Hughes Bros. Inc. V. Eddington, ME

Annotate this Case

Download PDF

STATE OF MAINE CIJMB!ii~LANO, BUSINESS AND CONSUME!\. COURT Loc~tlon: l'orthmd V Docket No.: BCD-14·35 ss IMM-MMIA- 01-vt-15 ) HUGilGS BROS., INC., ) ) ) Plainriff, ) ) ) ) ) TOWN OF EDDINGTON, FINDINGS AND ORDER FOR ENTRY OF JUDGMENT ON COUNTS I AND IT OF PLAINTiliF'S COMPJ.AINT ) ) DefcmlanL INTRODUCTION I. Before rho Court are COLm!s I ond II of Plninliffs Complaint. Judgment on Cmmt lH wu~ entered by the Cotrrl on August 7, 2014.' Plaintiff alleges in Counllthut the ToWJl con dueled au illegal exccntive session on Janumy 29, 2014. Count n is a Dccla<lllory Judgment in which l'lftintiff alleges that the Town adopted an illegal mowrorimn against a quarry owned by !he Plaintiff iu tho Town of Bddioglon, The pal ties Sllbmittcrl a stip11latcd ll'i~l record in the form of a "Slipulaled TUnc line aad Relcv~nt Facts" da!ed Scptembm• 29, 20 J4. 1 The p~r!ies abo flied writlcll a1·gruncnts, the las I of which wa• received by the Coun 011 Novembol' I 2, 20 I 4, The f~cts oi"this Oft>"<: ar.;: well ~el O\lt in the slipnl~lcd record, and the Cot!l'! herein adopts ihooe 1iwls ns hRVing been proven by n preponderance of evidence. While there ' A snbso<ruent or<iercnptioned "Firsl Order on Mol ion to Recon•ldcr" was en\o!<ld on All gust tJ, 2014 tllflt •ddrcs"d ccl'(nin docume111s 111RI were om !lied fmrn the pl'i,ileg~ tog which WM inspeclod by the Co<trt in camera on Count Jll. The ('_ollrt Is advised that tlw Town hRs produce<! •II docwnents o•dered t·ctcascd by the Com1ln !Iiese two orders. The Court hereby corrects on lis owllmotlonlhe dale "Ait8ll~t 6, 2013" i11 panogrnph one oflhe l•tler order which now will read "Augusl6, 2014." ' AI\ "'ncnded stipulnle<i ··~cord wns r.led October 14, 20 14. nro ccrtn in pnragraphs (see, e.g. p~mgraphs 12, i 3, ~ml 14) in the Stiptilatcd Timelitw tliot reference I he nbi lily oft he Jl"rtics to .llipplemenllhc 1ccmU, the parties con finned witll lhe Business nnd Comtnner Com I on Jmnmry 2, 2015 that they would llc relying on the Slipn!alcd Titncline and Exhibits as the !rial tccord. The Colllllms revicW<:d the stiptilntcd h"ial record, considered the pa11ies' written nrgttil\Cnts, anct issues the following findings nnd order fur eulry of judgment on Counts I and U. !I. A. CO ])NT I Cla~ll JIINDlNGS AND CONCLUSIONS nflllegRI Exect!tivc Session_!(29/14 On January 29, 20 14 the Eddington Board of Selectmen alld Planning Board condticted ~joint e.~ccutive session, ostensibly to cons ttl( with Town legal counsel pursuanllo 1 M.R.S.A § 40S(6)(D). Sclcctmcll minutes from a "Special Joint PJ~nning Board Mrl Selectmen's Mccti.ng" indi"ate the meeting was called to ordm· at 5:45p.m. Roll call was Cmlflncted ami a mol ion Wfts made and app!"<lved (3-0) to go into &eentive Session. (Bx. 9.) By 7:07p.m. a motion was made to return to Regnlat·Sesslon. The meeting adjoumed at7 :08 p.m. The mim11es further indicate that "OtllC!" Bttsiness" consisted ofthc following: "Moratorium Ordinau~e. No Adion Taken." The meeting wa• adjottrnc(l at 7:0& p.m. /d. Exhibit 10 contains the minmos from Ihe Plamting Board,' which met jointly with the Ilo"' d of Selectmen. Agai11, il appcat·s that the meeting began m-ound 5:38 p.m., after wlucli roll cnll wns taken. The Bonrd nmved and npp10vcd the joint Executive Session, and Regula•· Session begnn ngain at 7:08p.m. 'Those minutes •re in tho CDIII"t"s view clc,11"1y !nbele<l as Plannl11g 13om II minutes. Jlowover. the TOIYt1's Attorney refer~ to these minutes ~s "the oclu•t Sclcclmcn's minutes" on pnge 3 ofil• 13ricf The Court confo•rcd wilh counsel by ~hone on Deccmb<r 23. 2014 and the p•L"IIM ~greed til•t Exhibit 9 represents Ihe mim1!Cs of Ihe Bo"'"£1 of Seleclmcn, ntld Exhibit I0 reprcscnls Ihe llHl>Lites of" the PI8L111lng Bonr<l. ' Platl\tiff m~ke.