Zbigniew v. Town of Falmouth
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STATE OF MArNE CUMBERLAND, 5S. KATlfLEEN KURLANSKI and ZBrGNfEW KURLANSKI, Plaintiffs, ORDER ON MOTION TO DISMISS v. TOWN OF FALMOUTH et a1. Defendcmts KJthleen Jnd Zbigniew Kurlanski JppeJl from a decision of the Town of Falmouth's Zoning Board of Appeals finding the Portland Yacht Club may park cars on a grass lot Cldjaccnt to the Kurlanskis' property. The Kurlanskis helVe Cllso filed independent clJims for breach of contrJct and promissory estoppel. The Portlm1d Yacht Club Jnd the Town of Falmouth now move to dismiss these independent claims. BACKGROUND The KurlJnskis allege the following. The Portland YJcht Club is club in Falmouth, MCline. (Comp1. 919[ 5,7.) On June ,1 private W, 1983 the Club purchased an unimproved parcel of property abutting its premises. (Compl. ([[CII '[E1-17, 19, 22.) This pewee! is ldenti fied ,1S I~ot 2. (Comp1. 9f 16.) On December 16, 1983, tlll' [(urlclllskis purchJscd an adjacent property identified as Lot L on 'Nhich they currently reside. (Compl. 9](11 2, 20-2'1.) On September 12,1999, the KurJanskis submitted a letter to the Falmouth Code Enforcement Officer (CEO) complaining that the Club had regularly used Lot 2 for parking motor vehicles during the summer of 1999, in alleged violation of the Falmouth zoning ordinance.' (Com pI. <j[ 29.) On October 19,1999, the CEO ordered the Club to stop parking cars on Lot 2 in violation of the ordinance prohibiting the establishment of a parking area without approval from the Falmouth Planning Board. (Compl. <[ 36.) The Club did not appei11 the CEO's decision. (CompJ. ~[ 38.) However, on November 24, 1999 the Club wrote the CEO to request that he reconsider the matter. (CompI. (1139.) In the letter, the Club reasserted its di1im that the Falmouth Planning Board had already approved the use of Lot 2 for parking in a parallel proceeding? (Com pI. ~r<j[ 39-40.) Finally, the Club indicated that it would be willing to accommodate the Kurlanskis and requested a meeting to discuss acceptable parking restrictions tha.t would not run afoul of the ordinance. (CompJ. ~[42; Amended Cornpl.1r 117.) fn letters da.tcd May 22,2000, and June 19, 2000, the Club wrote the CEO to request written confirmation that special event parking on Lot 2 would be acceptable pursuant to an agreement reached at a meeting between the Club, the CEO, and (11'1Ot11er town officii11. (Amended CompJ. <I[~ 120-22.) The Kurlanskis olso played some role in these discussions. (Compl. 44.) The Club agreed to limit its use of Lot 2 for overflow porking to three events per yei1r, which would The p<'lrties have not placed the zoning ordinance in the record, i1nd courts "do not take judiciol notice of ordinances." Mills v. TOWII of Eliot, 200H ME D4, <1123, 955 A.2d 258, 266. 2 The Club vva.s also pursuing permits to build a boathouse zmd make other cha.nges <It this time. Those proceedings arc not relevant to the pending motions. I 2 constitute allowilble incidellt<11use.~ (Steilrns AfE. Ex. 1.) However, the Club <11so stated that it was actively investigating the past use of Lot 2, c111d would attempt to establish that p<1rking was-allowed as a grandfathered use. (Stearns Aff. Ex. 1.) The letter closed with the following: "This request is not intended as a \vaiver of any rights that the Club may have to continue the use of [Lot 2] as a gralldfathered nonconforming use." (Stearns AfL Ex. 1.) The CEO responded by affirming that the use of Lot 2 for parking on no more th<1n threec;pecific events during the summer would constitute occ<1sional use that would not be <1 zoning violation. (CompJ. err 46.) Tn a letter dated August 18,2000, the CEO informed the Kurlanskis that the Club would park C<lrs on Lot 2 during three events per year. (CompJ. 