Pike Industries, Inc. v. City of Westbrook

• Court: Superior Court of Maine
• Decided: November 22, 2010
• Docket: SAGbcd-ap-09-31
• Status: Unpublished

Opinion

STATE OF MAINE BUSINESS AND CONSUMER DOCKET SAGADAHOC, ss. Location: West Bath Docket No. BCD-WB-AP-09-31

PIKE INDUSTRIES, INC.,

Plaintiff

v. ORDER ON MOTION FOR ENTRY OF CONSENT DECREE

CITY OF WESTBROOK, et al.,

Defendants

Before the Court is the motion of defendant City of Westbrook ("Westbrook") for Entry

of a Consent Order between Westbrook, plaintiff Pike Industries, Inc. ("Pike"), and intervenor

IDEXX Laboratories, Inc. (IDEXX). The motion is opposed by Intervenors Altel, Inc. ("A1tel")

and Smiling Hill Farm, Inc. The court held a hearing on the motion on November 9, 2010.

BACKGROUND

I. Procedural Hi. to1y

In bringing this case, Pike joined an administrative appeal of governmental action,

pursuant to M.R. Civ. P. 80B, with independent claims for equitable estoppel, waiver, and

laches, pursuant to M.R. Civ. P. 80B(i) and 14 M.R.S. §§ 5951-63 (2009). On Aptil 5, 2010, this

comt rendered a decision on Pike's 80B claim and affi1med the decision of the Westbrook

Zoning Board of Appeals. Still pending are Pike's independent claims for equitable relief.

Prior to trial on these independent claims, Pike, Westbrook, and IDEXX negotiated and

presented a proposed Consent Order to the comt. The court continued the tri~l in order to

consider and conduct a hearing on the City's motion for entry of the Consent Order.

) II. Terms ancl Effect of the Proposed onscnl Order

The proposed Consent Order, if accepted by the court, would resolve Pike's remaining

equitable claims, release the settling parties from liability from the suit, and prohibit the parties

from litigating further issues related to the suit other than those specified within the agreement.

(Consent Order ,r,r 9-12.) Once effective, Pike also would dismiss a separate pending Rule 80B

proceeding, not before this court, and could then re-commence quanying activity at the Spring

Street Quarry, but subject to conditions and restrictions set forth in the Consent Order. (Consent

Order ,r 12.)

A. Performance Standards

The Consent Order contains numerous and detailed performance standards, prescribing

the areas where and the method by which Pike will be able to continue its mining operation.

Under the terms of the proposed order, Westbrook cannot require Pike "to comply with or

implement any performance standards, management practices or site improvements except as

provided [in the consent agreement]." (Consent Order ,r 53.) Pike would not be able to operate

quanying activities west of Clarke Brook, nor operate an asphalt or concrete plant, and these

restrictions would be permanently impressed upon Pike's property. (Consent Order ,r 16-17.)

Pike would also be required to constmct a visual buffer, vegetative buffer, and fence and not

allow dust to cross its property line. (Consent Order ,r,r 22-23, 44.) The hours pennitted for

cmshing would be limited to weekdays 7:00 a.m. - 6:00 p.m.; the hours pe1mitted for tmcking

limited to weekdays 7:00 a.m. to 5:00 p.m. and Saturdays 7:00 a.m. - 12:00 p.m.; and the

amount of tiuck traffic limited to an average of 45 departures in a single day, calculated

annually. (Consent Order ,r,r 18, 20. The hours pe1mitted for blasting would be limited to

weekdays 10:00 a.m. - 3:00 p.m. (Consent Order ,r 18.) Pike could only conduct 8 production

2 blasts a year, and, if any blasting is necessary for safety, those blasts must be coordinated with

production blasts. (Consent Order ,i 19.)

Further, within the first 6 months of the order, Pike must relocate the quruTy entrru1ce and

constrnct a new access road and may conduct up to 10 blasts to accomplish these requirements.

