Pinchbeck v. Town of Windham

• Court: Superior Court of Maine
• Decided: May 28, 2009
• Docket: CUMap-08-32
• Status: Unpublished

Opinion

STATE OF MAINE CUMBERLAND, ss.

2Uaq NAY 28 MARGARET PINCHBECK, LEON PRIDE, LINDA ROWE, CARL RUSSELL, NORTHEASTERN MOTEL, BECKY HAGAR, JUNE HAWKES, and WINDHAM CITIZENS FOR SENSIBLE DEVELOPMENT

Plaintiffs,

v. ORDER

THE TOWN OF WINDHAM

Defendant

and

WINDHAM PROPERTIES, LLC

Party-in-Interest

This case comes to the Court on Party-in-Interest Windham Properties,

LLC's motion to dismiss pursuant to M.R. Civ. P. 12(b)(1).1

FACTUALANDPROCDURALBACKGROUND

Party-in-interest Windham Properties, LLC (herein Windham Properties)

is a Maine company seeking to develop a mineral extraction quarry on property

located in Windham, Maine. Defendant Town of Windham, through its Town

Council (herein the Council), reviewed and approved Windham Properties'

quarry proposal. The Plaintiffs, all of whom own parcels of land located near the

site of the approved quarry and were present at all relevant Council meetings

and hearings, object to the construction of this quarry, claiming that they will be

I Defendant Town of Windham joins in this motion. negatively impacted by the quarry's development. The Council held several

public hearings and meetings on Windham Properties' application between

April and September 2008.

Under §140.33(0)(16) of the Windham Town Ordinance, a quarry

application cannot be approved if work on the quarry will produce vibrations

that are "transmitted through the ground and [are] discernible without the aid of

instruments at or at any point beyond the lot line." However, in its approval of

the Windham Properties' application, the Council concluded that "the ordinance

requires the measurements of vibration at the nearest inhabitable structure not

owned or controlled by the owner of the quarry."

Plaintiffs allege that the Council committed an error of law in their

conclusion that the Ordinance requires the measurements of vibration to occur at

the nearest inhabitable structure not owned or controlled by the owner of the

quarry, because under Section 140.33(0)(16), vibrations must be measured at the

quarry lot line, not the nearest inhabitable structure. On October 22,2008,

Plaintiffs filed the present 80B complaint, requesting this Court to vacate the

Council's decision based on their error of law concerning vibrations.

While it is undisputed that the Council approved the quarry application at

issue here, the date on which this approval occurred is at issue; Windham

Properties alleges that the final decision on the quarry application occurred on

September 9, 2008, whereas the Plaintiffs allege that the final decision on the

entire application occurred on September 23, 2008.

Under the relevant Ordinance, the Council was charged with doing a site

plan review for Windham Properties' proposed quarry. During this review, the

2 Council is required to consider seventeen (17) different standards. 2 In looking at

the September 9, 2008 minutes3, it is clear that the Council took up standards

number seven (relating to methods of operation, removal, or procession) though

seventeen (relating to dust levels and methods of minimization) of Section

140.33(D)(16) of the Ordinance. 4 After discussing the last standard, relating to

dust, Councilor McKinnon moved to "postpone Article 08-1375 to September 23,

2008, and that concerns to approve findings of fact, conclusions of law relative to

a proposed quarry on Nash Road." Exhibit A, p. 131.

The Town's attorney, Kenneth Cole, explained that the postponement was

necessary because the Council, during the course of its deliberations, "made

numerous amendments and changes and conditions," and as such, he was

asking for some time to prepare a "clean document" containing all of the

Council's findings and conclusions. Exhibit A, p. 131. Attorney Cole went on to

inform the Council that, once this document was prepared, the Council would

then be given the opportunity to approve "the thing as a total order," Exhibit A,

p. 133, making sure that the document accurately reflected the "actions that the

Council [had] taken over the last few evenings." Exhibit A, pp. 131-132. At no

2 Including, but not limited to, fencing, signs, parking, drainage, rehabilitation, hours of operation, vibration, etc. See Ordinance, § 140-33(D)(1)-(17). 3 In so considering, the motion is not converted into a motion for summary judgment because courts can "consider official public documents, documents that are central to the plaintiff's 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." Moody v. State Liquor & Lottery Comm'n, 2004 ME 20, err 10, 843 A.2d 43, 48. 4 Standards number one through six were previously considered and voted on at a prior Council hearing. 5 This is how the Council referred to Windham Properties' quarry application

3 point during the September 9, 2008 meeting was there a motion made to approve

Windham Properties' overall quarry application.

The first page of the Council's September 23,2008 meeting agenda states

that Article 08-137 "contemplates the approval of findings of facts and

conclusions of law relative to a proposed quarry on Nash Road which may result

in its approval." Exhibit B, Council Agenda Article Cover Sheet. Further, a

review of this document reflects that, while the Council had previously voted on

standards 1 through 17, it does not contain any reference to a final Council vote

concerning Windham Properties' overall application.

In looking at the actual minutes of the September 23, 2008 meeting, the

pertinent section states that the reason why Order 08-137 was on the agenda was

so that the Council could "approve findings of fact and conclusions of law

relative to a proposed quarry on Nash Road. (Postponed from 9/9/08)." Exhibit

C, p. 19. After a brief discussion, the Council voted 4-2 "on order 08-137."

