1987) (citation omitted). Additionally, when the court's jurisdiction is challenged, it is the
5 plaintiffs burden of establishing that jurisdiction is proper. Commerce Bank & Tr. Co. v.
Dworman, 2004 ME 142, ii 8, 861 A.2d 662 (citation omitted).
III. DISCUSSION
a. Consideration of Attached Documents
Although the court's review of a motion to dismiss is generally limited to the pleading at
issue, the court may review certain documents without converting the motion into a motion for
summary judgment. Moody v. State Liquor & Lottery Comm 'n, 2004 ME 20, ,i,i I 0-11, 843 A.2d
43. "This narrow exception allows a court to consider official public documents, documents that
are central to the plaintiffs claim, and documents referred to in the complaint, without converting
a motion to dismiss into a motion for a summary judgment when the authenticity of such
documents is not challenged." Id. ,i 10 (citation omitted). Such documents "merge into the
pleadings." Id. (citation omitted). Without allowing these documents, "a plaintiff with a legally
deficient claim could survive a motion to dismiss simply by failing to attach a dispositive document
on which it relied." Id. (quoting Pension Benefit Guar. Corp. v. White Consol. Indus., 998 F.2d
1192, 1196 (3d Cir. 1993)).
Because the documents to defendants' motion to dismiss are official public documents that
are central to plaintiffs' claims, the court may consider them without converting the instant motion
to dismiss into one for summary judgment.
b. Court's Jurisdiction to Hear Plaintiff's Claims
Unless otherwise provided for by statute, a complaint for Rule 80B governmental review
must be filed "within 30 days after notice of any action or refusal to act of which review is sought
unless the court enlarges the time in accordance with Rule 6(b)." M.R. Civ. P. 80B(b); Paul v.
Town of Liberty, 2016 ME 173, 1 18, 151 A.3d 924 ( citation omitted). Further, "if such
6 governmental action is required by statute, ordinance, or rule to be made or evidenced by a written
decision, then the time for the filing of an appeal shall commence when the written decision has
been adopted." Id. Failure to meet the prescribed time for filing is jurisdictional and an untimely
complaint is barred. Davtic Maine Corp. v. Bangor Historic Track, Inc., 2000 ME 102, 1 L1, 751
A.2d 1024;see also Paul, 2016 ME 173, ,r 18,151 A.3d 924.
The court also reiterates that when jurisdiction is challenged, no inferences are made in
plaintiffs' favor. Gorham V. Androscoggin Cty., 2011 ME 63, ~r 9, 21 A.3d 115 (citation omitted). Defendants claim that both plaintiffs appeal of the APB and ZBA decisions are untimely, and thus
the court lacks jwisdiction to hear them.
i. Timeliness of Review of July 27, 2017 APB Decision
The APB made its decision on the Application during its July 27, 2017 meeting. Plaintiff,
however, contends that it did not receive proper notice of the hearing or decision made at the
meeting. further, plaintiff argues that their request for review of this decision is timely because it
the APB lacked jurisdiction to deny the Application pursuant to both MAPA and the Consent
Decree.
1. Dubois' Notice of the Hearing
First, plaintiff argues that the Complaint for review is timely because it did not receive
sufficient notice of the hearing. Specifically, Dubois Livestock contends that the notice it received
only stated that the APl3 was to determine the completeness of the Application, not making a final
decision. Although notice of a hearing is required to satisfy due process, it is the notice of the
decision, not notice of the hearing, that begins the time period for appeal. See M.R. Civ. P. 80B(b).
Thus, insufficient notice of the July 27, 2017 meeting does not extend the deadline for filing a
Complaint for Rule 801:3 review.