(Consent Order, ,i,i 19, 33-34.) Pike also would be required to "meet with Artel and negotiate in

good faith as to any other blasting limitations dmi.ng [those first 6 months] as are commercially

reasonable for Pike to minimize any unreasonable disrnption to A1iel's on-going business

operations." (Consent Order ,i 19.) In addition, Pike must comply with all cwTent and future

blasting pennit requirements of the Westbrook Code and conduct all blasting and related

operations according to applicable safety standards pursuant to federal, state, and local law.

(Consent Order ,i 19.) Pike must coordinate with the Maine Department of Environmental

Protection for investigation and monitoring of its activities and have a third patiy conduct blast

monitoring, off-site seismic monitoring, and pre-blast smveys. (Consent Order ,i 24-27.)

Finally, Pike must limit vibrations through the use of electronic detonators and laser profiling

(Consent Order ,i,i 35-37), maintain decibels below prescribed levels measw-ed at the property

line (Consent Order iMf 39-43), and maintain a blast call list of property owners within "V2 mile of

the quairy to notify them two weeks in advance of any blasting (Consent Order ,i 30).

B. Prospective App lication and Dispute Resolution

The proposed Consent Order provides that it "is intended to and will supersede and

control over any different or conflicting provisions of the Westbrook Code of Ordinances now

existing or hereafter enacted," and "[i]n the event of a difference or conflict between the terms of

this Order and any state or federal requirements, the stricter provision will control and this Order

will otherwise remain in full force and effect." (Consent Order ,i 56.) The agreement, and thus

3 the order, would be binding upon and inure to the benefit of the paiiies' successors and assigns

and contains a re-opener provision that allows the parties to discuss and negotiate in good faith

the incorporation of improved mining technologies once every 10 years. (Consent Order ,r 56.)

If the parties do not come to an agreement, the then-current terms of the agreement will continue

for another 10 yeai·s. (Consent Order ,r 56.) If a dispute arises between the parties regarding the

Consent Order, it shall first be subject to infonnal negotiations, and then Westbrook may enforce

violations pursuant to 30-A M.R.S. § 4452 (2009). (Consent Order ,r,r 57-58.)

DISCUSSION

As a matter of policy, our system and rules encourage the settlement of disputes,

particularly agreements that parties have arrived at without court intervention. See M.R. Civ. P.

92; M.R. Evid. 408; Bennett v. Forman, 675 A.2d 104, 106 (Me. 1996); cf Bennett v. Bennett,

587 A.2d 463, 464 (Me. 1991). "A consent decree is primarily a means by which parties settle

their disputes without having to bear the financial and other costs of litigating." Butler v.

D/Wave Seafood, 2002 ME 41, ,r 13, 791 A.2d 928, 931 (quoting Local No. 93, Int'/ Assoc. of

Firefighters, AFL-C/0, C. L. C. v. City of Cleveland, 478 U.S. 501, 528 (1986)). Consent

decrees have attributes of both contracts, in that their terms are anived at through mutual

agreement of the paiiies, and judicial decrees, in that the decree is an enforceable as a judgment.

See Local No. 93, 478 U.S. at 519-24. Nevertheless, the court has only a limited role in

reviewing consent decrees, including, among other things, ensuring the parties' actual consent to

the agreement and the agreement's lawfulness. See id. at 522-26.

I. Consent of the Parties and Its Effect on Intervenors

There is no indication that the patties to the consent decree have not willfully consented

to the agreement's terms. The fact that Intervenors Atiel and Smiling Hill object to the decree in

4 and of itself, does not prevent the cowi from considering or approving the proposed Consent

Order. The Law Court addressed this issue in Butler, where KeyBank, an intervenor in that case,

argued that the court's "approval of the principal parties' settlement over KeyBank's objection

created irreparable harm to the interest it sought to protect through intervention." 2002 ME 41,

,r 13, 791 A.2d at 931. The Law Cowi, quoting the United States Supreme Court, stated: It has never been supposed that one patty-whether an original party, a party that was joined later, or an intervenor-could preclude other parties from settling their own disputes and thereby withdrawing from litigation. Thus, while an intervenor is entitled to present evidence and have its objections heard at the hearings on whether to approve a consent decree, it does not have the power to block the decree merely by withholding its consent.

