Dyer v. Department of Transp.

• Decision Date: 26 June 2008
• Docket Number: Docket: Wal-07-493.
• Citation: 2008 ME 106,951 A.2d 821
• Parties: Paul DYER et al. v. DEPARTMENT OF TRANSPORTATION.
• Court: Maine Supreme Court

951 A.2d 821

2008 ME 106

Paul DYER et al. v. DEPARTMENT OF TRANSPORTATION.

Docket: Wal-07-493.

Supreme Judicial Court of Maine.

Argued: May 13, 2008.

Decided: June 26, 2008.

Severin M. Beliveau, Esq., Jeffrey T. Edwards, Esq. (orally), Preti, Flaherty, Beliveau & Pachios, LLP, Portland, ME, for Paul & Robert Dyer.

Rebecca H. Farnum, Esq. (orally), Victoria E. Morales, Esq., Thompson & Bowie, LLP, Portland, ME, for Maine Department of Transportation.

Panel: SAUFLEY, C.J., and CLIFFORD, ALEXANDER, LEVY, SILVER, MEAD, and GORMAN, JJ.

ALEXANDER, J.

[¶ 1] Robert and Paul Dyer appeal from a summary judgment entered by the Superior Court (Waldo County, Mills, J.) in favor of the Maine Department of Transportation (DOT) on the Dyers' complaint alleging that DOT exceeded its eminent domain powers in taking their land. The Dyers argue that there are genuine issues of material fact in dispute regarding whether DOT abused its power in taking all five acres of the Dyers' property.¹ We affirm the judgment.

I. CASE HISTORY

[¶ 2] The facts are undisputed.² The Dyers owned the Sail Inn Restaurant and surrounding land. The restaurant had operated for over fifty years on land in Prospect, a short distance south of the Waldo-Hancock Bridge. The property consisted of approximately five acres, with frontage along the eastern side of U.S. Route 1 and sloping down to the Penobscot River.

[¶ 3] The Waldo-Hancock Bridge is a suspension bridge completed in 1931. It crosses the western channel of the Penobscot River between Prospect and Verona Island. The bridge carried traffic over the river to and from Bucksport, Ellsworth, and other downeast Maine locations. The next river crossing is fifteen miles up river in Bangor.

[¶ 4] In 1998, DOT contracted with Parsons Transportation Group to study DOT's options for rehabilitating or replacing the bridge. Initially, DOT decided to undertake necessary repairs rather than erect a new bridge. Rehabilitation was to be done in two phases; phase one involved rehabilitating the foundation and the piers; phase two involved rehabilitating the suspension system. DOT engaged SEA Consultants, Inc., to design the first phase and Piasecki Steel Construction Corp., to complete phase two.

[¶ 5] In the fall of 2002, Piasecki began opening the protective sheaths of the bridge's cables and cleaning and rehabilitating them on the north end of the bridge. A number of broken wires were discovered. As a result, Piasecki unwrapped four cables on the south side to compare them with the north side cables. The south side cables appeared no worse than the north side cables.

[¶ 6] Based on the condition of the cables, the need for additional structural work, and the anticipated cost of repair, DOT began to consider erection of a new bridge. In the spring of 2003, DOT determined, for safety and financial reasons, to replace the bridge. DOT had to continue to rehabilitate the existing bridge to ensure its safety while the new bridge was planned, permitted, designed, and built. Piasecki reported to DOT, in June 2003, that the south side cables were in worse condition than the north side cables. This prompted DOT to expedite the schedule for replacing the bridge.

[¶ 7] Parsons continued to monitor the structural integrity of the bridge. On July 11, 2003, a Parsons representative made an urgent call to DOT, reporting that the south side cables were worse than expected and advising immediate posting of the bridge. DOT then banned all vehicles weighing twelve tons or more from the bridge. Vehicles exceeding the posted weight were detoured forty miles through Bangor. DOT also directed technicians and engineers to monitor the southern cables around the clock to check for additional breaks.

[¶ 8] Due to this exigency, DOT determined that the new bridge would be a fast-track project using the "design-build" process, i.e., actual construction would begin before the entire project was designed. The new bridge was planned to be located adjacent to the existing bridge. As a result, DOT exercised its eminent domain powers pursuant to 23 M.R.S. § 153-B(1) (2007) to take the Dyers' property. The initial takings document set a price of $225,000 to be paid for the property. On appeal to the State Claims Commission, the amount of the award to the Dyers was increased to $470,000. That award is subject to a separate appeal by the Dyers, not part of this proceeding.

