PORTLAND CELLULAR PARTNERSHIP d/b/a VERIZON WIRELESS, Plaintiff,
INHABITANTS OF THE TOWN OF CAPE ELIZABETH, Defendants.
ORDER ON DEFENDANT’S MOTION TO DISMISS COUNT II, OR FOR ABSTENTION
Jon D. Levy UNITED STATES DISTRICT JUDGE
Portland Cellular Partnership d/b/a Verizon Wireless (“Verizon”), challenges a decision of the Town of Cape Elizabeth’s Zoning Board of Appeals (“the Board”) that upheld a decision by the local code enforcement officer (“CEO”) denying Verizon a permit to install a personal wireless telecommunication facility (the “Facility”) on an existing water tower. ECF No. 1 at 1. The Town has moved to dismiss Count II of Verizon’s Complaint, which requests a declaratory judgment determining that the Facility is an installation on an “Alternative Tower Structure” as that term is defined in Cape Elizabeth’s zoning ordinance and, therefore, that the Facility is a permitted use. Id. at 10. The Town argues that dismissal is required because the exclusive method for Verizon to obtain judicial review of the Board’s decision was by an appeal pursuant to Maine Rule of Civil Procedure 80B (“Rule 80B”) and 30-A M.R.S. § 2691(3)(G), and that because the complaint does not invoke Rule 80B, Verizon has failed to preserve its right to a Rule 80B review. ECF No. 9 at 1, 2. After careful consideration, I deny the motion.
As alleged in its Complaint, Verizon sought a permit to install the Facility on an existing water tower on Avon Road in Cape Elizabeth. ECF No. 1 at 3. In March 2014, the CEO denied the permit request, concluding that that the water tower was not an existing “base station” for purposes of § 6409(a) of the Spectrum Act, codified at 47 U.S.C.A § 1455(a),  which provides that “a State or local government may not deny, and shall approve, any eligible facilities request for a modification of an existing wireless tower or base station that does not substantially change the physical dimensions of such tower or base station.” Id. at 5. The CEO further determined that the permit should not be granted for additional reasons, if built, the facility would substantially change the physical dimensions of the current facility. Id. at 7.
Verizon appealed from the denial to the Zoning Board of Appeals which affirmed the CEO’s decision on May 27, 2014, and, thereafter, denied Verizon’s motion for reconsideration on June 24, 2014. Id. at 8. Verizon filed its three-count Complaint on July 9, 2014, which was 43 days from the date of the Board’s initial decision and 15 days from the Board’s denial of the motion for reconsideration. ECF No. 11 at 2, n.1.
Count I of the Complaint seeks a declaratory judgment declaring that Verizon has filed an “eligible facilities request” under the Spectrum Act and that the Town violated § 1455(a) when it denied Verizon’s permit request. ECF No. 1 at 9. Verizon contends that the Court has federal question jurisdiction over Count I as a claim arising under federal law. ECF No. 11 at 2. Not surprisingly, the Town does not challenge this basis for federal jurisdiction and its motion to dismiss does not request the dismissal of Count I.
Count II of Verizon’s Complaint seeks a declaratory judgment declaring that the proposed facility qualifies as an “Alternative Tower Structure” as defined by the Town’s Zoning Ordinance and, therefore, the facility is a permitted use in the zoning district in which it is sited. ECF No. 1 at 10. Verizon contends that the Court has supplemental federal jurisdiction over Count II pursuant to 28 U.S.C.A. § 1367 (2014), because it arises from the same facts as Count I and concerns the same essential claim. Id. at 2.
Count III of the Complaint requests an injunction directing the Town to issue the permit, but it does not assert a basis for relief separate from Counts I and II. Id. at 10.
II. LEGAL ANALYSIS
The Town argues that Count II of the Complaint should be dismissed because Verizon did not plead Count II as a Rule 80B appeal and the exclusive method for Verizon to obtain judicial review of the Board’s application of the Town’s zoning ordinance is by seeking appellate review pursuant to that rule. ECF No. 9 at 1. As a separate basis for dismissal, the Town contends that the Court should abstain from considering Count II under the abstention doctrine first recognized in Burford v. Sun Oil Co., 319 U.S. 315 (1943). Id.
A. Verizon’s Failure to Request Relief Pursuant to M.R. Civ. P. 80B
The Town contends that because Verizon did not invoke Rule 80B in Count II of its complaint, but requested only a declaratory judgment, Verizon failed to preserve its right to obtain judicial review by having failed to file a timely Rule 80B appeal. ECF No. 9 at 1. Rule 80B requires a party challenging a municipal administrative action to bring their challenge within 30 days of notice of the municipal action or within a time limit otherwise specified by statute. Sold, Inc. v. Town of Gorham, 2005 ME 24, ¶ 9, 868 A.2d 172 (citing M.R. Civ. P. 80B(b)). The Maine statute governing municipal boards of appeal specifies a time limit of 45 days from the date of the vote on the original decision. See 30-A M.R.S.A. § 2691(3)(G). Cape Elizabeth argues that “[s]ince the Complaint does not reflect that a Rule 80B appeal was filed within 45 days of the decision denying Verizon Wireless’s appeal, [Count II] is time-barred.” ECF No. 9 at 4-5.
Verizon responds that it filed the Complaint on July 9, 2014, which was 43 days after the Board’s initial decision on May 27, 2014. ECF No. 11 at 2, n.1. Thus, Verizon contends that it has satisfied the time limit contained in § 2691(3)(G) and Count II is not time-barred.
Rule 80B of the Maine Rules of Civil Procedure is a procedural rule that governs the process for judicial review of municipal decisions in the Maine Superior Court. See Sold, Inc. at ¶ 9. It is the “sole means for seeking Superior Court review of a[n] action or failure or refusal to act by any governmental agency[.]” Id. at ¶ 13 (quotation omitted). Thus, once the period for taking a Rule 80B appeal has expired, a party cannot avoid the rule’s time limit by filing a complaint seeking a declaratory judgment, which is what the plaintiff in Sold attempted. The Law Court explained in Sold that the “law does ...