Id. (quoting Local Number 93, 478 U.S. at 529). "The settlement cannot, however, serve to

dispose of an intervenor's valid claim," see id., or "impose duties or obligations on a third party,

without that patty's agreement," see Local No. 93,478 U.S. at 529.

Both Artel and Smiling Hill ably presented their objections at the November 9, 2010,

hearing on Westbrook's motion in this matter. Because neither Aiiel nor Smiling Hill brought

any independent claims against Westbrook or Pike, the court's approval of the proposed Consent

Order would not dispose of any valid claims those intervenors might have. The cowi thus is

satisfied that the parties to the proposed Consent Order have in fact consented to the agreement

and that adoption of the order would not dispose any present or future rights of Atiel and Smiling

Hill. 1

1 In their briefs, Artel and Smiling Hill also suggest that the agreement must be fair, and Artel contends the proposed Consent Order is procedurally unfair because Artel is not a party to the agreement and therefore would have no rights to enforce the resulting judgment. The Intervenors' objections to the procedural unfairness are addressed in the discussion above. Both Artel and Smiling Hill presented their objections at the hearing, and the settlement does not dispose of any valid claim they might have.

As between the parties to the agreement, the proposed Consent Order is a fair compromise of Pike's equitable claims. Were Pike to succeed at trial, Westbrook could be equitably estopped from enforcing its

5 II. Lawfulness of the Consent Decree

The Intervenors, through written and oral argument, contend that the proposed Consent

Order is unlawful because it is beyond the authority of the City Council to enter into an

agreement with Pike and IDEXX that: 1) unlawfully ties the hands of future City Councils,

2) constitutes de facto contract rezoning without the appropriate administrative and legislative

process required by statute and Westbrook's zoning ordinance, and 3) constitutes a more

comprehensive outcome than Westbrook could have otherwise achieved had the parties engaged

in formal contract zoning procedure. (Atiel's Opp'n Memo. 10-13.) The Intervenors also

contend that if the comi were to approve the Consent Order, its judgment would constitute

impermissible 'judicial rezoning."

A. Prospective Appl icatioo

At-tel objects to the provision of the proposed Consent Order that supersedes and controls

over "any different or conflicting provisions of the Westbrook Code of Ordinances now existing

or hereafter enacted" and the 10-year re-opener provision (Atiel's Opp'n Memo. 10-11;

Proposed Consent Order 156.) In suppmi of its argument, At-tel cites Frew v. Hawkins, 540 U.S.

431 (2004), and Horne v. Flores, 129 S. Ct. 2579 (2009), which were class actions alleging

violations of federal law by state agencies. The comi finds these decisions distinguishable from

the instant case. The fundamental concern of the United States Supreme Court in Frew and

Horne centered on issues of federalism-federal comi control over state functions-that are not

zoning ordinance against Pike and Pike could extract minerals and crush stone at will. Were Westbrook to be successful at trial, Pike could lose all ability to mine or crush on its property. The proposed Consent Order falls between those two potential results.

6 present here. 2 Further, Maine's Law Court has indicated that the binding effect of municipal

action is not the appropriate inquiry; the appropriate inquiry is the authority of the municipal

body to engage in the challenged activity:

While the personnel of a city government may change, the tribunal itself is a continuous body. . . . While one city government composed of one set of individuals might, upon a given question, do precisely the reverse of another city government, composed of a different set of individuals, yet, what the individuals of different city governments might do, can in no way affect the right of the hibunal as a city government to act upon any measure properly before it. What the individuals may do, as a matter of opinion is one thing, but what the tribunal, a perpetual body is empowered to do as a matter of auth01ity, is quite another thing.