On October 29, 2008, Windham Properties filed the present motion to

dismiss pursuant to M.R. Civ. P. 12(b)(l). In its motion, Windham Properties

argues that the final Council decision on its application occurred on September 9,

2008 and not September 23, 2008. As such, Windham Properties argues that

Plaintiffs' complaint was not timely filed, and therefore, should be dismissed for

lack of jurisdiction.

DISCUSSION

It is well established that time limits to appeals are jurisdictional. See e.g.

Persson v. Dept. of Human Services, 2001 ME 124,

M.R. Civ. P. 80B(b), "the time within which review may be sought shall be as

provided by statute, except that if no time limit is specified by statute, the

4 complaint shall be filed within 30 days after notice of any action or refusal to act

of which review is sought." The parties do not dispute that Plaintiffs had until 30

days after the Council's final decision regarding Windham Properties' quarry

application to file the appeal. The real issue of contention is when the final

agency action occurred. If, as argued by Windham Properties, the final decision

was on September 9,2008, the appeal was not timely filed. On the other hand, if

the final decision occurred on September 23, 2008, as argued by Plaintiffs, the

appeal was filed in a timely manner.

Absent special and narrow exceptions not present here, "appeals may

only be considered from final judgments, or final rulings of administrative

agencies." Carroll v. Town ofRockport, 2003 ME 135,

final judgment or final administrative action is a decision that fully decides and

disposes of the entire matter pending before the court or administrative agency,

leaving no questions for the future consideration and judgment of the court or

administrative agency." Id. Further,

votes or decision addressing individual issues during the course of consideration of an application that requires rulings or fact-findings on several points are not final decisions. A person is not required to file an appeal to protect a challenge to each particular decision, prior to the issuance of a final decision on the overall application.

Id. at

For example, in Carroll, an abutter appealed to the Superior Court a

decision by the Board of Appeals to waive certain road length requirements as

part of a neighbor's overall subdivision application. Id. at

On appeal, the Superior Court dismissed, as untimely, the portion of the appeal

relating to this waiver, holding that such a decision had occurred on November

7, 2001, or more than three months before the appeal was filed. Id. In finding that

5 that portion of the appeal was not untimely, the Law Court stated that the Board

of Appeal's decision to waive the road length requirements did not become final,

for administrative appeals purposes, until the Board of Appeals December 19,

2001 vote on the entire application. Id. at en: 22, 837 A.2d at 155.

Windham Properties insists that the matter was fully disposed of on

September 9, 2008, and that it was postponed to September 23,2008 solely so that

the Council could approve written findings of facts and conclusions of law that

summarize the findings and conclusions already made during the course of

application deliberations. This act, it is argued, is purely ministerial and has no

substantive effects on the approval of the overall application. The Court does not

agree. Windham Properties' argument assumes that a final decision was already

made on the overall application, yet as already discussed, a review of the record

shows that no such vote on the overall application occurred on September 9,

2008. Rather, on September 9, 2008, the date Windham Properties argues that the

final decision was made, the Council merely voted to impose several individual

standards pursuant to § 140-33(D)(l)-(l7) of the Ordinance.

As the purpose of the plan review, is to "impose such conditions as are

necessary to safeguard the health, safety, and welfare of the community," it

cannot be argued that, by voting to impose certain conditions, the Council came

to a final decision on Windham Properties' overall application. Rather, the votes

on each of the seventeen standards were merely "votes or decision addressing

individual issues during the course of consideration of an application that

require[d] rulings or fact-findings on several points." see Carroll, 2003 ME 135, en:

19, 937 A.2d 148. 154.

6 Further, as the Law Court has made clear, the Town Council's decision on

the application occurs only when the Council "fully decides and disposes of the

entire matter pending before the court or administrative agency, leaving no

questions for the future consideration and judgment of the court or

administrative agency." Id. at 116,837 A.2d at 154. Here, the record clearly

reflects that directly after considering the seventeenth site review standard, the

Town Council voted to postpone consideration of the application until

September 23,2008. Thus, as a matter was postponed until September 23,2008, it

cannot be said that the matter was fully decided and disposed of on September 9,

2009.

As no vote on the overall application occurred on September 9, 2008, and

because the Council postponed the meeting until such time as written findings

and conclusions could be drafted and reviewed, the 4-2 Council vote on

September 23, 2008 must be considered the final vote on the overall application.

This being the operative date, the Plaintiffs filed this action within the time

period designated by M.R. Civ. P. 80B(b). Therefore, Windham Properties'

motion to dismiss for lack of jurisdiction should be denied.

Therefore, the entry is: Party-In-Interest I S motion to dismiss is DENIED.

The clerk shall incorporate this Order into the docket by reference pursuant to M.R. Civ. P. 79(a).

DATED:

7 Date Filed 10-22-08 CUMBERLAND Docket No. __A_P_-_0_8_-_3_2 ~ County

• Action 8_0B_A_P_P_E_A_I_~ _ MARGARET PINCHBECK THE TOWN OF WINDHAM LEON PRIDE WINDHAM PROPERTIES LLC - PII LINDA ROWE CARL RUSSELL NORTHEASTERN MOTEL BECKY HAGAR JUNE HAWKES WINDHAM CITIZENS FOR SENSIBLE DEVELOPMENT Ys. Plaintiff's Attorney Defendant's Attorney

SC07T ANDERSON, ESQ. ERICA JOHANSON ESQ. (WINDHAM PROPERTIES) GORDON SMITH, ESQ. ONE PORTLAND SQUARE PO BOX 586 PORTLAND, ME 04112-0586

Date of ·'try