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Brunswick Citizens For Collaborative Government v. Town of Brunswick

Superior Court of Maine, Cumberland

August 7, 2017

BRUNSWICK CITIZENS FOR COLLABORATIVE GOVERNMENT, ROBERT BASKETT, AND SOXNA DICE Plaintiffs,
v.
TOWN OF BRUNSWICK Defendant.

          ORDER ON RULE 80B APPEAL AND DECLARATORY RELIEF

          LANCE E. WALKER, JUSTICE

         Plaintiffs appeal from a decision by Defendant's, Council of the Town of Brunswick's ("Council's") decision not to hold a public hearing on a proposed ordinance, pursuant to Maine Rule of Civil Procedure 80B. Plaintiffs have also brought a declaratory judgment claim for which they seek summary judgment.

         Based on the following, the appeal is denied as moot. The court grants in part and denies in part summary judgment on the claim for declaratory relief.

         I. Background

         At a council meeting on September 19, 2016, after receiving recommendations from five committees, cost estimates, and "many" emails, and following a public discussion and question period, the Council carried a motion to sell a town-owned property. (Agreed Statement of Fact ¶ 3 Ex. B-1 59-60.) On October 17, 2016, voters requested blank petitions from the Town Clerk to begin initiative proceedings to enact a police power ordinance adding the property to the list of public parks. (Id. ¶ 7); Brunswick, Me., Charter § 1105 ("§ 1105.") On November 1, 2016, the Town Attorney issued a memorandum advising that the proposed vote was in violation of the Charter. (Id. ¶ 11 Ex. G at 5.) The Town Clerk issued the petition blanks, and on January 27, 2017, the voters returned the petitions with sufficient signatures. (Id. ¶¶ 8-9.) The Council did not schedule a public hearing on the vote supported by the signed petitioners. (Id. ¶ 10.) Instead, at a February 6, 2017 Council meeting, a motion to put the proposed new park to a vote failed, a motion to take no further steps regarding the petitions carried, and a motion authorizing a sale of the property carried. (Id. ¶¶ 13, 15.)

         On February 21, 2017, Plaintiffs filed a complaint containing two counts: (I) an 80B appeal of the Council's decision not to schedule a public hearing about the signed petitions; and (II) seeking a declaratory judgment of: (a) what is encompassed by the term "Police Power" in § 1105; and (b) whether an ordinance potentially having an effect contrary to a Council order can be initiated pursuant to § 1105. On March 8, 2017, Defendant answered. On April 6, 2017, the parties filed an agreed-to statement of fact. On April 7, 2017, the court ordered that Count II is subsumed by the Count I, 80B appeal, and to be addressed through the summary judgment process, where the 80B record would be treated as the summary judgment record and Plaintiffs' 80B brief would be treated as a motion for summary judgment in relation to Count II.

         On June 15, 2017, the property was sold.[1]

         II. Discussion

         a. 80B appeal of the decision not to call a public hearing

         The 80B appeal seeking an order for the Council to schedule a public hearing on the signed petitions was rendered moot by the sale of the property.[2]

         b. Summary judgment for declaratory relief

         Summary judgment is appropriate, if based on the parties' statement of material facts and the cited record, no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Bed v. Allstate Ins. Co., 2010 ME 20, ¶ 11, 989 A.2d 733; Dyer v. Dep't of Transport, 2008 ME 106, ¶ 14, 951 A.2d 821. "[A] fact is material if it could potentially affect the outcome of the case." Reliance Nat'l Indem. v. Knowles Indus. Servs., 2005 ME 29, ¶ 7, 868 A.2d 220. A genuine issue of material fact exists where the fact finder must choose between competing versions of the truth. Id. (citing Univ. of Me. Found, v. Fleet Bank of Me., 2003 ME 20, ¶ 20, 817 A.2d 871). When deciding a motion for summary judgment, the court reviews the materials in the light most favorable to the non-moving party. Dyer, 2008 ME 106, ¶ 14, 951 A.2d 821.

         The party opposing a summary judgment must point to specific facts showing that a factual dispute does exist in order to avoid a summary judgment. Watt v. Unifirst Corp., 2009 ME 47, ¶ 21, 969 A.2d 897; Reliance Nat'l Indent., 2005 ME 29, ¶ 9, 868 A.2d 220. Summary judgment, when appropriate, may be rendered against the moving party. M.R. Civ. P. 56(c).

         1. The right of voters to designate parks under ยง 1105 ...


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