City of Biddeford v. Yates, 104 Me. 506, 515, 72 A 335, 339 (1908). The non-consenting

intervenors, conectly, do not suggest that the Westbrook City Council lacks any authority to

settle litigation. The Legislature has granted municipalities the right to sue and be sued. See 30­

A M.R.S. § 2002 (2009). An attendant right to engage in litigation is the right to settle legitimate

disputes. See Multnomah County v. Title Guar. Co., 80 P. 409, 411-12 (Or. 1905) (concluding

that a county may settle a disputed claim of the amount owed on tax certificates as inherent in

their right to sue and be sued as long as it is in the best interests of the county); Mayo v. Dover &

Foxcroft Village Fire Co., 96 Me. 539, 551, 53 A.62, 66 (1902) ("[M]unicipal corporations can

2 In Frew, the Supreme Court held that enforcement of a consent decree between mothers and ot1icials in the Texas Department of Health and the Texas Health and Human Services Commission for violations of the Medicaid did not violate the Eleventh Amendment, but also commented on "the sovereign interest and accountability of state governments" and the risk of depriving state officials of the designated powers through long-term federal court oversight of state programs absent an ongoing violation of federal law. See 540 U.S. at 433-34, 441. The Court expressed similar concerns in Horne v. Flores, 129 S. Ct. 2579 (2009), a declaratory judgment action by a group of English Language Learner students and their parents against a school district in Arizona for violation of the Equal Educational Opportunities Act of 1974 (EEOA). Id. at 2588.

In both cases, the Court concluded that that these concerns could be addressed through a flexible approach to the modification of consent decrees when changed circumstances warrant amendment through the court's equitable powers. See id at 2600; Frew, 540 U.S. at 436; see also Fed. R. Civ. P. 60(b).

7 not only exercise such powers as are granted by their charters, or by general law, either expressly

or by implication, but also such as are incidental to the powers expressly granted and such as are

essential to the objects and purposes of the corporation."). The terms of the proposed Consent

Order allow the parties to reopen the decree in 10 years for changes that "shall respect the

balance sttuck in the Consent Agreement between the commercially viable operation of the

Quarry and mitigation of negative effects on swTounding properties and the enviromnent."

(Proposed Consent Order ,i 56.) Finally, in addition to the re-opener provision, the parties

acknowledge that should the court approve the Consent Order, it will be incorporated as a

judgment and subject to a motion for relief from judgment pursuant to M.R. Civ. P. 60(b).

Because the City Council of Westbrook has the authority to settle litigation,3 the court is not

persuaded that the binding effect of the Consent Order invalidates the whole.

B. De Facto Contract Zonia~

Artel and Smiling Hill's second argwnent is that the Consent Order is tantamount to

contt·act rezoning and unlawful because the procedures and standards mandated by state and

mwiicipal law have not been met. (A11el's Opp'n Memo. 11-13.) They suggest that the proper

procedure is for Pike to dismiss its suit and apply for a contl"act zone to the Westbrook Planning

Board so that notice and due process requirements can be met.

3 Article Vlll, Part Second, Section 1 of Maine's Constitution provides: "The inhabitants of any municipality shall have the power to alter and amend their charters on all matters, not prohibited by Constitution or general law, which are local and municipal in character. The Legislature shall prescribe the procedure by which the municipality may so act." The court takes judicial notice of the City of Westbrook's Charter, which provides: "The city council shall, so far as not inconsistent with the act, have and exercise all the legislative powers of towns, and have all the powers and be subject to all the liabilities of the city councils, and either branch thereof under the general laws of this state." Westbrook, Me., Charter § 12 (Sept. 13, 2010). "When no specific provision in a city charter exists in reference to the existence of a municipal power, the city has all the powers granted to towns or municipalities under the general Jaw." 30-A M.R.S. § 2004 (2009).

8 By statute, municipalities may engage in contract or conditional zoning, provided that

certain statutory requirements are met. See 30-A M.R.S. § 4352(8) (2009). 4 Contract zoning,

like all zoning, is a legislative act. See Bog Lake Co. v. Town ofNorthfield, 2008 ME 37, ,r 11,

942 A.2d 700, 704. Westbrook's land use ordinances allow contract zoning

where, for such reasons as the unusual nature or unique location of the development proposed, the City Council finds it necessary or appropriate to impose ... certain conditions or restrictions relating to the physical development or operation of the property, which are not generally applicable to other properties similarly zoned. All rezoning under this section shall establish rezoned areas, which are consistent with the existing and permitted uses within the original zones. All such rezoning shall be consistent with the City's Comprehensive Plan.

Westbrook, Me., Land Use Ordinance § 107(B) (Dec. 8, 2008); accord 30-A M.R.S. § 4352(8).