7 2. Whether the Town Gave Plaintiff Proper Notice of the APB's Decision
Next, plaintiff contends that the time for filing has not started because defendants' notice
of the APB's decision was insufficient. Pursuant to the Freedom of Access Act ("FOAA"), "Every
agency shall make a written record of every decision involving the ... denial of an application,
license, certificate or any other type of permit. The agency shall set forth in the record the reason
or reasons for its decision and make finding of the fact, in writing, sufficient to appraise the
applicant and any interested member of the public of the basis for the decision. A written record
or a copy thereof shall be kept by the agency and made available to any interested member of the
public who may wish to review it." 1 M.R.S.A. § 407(1). Interpreting similar language found in
subsection (2) of section 407, the Law Court held that notice occurs for the purposes of sta11ing
the time for bringing a Rule 80B action occurs when one "receives a copy of the written decision
of the county commissioners or personnel board required by 1 M.R.S. § 407(2)." Gorham v.
Androscoggin Cty., 201 l ME 63, 119, 21 A.3d 115. Thus, the time for filing an appeal from the
denial of a permit application begins to run when the plaintiffs received a copy of the written
decision adopted by the APB following its original vote.
Although plaintiff seems to acknowledge that it received notice of the APB's decision, it
contends that this notice was ineffective because it was sent by a Town official and not by the APB
itself. (Am. Comp!. 133.) Although this notice informed plaintiff of the APB's decision taken at
the July 27 meeting, the notice was not a written decision adopted by the APB with findings of
fact, but only a notice of the decision made at the July 27 meeting and its rationale. (Dcfs.' Ex. D.)
This notice docs not satisfy FOAA' s requirement that a written record of the decision setting f011h
the reasons for the decision and making findings of fact to apprise the plaintiffs of the basis of the
denial of their Application. Consequently, the time for filing an appeal has not started to run and
8 plaintiffs request for Rule 80B review of the APB's decision is timely. The court has sufficient
jurisdiction to review the APB's denial of plaintiffs' Application and defendants' motion to
dismiss is thus denied as to Count IV.
3. The APB's Jurisdiction to Deny Plaintiff's Application
Plaintiff further contends that the time limit for the filing of their appeal has not run because
they are in part challenging the APB's decision as ultra vires. "The jurisdiction of a board of
appeals 'is a question of law that must be ascertained from an interpretation of municipal statutes
and local ordinances." Hathaway v. City of Portland, 2004 ME 4 7, ,i 14 n.1, 845 A.2d 1168
(quoting Salisbury V. Town ofBar Harbor, 2002 ME 13, ,rs, 788 A.2d 598,601). The Law Court has held, "[M]unicipal or state actions may be collaterally attacked as
outside the jurisdiction or authmity of an agency, when it is claimed that the ordinance or statute
under which the administrative agency purported to act was unconstitutional on its face, thus
rendering the administrative action beyond the lawful authority of the challenged agency." Sold,
Inc. v. Town of Gorham, 2005 ME 24, ,i 12, 868 A.2d 172 (citation omitted). Additionally,
"[s]ubject to equitable defenses including !aches, a governmental action may be challenged at any
time, a'> ultra vires, when the action itself is beyond the jurisdiction or authority of the
administrative body to act." Id. (citation omitted) (emphasis added).
A. Whether MAPA Divests the APB of Jurisdiction
First, plaintiff argues that the 2015 amendments to MAP A deprive the APB ofjurisdiction
to enforce its ordinances. MAP A provides that an agricultural composting operation "may not be
considered a violation of a municipal ordinance if lhe farm operation or agricultural composting
operation conforms to best management practices as determined by the commissioner ...." 7
M.R.S. § 154. Additionally, MAPA explicitly states that it does not affect "the application of state
9 and federal laws" or "municipal authority to enact ordinances." 7 M.R.S. § 155. Plaintiff
nonetheless argues that MAPA divested the APB of the jurisdiction to enforce the Town's Land
Use Ordinance against Dubois Livestock. (Am. Comp!. 141.)
