BRUNSWICK CITIZENS FOR COLLABORATIVE GOVERNMENT, ROBERT BASKETT, AND SOXNA DICE Plaintiffs,
TOWN OF BRUNSWICK Defendant.
ORDER ON RULE 80B APPEAL AND DECLARATORY
E. WALKER, JUSTICE
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.
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.
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,
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.
15, 2017, the property was sold.
80B appeal of the decision not to call a public
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.
Summary judgment for declaratory relief
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.
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).
The right of voters to designate parks under § 1105