Lane Construction Corporation v. Town of Washington

STATE OF MAINE SUPERIOR COURT PENOBSCOT, ss. CIVIL ACTION Docket No. CV-05-233

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THE LANE CONSTRUCTION CORPORATION, 1 ) Plaintiff 1 OPINION: ORDER ON MOTION v. FOR SUMMARY JUDGMENT 1 AND REQUEST FOR TOWN OF WASHINGTON, 1 PERMANENT INJUNCTION ) ) Defendant and ) 1 LAND ASSOCIATION OF WASHINGTON, ROBERT MARKS, ) PAULAGREEN:SANDRA 1 AND GUY BOURRIE

Intervenors

BACKGROUND

l'he matters before this Court are Plaintiffs Motion for Summary Judgment and Request for Permanent Injunction. This case surrounds the Lane Construction Corporation's (hereinafter "Lane") proposal to operate a hard rock quarry, rock crusher, concrete batch plant and bituminous hot-mix (asphalt) plant on a parcel of land in the Tocm of liJashington's Farm and Forestry district. On March 22, 2001, Lane filed an application with the Town, requesting a conditional use permit for the aforementioned activities. On May 10, 2001, the Washington Planning Board held the frrst of thirteen public hearings on the application. At these hearings, both Lane and the Land Association of washington (hereinafter "LAW") provided testimony and documentary evidence in support of their differing views as to the legality of the proposal in light of the applicable Land Use Ordinance. On August 5, 2002, the Planning Board issued a decision granting the Plaintiff a permit to operate and maintain mineral extraction and crushing operations at the site. Aspects of this decision were appealed to the Superior Court by both parties. On March 29, 2005, the Superior Court affirmed the mineral extraction permit (Knox County Docket Number AP-03- 13).

The Town of Washington adopted a separate Mining Ordinance with an effective date of March 23, 2002. The new ordinance requires applicants to obtain a conditional use permit under the Land Use Ordinance, and a permit under the Mining Ordinance. The Mining Ordinance limits extraction to 5,000 cubic yards per year. The Mining Ordinance does not contain an express provision making it retroactive to pending applications. Pursuant to the Court's March 29,2005 Order, Lane began the site work i n

early July, including clearing the soil and other preparatory work. On September 22, > .

2005, the Town issued an immediate Stop Work Order, stating Lane was in violation of the Mining Ordinance, due to Lane's failure to obtain a permit under the Mining Ordinance enacted in March of 2002. A temporary restraining order was granted on October 6,2005. Lane now seeks a declaration that it is not subject to the 2002 Mining Ordinance and an order permanently restraining the Town from enforcing the Stop Work Order.

DISCUSSION

Plaintiff's Motion for Summary Judgment and Request for Permanent Injunction

1. Standard of Review

A party is entitled to summary judgment when the record shows that there is no genuine issue of material fact and the party is entitled to judgment as a matter of law. M.K. Civ. P. 56(c); See e.g., DurLings v. Ford Motor Co., 2003 NIE 21, l J 14, 817 A.2d 877, 879. To survive a motion for a summary judgment, the opposing party must produce evidence that, if produced at trial, would be sufficient to resist a motion for a judgment as a matter of law. Rodrigue v. Rodrigue, 1997 M E 99, g 8,694 A.2d 924,926. "'A fact is material when it has the potential to affect the outcome of the suit."' Prescott v. State Tax Assessor, 1998 ME 250,9 5,721 A.2d 169, 172. An issue is genuine "when sufficient evidence requires a fact-finder to choose between competing versions of the truth at trial." MP Assocs. v. Liberty, 2001 ME 22,912,771 A.2d 1040, 1044.

Essentially the Court determines whether there is a genuine issue of material fact by comparing the parties' statement of material facts and corresponding record references. See e.g., Corey v. Norrrran, Hanson & DeTroy, 1999 M E 196, 8,742 A.2d 933, 938. The court will view the evidence in light most favorable to the non-moving party. See e.g., Steeves v. Bernstein, Shur, Sawyer & NeLron, P.A., 1998 M E 210,911, 718 A.2d 186.

2. Anulysis

Both parties agree that there are no material facts in dispute. The question is whether the Plaintiff is entitled to a permanent injunction restraining the Town from enforcing the Stop Work Order. Specifically, the issue addressed by the Court was whether the Washington Mining Ordinance effective March 23,2002 applies to Lane's mineral extraction operation on the Vanner Road in Washington. 1 1 M.R.S.A. 5 302 (2004) provides that actions and proceedings pending at the I time an ordinance passes are not affected by the ordinance. A "proceeding" includes

applications for licenses or permits required by law at the time of their filing. The

Plaintiffs utilize Littlefield v. Town of Lyman, 447 A.2d 1231 (Me. 1982) to support their

contention that an application for a permit shall be considered a pending proceeding

within the meaning of 5 302 if the reviewing authority has conducted at least one

substantive review of the application.