An applicant for contract zoning in Westbrook must submit an application to the Westbrook

Planning Board that includes, among other things, a plot plan, "a detailed statement of the

proposed use of the property," and "a statement setting forth the precise zoning change

requested." Westbrook, Me., Land Use Ordinance § 107(A)(l) through (A)(3) (Dec. 8, 2008).

Before any property may be rezoned, both the Planning Board and City Council must conduct a

public hearing and provide at least 13 days notice of the hearing through posting and publication.

Westbrook, Me., Land Use Ordinance § 107(C), (C)(l) (Dec. 8, 2008); accord 30-A M.R.S. §

4352(8).

4 Title 30-A M.R.S. § 4352(8) provides:

8. Conditional And Contract Rezoning. A zoning ordinance may include provisions for conditional or contract zoning. All rezoning under this subsection must:

A. Be consistent with the growth management program adopted under this chapter;

B. Establish rezoned areas that are consistent with the existing and permitted uses within the original zones; and

C. Only include conditions and restrictions that relate to the physical development or operation of the property.

9 ) In some ways, the effect of the proposed Consent Order resembles contract zoning. The

Consent Order imposes restrictions on the development and operation of Pike's property that are

not applicable to any other property similarly zoned. The litany of pe1formance standards of the

agreement all relate to the operation of Pike's mining activities, incorporating provisions for

when, where, and how Pike may crnsh, blast, and trnck on its property. Artel conectly points out

that although the City Council conducted public hearings before approving the Consent Order,

there were no hearings before the Planning Board, as would have been required by 30-A M.R.S.

§ 4352(8) and section I07(C) of Westbrook's Land Use Ordinance. Further, there has been no

determination, by the City Council or otherwise, that the uses embodied in the Consent Order are

consistent with Westbrook's Comprehensive Plan. The court is also cognizant of the Law

Court's admonishment that a municipality may not circumvent statutorily mandated zoning

procedures through the exercise of its home rnle authority. See Perkins v. Town of Ogunquit,

1998 ME 42, ,r 15, 709 A.2d 106, 110 (holding that a Planning Board may not grant a variance

through use of a waiver ordinance because variances must be obtained by the Zoning Board of

Appeals).

Despite its ostensible resemblance to contract zoning, the court is convinced that the

proposed Consent Decree is not in fact an instance of contract or conditional zoning or an

attempt by Westbrook to avoid the legislative process. Artel and Smiling Hill misapprehend the

nature of Pike's pending claims and the different structural roles that the City Council has in

Westbrook's municipal government. The proposed consent decree before the court is the

settlement of legitimate equitable claims that the parties have disputed through litigation.

Whether Westbrook is equitably estopped from enforcing its zoning ordinance against Pike's

quanying and mining operation or whether the doctrine of laches applies are determinations that

10 the corut must make. See M.R. Civ. P. 80B(i); Salisbury v. Town ofBar Harbor, 2002 ME 13, ,i

16, 788 A.2d 598, 602. The "[p ]roper application of the doctrine of equitable estoppel rests on

the factual dete1mination that the declaration or acts relied upon must have induced the party

seeking to enforce the estoppel to do what resulted to his detriment, and what he would not

otherwise have done." City of Auburn v. Desgrosseilliers, 578 A.2d 712, 714 (Me. 1990)

( quotation marks omitted). If a party challenging the enforcement of a zoning ordinance by a

municipality can establish these facts and the equities weigh in the patty's favor, the

municipality will be equitably estopped from enforcing the zoning ordinance. See id. at 715.

"Laches is an omission to assert a right for an unreasonable and unexplained period of time

under circumstances prejudicial to the adverse party," and application of the doctrine by the

court is fact-dependent. See Town of Falmouth v. Long, 578 A.2d 1168, 1170 (Me. 1990).

These equitable doctrines apply despite the facial and legal validity of a zoning ordinance. See

Desgroseilliers, 578 A.2d at 714; Long, 578 A.2d at 1170.

