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Daniels v. City of Belfast

Superior Court of Maine, Waldo

July 10, 2019

ELEANOR DANIELS and DONNA BRODERICK, Plaintiffs,
v.
CITY OF BELFAST, Defendant, ANDNORDIC AQUAFARMS, INC., and BELFAST WATER DISTRICT, Parties-in-Interest.

          ORDER

          Hon. Robert E. Murray, Judge

         In this declaratory judgment action, Plaintiffs Eleanor Daniels and Donna Broderick seek a judicial declaration setting aside a number of actions taken by the Belfast City Council. Plaintiffs contend these actions violated state and local law regarding the proposed Nordic Aquafarms, Inc. ("Nordic") salmon aquaculture facility in Belfast. The parties cross-moved for summary judgment upon a partially stipulated record, and each side made a number of related arguments.

         Specifically, Plaintiffs seek a declaration voiding the following actions: (1) the City Council's April 17, 2018 amendment to the Future Land Use Plan section of the City's Comprehensive Plan; (2) the City Council's April 17, 2018 adoption of amendments to several City ordinances-without Planning Board input-that would open the door for the proposed Nordic facility; (3) the City Council's subsequent October 16, 2018 adoption of the amendments to the ordinances after Planning Board review; and (4) the City Council's October 16, 2018 findings of consistency between the newly amended ordinances and both the April 17, 2018 Future Land Use Plan amendments to the Comprehensive Plan and the 2009 Future Land Use Plan as adopted in 2009.[1]

         Defendant, for its part, contends the following: (1) the City Council properly amended the Future Land Use Plan section of the Comprehensive Plan on April 17, 2018; (2) the City Council properly adopted amendments to several City ordinances on April 17, 2018; (3) even if the April 17, 2018 adoption of amendments to several City ordinances was not proper, the City Council remedied any error on October 16, 2018, when it adopted amendments to several City ordinances after the Planning Board provided review and revision, thus mooting Plaintiffs' claims of impropriety regarding the original adoption of the ordinance amendments; (4) the City Council properly found the October 16, 2018 amendments to several ordinances to be consistent with the April 17, 2018 Future Land Use Plan amendments to the Comprehensive Plan; and (5) even if the April 17, 2018 Future Land Use Plan amendments did not comply with the law, the City Council nonetheless properly found the October 16, 2018 amendment of several ordinances to be consistent with the 2009 Future Land Use Plan, The Court has reviewed the parties' extensive and thorough briefing, all statements of material fact, and the record exhibits supporting those statements of material fact; it issues the following decisions on the parties' cross-motions for summary judgment.

         LEGAL STANDARD

         Summary judgment is granted to a moving party where “here is no genuine issue as to any material fact" and the moving party "is entitled to judgment as a matter of law." M, R. Civ. P, 56(c). "A material fact is one that can affect the outcome of the case, and there is a genuine issue when there is sufficient evidence for a fact-finder to choose between competing versions of the fact" Lougee Conservancy v. CityMortgage, Inc., 2012 ME 103, 111, 48 A.3d 774 (quotation marks omitted). When reviewing the record on a motion for summary judgment, a court views the facts in the light most favorable to the non-moving party. See Cormier v. Genesis Healthcare, LLC, 2015 MB 161, ¶ 7, 129 A.3d 944. "Any doubt on this score will be resolved against the movant, and the opposing party will be given the benefit of any inferences which might reasonably be drawn from the evidence." 3 Harvey, Maim Civil Practice § 56:5 at 240 (3d, 2011 ed.). When there arc cross-motions, the rules applicable to summary judgment are applied separately to each motion. F.R. Carroll, Inc. v. TD Bank N.A., 2010 ME 115, ¶ 8, 8 A.3d 646.

         BACKGROUND

         This declaratory judgment action presents a unique scenario in which both Plaintiffs and Defendant move for summary judgment on the same issues, oppose the other side's motion on essentially the same bases as asserted in their own motion, and stipulate to a number of facts while setting forth additional facts in support of their respective motions. Additionally, notwithstanding the assertion of facts beyond those stipulated to, each side does not oppose the other side's motion on the basis that there are genuine issues of material fact; instead, each side opposes the other side's motion on the basis that the respective opposing side is entitled to judgment as a matter of law, effectively an implicit reference to Rule 56(c). (Pl.s' Opp. to Def.'s Mot. Summ. J. 17-18; Def.'s Opp. to Pl.s' Mot. Summ. J. 13.) Thus, the Court sets forth the material facts that are before it.[2] Those come from the stipulated facts and each summary judgment record, with those facts viewed in the light most favorable to the nonmoving party on each motion.

         1. The Proposed Nordic Property.

         Party-in-interest Nordic proposes to build and operate a $150-$500 million land-based salmon aquafarm (the "Nordic Aquafarm") on three abutting parcels of land located in the City of Belfast, Maine. (Joint Stip. ¶ 1, ) These parcels (the "Nordic Parcel") are presently owned by Party-in-interest Belfast Water District ("BWD"), Mathews Brothers Company, and Samuel Cassida, (Joint Stip, ¶ 1.) The BWD owns land that is located in both Belfast and Northport ("BWD Land"). (Joint Stip. ¶ 2.)

