Barth v. Town of Waterboro
| Decision Date | 26 May 2020 |
| Docket Number | Civil Action RE-18-56 |
| Parties | JOHN BARTH, Plaintiff, v. TOWN OF WATERBORO et al., Defendants. |
| Court | Maine Superior Court |
DECISION AND ORDER ON PENDING MOTIONS
John Barth filed a three-count complaint against the Town of Watefboro ("Town"), Gary Lamb, and ten unnamed individuals, alleging that the Town's Zoning Board of Appeals ("ZBA") unlawfully denied his application for a building permit to continue construction of a residence in Waterboro (Count I); that this denial was an unconstitutional taking of his property without just compensation (Count II); and that Lamb, acting in his official capacity as Town Manager, violated Barth's constitutional and other rights (Count III), [1]
In its January 21, 2020 order, the court denied Barth's appeal of the ZBA's decision (Count I). Defendants filed a motion for judgment on the pleadings pursuant to M.R. Civ. P 12(c) with respect to the remaining two counts on January 30 2020. Several weeks later, on February 21, 2020, Barth filed a motion for summary judgment with respect to Count II. A non-testimonial hearing on the motions scheduled for April 7 2020 was postponed due to suspension of all civil proceedings. See Pandemic Management Order PMO-SJC-1, dated March 30, 2020. After further review, the court has determined that oral argument is unnecessary and the pending motions can be addressed and resolved on the basis of the pleadings and written submissions.
I. Defendant's Motion for Judgment on the Pleadings (Counts II and III)
A defendant's Rule 12(c) motion for judgment on the pleadings tests the legal sufficiency of the complaint in the same manner as a Rule 12(b)(6) motion to dismiss. Wawenock, LLC v. DOT, 2018 ME 83, ¶ 4, 187 A. 3d 609; see Harvey, Maine Civil Practice, § 12.14 (3d ed. 2011). The court considers facts alleged in the complaint in the light most favorable to plaintiff and determines whether the facts alleged entitle him to relief on some legal theory.[2] Id. The court is not bound to accept any legal conclusions set forth in the complaint. Bowen v. Eastman, 645 A.2d 5, 6 (Me. 1994). The motion will be granted when it "appears beyond a doubt that the plaintiff is not entitled to relief under any set of facts that he might prove in support of his claim." See Bonney v. Stephens Mem'l Hosp., 2011 ME 46, ¶ 16, 17 A.3d 123 ().
For purposes of the Rule 12(c) motion, the court accepts as true the following facts.
Barth is a resident of Springvale, Maine. For a number of years, he had been engaged in efforts to renovate and establish a private school on the upper campus of the former Nasson College in Springvale, a property he purchased in 1992. [3] The complaint alleges that these efforts were resisted and ultimately frustrated by local residents; that his Springvale property has been the target of vandalism by teenagers and "ATV gangs" over the years; and that Lamb's son was involved in "attacks" on Barth's Springvale property.
In 2000, Barth purchased a seven-acre island in Lake Arrowhead, located in Waterboro, with the intention of constructing a residence. Between 2004 and 2005, he obtained a building permit from the Town as well as a conservation permit from the Saco River Corridor Commission ("SRCC"), both of which were required in order to commence construction.
During 2005 and 2006, Barth built docks on the island and the shore landing; constructed a modular shed that he transported to the island; and began excavating for, designing, and constructing concrete piers on the island.
In January 2007, Patti Berry, the Waterboro Code Enforcement Officer ("CEO") at the time, notified Barth that "a new permit was needed" and "she would renew the permit herself." Barth asserts that "he was unaware of any permit expiration under the informal renewal process, [but] the renewed permit would have expired under the present rules on 9/16/2009."[4] Barth's construction efforts ceased in or around 2009 due to his medical condition and his loss of employment on account of the recession.
Three years later, in early 2012, Barth wrote to CEO Berry and sent her drawings and photos in preparation to resume work. He received a letter from Berry's replacement, Mark Mitchell, advising Barth that his building permit had expired. Barth says he met in person with Mitchell in April 2012; gave him updated drawings; and understood Mitchell had no objection to the changes but was "still getting settled in his new position so work should proceed temporarily."
