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Hughes Bros., Inc. v. Town of Eddington

Superior Court of Maine, Cumberland

January 7, 2015

HUGHES BROS., INC., Plaintiff,



Before the Court are Counts I and II of Plaintiff s Complaint. Judgment on Count III was entered by the Court on August 7, 2014, [1] Plaintiff alleges in Count I that the Town conducted an illegal executive session on January 29, 2014. Count II is a Declaratory Judgment in which Plaintiff alleges that the Town adopted an illegal moratorium against a quarry owned by the Plaintiff in the Town of Eddington, The parties submitted a stipulated trial record in the form of a "Stipulated Timeline and Relevant Facts" dated September 29, 2014.[2] The parties also filed written arguments, the last of which was received by the Court on November 12, 2014.

The facts of this case are well set out in the stipulated record, and the Court herein adopts those facts as having been proven by a preponderance of evidence. While there are certain paragraphs (see, e.g. paragraphs 12, 13, and 14) in the Stipulated Timeline that reference the ability of the parties to supplement the record, the parties confirmed with the Business and Consumer Court on January 2, 2015 that they would be relying on the Stipulated Timeline and Exhibits as the trial record. The Court has reviewed the stipulated trial record, considered the parties' written arguments, and issues the following findings and order for entry of judgment on Counts I and II.


A. COUNT I - Claim of Illegal Executive Session 1/29/14

On January 29, 2014 the Eddington Board of Selectmen and Planning Board conducted a joint executive session, ostensibly to consult with Town legal counsel pursuant to 1 M.R.S.A § 405(6)(D). Selectmen minutes from a "Special Joint Planning Board and Selectmen's Meeting" indicate the meeting was called to order at 5:45 p.m. Roll call was conducted and a motion was made and approved (3-0) to go into Executive Session. (Ex. 9.) By 7:07 p.m. a motion was made to return to Regular Session. The meeting adjourned at 7:08 p.m. The minutes further indicate that "Other Business" consisted of the following: "Moratorium Ordinance. No Action Taken." The meeting was adjourned at 7:08 p.m. Id

Exhibit 10 contains the minutes from the Planning Board, [3] which met jointly with the Board of Selectmen. Again, it appears that the meeting began around 5:38 p.m., after which roll call was taken. The Board moved and approved the joint Executive Session, and Regular Session began again at 7:08 p.m.

Plaintiff makes a number of arguments as to why this Executive Session was illegal. First, Plaintiff argues that the Town failed to follow Maine's Freedom of Access Act's ("FOAA") requirements for going into Executive Session, specifically as to the adequacy of the motion made. Second, Plaintiff claims that vote to go into the joint session by the Board of Selectmen was insufficient. Third, Plaintiff claims that the joint session was illegal. Fourth, the Plaintiff claims that during the Executive Session they deliberated on legislative matters and that this does not fall within any of FOAA's exceptions to the open meeting requirement. Fifth, Plaintiff claims that the moratorium at issue in the case was approved in the Executive Session.

i. Adequacy of the Motion for Executive Session

Plaintiff contends that the motion made by both bodies (Board of Selectmen and Planning Board) insufficiently described (he nature of the business to be conducted during the closed session. However, as the Town points out, a similar notice was upheld as sufficient by the Law Court in Vella v. Town of Camden. 677 A.2d 1051, 1055 (Me. 1996). In addition, given the clear notice from six days before, on January 23, 2014, there can be little doubt that the public was aware of the purpose of the Executive Session, which would be the "only thing on the agenda" for the January 29, 2014 meeting. (Ex. 8.) The Court is unpersuaded that the notice provided in the joint motion was legally insufficient.

ii. Adequacy of the Vote Taken by the Board of Selectmen to so into. Executive Session

Plaintiff argues that Exhibit 10 proves that there were not enough members from the Board of Selectmen to constitute a quorum or to vote to go into Executive Session, or that this exhibit when read in conjunction with Exhibit 9 raises questions as to whether there were enough votes by Selectmen to authorize the session. However, as noted previously, the Court interprets Exhibit 9 to be the actual Board of Selectmen minutes as the members listed for the roll call (Brooks, Goodwin, Lyford) are the same Selectmen listed in Exhibit 7. The Court finds Exhibit 9 unambiguously establishes that that these three members voted to go into Executive Session, and so concludes that the Plaintiffs argument on this issue is without merit.

iii. Legality of Joint Executive Session

The Town rightfully notes that the Plaintiff cites no case law in support of its position that the joint Executive Session was not authorized by FOAA. However, the Court would note that the public was provided notice six days prior that the Town intended to follow this procedure (Ex. 8) so it could hardly be said this process was a secret from anyone. The Court would further note that Plaintiff seems to imply that if the two bodies conducted joint Executive Sessions that were otherwise independently legal, that would be permissible, The Court, having found no improprieties in the procedure followed by both Boards as to notice and votes taken to go into Executive Session [4] concludes that the joint meetings were legal. The Plaintiff ...

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