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Brunswick Citizens for Collaborative Government v. Town of Brunswick

Supreme Court of Maine

July 12, 2018

BRUNSWICK CITIZENS FOR COLLABORATIVE GOVERNMENT et al.
v.
TOWN OF BRUNSWICK

          Argued: March 7, 2018

          David A. Lourie, Esq. (orally), Cape Elizabeth, for appellants Brunswick Citizens for Collaborative Government, Robert Baskett, and Soxna Dice

          Stephen E.F. Langsdorf, Esq. (orally), and Kristin M. Collins, Esq., Preti Flaherty Beliveau & Pachios LLP, Augusta, for appellee Town of Brunswick

          Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.

          SAUFLEY, C.J.

         [¶1] Brunswick Citizens for Collaborative Government, Robert Baskett, and Soxna Dice (collectively, Citizens) appeal from a judgment entered in the Superior Court (Cumberland County, L. Walker, J.) determining Citizens' M.R. Civ. P. 8OB petition for review to be moot and granting judgment in favor of the Town on Citizens' complaint for a declaratory judgment. Citizens contends that the court erred when it declared that the Brunswick Charter does not authorize a voter initiative to overrule a Town Council decision to sell a piece of residential property owned by the municipality. We affirm the court's determination that the Rule 8OB petition is moot, vacate the declaratory judgment as moot, and remand for dismissal of the complaint in its entirety.

          [¶2] The following facts are not in dispute. The Town of Brunswick acquired waterfront property at 946 Mere Point Road in a tax delinquency foreclosure in 2011. On September 19, 2016, the Town Council voted to sell the property. The marketing of the property proceeded, and the sale was completed on June 15, 2017.

         [¶3] One month after the Council voted to sell the property, five Brunswick residents obtained petitions from the Town Clerk to begin initiative proceedings to enact an ordinance-focused on the specific property at issue- that would require the Town to retain the parcel for use as a public park and for access for shellfish harvesters. On January 27, 2017, petition forms containing the requisite number of signatures were returned to the clerk, who referred them to the Council to determine whether to set a date for a public hearing on the proposed ordinance. At its next meeting, the Town Council rejected a motion to put the proposed ordinance out to a vote and accepted a motion to take no further action on the petition.[1]

          [¶4] On February 21, 2017, Citizens filed a Rule 8OB petition for review of the Council's decision to take no action on the initiative petition and a complaint for declaratory judgment. See M.R. Civ. P. 8OB; 14 M.R.S. § 5954 (2017). Citizens sought a declaration that the Town Charter permits voters to enact, by initiative, an ordinance that would have the effect of overturning the Council's decision to sell the property. See Brunswick, Me. Charter § 1105. The parties submitted an agreed-to statement of fact, and both parties filed briefs with the court.[2]

         [¶5] The Superior Court (Cumberland County, L. Walker, J.) issued a judgment on August 7, 2017-almost two months after the property had been sold. On the Rule 8OB petition, the court concluded that the Town had acted outside the bounds of its discretion in declining to hold a public hearing on the proposed ordinance. It determined, however, that the issue had been rendered moot by the sale of property.[3]

          [¶6] The court then granted judgment in favor of the Town on the central issue, however, entering a declaratory judgment that the voters could not utilize the initiative provision in the Town Charter to override the Council vote to sell the property. Citizens timely appealed. See M.R. App. P. 2B(c).

         [¶7] "Courts can only decide cases before them that involve justiciable controversies." Lewiston Daily Sun v. Sch. Admin. Dist. No. 43, 1999 ME 143, ¶ 12, 738 A.2d 1239. In general, a case is moot and therefore not justiciable if "there are insufficient practical effects flowing from the resolution of the litigation to justify the application of limited judicial resources." Witham Family Ltd. P'ship v. Town of Bar Harbor, 2015 ME 12, ¶ 7, 110 A.3d 642 (quotation marks omitted). The Declaratory Judgments Act, 14 M.R.S. §§5951-5963 (2017), "does not present an exception to the justiciability rule." Lewiston Daily Sun, 1999 ME 143, ¶ 20, 738 A.2d 1239. We review questions of justiciability de novo. See McGettigan v. Town of Freeport, 2012 ME 28, ¶ 10, 39 A.3d 48.

         [¶8] There can be no question that the sale of the property at issue here rendered Citizens' declaratory judgment action, like its Rule 8OB petition, moot. No declaration by the court could create any legal impediment to the sale of the property that had been completed in June. Thus, no relief that the court could have granted would have any "practical effect" on Citizens' rights or interests with respect to the property. See Halfway House, Inc. v. City of Portland, 670 A.2d 1377, 1380 (Me. 1996) (dismissing as moot an appeal from the denial of a conditional use permit where the intervening sale of property rendered any relief meaningless).

         [¶9] Citizens argues nonetheless that its complaint for a declaration of the law fits within the exception to our mootness jurisprudence permitting review of "questions of great public concern."[4]See Mainers for Fair Bear Hunting v. Dep't of Inland Fisheries & Wildlife,2016 ME 57, ¶ 8, 136 A.3d 714. When we address the exception for matters of "great public concern," we ask "whether the question is public or private, how much court officials need an authoritative determination ...


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