S TATE OF MAINE PENOBSCOT, ss.
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OAK L EAF REALTY, INC., Plaintiff, v. T OWN O F H OLDEN, Defendant.
S UPERIOR COURT CIVIL ACTION D OCKET NO. CV -08~02(}
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ORDER
FILED & ENTERED
SUPERIOR COURT OCT 1 7 2008
PENOBSCOT COUNTY
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T he plaintiff, Oak L eaf Realty, Inc.
complaint
seeking declaratory judgments against the defendant, Town o f H olden (hereinafter " the T own") alleging: ( l) that the Town improperly assessed an impact fee so as to improperly affect Oak L eafs r ights that had vested prior to the enactment o f the ordinance authorizing the fee; and (2) that the enactment o f the ordinance authorizing the impact fee was an ultra vires act by the Town. The parties have submitted cross-motions for summary judgment upon which the Court heard oral arguments on September 2 5,2008.
BACKGROUND
O ak L eaf received approval from the Town Planning Board to construct the Barrett Lane Subdivision (hereinafter "the subdivision") on August 9, 2006. In constructing the subdivision, O ak L eaf intended that the road constructed as part o f the subdivision, Barrett Lane, be dedicated as a public way. Prior to such dedication, the Town passed the Town Way Acceptance and Public Safety Equipment Impact Fee Ordinance, which required the assessment o f an impact fee by the T own Code Enforcement Officer prior to any road being accepted by the T own as a public
way. Oak L eaf was assessed the fee and paid it. The Town thereafter accepted Barrett Lane as a public way. Oak L eaf now seeks to have the ordinance invalidated and recover what they paid.
DISCUSSION
The Court herein does not reach the merits o f the parties' cross-motions for summary judgment. Rather, the Court addresses a more foundational issue. Oak L eaf has brought a civil action for declaratory judgments, seeking to recover the impact fee that it has paid to the Town. However, Oak L eafs claims arise out o f governmental action and should have been brought pursuant to M.R. Civ. P. 80B within 30 days o f such action. In light o f this issue being raised by the Town in its pleadings, Oak L eafs complaint is hereby dismissed. Rule 80B is " the sole means o f judicial review o f action by all governmental agencies except those for which the legislature has expressly made a different provision." M.R. Civ. P. 80B(a) advisory committee's note to 1967 amend., 2 Field, McKusick & Wroth, Maine Civil Practice 305 (2d ed. 1970). See M.R. Civ. P. 80B(a) advisory committee's note to 1983 amend., Me. Rptr., 459-466 A.2d XLII (stating that following the enactment o f the Administrative Procedure Act and M.R. Civ. P. 80C, "Rule 80B will continue to serve as the means for review o f all other governmental action, consisting primarily o f the decisions o f municipal zoning and planning boards and other local agencies"). A plaintiff wishing to challenge the action o f a municipality must bring his claims by way o f a Rule 80B action unless the claim is a truly independent cause o f action. Colby v. York County Comm'rs, 442 A.2d 544, 547 (Me. 1982); Fisher v. Dame, 433 A.2d 3 66,372 (Me. 1981). A cause o f action is only independent i f a Rule 80B action is unavailable or would not provide an adequate remedy. Colby, 442 A.2d at 547; Fisher, 433 A.2d at 372.
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Oak L eaf could have appealed the imposition o f the impact fee to the Town Council pursuant to section 13 o f the Town Way Acceptance and Public Safety Equipment Impact Fee Ordinance and then subsequently to the Superior Court by way o f a Rule 80B action. Through such appeal Oak L eaf could have challenged the validity o f the ordinance, challenged the application o f the ordinance to Oak Leaf, and sought to recover the money it paid pursuant to the ordinance. A Rule 80B action was available and provided an adequate remedy to Oak Leaf; therefore, its complaint does not contain any independent actions. A plaintiff may not challenge a condition placed upon the acceptance o f a subdivision plan or a private way as inconsistent with statutory and constitutional requirements by requesting a declaratory judgment. Sold, Inc.