The Law Court addressed a similar argument in Dubois Livestock, Inc. v. Town ofArundel,
2014 ME 122, 103 A.3d 556. Although the Law Court found that Dubois Livestock's operation
was not a "Farm" under MAPA, the definition of which was modified by the 2015 amendments,
the Court held:
[T]he Agriculture Protection Act does not preempt the Town's Ordinance. Although the Act prohibits a municipality from determining that a farm's method of operation violates a local ordinance if the farm has used "best management practices," there is no indication that, in enacting the Agriculture Protection Act, the Legislature intended to preempt any ordinance or occupy the field. In fact, the Agriculture Protection Act explicitly states that it "does not affect municipal authority to enact ordinances." 7 M.R.S. § 155.
The Ordinance also does not frustrate the purpose of the Agriculture Protection Act. The Act aims to protect farms using best practices from nevertheless having their methods of operation considered to be in violation of local regulations, and Dubois did not meet its burden of demonstrating that the Ordinance would frustrate this goal. The conditional use permit allowed representatives from the Town to inspect Dubois's premises to ensure that the compost pad was intact and that the facility was in compliance with the permit (some version of which had been in effect since 2000). Dubois made no showing that it was following best practices when it violated the Ordinance by failing to report its annual intake to the Town or to allow Town representatives to inspect its premises.
In sum, the Agriculture Protection Act does not preempt the Ordinance because the Legislature has expressly allowed local regulation and thus has not expressed a clear intent to occupy the field, and the Town's Ordinance does not frustrate the pwpose ofthe Act.
Id. ~ii! 17-19 (emphasis added).
In their Amended Complaint, plaintiff asse1is that it has complied with the best
management practices established by the Maine Commissioner or Agriculture. (Am. Comp!.~ 5.)
However, although this fact may prevent the Town from enforcing any conflicting Ordinances, it
10 is clear that MAPA itself does not deprive the APB of its jurisdiction because it expl'essly allows
municipal regulation. Because MAPA does not preempt municipal regulation, the APB rclaincd
its jurisdiction to review Dubois Livestock's Application. Any challenge to the municipal action(s)
premised on a conflict with MAPA must be brought pursuant Rule 80B.
B. Whether the Consent Decree Removed Plaintiff's Application from the APB's Jurisdiction
Plaintiff also argues that the Consent Decree removed the APB's jurisdiction to address
plaintiffs Application. This argument is premised on plaintiffs asse11ion that the Consent Decree
required the Town to grant a conditional use permit to Dubois Livestock and thus the APB lacked
discretion to deny the Application.
However, the Consent Decree required the APB to evaluak Dubois Livestock's
Application. (Defs.' Ex. B § l(a).) Additionally, as to be discussed infra in Section III(d),
plaintiffs reading of the consent Decree is um·easonable and does not divest the APB of discretion
to grant or deny the permit.
Because neither MAP A nor the Consent Decree divested the APB of its jurisdiction, any
challenge to the APB and ZBA's actions based on conflict with MAPA still must comply with the
procedural requirements of Rule 80H, including the 30-day period for bringing an appeal to this
court. Again, because the notice did not comply with FOAA's requirement that the APB adopt a
written decision, however, it is not clear at this stage that plaintiffs request for review is untimely.
ii. Timeliness of Review of ZBA's Decision
As stated above, plaintiff filed a motion to extend the deadline to file a Ruic 80B challenge
of the ZBA's November 29, 2017 decision (Count V) on January 16, 2018. Rule 80B(cl) states that
court may enlarge the time to file for Rule 808 review in accordance with Rule 6(h). M.R. Civ. P.
80B(d). Rule 6(b) provides that, "[Tlhe court for cause shown may at any time in its discretion ..
11 . with or without motion or notice order the period enlarged if request therefor is made before the
expiration of the period originally prescribed or as extended by a previous order[.]" M.R. Civ. P.
6(b).
In its motion, plaintiff explained that although it had moved for reconsideration on
December 6, 2017, it was "concerned that under 30-A M.R.S. Section 2691(3)(G) the deadline to
seek judicial review of the action of the Zoning Board of Appeals may be today January 16, 2018,
being the first business day on or after the 45 111 day following the ZBA' s action." (Pl.' s Mot. Extend
,r 6.) Counsel for plaintiff further stated that he required additional time to prepare and file the complaint because he was asked to file a Rule 808 appeal on behalf of Dubois Livestock on the
day he filed the motion, January 16, 2018. (Pl.'s Mot. Extend 1,r 7-8.)
