Monro v. City of Portland

• Court: Superior Court of Maine
• Decided: June 19, 2014
• Docket: CUMap-14-11
• Status: Unpublished

Opinion

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STATE OF MAINE SUPERIOR COURT CUMBERLAND, ss CIVIL ACTION DOCKETNO. AP-14-11 TDVI-CUM -~-¥1-ILJ- JONATHAN MONRO, et al.,

Plaintiffs, s-r ATs C?~ Cumberl~,--., M~t~~ffi('£, ·' · · · v. ORDER JUN 1 :) 2014 CITY OF PORTLAND, et al, RECE~VED Defendants

Pursuant to this court's order dated June 5, 2014 plaintiffs have submitted further

authority with respect to Count III of their complaint.

Only one of the two cases plaintiffs have submitted bears any similarity to the

case at bar. In Mutton Hill Estates Inc. v. Town of Oakland, 468 A.2d 989 (Me. 1983),

opponents of a subdivision had engaged in ex parte meetings with members of the

Planning Board to prepare findings which the Oakland Planning Board then adopted

without discussion.

In this case plaintiffs' complaint alleges that the Portland Planning Board voted

to approve the project on January 14, 2014 even though the stormwater drainage plan

was incomplete, and that a written decision was issued on January 28, 2014. Complaint

cncn 31-32, 47. Plaintiffs also allege that "subsequent to the Pl-anning Board's approval," planning board staff met ex parte with the developer on the subject of stormwater

drainage. Complaint en 49. This leaves open the possibility that those meetings were

held after the January 14 vote and before the January 28 written decision and that those

meetings contributed to the written findings in the decision. Based on that possibility, the court will deny the motion to dismiss Count III. In

so doing, it construes Count III as alleging that there were procedural improprieties

with respect to stormwater drainage. The court does not agree that a constitUtional

violation has been alleged.

Plaintiffs are entitled to challenge the Planning Board's decision on the theory

that the stormwater drainage plan was incomplete. They are also entitled to challenge

the Planning Board's decision based on alleged procedural improprieties with respect to

stormwater drainage. 1 However, a right to have stormwater properly addressed does

not constitute a property interest for purposes of the due process clause of the Maine

and U.S. Constitutions. Unlike the developer in Mutton Hill Estates, which was denied

the right to develop a 12-acre subdivision, plaintiffs have not been deprived of any

constitutionally protected property interest by the Planning Board's approval.

The entry shall be:

For the reasons set forth above, defendants' motion to dismiss Count III of the complaint is denied. The Clerk is directed to incorporate this order in the docket by reference pursuant to Rule 79(a).

Dated: June~ 2014

Thomas D. Warren Justice, Superior Court

1 The court reserves decision on whether and to what extent the Planning Board was required to consider stormwater drainage. ~Lt:~ OF C01J;RTS Cumbe.dand Co~nty 205 Newbury Street, Ground Floor Portland, ME 04101

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