v. Town o /Gorham, 2005 ME 24,
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13, 868 A.2d 172, 176. "Such challenges are the essence o f
matters that must be brought pursuant to Rule 80B to question whether the particular action o f a municipal administrative agency is consistent with the requirements o f law." Id. The warning o f the advisory committee rings true in this case. "Failure to be aware o f the relationship between a Rule 80B claim and an independent action may cause more serious problems." M.R. Civ. P. 80B(i) advisory committee's note to 1983 amend., Me. Rptr., 459-466 A.2d XLVI. This issue was not raised by the Town in a motion to dismiss pursuant to M.R. Civ. P. 12(b)(6) or addressed in its motion for summary judgment. However, the Town did raise it as an affirmative defense in its answer. In Colby, the Law Court approved o f dismissal based upon such a defense when it was raised in the pleadings. In that case the plaintiff affirmatively raised in the pleadings the timeliness o f two claims that should have been brought under Rule 80B.
Colby, 442 A.2d at 546. The plaintiff then filed a motion to dismiss the first count and a motion
for summary judgment on the second count. Id. The Superior Court granted both motions. !d. The Law Court reversed the granting o f summary judgment on the second count but remanded
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t he case to the Superior Court with directions to dismiss the claim for noncompliance with Rule 80B. Id. at 549. Although the plaintiff did not raise this issue in a motion to dismiss, the Court held that dismissal was required because the issue was "raised by the pleadings." Id. In the present case, the Town raised the issue o f noncompliance with Rule 80B in its pleadings and Oak L eaf has not brought any claims independent o f Rule 80B; therefore, Oak L eafs complaint is dismissed.
CONCLUSION
O ak L eafs claims are dismissed for failure to bring them in an action pursuant to Rule 80B. The Court questioned counsel for the respective parties with regards to this issue when they appeared for oral argument on the cross-motions for summary judgment. Neither side was able to present plenary arguments at that time with regards to this issue. In light o f this, the Court invites Oak L eaf to file a motion for reconsideration pursuant to M.R. Civ. P. 7(b)(5) i f it wishes to fully b rief the issue. Upon such filing the Town would be afforded an opportunity to respond as provided by M.R. Civ. P. 7(c)(2).
The entry is: 1. T he p laintiffs c omplaint is DISMISSED.
2. This order is incorporated into the docket by reference pursuant to M.R. Civ. P. 79(a).
Dated: -!,-u_\-"----'----\_'"
, 2008
M. Michaela Murphy Justice, Superior Court
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MAINE JUDICIAL INFORMATION SYSTEM ksmith PENOBSCOT COUNTY SUPERIOR COURT mjtvi001 PAGE P - PARTY VIEW OAK LEAF REALTY INC VS TOWN OF HOLDEN UTN:AOCSsr -2008-0010378 CASE #:BANSC-CV-2008-00020 SEQ TITLE 001 PL 002 DEF NAME OAK LEAF REALTY INC BY JOHN HAMER ESQ HOLDEN TOWN OF BY THOMAS RUSSELL ESQ DOB ATTY T T
10/17/2008
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STATE OF MAINE PENOBSCOT, ss.
SUPERIOR COURT CIVIL ACTION DOCKET NO. CV-P8-020
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OAK LEAF REALTY, INC., Plaintiff, v. TOWN OF HOLDEN, Defendant.
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I PENOBSCOT COUNTY
This matter is before the Court on a mQ!iQuJof-..xeconsid0Fafien--fiiedby the plaintiff, Oak L eaf Realty, Inc. (hereinafter "Oak Leaf'). Oak Leaf asks the Court to reconsider its October 16, 2008 order dismissing Oak L eaf s complaint against the defendant, the Town o f Holden (hereinafter "the Town"). See Oak L eaf Realty, Inc. v.