91 47.) Parking on Lot 2 was limited to three events per ye<1r from 2000 through 2006. (CompI. (1152.) fn 2007, the Kurl<111skis' daughter reported that motor vehicles were parking on Lot 2 more frequently. (CompJ. 9l 54.) The Kurlallskis con taeted the Cl ub, whi ch tol d them that it intended to usc Lot 2 for p<lrki ng more frequently in the future. (Compl. 9f 55.) On April 2, 2009, the Kurbnskis sent the Town's new CEO a formal complaint <1lJeging th<1t the Club had violated the Town's ordinance by allowing vehicles to regularly park on [Jot 2 <lnd by depositing crushed rock onto the gr<1SS at the boundary of Lot 2. (CompJ. (II 59.) On August 6, 2009, the new CEO fOllnd that there was no violation beGlllSe intermittent seasoni11 usc for parking had been established on the property prior to the ildoption of zoning in 1965. (Compl. (If 6'1.) The Kurlclnskis appealed the CEO's decision to the Falmouth Zoning BO<lrd of Appe<lls (213A). ~ The letters form the written evidence of the <llleged contr<lct, so milY be considered 011 a motion to dismiss without converting the motion into one for summary judgmcnt.lVIoor1y v. Stnfc Liq/lor {;- IJo((ery COI/JlI/'/l, 2()04ME 20, (II '[2, 843 A.2d 43, 48. (CampI. (ll 65.) At a hearing on April 20, 201 0, the ZSA ruled th<lt it had jurisdiction to hear the appeal over the Kurlanskis' objection. (Compl. 91 66.) A special hearing was then held on July 20,2010, at which the ZBA conducted <l de novo inquiry into whether the use of Lot 2 was a grandfathcred nonconfonning use. (CampI. 74.) The new CEO was on a leave of absence and W<lS not <lvailable to defend his decision, but a deputy CEO was present to assist the ZBA. (Compl. 9191 70, 74.) The ZI3A heard statements from various indiviclLlC11s, <lnd received from the Kurlanskis an affidavit from Lot 2's prior owner. (CompJ. (1175.) The ZBA discussed this evidence at its regular meeting on July 27, 201 0, took a preliminary vote on the matter, and instructed its attorney to draft findings of fact and conclusions of law. (Compi. 9fcrr 76-77.) FinaJJy, on October 26, 2010, the ZBA adopted findings of fact showing that Lot 2 was a grandfathered, nonconforming use that could be used for parking during four to eight events per season. (Compl. (If 79.) The Kurlanskis filed their Rule 80B appecll <lnd compJ<lint on December 7, 20W, cliliming ilmong other things that the communic<ltions bctvveen Town, the Club, and the Kurlanskis in the year 2000 formed a contr<lct. This <ll1eged contract bound the Club to use Lot 2 for parking no more than three times per year, and bound the Town to prevent all parking on the Lot if the Club exceeded the three event limit. The Kurlanskis later amended their complaint to <ldd il clclim for promissory estoppel. crhe Town and Club move to dismiss these independent claims. DISCUSSION "A motion to dismiss tests the legal sufficiency of the complclint." I1cl7(>r v. Lllcerl/c-;II-;\[nil/e ViI/age Corp" 2000 MI:;: 137, 91 7, 755 A2d 1064, "1066 (quoting 4 McAfcc v. Cofe, 637 A.2d 463, 4(;5 (Me. 1994)). "For purposes of " 12(b)((;) Illotion, the m"teriCl] i'llleg"tions of the complaint must be ti'lken ClS Cldmitted." McAfce, (;37 A.2d Clt 4(;5. The Court eXClmines "the compl"int 'in the light most fClvorClble to the plClintiff to determine whether it sets forth elements of Cl cause of action or alleges bcts that would entitle the pl2lintiff to relief pursuant to some legCll theory.'" [ohmlsoll v. Dllllllingto7l, 2001 ME 1(;9, 9I 5,785 A.2d 1244, 1245-46 (quoting Til rc Wagc Paylllcn! U!ig. v. Waf-Ajar! Stores, Inc., 2000 ME 162, (If 3, 759 A.2<.1 217, 220). "Generally, 'the existence of a contract is a question of f"ct to be determined by the jury.'" Sul/ivall v. Porter, 2004 ME 134, 9, 13, 861 A.2d (;25, 631 (quoting [III1C Rohcrts Agency, Tllc. v. Venturc Props., TIIC., 676 A.2d 4(;, 48 (Me. 199(;)) (quotations