Burns v. Town of Lamoine, Civ. 98-153-B.

• Decision Date: 11 March 1999
• Docket Number: No. Civ. 98-153-B.,Civ. 98-153-B.
• Citation: 43 F.Supp.2d 63
• Parties: John BURNS, et al., Plaintiffs, v. TOWN OF LAMOINE et al., Defendants.
• Court: U.S. District Court — District of Maine

43 F.Supp.2d 63

John BURNS, et al., Plaintiffs, v. TOWN OF LAMOINE et al., Defendants.

No. Civ. 98-153-B.

United States District Court, D. Maine.

March 11, 1999.

COPYRIGHT MATERIAL OMITTED

John & Anita Burns, Noth Reading, MA, pro se.

Mark V. Franco, Thompson & Bowie, Portland, ME, for defendants.

ORDER AND MEMORANDUM OF DECISION

BRODY, District Judge.

Plaintiffs John and Anita Burns ("Plaintiffs"), proceeding pro se, bring this procedural due process claim against Defendants Town of Lamoine ("the Town"), John Fink ("Fink"), and Sally Bell ("Bell"). Plaintiffs allege that Defendants' revocation of their plumbing permit without a pre-deprivation hearing violated their Fifth and Fourteenth Amendment rights and seek either reissuance of the permit or damages in the amount of $500,000.00. Before the Court is Defendants' Motion for Summary Judgment. For the reasons stated below, Defendants' Motion for Summary Judgment is GRANTED.

I. SUMMARY JUDGMENT

Summary judgment is appropriate in the absence of a genuine issue as to any material fact and when the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). An issue is genuine for these purposes if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A material fact is one that has "the potential to affect the outcome of the suit under the applicable law." Nereida-Gonzalez v. Tirado-Delgado, 990 F.2d 701, 703 (1st Cir. 1993). Facts may be drawn from "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits." Fed.R.Civ.P. 56(c). For the purposes of summary judgment the Court views the record in the light most favorable to the nonmoving party. See McCarthy v. Northwest Airlines, Inc., 56 F.3d 313, 315 (1st Cir.1995).

II. BACKGROUND

Plaintiffs reside in North Reading, Massachusetts and own a three-acre parcel of land in Lamoine, Maine. Plaintiffs bought the property in September of 1986 for $12,600.00, intending to use it as a camp. At the time of purchase, the previous owner told Plaintiffs that the property had failed a site evaluation soils test and therefore could not support a septic system.

In the summer of 1991, Plaintiffs contacted a contractor about installing a septic system on the property. On July 18, 1991, a licensed site evaluator, Teresa Davis ("Davis"), conducted a site evaluation to determine whether the soils on Plaintiffs' property were suitable for a septic system under the Maine Subsurface Wastewater Disposal Rules, 144A C.M.R. Ch. 241 ("the Rules"). Davis certified that, contrary to what Plaintiffs had been told by the previous owner, the proposed septic system was in accordance with the Rules.

At this time, Fink and Bell were the Town's local plumbing inspectors, whose authority to issue permits was governed by state law. On July 23, 1991, Fink received Plaintiffs' application for a plumbing permit, which incorporated Davis's certification, and issued a plumbing permit to Plaintiffs that same day.

On August 5, 1991, another site evaluation was conducted on Plaintiffs' property, this time headed by Jay Hardcastle ("Hardcastle") of the State of Maine Department of Human Services' ("DHS") Division of Health Engineering. Four people were in attendance: Hardcastle, Davis, Fink, and David Roque ("Roque"), a State Soil Scientist. Plaintiffs were not informed of the second site evaluation until after it was concluded, and allege that it was initiated illegally after someone involved in the initial application process notified DHS that Plaintiffs had been issued a plumbing permit. Defendants do not address what prompted the second inspection.

After completing the second site evaluation, Hardcastle and Davis agreed that the soils on Plaintiffs' property could not support a septic system.¹ Hardcastle then instructed Fink to revoke Plaintiffs' plumbing permit.² On August 6, 1991, Davis sent a letter to Plaintiffs explaining that she had "made a terrible and grave mistake in calling soils on your lot ... suitable for septic system disposal" and stating that "the plumbing inspectors, Sally Bell and John Fink, have no choice but to revoke the plumbing permit based on my wrongful soils report." (Defs.' Ex. F.) On August 7, 1991, Fink sent a letter to Plaintiffs informing them of the revocation.