Under 30-A M.R.S.A. § 2691(3)(F), a board of appeals "may reconsider any decision
reached under this section within 45 days of its prior decision. A request to the board to reconsider
a decision must be filed within IO days of the decision that is to be reconsidered. A vote to
reconsider and the action taken on that reconsideration must occur and be completed within 45
days of the date of the vote on the original decision." This Statute further provides, "l AJppeal of a
reconsidered decision must be made within 15 days after the decision on reconsideration." Id.
Thus, because the Board must take an action on a motion to reconsider within 45 days and an
appeal must be made within 15 days of any decision, the latest that an appeal may be brought if
there is a motion to reconsider is 60 days following the underlying decision. 2
Attached to their opposition to plaintiffs motion, defendants included a copy of an email
from the ZBA chairman to Sol Fedder, an officer of Dubois Livestock, explaining that the ZBA
was not going to reconsider its decision. (Defs.' Mot. Ex ..) Although defendants argue that the
2 The Complaint was filed 62 days following the ZBA's decision.
12 deadline for plaintiff to file its complaint was January 15, 2018, 30-A M.R..S.A. § 2691 (3)(F) gives
plaintiff an additional 15 days from the ZBA's decision on its motion to reconsider within which
to file an appeal. Because the ZBA notified plaintiff of its intent not to reconsider its decision on
January 11, 2018, Plaintiff had until January 26 to file its appeal. Plaintiff, however, did not file
the instant Complaint until January 30, 2018. Thus, plaintiff must still show cause to extend the
deadline.
The court finds that plaintiff has demonstrated cause to extend the deadline to challenge
the ZBA's November 29, 2017 decision. The court retroactively enlarges the deadline to file the
Rule 808 appeal to January 30, 2018. Thus, Count V is timely and the court has jurisdiction to
hear it.
c. Whether Rule 80B Review is Plaintiff's Exclusive Relief
Next, defendants argue that plaintiff carmot assert their independent claims (Counts I, II,
III ,and VI) because Rule 808 review provides plaintiffs exclusive means for redress. Generally,
''when direct review is available pursuant to Rule 808, it provides the exclusive process for judicial
review unless it is inadequate." Gorham V. Androscoggin Cty., 2011 ME 63, ,r 22, 21 A.3d 115. "Resort to the courts by alternate routes will not be tolerated, subject only to an exception for
those circumstances in which the course of 'direct appeal' review by a cowt is inadequate and
court action restricting a party to [Rule 80B review J will cause that party irreparable injury." Colby
v. York Cty. Comm'rs, 442 A.2d 544, 547 (Me. 1982). Rule 808 review is inadequate when "an
alleged deprivation of civil rights occurs before, and not as a part of, the action or inaction for
which a plaintiff seeks review." Cayer v. Town ofMadawaska, 2016 MF. 143, ~ 16, 148 A.3d 707
(citation omitted). On the other hand, when a plaintiff alleges a violation of their due process rights
13 arising from a Town's determination in an administrative proceeding, that plaintiff "has available
Rule 80B review to conect any process errors" and Rule 80B review is exclusive. Id. ,r,r 16-17.
In its Complaint, plaintiff alleges a significant conspiracy to deprive it of its rights to
operate its business established by the Consent Decree, MAP A, and the United States and Maine
Constitutions. The Complaint's allegations concern actions both inside and outside the realm of
administrative proceedings. Taking the allegations in the Complaint as true, it is not apparent that
Rule 80B relief is available or adequate. Thus, the court declines to dismiss the independent claims
at this stage. To the extent that plaintiff's declaratory judgment claims mirror their requests for
Rule 80B review, however, Rule 80B relief is exclusive and the comt will not enter declaratory
relief.
d. Plaintifrs Section 1983 Claims
In Count VI, plaintiff brings unspecified constitutional claims pursuant to 42 U.S.C. §
1983. In their motion to dismiss, defendants argue that plaintiff has not stated viable due process
or First Amendment claims.