omitted). However, in order for Cl contract to exist, a jury must be "ble to find that "the porties l1lUtUZl1Jy assent[edl to be bound by Clil its mClterial terms, the assent is either expressly or impliedly manifested in the contrClct, Clnd the contract is sufficiently definite to enClble the court to clscertZlin its ex"ct me"ning and fix exactly the legal liabilities of each party." Td. (citing /-'orrcst Assocs. v. Passalllaqlloddy Tribe, 2000 ME 195, (I[ 9, 760 A.2d 1041, 1(44). Furthermore, the contrClct must be legell, Lelligfl v, Pittstoll Co., 456 A.2d 355, 3G'j (Me. 'I (83), and there must be consideration. Laj7an/lllc v. HOfflllall, 148 Me. 444, 450, 95 A.2d 802, 805 (1953). While it is de"r thClt the parties did re"ch sorne form of Clgreelllent, the question is whether their mutuClI understanding could have creClted Cl legCllly binding contract. The Clnswer is no. Giving the Kur1Clnskis the benefit of ,,11 reasonClble inferences, the court could llSSl1111e for the purpose of these rllotions thelt the Zlttorney representing the Club had authority to bind the Club to" 5 contrC1ct. The CEO, however, could not hC1ve hC1d legC11 authority to enter into C1 contrC1ct on behalf of tIle Town. The executive C1nd C1dministrative C1uthority of a town is generC1/ly vested in the board of selectmen, acting as a body. Sirois v. Frenchville, 441 A.2d 291, 294 (Me. 1982) (quoting 30 M.R.S.A. 8 2316 (1978) (current version at 30-A M.R.S. § 2635 (2010))). A municipality's code enforcement officer, in contrast, lias limited authority defined by stC1tute. See id. (discussing the limited C1uthority of selectman acting alone). This au thority does not C1lJow the officer to enter contracts on the town's behal f. See 30-A M.R.S. §§ 4451-52 (2000). "All persons contracting with town or city officers must tC1ke notice at their peril of the extent of the C1uthority of such officers. Jt is not the town's burden to establish the absence of authority, but the plointiff's burden to prove the authority." Sirois, 441 A.2d at 294. The Kurlanskis hC1ve not alleged any bC1sis from which they might prove that tIle Town's CEO had the clUthority to bind the Town to the alleged contract. A jury would hC1ve to speculC1te that tIle CEO's action had been C1l1thorized or rC1tified at some unidentified meeting of the Board of Selectmen. Sec Bell AI!. Corp. v. Twolllbly, 550 U.S. 544, 555 (2007) (pll'C1ding must allege more than speculative grounds for relief in order to C1void dismissC1I). The Kl1rlanskis hC1ve thus foiled to C1l1ege C1 prin1C1 fC1cic CC1se for breoch of contrC1ct agC1inst the Town. r~ven assuming thC1t C111 pC1rties were represented by ogents with cldequC1te cluthority, the Lillegcd contrC1ct must fail for lack of mutuC11 C1ssent to be bound Lind C1 rclC1ted wC1nt of consideration. Confusion on this point C1ppeC1rs to stem from the terms of the alleged agreelliellt reC1ched in 2000. The KurlC1nskis C1l1ege thC1t the CEO found thC1t the Club's usc of Lot 2 up to that point hC1d violLlted the ordinance. Hov\,ever, the CI~O also determined th<1t parking 6 CMS on Lot 2 for no more than three events per year would be occasional use not violating the ordinance. The Club declared that it would conform its usc of the Lot to meet the CEO's interpretation of the ordilllll1Ce, but expressly reserved its right to challenge the CEO's interpretation in the future if llnd when it gained more information regarding Lot 2's history. It is clear from the above that the Club did not assent to be bound or offer any other form of consideration. The Club only agreed to conform its behavior to what the CEO interpreted the law to demand. Perfornlance of an existing legal obliglltion, in this Cllse by refraining to usc the Lot for general pllrking, cannot serve as considerlltion for a reciprocal promise in a