shall
specify the future course of proceedings to allow time for discovery relating to the Plaintiffs
count to request for declaratory relief of moratoria enacted by the Town of Sebago.
Dated: --~'~::,.-~\-'-1,,_I_-,..._,...-
___
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M. Michaela Murphy