HUGHES BROS., INC.
TOWN OF EDDINGTON
September 17, 2015
briefs: William B. Devoe, Esq., and Jonathan A. Pottle, Esq.,
Eaton Peabody, Bangor, for appellant Hughes Bros., Inc.
E. Gilbert, III, Esq., Gilbert & Greif, P.A., Bangor, for
appellee Town of Eddington.
argument: William B. Devoe, Esq., for appellant Hughes Bros.,
E. Gilbert, III, Esq., for appellee Town of Eddington.
SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and
[¶1] In this appeal involving Maine's
open government laws, we consider the sometimes competing
statutory goals that (1) provide for government meetings to
be open to the public, see 1 M.R.S. § 401
(2015), and (2) guard the authority of government officials
to receive legal advice in executive session to enable them
to perform their duties in accordance with the law,
see 1 M.R.S. § 405(6)(E) (2015). Hughes Bros.,
Inc., appeals from a judgment entered in the Business and
Consumer Docket ( Murphy, J. ) on its complaint
seeking declaratory and injunctive relief. Hughes
argues, among other contentions, that the court erred in
determining that the Town of Eddington Planning Board and
Board of Selectmen conducted a valid executive session,
invoked for the purpose of consulting with counsel. We affirm
the court's judgment in all respects, and we write
primarily to address the legality of the executive session.
[¶2] The parties stipulated to a timeline of
the events in the municipal proceedings,
with attached documentation, and the court adopted those
stipulations as having been found by a preponderance of the
evidence. We draw the historical facts from those
stipulations and documents, and we derive the procedural
history from the trial court record.
Application to the Planning Board and Discussion of a
[¶3] In August 2013, the Town of
Eddington's Planning Board approved a landowner's
application for a permit to create a one- to five-acre
quarry, to be accessed by a private way, on property in
Eddington that Hughes was under contract to purchase. Shortly
thereafter, in September 2013, Hughes filed a new application
seeking permission to use the property as a larger,
twenty-acre quarry. A public hearing was held on the
application for the twenty-acre quarry in October 2013, and
the Planning Board voted to deny the application because the
private way did not provide an appropriate access way for the
proposed larger quarry. At the same meeting, the Planning
Board voted to recommend a moratorium on quarries to the
Town's Board of Selectmen.
[¶4] On November 14, 2013, Hughes submitted
a new application that proposed a separate access road
directly from Route 9. Five days later, members of the
Planning Board attended a public meeting of the Board of
Selectmen and presented the recommendation for a moratorium
on quarries. The Board of Selectmen voted to deny the request
for a moratorium.
[¶5] In December 2013, the Board of
Selectmen held a public meeting at which a member of the
public urged the Selectmen to reconsider placing a moratorium
on quarries as proposed by the Planning Board. Also in late
2013, Hughes submitted its first information request to the
Town, seeking correspondence along with meeting agendas and
minutes pursuant to the Freedom of Access Act (FOAA), 1
M.R.S. § § 400-414 (2015).
Executive Session of Planning Board and Board of
[¶6] On January 29, 2014, the Planning Board
and the Board of Selectmen met together in a publicly
announced meeting and went into executive session. The
Planning Board minutes from that day indicate that the
Planning Board meeting was called to order and that the
Planning Board, with six members present, unanimously voted
to go into executive session for " Consultation with
Legal Counsel," citing to the FOAA. See 1
M.R.S. § ...