Although plaintiffs Complaint alleges that defendants violated its rights of "freedom of
expression and free speech," the Complaint is does not specify exactly how such violations
occurred. In their opposition and at oral argument, however, plaintifTs counsel represented that
plaintiffs First Amendment claim is premised on the Town's reprisal for Dubois Livestock's tone
it has taken in communications with the Town. Although this specific allegation is not included in
the Complaint, the court finds that, given Maine's notice pleading standard and the significant
allegations in the Complaint related to a concerted effort to improperly shut down Dubois
Livestock's composting operation, defendants were on notice of such a claim and it is proper to
14 allow plaintiff an opportunity to amend the Complaint to more definitely re.fleet its First
Amendment and Due Process claims. Thus, the court declines to dismiss Count Vl.
e. Whether APB Properly Applied Consent Decree
Next, defendants claim that plaintiffs' Complaint fails to state a claim for relief because
their claims are "based on an untenable construction of the Consent Decree's pertinent language.''
(Defa.' Mot. Dismiss 13.)
Plaintiffs' central argument 1s that the APB had a "mandatory duty" to grant the
Application and that their denial of Dubois Livestock's Application is thus in en-or. Plaintiffs
derive this argument from the language of Section l(b) of the Consent Decree, which provides:
The performance criteria specified in the [Land Use Ordinance] for the issuance and reissuance of all solid waste processing facility renewal permits at the Site, hereinafter shall be deemed to have been satisfied by the submissions described below or deemed inapplicable as a result of Dubois' grandfathered status.
(Defs.' Ex. B § I (b).)
Defendants, however, claim that this interpretation is contrary to the Consent Decree's
plain language. Specifically, defendants argue:
In certain respects, [the Land Use Ordinance's] performance criteria reinforce a number of State regulations or license requirements. Therefore, it makes perfect sense to rdy upon compliance w,ith those State regulations or license requirements to address the concerns of those [Land Use Ordinance] criteria. In other respects, provisions in the Town's IOrdinanccJ - such as the prohibition against solid waste operations in the R-4 district - were at that time arguably not applicable to Dubois Livestock's operation due to grandfathering.
(Defs.' Opp. 14.) Essentially, defendants argue that the reference to deeming provisions of the
Land Use Ordinance inapplicable due to Dubois Livestock's grandfathered status only applies to
a portion of the Ordinance's provisions, and that the submissions are still necessary to completely
satisfy the Ordinance's requirements pursuant to the Consent Decree.
15 The court recently addressed this same issue upon a motion for contempt filed by the
individual plaintiffs in CV-15-204 and CV-15-275. Although Dubois Livestock did not join in the
individual plaintiffs' motion, it was a party to the underlying actions. In denying the motion, the
court interpreted the Consent Decree to unambiguously require Dubois Livestock to provide the
submissions found in Sections l(b)(i) and (ii) in order for the APB to grant their permit
Application. Because they failed to provide such submissions, the court found that the Town and
its officials were not in contempt.
Dubois Livestock raises the exact same issue here. The court incorporates the court's
decision on the motion to contempt in CV-15-204 and 275 herein and holds that plaintiff likewise
declines to adopt plaintiff's reading of the Consent Decree. 3 Thus, plaintiffs causes of actions
premised on this reading of the Consent Decree, specifically Counts I and II, do not state a claim
upon which relief may be granted and are hereby dismissed.
