Holub v. City of Portland
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Opinion
STATE OF MAINE SUPERIOR COURT CUMBERLAND, ss Civil Action Docket No. AP-23-15
COURTNEY HOLUB, JENIROSE FRIEDKIN, CHRISTOPHER HAVEY, CHESTER HOJACK, KAITLIN O’CONNOR GEE, BRANNEN GEE,
MATTHEW ANDERSON, LOUIS ORDER ON CITY OF PORTLAND AND
GARCIA, MONICA GARCIA, MARIN FALLBROOK COMMONS MAGAT, BRYN ARBUCKLE, GAVIT DEVELOPMENT, LLC’S JOINT MOTION PROTAS, JOEL MICILWAIN, and TO DISMISS
DIANE SHEA,
Petitioners,
v.
CITY OF PORTLAND, Respondent, and
FALLBROOK COMMONS DEVELOPMENT LLC,
Party-in-Interest.
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Before the court is Respondent City of Portland and Party-in-Interest Fallbrook Commons Development, LLC’s (“Fallbrook Commons”) Joint Motion to Dismiss the Complaint filed by Courtney Holub, Jenirose Friedkin, Christopher Havey, Chester Hojack, Kaitlin O’Connor Gee, Brannen Gee, Matthew Anderson, Louis Garcia, Monica Garcia, Marin Magat, Bryn Arbuckle, Gavit Protas, Joel Micilwain, and Diane Shea (collectively “Petitioners”) pursuant to MLR. Civ. P. 12(b)(1} and 12(b)(6). Petitioners, proceeding pro se, filed a Complaint
for Review of Government Action pursuant to M.R. Civ. P. 80B seeking review of a final
decision of the City of Portland Planning Board denying the Petitioners’ appeal of a blasting permit the City granted to Fallbrook Commons. For the reasons discussed below, the City of Portland and Fallbrook Commons’s Joint Motion to Dismiss is GRANTED.
FACTS
The following facts are drawn from the Complaint,’ which must be taken as true at this stage of the proceedings.
The Fire Department of the City of Portland issued a Blasting Permit (FIRE2022-01299) on December 30, 2022 for drilling and blasting at the Fallbrook Commons Assisted Living Facility located at 368 Ray Street. (Compl. 1; Notice of Decision |] 1.) Blasting began on January 4, 2023. (Compl. 41.) The blasting was disruptive to Petitioners, who live on Florida Avenue in Portland in close vicinity to the property at 368 Ray Street. (See Compl. § 2.) The blasting caused property damage to Petitioners’ property. (/d.) Petitioners were not given proper notice of the pending blasting permit or the blasting schedule after the permit was issued. (Compl. 4] 3.)
Petitioners appealed the Blasting Permit on January 30, 2023. (Compl. 76.) Petitioners sought to be heard on their concerns about the Blasting Permit during a February 3, 2023 public meeting of the Zoning Board of Appeals. (Compl. 7.) The Blasting Permit was not on the agenda for the February 2, 2023 meeting, although a related appeal of a permit issued for the same project was on the agenda. City of Portland, Maine Zoning Board of Appeals, Appeal
Agenda (February 2, 2023), https://portlandme. portal. civiccierk.com/event/6122/files (last
1 The court also draws facts from certain record documents filed by Petitioners and from public documents that are central to Petitioners’ claim and referred to in the Complaint to aid in recounting the facts and the court’s analysis. These documents are central to the Petitioners’ claim and are referred to in their Complaint, therefore they merge into the pleadings and do not convert this Motion to Dismiss into a motion for summary judgment. Moody v. State Liquor & Lottery Comm'n, 2004 ME 20,4 10, 843 A.2d 43.
visited Sept. 27, 2023). Petitioners were not heard at the February 2, 2023 meeting. (Compl. | 6.)
Petitioners aiso moved in this court for injunctive relief on January 31, 2023. Plaintiffs’ Motion for Injunctive Relief, Holub v. City of Portland, CV -23-42 (Me. Super. Ct. Cumb. Cnty., Jan. 31, 2023). This court denied the motion for preliminary injunctive relief on February 16, 2023 because the blasting was over, making the request for mjyunctive relief moot. Holub v. City of Portland, CV-23-42, slip op. at 2-3 (Me. Super. Ct. Cumb. Cnty., Feb. 16, 2023).