contract. PI711I7S0Ilic COllIlIIC'IIS ti Sys. Co. v. Dept. of Admin, 1997 ME 43, 9114,691 A.2d 190, 195 (citing Restatement (Second) of Contracts § 73 (l9R1)). Even this promise was illusory, bec,luse the Club 'llso expressly reserved its right to chllllenge the CEO's interpretlltion of the ordinance or develop new evidence that would change how the ordinance applied. Ultimately, the Club only agreed to comply with the CEO's interpretation of the law until it felt like it didn't have to. This is not II promise. Silllilllrly, the CEO did not promise to refrain from enforcing the ordinance.~ Assuming thllt he could hllve made such II promise, lllJ the C[~O did was interpret the ordin{1nce llS {1llowing occasional use of the Lot for parking. In the CEO's opinion, using Lot 2 for overflow pllrking on no more thlln three events per summer would fllil short of establishing II parking ,lrea without prior llpprov,ll, llnd thus not violate the ordinance. So long {1S the Club did not attempt ~ The court cannot llsclTtain the limits of the CEO's prosecutorial discretion without reference to the Town of Falmouth's ordinllnce. Sec Arfl7l115 v. Tml111 of BrtlllSwick, 201 0 ME 7, (j[91 8-9, 987 A.2d 502, 506. 7 to usc the Lot more frequently and thereby establish a parking area, there would be no violation and the CEO could not initiate an enforcenlent tlction. As alleged in the complaint, the supposed promise to not enforce the order of October 19, 1999 was really nothing more than a promise not to bring tin enforcement action so long as there WtlS no violation. Like the Club's promise to obey the lelW, the CEO's promise to enforce the law only when there was a vjolotion connot constitute considerotion for 0 contract. Finillly, the Kurltlnskis allege that they tlgreed to refrain from filing a complclint with the CEO or seeking relief in the nature of a writ of mandJmus so long elS the Club limited its use of Lot 2 to three events per year. Only the Town could actuolly initiate an enforcement action, so the Kur1anskis retllly promised to refrain from two actions. Herrle v. Town ojWnferborCJ, 2001 ME 1, 1f 1"1, 763 A.2d 1159,1102 (citing 30-A M.R.S. § 4452(4)). First, the Kurlanskis promised not to bring an action oS abutters to compel the CEO to enforce the October 19, 1999 order, assuming that they could do so under the ordinonce. The problem here is that the order of October 19, 1999 was issued in response to the Club's supposed attempt to establish a parking area. So long as the Club did not regularly park GlrS on the Lot, there would be no violation to enforce the order against, so the promise was empty. The Kurltlnskis' second promise WelS to refrain from challenging the CEO's detennineltio!l that pJrking on Lot 2 during three events per year would not violote the ordinance, agelin assuming they could do so. This IntlY conceivably have constituted legell considerJtion, but it would htlve been non-mutual elnd therefore insufficient to bind the other parties to a contreLCt. The illusory nature of the alleged contract in this case becomes clear if the court tries "ascertain its exact meaning and fix exactly the legal liabilities of each party." SuI/ivan, 2004 ME 134, <j[ 13, 861 A.2d at 631. If the Club were to "breach" the agreement by parking motor vehicles on the Lot more than three times per year, the Kurlanskis would be free to file a complaint with the Town CEO LlgC1inst the C111eged breach of the ordinallce. The CEO would then determine whether the Club's increased use violated the ordinLlnce, C1nd be free to initiC1te an enforcement action if the law was being violated. Either the Kurll1nskis or the Club could appeal the CEO's decision to the ZBA. This is exactly whLlt would hC1ppen in the ordinary course without the Lllleged contract, and is exactly wh<lt hC1ppened in this CLlse. Giving