Holman v. City of Portland

• Court: Superior Court of Maine
• Decided: March 8, 2022
• Docket: CUMcv-21-381
• Status: Unpublished

Opinion

STATE OF MAINE SUPERIOR COURT CUMBERLAND, ss CIVIL ACTION DOCKET NO. CV-21-381

DALE HOLMAN,

Plaintiff V. ORDER

CITY OF PORTLAND,

Defendant

Before the court are two motions: a motion by plaintiff Dale Holman for a preliminary

injunction and a motion by defendant City of Portland to dismiss Holman's complaint. The court

will first address the motion to dismiss because if Holman's complaint is subject to dismissal, the

court does not have to reach his motion for a preliminary injunction.

Holman's complaint alleges that a 1997 zoning change by the City of Portland was invalid

because proper procedures were not followed. He seeks declaratory and injunctive relief, alleging

that the rezoning violated a statutory requirement that the public have an opportunity to be heard,

that the rezoning was not consistent with the City's comprehensive plan, and that the rezoning

constituted a nuisance because it has interfered with Holman's use and enjoyment of his land,

specifically because it has made his land subject to stormwater flooding.

Holman's complaint is barred by the statute of limitations. 14 M.R.S. § 752 provides that,

with certain exceptions not applicable here, "[a]ll civil actions ... must be commenced within 6

years after the cause of acti9n accrues and not afterwards ..." A cause of action accrues when the

plaintiff receives a judicially cognizable injmy, and any injury that might have been sustained by Holman in this case occurred at the time of the zoning change in 1997. See Bog Lake Co. v. Town

a/Northfield, 2008 ME 37 ~~ 7-8, 942 A.2d 700.

Although Holman alleges that the public was not given adequate notice of the zoning

change, the papers annexed to his complaint demonstrate that he was aware of the rezoning at least

as of the fall of 2014. Even if Holman's awareness of the zoning change were somehow to be

accepted as the accrual date, Holman waited more than six years before commencing this action.

The court is also not aware of any authority for the proposition that a zoning change can constitute

a private or public nuisance, let alone a zoning change that occurred in 1997 and that has been in

effect for 25 years.

The entry shall be:

Defendant City of Portland's motion to dismiss the complaint is granted. Plaintiff Holman's motion for a preliminary injunction is dismissed as moot. The clerk shall incorporate this order in the docket by reference pursuant to Rule 79(a).

Dated: March _X__, 2022

Thomas D. Warren Active Retired Justice, Superior Court

,:n!8red on the Docket:_Q]J o~ (1l j !',le,

Plaintiff-Pro Se Defendant-Jennifer Thompson, Esq.