Litalien v. City of Biddeford

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L- ( \ SUPERIOR COURT CIVIL ACTION DOCKET NO. CV-19-128 STATE OF MAINE CUMBERLAND, ss. JASON G. LITALIEN, Plaintiff V. CITY OF BIDDEFORD, Defendant. ) ) ) ) ) ) ) ) ) j ORDER ON DEFENDANT'S MOTION TO DISMISS REC'D C!JMB CLERKS OF "'W '10 c,.. ,1•00 ~MI 13 _ _.,__• rf'1"-iuJL Before the Court is Defendant City of Biddeford's (the "City") motion to dismiss Plaintiff Jason Litalien' s complaint as untimely. This motion has been fully briefed and is in order for decision. For the following reasons, the City's motion is granted. I. Background On October 23, 2018, Mr. Litalien filed in the York County Superior Court• a complaint for a temporary restraining order, preliminary injunction, and permanent injunction. Specifically, Mr. Litalien requested the Court restrain and enjoin the City "from placing parking meters, parking kiosks, using monthly permits, or any other form of payment to charge and collect a fee for parking in greater downtown, per the 2014 citizen referendum." (Pl.'s Compl. 1.) Mr. Litalien alleges the citizens of Biddeford added a referendum to the November 4, 2014 election ballot, which stated: "Shall the City of Biddeford install parking meters in the greater downtown Biddeford area?" (PL' s Comp1. 'II 5.) He further alleges the referendum failed by a vote of 6,761 opposed and 959 in favor. (Pl.'s Compl. 'II 8.) On September 4, 2018', the Biddeford City Council voted to charge fees 1 This matter was transfen-ed to Cumberland County and specially assigned to this Court on March 28, 2019. In his complaint, Mr. Litalien states that the City Council's vote occwTed on September 18, 2018. However, the City attached to its motion to dismiss the City Council Order documenting the vote and implementing the complained-of parking fee, which confirms the vote occWTed on September 4, 2018. (Mot. Dismiss Ex. A.) See also Moody v. State Liquor & Lottery Comm 'n, 2004 ME 20, ,r 10,843 A.2d 43 (court may consider official public documents, docwnents central to plaintiffs claim, and documents refen-ed to in the complaint without converting motion to dismiss into motion for summary judgment). 2 1 of 3 ( ( for parking in eight municipal parking lots using a combination of parking permits and kiosks. (Pl.'s Compl. 'l[ 4; Mot Dismiss Ex. A.) The City Council's Order specifies that the parking fees are "to be programmed into parking permit kiosks .... " (Mot. Dismiss Ex. A.) The thrust of Mr. Litalien's complaint is that the implementation of parking fees violates the 2014 citizen referendum. The City filed the motion under consideration on November 13, 2018. II. Discussion Although not styled as such, the City argues Mr. Litalien's claim is a Rule SOB appeal and was not filed within the 30-day time limit mandated by M.R. Civ. P. SOB(b). The Court agrees with the City that, contrary to Mr. Litalien' s position, Rule SOB is indeed applicable to this matter. Mr. Litalien's challenge to the validity of the implementation of parking fees falls within "the essence of matters that must be brought pursuant to Rule SOB to question whether the particular action of a municipal administrative agency is consistent with the requirements of law." E.g., Sold, Inc. v. Gorham, 2005 ME 24, 'l[ 13, 868 A.2d 172 (challenge to Planning Board's condition of subdivision approval as inconsistent with statutory and constitutional requirements was subject of Rule SOB appeal). "Except when otherwise provided by statute, challenges to municipal administrative actions must be brought within thirty days of notice of the municipal action or failure to act." Sold, Inc., 2005 ME 24, 'l[ 9, 868 A.2d 172; see M.R. Civ. P. SOB(b). The prescribed time for filing of a Rule SOB appeal is jurisdictional, and an untimely complaint is barred. Dubois Livestockv. Town of Arundel, No. AP-18-0003, 2018 Me. Super. LEXIS 202, at *10 (July 9, 2018). Unless government action must be reduced to a written decision pursuant to statute, ordinance, or rule, the time for filing a Rule SOB appeal begins to run on the date of the public vote or announcement of the final decision of the government decision-maker. M.R. Civ. P. SOB(b). Here, the City contends the limitation 2 of3 J period commenced on September 4, 2018, the date on which the City Council adopted the parking fees by public vote. Mr. Litalien has not directed the Court to any statute, ordinance, or rule that would provide an exception to the public vote trigger. The Court is therefore satisfied that the limitations period commenced on September 4, 2018, and Mr. Litalien' s complaint should have been filed on or before October 4, 2018. Because the complaint was not filed until October 23, 2018, this Court does not have subject matter jurisdiction over this matter, and this case must be dismissed. M.R. Civ. P. 12(h)(3). III. Conclusion For the foregoing reasons, the City ofBiddeford's Motion to Dismiss is GRANTED. The Clerk is directed to incorporate this Order into the docket by reference pursuant to M.R. Civ. P. 79(a). Dated: __,__~-fj"""l',l~/i~J-1­1 =J.,=0)~9­ Entered on the Docket: . Plaintiff-Pro Se Plaintiff Defendant-Keith Jacques, Esq. 3 of3 · · ·: ifip'C"'/

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