the Kurlanskis the benefit of ell! reasonable inferences, they hC1ve fLliled to lll1ege fLlcts thC1t could prove the existence of the Lllleged contrC1ct between the pC1fties. Their Count VI for breLlch of contrC1ct is dismissed. In C1dd i tion to their contract clC1im, the KurlLlnskis contend that the defend,:mts C1re bound by their alleged promises through the doctrine of estoppel. Maine hllS adopted the RestC1tement dcfini tion of promissory estoppel, \lvhich states: A promise which the promisor should rellsonC1bly expect to induce C1ction or forbeLlrance on the pC1rt of the promisee or el third person C1nd which does induce such action or forbearC1nce is binding if injustice CC1n be C1voided only by enforcement of the promise. The remedy granted for breLlch mllY be limi ted C1S justice reqlllres. Harvey v. Dow, 2008 ME 192, Clf 11, %2 1\.2d 322, 325 (quoting RestC1ternent (Second) of ContrC1cts § 90(1) (19B1)). The Kurlanskis argue thC1t the Club promised them and the CEO that it would limit its use of Lot 2, and that the C[~O promised to refnlin from enforcing the October 19, 1999 order so long <lS the usc 9 was so limited. The Kurlanskis, reasonably relying on these promises, refrained from seeking enforcement of their complaint and the October 19,1999 order. The promissory estoppel claim suffers from many of the same deficiencies as the contract claim. Assuming that the Kurlanskis reasonably believed the defendants' statements were directed at them, the only written evidence of the Club's alleged promise shows that it expressly reserved the right to increase its use of Lot 2 for parking in the future. This is not a promise, and it would be unreasonable to view it as such. Similarly, the CEO merely interpreted the ordinance and promised to enforce its terms. The Kurlanskis could not reasonably hClve read anything extraordinary into this statement from a town offi cial. The Kurlell1SkiS have also not alleged tllat they materia]]y changed their legal position in reliclllce on the defendants' Cllleged promises. Here it is irnportant to note that private citizens cannot enforce an ordinance. Herrle, 2001 ME 1, 9[11, 763 A.2d at 1162. The Kurlanskis could have filed a new complaint if they felt the Club was at any time using Lot 2 in violation of the ordinance, or they could have sought mandamus to compel action on the CEO's prior order if they felt it was not being enforced. See RI7Y v. TaWil afCl7l11dell, 533 A.2d 912,9'13 14 (Me. 1987). "[M!andamus can only overcome a failure to act and set the deliberative process in motion, assuJ1l.ing the applicant is entitled to have the process performed." Jr!. elt 914. It cannot guaranty an outcome. While the Kurlanskis did refrain from taking the above elctions while the Club limited overflow parking on Lot 2 to three events per year, they initiclted this current complaint as soon as the Club began to use the Lot lllo,-e extensively. They have not alleged any undue prejudice arising from this delay, nor have 10 they shown any injustice resulting from the seven-year detente between the parties. The Kurlanskis have not alleged a viClble claim for promissory estoppel, and their Count vn is dismissed. The en try is: The PortlCllld Y<Jcht Club's motion to dismiss Counts VI Clnd VJf is granted. The Town of FCllmouth's motion to dismiss Counts V anted. Datc Filcd Cumb e r-=-l,..,ac=:n:.,-d'-- 12-07-10 _ Docket No. AP-10-44 County Action 80B Aj:>LP-=e=a=l _ TOWN OF FALMOUTH THE PORTLAND YACHT CLUB KATHLEEN KURLANSKI ZBIGNIEW J. KURLANSKI Ys. Plaintiff's Attorncy Dcf'cndant's Attorney AARON BURNS ESQ (TOWN OF FALMOUTH) ZBIGNIEW J. KURLANSKI, ESQ. PO BOX 46 PORTLAND, ME 04112 PETER M. MCGEE, ESQ. 80 EXfHANGE STREET Datc of PORTLAND, ME 04101 Entry 2010 DAVID LOURIE ESQ (PORTLAND YACHT CLUB)
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