The City Council, as Westbrook's governing body, has both legislative and executive

powers. See 2A McQuillin, The Law of Municipal Corporations §§ 10.6-10.7 (3d ed. 2006 &

Supp. 2010); cf Diva's, Inc. v. City ofBangor, 411 F.3d 30, 41 (1st Cir. 2005) ("City Council

members at various times may pe1fo1m legislative, executive and judicial functions" (quotation

marks omitted)). When the City Council creates or adopts new laws or ordinances of general

application, including zoning ordinances, it acts in a legislative capacity. See 30-A M.R.S. §

4352 (2009); Bog Lake Co., 2008 ME 37, ,i 11, 942 A.2d at 704. When the City Council,

however, votes to enter into a waste removal contract, approves the hiring of a new code

enforcement officer, or enters into a settlement agreement of legitimate claims in pending

litigation, it acts in an executive capacity, pursuant to the broad powers of administration granted

11 to municipalities by the Maine Constitution's home mle authority for matters which are local and

municipal in character. See Me. Const. art. VIII, pt. 2, § 1; 30-A M.R.S. § 2601-A (2009); Bird

v. Old Orchard Beach, 426 A.2d 370, 372 (Me. 1981); Beck v. Waterville, 221 A.2d 831, 836

(Me. 1966). The City Council's decision and vote to enter into the Consent decree is executive,

not legislative in nature and, therefore, it does not constitute contract zoning, illegal or otherwise.

Finally, the comt is concerned with the practical consequences of the procedure advanced

by Al.tel and Smiling Hill: that Pike should dismiss the suit and apply for contract zoning. The

logical conclusion of their prefeITed procedure would prevent a municipality from settling any

land use litigation involving a statutorily mandated process, regardless of the risks or costs to the

municipality. In the present case, such a procedure may well be an exercise in futility because a

determination of whether the Westbrook Planning Board and City Council would approve a

contract zone in favor of Pike does not address Pike's independent equitable claims that it has a

right to quarry its property. In the context of the litigation of Pike's independent claims, the

court believes that the procedure advanced by Al.tel is neither necessary, nor intended by the

Legislature. Any procedural due process requirement about notice and the oppmtunity to be

heard regarding the proposed settlement can be satisfied, as they are here, by the governing body

holding a public hearing on the matter prior to its vote. Prior to approving the Consent Order,

the City Council conducted multiple public hearings at which Artel and other residents were able

to voice their objections. The court is satisfied that due process requirements have been met.

Because the City Council has the power to settle claims, as attendant to the right granted

to municipalities by the Legislature to sue and be sued, see 30-A M.R.S. § 2002, and because

opponents were provided with notice and the opportunity to be heard, the court will not second

12 ) guess the Council's judgment that it is in the City's best interest to settle the litigation with Pike

rather than risk an adverse result after trial. See Butler, 2002 ME 41, ,r 13, 791 at 931.

C. Scope of" Relief

Dming the heating on this matter, A1tel argued that the proposed Consent Order is

unlawful because it affords Westbrook a more comprehensive outcome and greater relief than it

would have othetwise been able to achieve had Pike engaged in formal application for a contract

zone. While it is true that the proposed Consent Order encompasses tem1s in favor of the City

and its residents that would not have been available pursuant to a contract zone,5 Attel again

misapprehends the City Council's executive role in entering into the agreement and the corut's

role in reviewing it. Westbrook and Pike, in settling this litigation, may include terms in their

agreement that the court could not order, provided those tenns are not unlawful.

Notwithstanding their contract zoning argrunent, neither Artel nor Smiling Hill identified any

te1ms of the proposed Consent Order that that were contrai-y to the demands of Westbrook's

municipal ordinances. 6 Simply because the relief within the Consent Order is more than the

comt might grant does not render the agreement unlawful. Cf Local No. 93, 478 U.S. at 525-26

(explaining that a court may enter a consent decree that provides for broader relief than a comt

could have awarded after hial as long as it is consistent with the law upon which the complaint is

based and not unlawful).

5 For example, the provisions mandating that Pike maintain a blast call list and work with Arte! during the first 6 months when Pike is relocating its entrance are not "conditions or restrictions relating to the physical development or operation of the property." See Westbrook, Me., Land Use Ordinance§ l07(B) (Dec. 8, 2008). (Consent Order 1119, 30.) 6 The proposed Consent Order already provides: "In the event of a difference or conflict between the terms of this Order and any state or federal requirements, the stricter provision will control and the Order will otherwise remain in full force and effect." (Consent Order 156.)

