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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