> a numb~r of ~rgmneltls ~s to why tbls Exectltivc Session was ii!egal Fir.<t, Plaintiff argues that the Town f"iled to fOllow Maine's Frccdo!ll of Acce'"' Act's ("FOAA ") 1cquirelnCtlts for going into Exec<lti vc Session, specificnlly a.• to the udcquucy of' the motion made. Second, Pluintiff claims tlmt vote to go into the joint session by the 13outx! of Selectmen 1"''" instrtTJcicnt. Third, Plaintiff claims that the joint s~ssion was illegal. Fourth, the Plaintiff claims that \htring the Excct1tivc Session they delil>erated onlcgislntive matters and that this does not fall within any ofFOAA 's except ion.1 to tlw open meeting re~niremcnt. Fiftb, Plaintiff clalms that the morMoriuln nt ossue in the caoc wa.1 nppmved in the Exectllive Se•sion, i. ,'idemwcv o[I/Je ltf'![IO!tfm)txecu/lvc Session Plaintiff contends liM IJm tiWiion m~de by both bodies (Bo"'·d of Selectmen and Planninc Board) instlfficiently d~sct ibcd the nnlltre of the btlsine.•s to be conducted during tile closed scssio11. 1-!owevel". M tile Town points on(, a simllw·notice was uptteld as sufficient by the Law Cm1rl in Vella v_ Jbwn qj Camden. 677 A.2d 1051, l0S5 (Me. ! 996). in uddition, given the clear om lice from six days before, on Jmnmry 23,2014, there CUll be little dotibt tlmtthc public was aware of the purpose of the Executive Session, which wo11ld be tile "only thing on the agenda" fot tbe January 29, 2014 mecliilll. (Ex. 8.) The Comt is tmpetstmded that tile notice )li"Ovided ill the joint moJion ii. Arkauacy o(ll!c Yote 7'aken by rl;c !JO(!/"d o(Selec/men :o go in(Q Fx~sullve Session Pt~itlli l'f argues the llo~rd that l:ixhibit I 0 proves thnt there were ttol eno11gh member.• from of Selectmcll to consti:ule n (jliOI'Uill o1· to vote to go i11to Exc~11tive Session, 01 thai this exhibtt when rcrr~ ;., wnjnnction with Exhibit 9 raises qlle,tious a.• to whether tiler e were enough votes by Selectmen to authorize the session, Howe1•er, as noted p1evionsly, the Com! intcrp>ets Exhibit 9 to the mcmbeJ".1 listed forth~ b~ the act\ral Uo~rd of Selectmen minutes as mil call {Brooks, Goodwin, Lyfbrd} tl!'C the smne Selectmen listed iJ1 Exhibit 7. The Court finds Exhibit 9 >mambig11011Sly cstnbliol1es thatthatthesc llu·ee members voted tn go into Executive Session, and so concludes that the Plaintifrs argument on tb.is isstte is without merit. Lermli!y of_Jo/111 E;recullve Se.•slon iii. 'J'he Town rightfully notes thatthe Plaintiff cites no case law in S\lP/)Oit of its position thati]IC joint Executive Be»ion was not Coltr! would ttot~ ~\i!lwrized ~y FOAA. However, the thntthc pltblie was provided notice six days prim thn! the Town inteudcd to follow this procedure {Ex. 3) so it could lwdly be ~aid this process WtW a secret from anyone. The Court W011ld fnrther note thatl'laintiffsecmsto imply tlmt ifthc two bodies conducted joint Executive SG'"ions that were otherwise independently legal, thai would he permissible. The Cotlrt, having found no improprieties in tltc proccdnre followed by both 8onr<IS as to notice and votes tnken to go iato E~ecutive Session"' concludes tlmtlhe joint meetings were legal. The Plaintiff does not nrguG lhHI the ndvice given to hot It Boards by the Town "s nttomey would have beet! different, nnd the Co\ll't conclmles that Hilder these cii'CLllnstaoec.~ iL'. The no violation of I'OAA has occttrred. 