Woods v. Inhabs. Of the Town of York

Opinion

STATE OF MAINE SUPERIOR COURT CIVIL ACTION

YORK/ ss. DOCKET NOS. AP-02-042 AP-02-043

AP-02-044

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WILLIAM T. WOODS and LILA WOODS, et al.,

Plaintiffs

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ORDER - ..

v. '

THE INHABITANTS OF THE TOWN OF YORK,

Defendant

On October 7, 2005 I signed an order staying the defendant's motion for . ._.

summary judgment to permit the plaintiffs to seek necessary state and federal permits.

Those permits have been granted and the parties have filed supplemental briefs.

The defendant's motion for summary judgment will be granted as to Counts I1 (the State Constitutional claims) and Counts I11 (the Federal Constitutional claims). The Maine Supreme Judicial Court has determined that the state and federal claims would require the same analysis in h s case. See MC Associates v. Town of Cape Elizabeth, 2001 ME 89, ¶11, 773 A.2d 439, 443. The test is whether the York zoning restrictions have caused the properties to lose all value. MC Associates, at ¶11, or "all practical value", Seven Islands Land Co. v. Maine Land Use Regulation Commission, 450 A.2d 475, 482 (Me. 1982).

In this case the evidence presented by the plaintiffs' own expert, before he attempted to distance himself from I-us opinion, was that each property was worth about $7,800.00. Another expert admitted that the property would have a nominal value, but have value. Regardless of whether the newly enacted "Wetland Protection Bonus" provision of the York Zoning Ordinance, §7.6.4(B)(3)adds practical value some modest value existed and exists.

While the properties with land use restrictions have a significantly reduced value, enough value, which to the owners must be discouragingly small, remains to defeat a state or federal constitutional challenge to the zoning restrictions.

The entry is:

Judgment for the defendant on Counts I1 and I11 in AP-02-42, AP-02-43 and AP-02-44.

Dated: February 2,2007

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Paul A. Fritzsche

Justice, Superior Court

William B. Devoe, Esq. - PLS William V. Ferdinand, Jr., Esq. - PLS Judy A. S. Metcalf, Esq. - PLS Durward Parkinson, Esq. - DEF