Plaintiffs did not request a hearing from the Town to appeal the revocation. Indeed, Defendants assert that in August of 1991, the Town did not have an appeals process through which individuals could appeal the revocation of plumbing permits.³ Defendants do claim, however, that individuals wishing to challenge a plumbing permit revocation at that time could have utilized state appeals processes.⁴

At Plaintiffs' request, a soil scientist, Albert Frick ("Frick"), conducted another site evaluation of Plaintiffs' property in the fall of 1992. Frick proposed an experimental system for Plaintiffs' property, and submitted a plumbing permit application on Plaintiffs' behalf on September 4, 1992. He retracted the application, however, less than one month later.

Almost two years later, at Plaintiffs' request, a licensed site evaluator, Joan Brooks ("Brooks"), conducted the fourth site evaluation of Plaintiffs' property during their period of ownership. She concluded that the property was suitable for a septic system under the Rules and submitted a plumbing permit application on Plaintiffs' behalf to DHS around August 12, 1994.⁵ Upon DHS's receipt of the application, Eugene Moreau, Manager of DHS's Community Health Program, sent a letter to Bell requesting that the Town refrain from issuing a plumbing permit to Plaintiffs pending further review by his office. Around the same time, Hardcastle, who lead the DHS site evaluation in 1991, contacted Brooks to express his concerns about the property. (Defs.' Ex. O.) Brooks revisited Plaintiffs' property on August 27, 1994, and determined that the property in fact was not suitable for a septic system. She immediately withdrew her application.

Plaintiffs requested a fair hearing with DHS's Office of Administrative Hearings, and a hearing was held on November 30, 1994 before Chief Administrative Hearing Officer Meris Bickford ("Bickford").⁶ At issue was whether DHS was correct in deciding that Plaintiffs' property did not satisfy the Rules, rather than whether the Town, Fink, or Bell properly revoked Plaintiffs' plumbing permit. Bickford issued a Recommended Decision on January 10, 1995. She concluded that DHS correctly determined that Plaintiffs' property was not in compliance with the Rules, but also recommended that DHS finance the administration of an independent and definitive site evaluation of Plaintiffs' property by an evaluator of Plaintiffs' choice. DHS Commissioner Kevin Concannon ("Concannon") adopted Bickford's Recommended Decision in a Final Decision on March 28, 1995, but amended it to require that he would select the independent soil evaluator at random. Plaintiffs had notice that they could appeal this Final Decision, but did not do so.

Concannon selected site evaluator Jane Magiera ("Magiera") to analyze the soils on Plaintiffs' property. Magiera conducted her inspection on October 31, 1995, and concluded that the property could not support a septic system under the Rules. Upon receiving Magiera's report to this effect, W. Clough Toppan ("Toppan"), Director of DHS's Division of Health Engineering, advised Plaintiffs in a November 30, 1995 letter that their property could not be developed under current state law.

Plaintiffs requested that DHS reconsider its position and a hearing was held on September 19, 1996, before Bickford. The only issue for evaluation was DHS's most recent determination, based on Magiera's findings, that the property could not support a septic system under the Rules. On November 5, 1996, Bickford issued a Recommended Decision concluding that DHS acted correctly in arriving at that determination. Concannon adopted the Recommended Decision in a Final Decision on December 11, 1996.

Plaintiffs filed a Petition for Review of Final Agency Action on January 9, 1997, and filed an Amended Petition on September 17, 1997. The Superior Court denied Plaintiffs' appeal on June 12, 1998. Plaintiffs filed a Notice of Appeal to the Law Court, but later withdrew their appeal. Plaintiffs filed this federal suit on July 23, 1998, alleging that the Town, Fink, and Bell violated their Fifth and Fourteenth Amendment rights when they revoked Plaintiffs' plumbing permit in August of 1991 without a pre-revocation hearing. Neither DHS nor the state of Maine is a defendant in this lawsuit.

III. DISCUSSION

Defendants advance three arguments in support of their Motion for Summary Judgment. First, Defendants argue that this Court lacks jurisdiction because Plaintiffs cannot satisfy the diversity jurisdiction amount in controversy requirement. Second, Defendants contend that Plaintiffs' claim is barred by the statute of limitations. Third, Defendants assert that Plaintiffs' procedural due process claim must fail because they did not have a property interest in the plumbing permit and because they had access to and availed themselves of adequate postdeprivation remedies. The Court will consider each argument in turn.

1. Jurisdiction

Plaintiffs' Complaint is most appropriately characterized as asserting a claim under 42 U.S.C. § 1983 ("Section 1983"). In the Complaint, Plaintiffs state that this Court has jurisdiction under 42 U.S.C. § 1332, the diversity jurisdiction statute, and allege damages in the amount of $500,000.00. Defendants concede that the parties are diverse from one another, but dispute that the amount in controversy exceeds $75,000.00.

Regardless of whether diversity jurisdiction exists, the Court has federal question jurisdiction over this claim pursuant to 28 U.S.C. § 1331, which permits ...