1'l1e /:,"u/Jiecl Mauet' o{lhe &"@0111/ve Session Co~~rt has reviewed I M.R.S.A §405{6)(E) nnd disagrees with Plaintiff's orgr.rment rcglll'din g the except1on s to Mn'me' s open meeting lnw, ~ tthsection E contains, 'The Plointiffdoes not conlesttho legality o 0 tbo votes token b)" the Pto1ming BMrd to go into Elxctlllivo Sc!sion. ns Tile Town J!Oin!s 011!, (j iscreet The legal ~ mHnbeJ' of disj\HlGlive ola\ISC• whicll inclndc the following as n exccpTio11: "ic ]OLIS\IItations between a body or ar,ency and iTs attmney right~ ~oncemine and duties of the body Ol'agcncy ... _" The Court finds thntTilc Town has met its burden to prove that the subject matter of the Executive Session (which wus ex plioitl y d cf,ncd in The Jnnum y 23 , 2()• 4 nol'lce (Ex. B) as a req11es1 for their attorney "to expand on the basis fol' hi" wmding in the propose(! Mornlminm Ordinance") falls witllin this exception lo Maine' o open meeting reqt•iremenL UndCi'WOOd v. City of Presque Isle, 715 A.2d 148 (Me. I99~). v. The Jflietlwr the MoraiQL_/_@1 was Awmwe_d In !he Exccl{(lve Se.<s/an Pl~intiffrclie~ 11pon a slatemenl made by Ihe Planning !30BI'd Clminnan nt n SelecTmen's Meeting on Mardl 4, 2014 in which he menTions tile ExecuTive Se""ion in question, lie .~t~Tcd "qtmstians were ~sked dmlng it in OJXIer· to help them decide on haw lo proceed willl wordiug of such moratorium oulinancc." (Ex. l S .) The Ca1111 conslrues this statement ns entirely consisteut with the ptiblicly staled reason for the Execntivc Session, and concludes thnl this isol<~ted stnlcmcnt does no I Hnpporl the no'glnnent that the M ornloritllll was ncl\18lly approved in the Executive Session. To the cm1trmy, other ex.hibits including Exhibits IS ino;licaTc tlwT the Selectmen sent The issue To a Town Meeting whe1'e the MoraTorium w~s voterl upon 1111d approved by citiZClL" of the Town. B. _COUNT II Challenge 1!_1 Moratori\1_!!! l'laiali IT raises a number of argtlme:Hs rcgal(ling tile Moratorium' e1mcted by the Town agaiiiSI <J""' ''Y development, including tlwt tbeJ c was no ba.•is for its enactment, but also that enacting a moratorium WLth retro~cTive effect violntcs Maine law given the 'The Town enacted the mormorium o"J,nance on April 8, 201 <1 at a Speci"l Town Meeting. The si.x-uwnth morutodLull IY!IS ex1e11ded on Sept. 23, 20 14 by the Sel ecunen pllrsuanl to J 0· A M.R.S A§ 4J56tJ). (En 27 m1d 27(A-D).) 5 plmn l~ng1mgc oflhc slatule which slates tlmt a mmntorium "may be adopted emergency basis and given immcdi~lc oll on effect." 30-A M,R.S.A § 4301{11 ). 'i'he Town mgues lila I the reasons n.,;etted by pmponents fm I he momlorhtm are sufficient Jlmtificalion lOr il, and also lh"l a morutori11m cttn be rctmactive since it i; rlefmed in paot as "a land usc ordinance or ttl her regulnlion," and 1111der M~ine law ordinances cnn be rclmnetive ttssuming c~rlain erileria arc mel. 30-A M. R.S.A § 4356 cslabli~llcs the requirements foo· imposition of moratoria by 1111111ici jwlities. lt slates, in applicable pm1, that tile morntaoi\lln must be needed "[b]ccnuse the npplication of existing comprchcmive pla1w, land use ordinauce" or regulations or other applicable law, if ~ny, is inadequ~te to prevent serious p11blic harm ti·01n ,·esidcnlinl, commcrcinl m· indnstrial (ievelopmenl in the affected geogra~Wc 11ren." F\orlher, 30-A M.R.S.A § 4301( I!) defines nmornlorinmns: [A] lund nsc ordillJilCC or othe•· regulation ~pproved by 11 municipnl legi.1lativc body, tllal ifnece~SRI)', mny be adopted on nn emergency bnsis and given u,nnediute cffccl "'W that tcmporari ly defers aU developmenl, or u type of development, hy withholding auy permit, authoriution or approval necessary for the spec! fle(l type or types of developn>en(. ld Tl1c Coln 1could find no case in wbidt nddres.