         In September 2017, Nordic approached the BWD and the City of Belfast to inquire about purchasing land, and thereafter Nordic, the City, and the BWD engaged in discussions and negotiations that resulted in three certain agreements being signed on January 30, 2018. (Joint Stip. ¶ 5.) As a result of negotiations and agreements reached by Nordic, BWD, and the City, the City of Belfast, if the Nordic sale is consummated, will purchase approximately forty acres of the BWD Land, located in both Belfast and Northport abutting the Little River and Little River Reservoir, the shoreland portion of which will be perpetually preserved as public conservation land for passive public recreational use, including a walking trail ("Waterfront Parcel, " and also in certain maps as "Resource Protection Shoreland District"). (Joint Stip. ¶ 3.)

         As of March 1, 2019, the Nordic Parcel comprises approximately fifty-six acres (the "Amended Nordic Parcel"). (Joint Stip. ¶ 14.) Approximately thirty acres of the land in the Nordic Parcel is currently owned by the BWD. (Joint Stip. ¶ 15.) The original proposal was to acquire forty-two acres-thirty from the BWD, and twelve from abutting property owner Samuel Cassida. (Joint Stip. ¶ 16.) On August 29, 2018, Nordic contracted to purchase another abutting fourteen acres from window and door manufacturer Mathew Brothers Company, resulting in the Amended Nordic Parcel. (Joint Stip. ¶ 16.) The entire Mathew Brothers Company property presently abuts the BWD property, and is located in a zone that allows industrial use. (Joint Stip. ¶ 17.) The Matthews Brothers property has been part of the Business Park "land use area" since adoption of the 2009 Future Land Use Plan.[3] (Def.'s Supp.'g S.M.F. ¶ 19.) With the addition of the Mathew's Brothers Company parcel, the Amended Nordic Parcel will share a common boundary with the Plaintiffs' residence on Perkins Road. (Joint Stip. ¶ 18.)

         2. The City's Process and Procedures to Amend the Future Land Use Plan Section of the Comprehensive Plan and Amend the Relevant Zoning Ordinances

         The City Council was the municipal body which took public comment, held meetings and hearings, and then adopted the amendments to the Zoning, Shoreland Zoning, and Definitions ordinances, as well as the Future Land Use Plan section of the Comprehensive Plan, on April 17, 2018; all related notices were prepared and published by the Planning and Code Department. (Joint Stip. ¶ 6.) The following represents atimeline of duly noticed meetings and public hearings related to public involvement and participation in the City's review and approval of amendments to the Future Land Use Plan section of the Comprehensive Plan and its Zoning, Shore-land Zoning, and Definitions ordinances related to the Nordic project:

• September 2017;
• Nordic contacts B WD about BWD Land as a potential development site (Joint Stip. ¶ 7(a).);
• October 2017 through January 30, 2018;
• Non-public discussions involving Nordic's proprietary business plans and real property purchase issues, concerns, and negotiations occur by and between Nordic, BWD, and the City (Joint Stip. ¶ 7(b).);
• January 30, 2018:
• Nordic, BWD, and the City enter into the Options to Purchase Agreement, the Evaluations Agreement, and the Water Supply Agreement (Joint Stip. ¶ 7(c).);
• The City holds the public announcement and presentation of Nordic plans to seek to develop the BWD property in Belfast at the University of Maine Hutchison Center, as attended by then-Governor LePage, state and local elected officials, and with a public question and answer session (Joint Stip. ¶ 7(d).);
• February and March 2018:
• The Nordic project requires several zoning ordinance amendments, which Planning Director Wayne Marshall prepares at the direction of the City Council and initially presents to the City Council on March 2, 2018 (Def, 's Supp.'g S.M.F, ¶ 32.);
• The Planning Department works to draft the related proposed amendments to the Future Land Use Plan section of the Comprehensive Plan, in addition to the Zoning, Shoreland Zoning, and Definitions ordinances regarding the Nordic proposal (Joint Stip. ¶ 7(e).);
• March 6, 2018:
• The City Council introduces related Comprehensive Plan and ordinance amendments as an agenda item at a City Council meeting (Joint Stip. ¶ 7(f).);
• At a duly noticed City Council meeting, the Planning Director introduces the Zoning, Shoreland Zoning, and Definitions ordinance amendments, as well as the amendments to the Future Land Use Plan section of the Comprehensive Plan, as drafted by the Planning Department with a proposed schedule for reviewing and approving them (Joint Stip. ¶ 7(g).);
• The City Council waives the City's statutory right of first refusal to acquire the land being purchased by Nordic from the BWD, excepting the conservation land the City contracted to purchase from BWD under the terms of the ...

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