Town o f Holden, BANSC-CV-2008-00020 (Me. Super. Ct., Pen. Cty., Oct. 16, 2008)
(Murphy, l ). The facts surrounding this case and the reasons for dismissal are set forth in the Court's prior order and are not repeated here. Oak Leaf contends in the present motion that the Court erred in dismissing count two o f its complaint because M.R. Civ. P. 80B "is not the sole means o f challenging the validity and prospective application o f an ordinance." (PI.' s Mot. for Recons. at 2). The declaratory judgment law does permit anticipatory challenges to a regulation or ordinance to resolve a dispute regarding a planned action, before the matter actually proceeds and the challenged ordinance is applied to the detriment o f the plaintiffs. Such anticipatory challenges pursuant to the declaratory judgment law have been allowed to seek clarification o f the applicability o f laws, ordinances, and administrative regulations to impending projects. Accordingly, i f a plaintiff was developing a new subdivision and desired to challenge the new impact fee ordinance as it would apply prospectively to that subdivision, a
declaratory judgment action would be proper, assuming the other prerequisites for standing were met.
Sold, Inc. v. Town o f Gorham, 2005 ME 24, , 14, 868 A.2d 172, 177 (citations omitted).
Oak L eaf is correct in stating that the Rule 80B is not the sole means for prospectively challenging a municipal ordinance. In fact, Rule 80B cannot be used at all for the sole purpose o f prospectively challenging an ordinance in as far as Rule 80B actions entail the review o f some past governmental act or refusal to act. M.R. Civ. P. 80B(a).
Notwithstanding the accuracy o f the rule o f law stated by Oak Leaf, such rule is inapplicable in this case. Nowhere in its complaint did Oak L eaf allege the possibility o f any future injury from the application o f the challenged ordinance. If, as the Law Court suggested in Sold, Inc., Oak L eaf had alleged that it was in the process o f developing a new subdivision and that it would be prospectively subject to the impact fee authorized by the challenged ordinance then declaratory relief could be available. Sold, Inc., 2005 ME 24, , 14,868 A.2d at 177. Oak Leaf requests that the Court declare the impact fee ordinance invalid but does not do so in the context o f seeking to prevent future injury. Oak Leaf's complaint reveals that it only seeks to be reimbursed for a past application o f the ordinance not to avoid a future one. I The challenge in this case was not made "before the matter actually
proceed[ed] and the challenged ordinance [was] applied to the detriment o f the
In its complaint, Oak L eaf prays for relief as follows. W HEREFORE, P laintiff O ak L eaf Realty, Inc., respectfully requests t hat this C ourt issue a declaratory j udgment t hat t he Defendant T own o f H olden's " Town W ay A cceptance a nd Public Safety E quipment I mpact Fee O rdinance" is ultra vires o f its authority under 3 0-A M .R.S.A. § 4353 and therefore invalid, and O rder D efendant T ow o f H olden to repay to P laintiff t he Barrett Lane Subdivision impact fee paid under protest, and costs plus such other and further relief as the Court deems proper. ( PI.'s C ompl. at 3).
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p laintiffs." Id. O ak L eaf's s uit relates to what has happened in t he past not about what will happen in the future; therefore, r elief in the form o f a d eclaratory j udgment is not available.
T he e ntry is: 1. T he p laintiff's m otion for reconsideration is DENIED. 2. This order is incorporated into the docket by reference pursuant to M.R. Civ. P. 79(a).
Dated: D ecember
L , 2008
Justice, Superior C ourt
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MAINE JUDICIAL INFORMATION SYSTEM PENOBSCOT COUNTY SUPERIOR COURT PAGE P - PARTY VIEW OAK LEAF REALTY INC VS TOWN OF HOLDEN UTN:AOCSsr -2008-0010378 CASE #:BANSC-CV-2008-00020 SEQ TITLE 001 PL 002 DEF NAME OAK LEAF REALTY INC BY JOHN HAMER ESQ HOLDEN TOWN OF BY THOMAS RUSSELL, ESQ. DOB ATTY
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12/03/2008