13 D. ··Judicial Rezolling"

As noted, our system and rules encourage the settlement of disputes, particularly

agreements that the parties have anived at without court intervention. The proposed Consent

Order, however, is not just the settlement of a ptivate dispute between parties. The parties have

asked the court to incorporate their agreement into a judgment, thereby implicating the integrity

of the judicial branch and the doctrine of separation of powers. Aitel and Smiling Hill contend

that the comt may not enter the proposed Consent Order as a judgment because it would

constitute "judicial rezoning."

Maine cowts have not addressed the concept of judicial rezoning, but other jurisdictions

have held that the phrase refers to a court usurping the legislative function and improperly

rezoning a parcel from one zoning classification to another. See, e.g., City ofBatesville v. Grace,

534 S.W.2d 224, 228-29 (Ark. 1974); Cosmopolitan Nat'/ Bank v. County of Cook, 469 N.E.2d

183, 194 (Ill. 1984); Schwartz v. City of Flint, 395 N.W.2d 678, 682-83 (Mich. 1986); Suffolk

Housing Svcs. v. Town ofBrookhaven, 511 N.E.2d 67, 70 (N.Y. 1987); Union Oil Co. of Cal. v.

City of Worthington, 405 N.E. 2d 277, 280 (Ohio 1980). It is a usurpation of the legislative

function because, instead of adjudicating whether or not a zoning ordinance or amendment is

within the authority of the municipality to adopt, the court makes an independent dete1mination

regarding the use of a parcel and purports to assign a zoning designation to the property based on

that determination. Courts are not constitutionally or institutionally competent to make those

determinations. Because the prohibition on judicial rezoning is in accord with the standard of

review in Maine for addressing the consistency between a zoning ordinance and a town's

comprehensive plan, see LaBonta v. City of Waterville, 528 A.2d 1262, 1265 (Me. 1987) ("the

14 court will not substitute [its] judgment for that of the duly elected legislative body" (quotation

marks omitted)), the court concludes that "judicial rezoning" is prohibited in Maine.

In support of the argument that the court's approval of the Consent Order would

constitute judicial rezoning, Artel and Smiling Hill bring two cases to the court's attention:

County of Volusia v. City of Deltona, 925 So.2d 340 (Fla. Dist. Ct. App. 2006) and Rogers

Group, Inc. v. Masterson, 175 S.W.3d 630 (Ky. Ct. App. 2005). County of Volusia, however,

does not support their position. There, the City of Deltona, Flmida, entered into an agreement to

annex a tract of land owned by three individuals; the City later voted to annex the land and

adopted the annexation ordinance. 925 So.2d at 342. On appeal, the court held that the zoning

amendment approving the annexation was improper because the annexed lands were not

sufficiently contiguous to the city's existing boundaries. Id at 344. Although the appellate court

questioned the validity of the agreement because of the substantial obligations it imposed on the

city, the comt remanded the case because the tlial comt had not considered the validity of the

agreement. Id. at 345-46. Although Florida does not allow conti·act zoning, 7 the case does not

stand for the proposition that enforcement of the agreement would constitute judicial rezoning.

Id. County of Volusia is also distinguishable because the annexation agreement was not the

settlement of litigation between the patties, it was the source of the dispute between the litigants.

The second case cited by A11el and Smiling Hill gives the court some pause. In Rogers

Group, the landowner and a rock quany company filed with the City of West Point, Kentucky, a

conditional use permit to extract limestone from a 17-acre parcel. 175 S.W.3d at 632. At the

time of the application, West Point did not have a "zoning classification that would have allowed

7 A case cited in the decision, Chung v. Sarasota County, 686 So.2d 1358 (Fla. App. Ct. 1996), makes this point clear: "The City does not have the authority to enter into such a contract, which effectively contracts away the exercise of is police powers."