In early August 2012, Barth wrote to CEO Mitchell "reporting the minor welding ('steel installation') at the site, the only work done since 2009." On August 22, 2012, Mitchell wrote to Barth informing him that his permit had expired and he would need a new permit to resume construction. No work was done after this notice. No permit was sought during 2013 or 2014 "due to recession losses." [5]
Lamb, who is also a resident of Springvale, was hired as Waterboro Town Manager in February 2014. Barth alleges that Lamb "has admitted collusion" with others in Springvale who opposed Barth's earlier efforts to develop his property there. (Pl.'s Compl. 29.)
In December 2014, the Town hired a new CEO, Glenn Charette. Barth alleges that Charette requested new plans and drawings; "acted slowly"; and "later revealed that his plan was to obstruct the approved project by denying the permit and influencing the SRCC to deny renewal of its permit."
In July and August of 2016, CEO Charette informed Barth that he needed to provide a new survey, a septic system design and building plans for the existing structure with an engineer's stamp of approval, Barth submitted an application for a new building permit with drawings as well as a new septic system design in August and a new survey in September. In late 2016, Barth "observed several small cracks in two of the four guesthouse piers, due to weathering during the period of delays." The complaint also asserts that the "cracks worsened during the following years and "[b]ecause no cracks had occurred during the eight prior years, these may be caused by vandalism." (Pl's Compl, 14, 15, 21 (emphasis added).)
In March 2017, CEO Charette wrote Barth "refusing all cooperation," meaning that the Town was insisting on compliance with the requirements of the applicable building codes as well as its requests for additional information and materials.
In the summer of 2017, Lamb visited Barth's property with CEO Charette. They photographed the cracks in the foundation, and Lamb took boundary markers from the site. Lamb's actions "were made in [his] official capacity" as the Town's manager and denied Barth the "improved property value of the subject property."
Barth wrote to the Town's Board of Selectmen In September 2017 to request that Lamb not be involved in the building permit approval process because of the animosity he had expressed about Barth. (Pl.'s Compl. 22.) Lamb responded by letter to the board, explaining his belief that Barth had frightened his young children while they were present on Barth's campus in Springvale,
Barth appealed to the ZBA the CEO's decision not to issue the permit. A hearing was held in May 2018. The ZBA issued its decision on May 24, 2018, concluding that the permit issued to Barth in 2005 had expired in 2007; there was no evidence that it was extended in 2007; no new or replacement permit had been requested until 2016; the earlier 2009 IRC Building Codes had been replaced by the 2015 IRC Building Codes; a new building permit application was required to meet the new code; and CEO Charette had acted appropriately in requiring Barth to apply for a permit and provide an engineering approval for the existing peers. See ZBA Findings of Fact and Conclusions, dated May 24, 2018. The ZBA found specifically that CEO Charette had spoken with the engineer Barth had referred but did not hear back from the engineer and that Charette's decision to require an engineer's stamp on the proposed plans was due to the fact that no previous inspection of the work had been made. Id.
Barth filed this action in Superior Court in July 2018. The complaint alleges that the Town's actions were "motivated by envy and prejudice to destroy the property value of [p]laintiff and "denied realization of the developed property value" that would have resulted if Barth completed construction on his home.
Barth seeks redress for alleged violations of numerous statutes as well as his rights under the Maine Constitution.[6] Barth also alleges that he had vested rights in a previously issued but expired building permit and that the Town is equitably estopped from denying him the right to continue construction on his residence. Further, the complaint seeks damages for various torts, including fraud, libel, and trespass.[7]
1. Statutory Claims
Barth alleges that both the Town and Lamb are liable to him for violations of the following statutes: (i) the Maine Human Rights Act ("MHRA"), 5 M.R.S. § 4551 et seq; (ii) the Maine Civil Rights Act ("MCRA") 5 M.R.S. §§ 4681-4685; (iii) 17-A M.R.S. § 903, which criminalizes the "misuse of entrusted property"' by a fiduciary; (iv) 30-A M.R.S. § 2632, which sets forth qualifications for a town manager; (v) 30-A M.R.S. § 3001, which sets parameters for state law preemption of municipal ordinances; and (vi) 30-A M.R.S. § 3007(...
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