In Littlefield, the Law Court held the mere presentment of a plan for consideration is not, in and of itself, a pending application for purposes of 5 302. However, when a municipality takes the threshold step of acting on the proposal, the application process has commenced. When the municipality accepts the plan for purposes of evaluating the substance of the proposal, manifests the plan is adequate to begin the review process, or fails to advise an applicant of any restriction on the significance of acceptance of the plan, an application can be said to be pending,

Pl.'s Mot. Summ. J. at 5.

Plaintiff further contends that they submitted a complete application andapproximately

10 hearings had already taken place prior to the effective date of the Mining Ordinance,

including the first public hearing. Also, the Board had already voted to deny portions of

the application concerning asphalt and concrete plants in January of 2002, three months

before the Mining Ordinance became effective. Essentially, Plaintiff argues that there is

no question the Board already took a substantial step toward acting on the substance of

the proposal.

The Defendant Town relies on Larrivee v. Timmons, 549 A.2d 744 (Me. 1988), in

which the Law Court addressed for the first time whether steps for obtaining multiple

land use approvals from different ordinances or statutes can be considered a single

I 'proceeding' under the grandfathering provision of § 302. Essentially, the Defendant

argues the Mining Ordinance requires a separate application, a new review process and

different permit, and is considered a separate 'proceeding' for purposes of 3 302. Further

they contend the enactment of the Mining Ordinance did not affect the conditional use I proceeding, and because Lane had not commenced any work at the time the Mining I Ordinance went into effect, Lane is not entitled to summary judgment.

The Larrivee case can be distinguished from the case at hand.. Lane only needed a

conditional use permit to conduct its mineral extraction activities when it applied for the

permit in 2001; there was only one step required as opposed to the facts in Larrivee.

Plaintiff is correct that the application in this case was pending for the purposes of 3 302,

and the application is not subject to the newly enacted ordinance.

For the foregoing reasons, Plaintiff's Motion for Summary Judgment and Request - . -- . . . . . ~ . ... . . . . . . .... . .. . .- . . . . for Permanent Tnjunction are granted. 'The Town of Washington is hereby permaner~tly

enjoined from enforcing the Stop Work Order issued on September 12,2005. The Court

hereby declares that the conditional use permit granted to Plaintiff is not subject to the

mining ordinance that became effective March 23, 2002.

Accordingly, the entry shall be: Motion for Summary Judgment GRANTED.

Permanent Injunction GRANTED. The Clerk may incorporate this Decision and Order

into the docket by reference.

Maine Superior Court

L 'X;E L W E CONSTRUCTION CORPORqTION - PLAINTIFF SUPERIOR COURT P 0 BOX 103 PENOBSCOT, s s . BANGOR ME 04402 Docket No BANSC-CV-2005-00233 ~ t t o r n efor: ~ THE LANE CONSTRUCTION CORPOFATION DAVID C KING - RETAINED 09/29/2005 RUDMAN & WINCHELL DOCKET RECORD 84 HARLOW ST PO BOX 1401 BANGOR ME 04402-1401

Attorney for: THE LANE CONSTRUCTION CORPORATION EDMOND BEAROR - RETAINED 09/29/2005 RUDMAN & WINCHELL 84 HARLOW ST PO BOX 1401 BANGOR ME 04402-1401

vs WASIiINGTON TOWN OF - DEFENDANT P 0 BOX 408, WASHINGTON ME 04574 Attorney for: WASHINGTON TOWN OF MICHAEL HODGINS - RETAINED 10/05/2005 BERNSTEIN SHUR SAWYER & NELSON 150 CAPITOL ST PO BOX 5057 AUGUSTA ME 04332-5057

THE LAND ASSOCIATION OF WASHINGTON - INTERVENOR

Atrrorney for: THE LANE ASSOCIATION OF WASiiINGTON ROBERT MARKS - RETAINED 11/02/2005 KCt3EKT MARKS LAW OFFICE 3 . _ , l ? h K ' l Y RD PO BOX 326 WASBINGTON ME 04574

ROBERT MARKS - INTERVENOR

Attorney for: ROBERT MARKS ROBERT MARKS - RETAINED 11/02/2005 ROBERT MARKS LAW OFFICE 3 LIBERTY RD PO BOX 326 WASHINGTON ME 04574

PAULA GREEN - INTERVENOR

Attorney for: PAULA GREEN ROBERT MARKS - RETAINED 11/02/2005 ROBERT MARKS LAW OFFICE 3 LIBERTY RD PO BOX 326 WASHINGTON ME 04574

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