15 the operation of a rock quany." Id at 635. When the pe1mitting process broke down, the

applicants filed for a declaratory judgment that West Point's entire zoning system was

unconstitutional under Kentucky precedent/ and West Point counterclaimed that it was in fact

the owner of the 17-acre parcel by a deed reservation. Id. at 632-33. After a trial by deposition

but before a decision in the case, the patties reached a settlement, and the comt approved it as an

agreed-upon judgment. Id at 633. The agreed judgment allowed the applicants to operate a

rock quaiTy on the parcel and fi.uther provided that the applicants' "ability to make use of the

land [was] governed solely by the agreed judgment and not by ordinances" that had been or

might be adopted by West Point. Id. at 634. The judgment was also binding upon successors

and assigns. Id. A group of concerned citizens challenged the agreement as illegal judicial

zoning. Id. at 633. And the appeals court agreed. Id. at 635. Despite some of the procedural

similarities to the present case, the court does not find Rogers Group to be dispositive of the

instant case.

First, Rogers Group is factually distinguishable from the present case. In Rogers Group,

quanying was not a pre-existing use of the property in question, the parcel had never been zoned

for quarrying, and no zone in the city allowed quaiTying. Id. at 632, 635. Fwther, the agreed

judgment exempted the subject property from all present and future zoning ordinances; use of the

land was governed solely by the consent judgment. Id. at 634. Finally, the terms of the

agreement bore no relationship to the actual dispute being litigated: the constitutionality of the

zoning system. Id at 632-33. In contrast, quan-ying and mining have been conducted on Pike's

property for the past 40 years, and quanying was once a permissible use in the zone. Fwther, the

8 In Hardin County v. Jost, 897 S.W.2d 592 (Ky. Ct. App. 1995), Hardin County's zoning system was struck down as unconstitutional because it was essentially an ad hoc zoning system: there were only two permitted uses, and any other use required a conditional use permit.

16 proposed Consent Order does not purport to exempt Pike from all current and future ordinances

and be the sole source of regulation of the parcel. Although the proposed Consent Order would

tlump conflicting provisions of Westbrook's ordinances, Pike's property would remain otherwise

subject to all other Westbrook ordinances and state and federal law. Lastly, and importantly, the

Consent Order bears a direct relationship to the issue being litigated: whether Pike has equitable

rights to conduct mining and quanying operations on its property.

In addition to these factual distinctions, the reasoning underlying the decision in Rogers

Group, is not entirely clear to this court. The Rogers Group comt explained:

Kentucky case law makes clear that the judicial system is not to be substituted for decisions more appropriately made by a legislative body. Rezoning a piece of property is not a judicial function. Even where a court has the authority to find that an action by the legislative body is arbitrary, it does not have the authority to order a particular classification be applied to the property.

175 S.W.3d at 634 (citations omitted). The appellate court then went on to state that the trial

court had engaged in judicial rezoning without explaining how or why. Id. As defined by the

Kentucky comt, judicial rezoning did not in fact occur in Rogers Group. The trial comt did not

make a dete1mination of what zone should apply to the property in question or what uses should

be allowed; the ti·ial comt simply approved the consent judgment as presented. Id. at 633. The

real issue in Rogers Group is not that the agreement constituted judicial rezoning; the real issue

is that the terms of the agreement were beyond all bounds of legality and the trial cowt should

not have incorporated it into its judgment.

Pike, IDEXX, and Westbrook have presented the court with a proposed Consent Order

that will dispose of the pending independent equitable claims. The agreement directly addresses

the issue before the comt: whether Pike may engage in quarrying and mineral extraction. The

comt is satisfied that the parties have consented to the agreement, and that the Consent Order is

17 lawful and does not dispose of any present or future rights of the non-consenting intervenors. No

more is required.

Based on the foregoing, and pursuant to M.R. Civ. P. Rule 79(a), the Clerk is directed to

enter this Order on the Civil Docket by a notation incorporating it by reference and the entry is

The Consent Order presented to the colllt by Pike, IDEXX, and Westbrook is APPROVED. The patties are ordered to execute the agreement and present it to the court for incorporation as a judgment.

Dated: November 22, 2010 s!I'homas E. Humphrey Chief Justice, Superior Colllt