However, plaintiff's claims are not only premised on an improper reading of the Consent
Decree. To the extent that plaintiff asserts that the Town's regulation of Dubois Livestock violated
MAPA because it was following the best management practices or that the Town engaged in an
illegal conspiracy to deprive plaintiff of its tight to operate an agricultural composting facility,
plaintiffs claims survive.
f. PJaintifrs Motion to Specify Future Course of Proceedings
Because the court does not dismiss plaintiff's independent claims, the court will grant
plaintiff's motion to specify the future course of proceedings. The com1 will enter a standard
3 The court also notes that plaintiff may now be collaterally estoppcd from litigating the issue because it had a full and fair opportunity to litigate the issue in CV-15-204 and 275. See Macomber v. Macquinn-Tweedie, 2003 ME 121, i122, 834 A.2d 131 ("The collateral estoppel prong ofres judicata is focused on factual issues, not claims, and asks whether a party had a fair oppottunity and incentive in an earlier proceeding to present the same issue or issues it wishes to litigate again in a subsequent proceeding.")
16 scheduling order for discovery related to the independent claims. However, because AP-18-2 and
AP-18-5 are dismissed in related orders, this court declines plaintiffs request to consolidate this
action with those related cases.
In this motion, plaintiff also requests trials on the merits for its Rule 80B claims pursuant
to M.R. Civ. P. 80B(d). However, because plaintiff has not provided the court with a detailed
evidentiary offer of proof, the motion is denied. See Ryan v. Camden, 582 A.2d 973, 975 (Me.
1990) ("Our procedural rules require a party to file with a motion for trial of the facts 'a detailed
statement, in the nature of an offer of proof, of the evidence that the party intends to introduce at
trial.' M.R. Civ. P. 80B(d). That statement must be 'sufficient to permit the court to make a proper
determination as to whether any trial of the facts as presented in the motion and offer of proof is
appropriate under this rule and if so to what extent.' Id. Plaintiff failed to provide such a detailed
statement and offered nothing more than vague allegations.").
17 IV. CONCLUSION
For the foregoing reasons, the court grants defendants' motion to dismiss Counts I and II
but denies the motion as to Counts III, IV, V, and VI. Plaintiff's motion to extend the deadline to
file a Complaint for review of the November 29, 2017 ZRA decision is granted and the deadline
is retroactively extended tmtil January 30, 2018. Further, plaintiff's motion to consolidate this case
with those brought by the individuals in AP-18-02 and AP-18-05 is denied. Finally, although
plaintiffs motion to specify the course of proceedings is granted, but the com1 denies plaintifI's
request for a trial on the merits of its Rule SOB claims.
The clerk shall make the following entry on the docket:
Plaintiff's motion to extend deadline to file Rule 80B complaint for review of the Arundel Zoning Board of Appeals decision dated November 29, 2017 is hereby GRANTED. The deadline to file such appeal is extended to January 30, 2018.
Defendants' motion to dismiss is hereby GRANTED in part and DENIED in part. Counts I and II are hereby dismissed. The motion is denied as to Counts Ill, IV, V, and VI.
Plaintiffs motion to consolidate, to intervene and for the suspension of all deadlines is hereby DENIED.
Plaintiffs motion to specily course, for discovery, and for trial on the merits of all claims is hereby GRANTED in part and DENIED in part. The court will enter a standard scheduling order for plaintiffs remaining independent claims, Counts III and VI. llowever, the court denies plaintiff's requests for trial on the merits of its 808 appeals.
SO ORDERED.
0/\ •: : ~ - · 2018
Jv ~ 1 -- 0-0 John O'Neil, Jr. Justice, Superior Court
ENTERED ON THE DOCKET ON: r/r//'3 18 ALFSC-AP-18-003
ATTORNEY FOR PLAINTIFF/APPELLANT:
EDWARDS. MACCOLL, ESQ. THOMPSON MACCOLL & BASS, LLC 15 MONUMENT SQUARE, 4TH FLOOR PORTLAND ME 04101
ATI'ORNEY FOR DEFENDANTS/APPELLEES:
LEAH RACHIN, ESQ. BERGEN & PARKINSON 62 PORTLAND RD, STE 25 KENNEBUNK ME 04043
AND
JOHN J. WALL, lll, ESQ. MONAGHAN LEAHY, LLP P0BOX7046 PORTLAND ME 04112-7046