<ed by the Snperior Coml m• the i,~w llt~ issue (>!'retroactivity has been sq1wely Cot HI. However, the statute by lls own terms permits n namicip~lity to withhold "any permit, uttlhorization, or approva/ne<:css"ry fm the specific type or type" of (icvc!opment (cmph~sis !he plll'~se "given immediate effect" the C011r! ~dded)." believe~ th~l While lhe parties focus on the Town was allowed to withhold appl ov~l - hy delaying f•nnliZIIlion of' !he approval process -- dtll'i ng the 1110! ft!mhun period. The statute distmg,.ishes among penni ts, antltorization. and ~pprov"l, -IIIC~csting to the Court that they liW~n something tlr,tt lias al re~dy be ell granted, alill diffcrenttlnngs. A permit wo11ld be ~pproval suggests to the Com1 tl1e process of obt~ining a permit (Ol' ftillhorization). The Com! conctndcs th~t ltlc Town was entitled to stny or dcfe1' COilipletion of the permit approvnl process by the express tenm of this stnl\lle. The t':m•rt also reads the plua1e "given inu11ediate effect" to meanj1ml tbat, If a momtorinm ts duly approved, it tokes immediate effect, and the 6-month clock stmt.• rtllilting. The Cm1rt does not agree with the Plainlifftlmt this plttnse prolti\Jils "ret Ionctivily" pm·liculul'iy where tile Lcgislalme hils in the Cotlt! •, view empowered municip~lities to Mfcr, tempowily, certnin type~ of d~velopmcnt "by withholding . appl'OVi!l" for a ~pccifl ed type of development. It is qnite understand"ble to the Courl thnt the PIRintiffwould be unlll!ppy with the deuL<ion on "retroactivity" given ~ssuranccs nnfm1ttnately made by some Town representatives. ill addition, the imposition of th~ moratorium bus no doubt crcnted a financial bmdctt and at least uncertainty for the Plainttff Such bmde11s and uncertainty are likely by·pmduct.< of any morntori1tltt, however, which ;, why the Legis]ij!\n e has "I rictly timc·limitcd them. ':"he Court trusts t!w the Town umlcr.•tnuds that this lllOJ"IItOt'illm cmmol net as a permanent end·ntll al'(l!llid tllir consideration of Plaintiff .1 permit ,1pplicntion, but the cxt~nde(l momtoritll" will soon expire, and the Plaintiffcnn press fonvm:l m that wnc. !, SumciCIIC!' D{Evidence /0 Jus(!fy !he Moralorilll/1 Pl"intirt't /inJI argmtlCn! i> thallllcrc is iJtsttfticicnl evidence in the re"m11 justi l'ying the imposiuon of a momtorittJil on qum ric:;. I Jowevcr, it is the l'lmmiff's 7 Uulden to "cstablisilllle complete ~bsence of a11y state ul' fact$ that wmold Slippo1l tlw need for n nwmro.-ium " iHi'nsler v_ 1\Mn ofGray, 584 A.2d 646, 649 (quoting T/sei v Town oJOgunquil, 49: A.2ii5M, 569 (Me. 1985). It is denr to the C011rt bused on the 'lipulnled record that there wns significant opposition to the quarry from members of the Towt1,and they ~rli"1dated their rcasotls for their posilions. These rensons 'oncludcd effects on nir qtwlity, wnler qlm lily, traffic, nml po·operty valllcs. One could rcnsonnbly rlisagrcc willl the rcnsons ""m1cd by the quau-y op)lOI!Cnls, as well ns their view of what is be'( for tile Town. However, pwponcnts of the quarry w<::re ~I so given an opport\Jnity to m~ke their c~se and to provide .iustifl~aHon for their positions, and a vole wn" t~ken, l'undmnenlally, II wm1ld not be appropriate for this Court to il1jeGI itself i11to thi• sort of legi.,lutivc proce~s givc11 the ample OJljlOrhmity provided Ia both si<lcs to make their case in "n open process. DisagTeement with the outcome of the vote is not equivalent to ~stablishing "the complete ahoeacc of any state of facts" suppooting this 11\0ratori<JilJ. Ill, B~sOO CONCLUSION on the foregoing the cnh-y will be· JoHigrnenl 011 Counts I and II CllfCi'Cd for Dcfenrlant, Towu of Eddington. /)~L"/ JGniCE, BUS!~ CONSUMto:R COURT ' Efllered mtth~ Dockel:_j__?jC Copies sent Via Mall_Eieclronically~ Hughes Bros., Inc. v. Town of Eddington BCD-CV-14-35 TD Bank, N.A. Plaintiff Counsel: William Devoe, R;q. 80 E~ch~nge St. PO!lox1210 Bangor, ME 04402-121[) Tuscan, Inc., More Properties, Inc., Craig D. Morency and Scott P. Morency Defendants Counsel: Charles Gilben, !II, Esq. 82 Columbia St. PO Box 2339 Bangor, ME 04402-2339

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.