The City of Portland Planning Board held a public hearing via Zoom in accordance with applicable Maine law on Petitioners’ appeal of the Blasting Permit on April 11, 2023. (Notice of Decision 4 1, 4.) Petitioners were unsatisfied with the way City Zoom hearings had gone in the past, so they requested an in-person meeting. (Compl. ff 12-13.) The Planning Board meeting was ultimately held via Zoom, so the petitioners decided not to attend. (Compl. Jf 12, 14; Notice of Decision § 8.) At the meeting, the Planning Board received evidence in support of the issuance of the Blasting Permit, including testimony that the blasting was completed in a timely matter. (Notice of Decision ff 9-10.) The Planning Boatd voted 5-0 to deny the administrative appeal of the Blasting Permit. (Notice of Decision.)
Petitioners received notice of the decision on April 21, 2023 (Email from Matt Grooms to Petitioners dated April 21, 2023,) and filed this Complaint for Review of Government Action pursuant to M.R. Civ. P. 80B on May 15, 2023. (Compl) The Complaint seeks review of the Planning Board’s April 12, 2023 decision denying Petitioners’ appeal of the Blasting Permit. (Compl. 6.) Petitioners are requesting remedies including remanding the matter for an in-person hearing and ordering evaluation for radon gas in the blast area. (Compl. 6.) The City of Portland
and Fallbrook Commons filed their Joint Motion to Dismiss on July 19, 2023. (Mot. Dismiss.)
ANALYSIS
The City and Fallbrook Commons seek dismissal on two grounds: lack of subject matter jurisdiction under M.R. Civ. P 12(b)(1), and failure to state a claim upon which relief can be granted under M.R. Civ. P. 12(b)(6), arguing that Petitioners’ claim is moot and is barred by res judicata. (Mot. Dismiss 1-4.)
A motion to dismiss pursuant to MLR. Civ. P. 12(b)6) tests the legal sufficiency of the complaint. State v. Weinschenk, 2005 ME 28, 4 10, 868 A.2d 200, When ruling on a motion to dismiss the court views the "facts alleged in the complaint as if they were admitted." Nadeau v. Frydrych, 2014 ME 154, 4/5, 108 A.3d 1254 (per curiam) (quotation marks omitted), A complaint must set forth the “elements of a cause of action or allege[] facts that would entitle the plaintiff to relief pursuant to some legal theory.” Jd. Facts are read in the light most favorable to the plaintiff. fd.
acd
An 80B appeal is moot when “‘the passage of time and the occurrence of events deprive the litigant of an ongoing stake in the controversy,’” even if the case “‘raised a justiciabie controversy at the time the complaint was filed.’”” Carroll F. Look Constr. Co., Inc. v. Town of Beats, 2002 ME 128, 4] 6, 802 A.2d 994 (quoting Halfway House, Inc. v. City of Portland, 670 A.2d 1377, 1379-80 (Me. 1996)). When reviewing a claim for mootness, courts look to whether “sufficient practical effects can flow from the litigation to justify the use of limited judicial resources.” Ld.
Here, even if Petitioners’ allegations are true, the blasting they object to is already complete. Even if the City did not lawfully grant the Blastmg Permit or follow procedural rules
for Petitioners’ appeal of the Blasting Permit, a decision from this court on the matter would
have no practical consequences attached. See id. 7; Wolfram v. Town of N. Haven, 2017 ME
114, § 20, 163 A.3d 835 (“Procedural errors are harmless and will not be grounds to vacate a decision unless they are inconsistent with substantial justice and result in prejudice.”). Preventing this court from using limited judicial resources to make an abstract decision that would not have any practical result is exactly what the mootness doctrine is designed to do, 7 Carroll F. Look Constr. Co, Inc., 2002 ME 128, 97, 802 A.2d 994. ORDER
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