JASON G. LITALIEN, Plaintiff
CITY OF BIDDEFORD, Defendant,
Defendant Keith Jacques, Esq.
ORDER ON DEFENDANT'S MOTION TO DISMISS
MaryGay Kennedy, Justice.
the Court is Defendant City of Biddeford's (the
"City") motion to dismiss Plaintiff Jason.
Litalien's complaint as untimely. This motion has been
fully briefed and is in order for decision, For the following
reasons, the City's mo Lion is granted.
October 23, 2018,, Mr. Litalien filed in the York County
Superior Court' a complaint for a temporary restraining
order, preliminary injunction, and permanent injunction.
Specifically, Mr. Litalien requested the Court restrain and
enjoin the City "from placing parking meters, parking
kiosks, using monthly permits, or any other form of payment
to charge and collect a fee for parking in greater downtown,
per the 2014 citizen referendum." (PL's Compl. 1.)
Mr. Litalien alleges the citizens of Biddeford added a
referendum to the November 4, 2014 election ballot, which
stated; "Shall the City of Biddeford install parking
meters in the greater downtown Biddeford area?"
(FI.'s Compl. ¶ 5.) He further alleges the
referendum failed by a vote of 6, 761 opposed and 959 in
favor. (PL's Compl. ¶ 8.) On September
4, 2018, the Biddeford City Council voted to
charge fees for parking in eight municipal parking lots using
a combination of parking permits and kiosks. (PL's Compl.
¶ 4; Mot. Dismiss Ex. A.) The City Council's Order
specifies that the parking fees are "to be programmed
into parking permit kiosks...." (Mot, Dismiss Ex. A.)
The thrust of Mr. Litalien's complaint is that the
implementation of parking fees violates the 2014 citizen
City filed the motion under consideration on November 13,
not styled as such, the City argues Mr. Litalien's claim
is a Rule 80B appeal and was not filed within the 30-day time
limit mandated by M.R. Civ. P. 80B(b). The Court agrees with
the City that/ contrary to Mr. Litalien's position, Rule
80B is indeed applicable to this matter. Mr. Litalien's
challenge to the validity of the implementation of parking
fees falls within "the essence of matters that must be
brought pursuant to Rule 80B to question whether the
particular action of a municipal administrative agency is
consistent with the requirements of law." E.g.,
Sold, Inc. v, Gorham, 2005 ME 24, ¶ 13, 868 A.2d
172 (challenge to Planning Board's condition of
subdivision approval as inconsistent with statutory and
constitutional requirements was subject of Rule 80B appeal).
when otherwise provided by statute, challenges to municipal
administrative actions must be brought within thirty days of
notice of the municipal action or failure to act."
Sold, Inc., 2005 ME 24, ¶ 9, 868 A.2d 172;
see M.R. Civ. P. 80B(b). The prescribed time for
filing of a Rule 80B appeal is jurisdictional, and an
untimely complaint is barred. Dubois Livestock v. Town of
Arundel, No. AP-18-0003, 2018 Me. Super. LEXIS 202, at
*10 (July 9, 2018). Unless government action must be reduced
to a written decision pursuant to statute, ordinance, or
rule, the time for filing a Rule 80B appeal begins to run on
the date of the public vote or announcement of the final
decision of the government decision-maker. M.R. Civ. P.
80B(b). Here, the City contends the limitation if
period, commenced on September 4, 2018, the date on which the
City Council adopted the parking fees by public vote. Mr,
Litalien has not directed the Court to any statute,
ordinance, or rule that would provide an exception to the
public vote trigger. The Court is therefore satisfied that
the limitations period commenced on September 4, 2018, and
Mr. Litalien's complaint should have been filed on or
before October 4, 2018. Because the complaint was not filed
until October 23, 2018, this Court does not have subject
matter jurisdiction over this matter, and this case must be
dismissed. M.R. Civ. P. 12(h)(3).
foregoing reasons, the City of Biddeford's Motion to
Dismiss is GRANTED.
Clerk is directed to incorporate this Order into the docket
by reference pursuant to M.R.Civ. P. 79(a).