[¶ 9] In September of 2005, two years after DOT acquired the property, the Dyers filed a complaint with the Superior Court challenging the legality of the taking. The Dyers did not, and do not, dispute that there was a need to construct a new bridge or that a portion of their property was required for a valid public purpose; they only assert that a taking of all five acres was not necessary to the project. The Dyers contend that DOT took all of their land because it did not want the restaurant operating at that location. They assert that four acres of their land was never utilized in the construction process and that the restaurant was not demolished until just prior to the opening of the new bridge, as proof that this land was not needed.

[¶ 10] The DOT agrees that it did not want the restaurant operating at the location. DOT supported its position with a statement of material facts demonstrating, with requisite record citations, that the location presented a traffic hazard because it was immediately south of the curve in the highway where it enters the bridge, and restaurant traffic would enter and exit the highway immediately after the curve. In addition to traffic safety concerns, DOT did not want a restaurant operating on the premises and required a complete taking of the property because: (1) land beyond the one acre used for the highway expansion was used during construction for staging and for filling with rocks derived from blasting to create the new right of way; (2) the project required "severe blasting" across from the restaurant, which created a public safety risk in the area; (3) DOT already owned most of the land in front of the restaurant and its parking lot; and (4) DOT was operating under time constraints and needed flexibility for designing the bridge and associated roadways as it was built, in order to avoid construction delays.

[¶ 11] In January 2007, DOT filed a motion for summary judgment, which the Superior Court granted in July 2007. The court held that questions of exigency for a taking are political and thus will not be set aside unless no rational basis exists for finding an exigency. The court stated that a taking will be reversed only if the record supports a finding that the agency abused its power. The court indicated that the fact that the restaurant remained during construction was "not inconsistent with" DOT's rationale. Thus, the court found that the Dyers failed to raise a genuine issue of material fact regarding DOT's exercise of its eminent domain power. As a result, the court granted DOT's motion for summary judgment.

[¶ 12] In a footnote, the court noted that the Dyers' responses to DOT's statements of material fact did not comply with the requirements of M.R. Civ. P. 56(h). The court indicated that the Dyers "objected even to the ownership, location, and size of the property," facts which were not in controversy. Further, the Dyers objected to "matters taken directly from their complaint to provide background for the motions." The Dyers also objected to the relevancy of statements providing essential background regarding the existence of an exigency and the reasons for the design and build process being expedited.

[¶ 13] The Dyers filed this appeal.

II. LEGAL ANALYSIS

[¶ 14] We review grants of summary judgment de novo, taking the evidence in the light most favorable to the party against whom judgment was entered. Stanley v. Hancock County Comm'rs, 2004 ME 157, ¶ 13, 864 A.2d 169, 174. Summary judgment is appropriate when review of the parties' statements of material facts and the referenced record evidence indicates no genuine issue of material fact that is in dispute, and, accordingly, the moving party is entitled to judgment as a matter of law. Id. (citing Botka v. S.C. Noyes & Co., 2003 ME 128, ¶ 18, 834 A.2d 947, 952-53). A material fact is one that can affect the outcome of the case. Farrington's Owners' Ass'n v. Conway Lake Resorts, Inc., 2005 ME 93, ¶ 9, 878 A.2d 504, 507. A genuine issue of material fact exists when the factfinder must "choose between competing versions of the truth." Id.; MP Assocs. v. Liberty, 2001 ME 22, ¶ 12, 771 A.2d 1040, 1044. Summary judgment is appropriate even when "concepts such as motive or intent are at issue, ... if the non-moving party rests merely upon conclusory allegations, improbable inferences, and unsupported speculation."³ Vives v. Fajardo, 472 F.3d 19, 21 (1st Cir.2007) (quoting Benoit v. Tech. Mfg. Corp., 331 F.3d 166, 173 (1st Cir.2003)) (internal citations omitted).

[¶ 15] "A party's opposing statement of material facts must explicitly admit, deny, or qualify facts by reference to each numbered paragraph, and a denial or qualification must be supported by a record citation."⁴ Stanley, 2004 ME 157, ¶ 13, 864 A.2d at 174 (quotation marks omitted). Failure to properly respond to a statement of material facts permits a court to deem admitted any statements not properly denied or controverted.⁵ Id. (citing M.R. Civ. P. 56(h)(4)). Here, where the Dyers failed to properly respond to the DOT statement of material facts, the Superior Court could have deemed DOT's statements of material fact admitted and granted summary judgment. See Caban Hernandez v. Philip Morris USA, Inc., 486 F.3d 1, 7-8 (1st Cir.2007).

[¶ 16] The summary judgment practice reflected in the record of this case, where there were few material facts potentially in dispute, suggests that we need to remind litigants that the requirements of M.R. Civ. P. 56(h) must be respected and will be enforced.

[¶ 17]...