Cardinali v. Planning Bd. of Lebanon

• Decision Date: 19 May 1977
• Citation: 373 A.2d 251
• Parties: Edward W. CARDINALI v. PLANNING BOARD OF LEBANON et al.
• Court: Maine Supreme Court

Page 251

373 A.2d 251

Edward W. CARDINALI v. PLANNING BOARD OF LEBANON et al.

Supreme Judicial Court of Maine.

May 19, 1977.

Murray, Plumb & Murray by E. Stephen Murray, Portland, for plaintiff.

Pelletier & Runyon by Elmer E. Runyon, Sanford, for defendants.

Before DUFRESNE, C. J., and POMEROY, WERNICK, ARCHIBALD, DELAHANTY and GODFREY, JJ.

DELAHANTY, Justice.

This case involves an appeal by the Planning Board of the Town of Lebanon (the Board), the Board members and the Town of Lebanon from an order of the Superior Court granting the plaintiff Edward Cardinali (Cardinali) summary judgment on two of the seven counts of his complaint for declaratory judgment, injunctive relief and review of governmental action. ¹ Judgment was entered on December 18, 1975 ordering that a permanent mandatory injunction be issued directing the Board to process and determine Cardinali's request for subdivision approval. We deny the Board's appeal from this judgment.

Cardinali complains that a local ordinance imposing a moratorium (for up to two years) on subdivisions is invalid because, inter alia, it is violative of 30 M.R.S.A. § 4956. ² He further argues that even if it is valid, it does not affect him since his application was already pending prior to the moratorium's enactment on March 8, 1975. The presiding Justice held:

The moratorium ordinance which is the subject of Count V of the Complaint is contrary to the provisions of 30 M.R.S.A. Section 4956 and accordingly cannot stand and further that the plaintiff had an application for subdivision approval pending before the Defendant Planning Board of the Town of Lebanon at the time the moratorium ordinance which is the subject of Count VI of the Complaint was enacted and accordingly the Plaintiff's application is grandfathered pursuant to the provisions of 1 M.R.S.A. Section 302 and entitled to be processed on its merits.

We concur in the finding of the presiding Justice that the plaintiff's application was grandfathered pursuant to 1 M.R.S.A. § 302. The general savings clause, 1 M.R.S.A. § 302, provides in part:

Actions and proceedings pending at the time of the passage or repeal of an Act or ordinance are not affected thereby. For the purposes of this section, a proceeding shall include but not be limited to petitions or applications for licenses or permits required by law at the time of their filing. ³ (emphasis added).

Quite obviously, an application for subdivision approval is encompassed in the above definition of 'proceeding.' Consequently, Cardinali's application is not affected by the moratorium if it was pending prior to March 8, 1975 when the moratorium was enacted. It is not essential that a special savings clause be inserted in the moratorium itself. As we said in Thompson v. Edgar, Me., 259 A.2d 27 (1969):

'(A) general savings clause, . . . in apt language . . ., is as efficient as a special clause expressly inserted in a particular statute.' Id. at 29 citing People v. McNulty, 93 Cal. 427, 437, 29 P. 61, 62, aff'd sub nom. McNulty v. California, 149 U.S. 645, 13 S.Ct. 959, 37 L.Ed. 882 (1892).

Defendants concede that the moratorium would not affect any application submitted prior to March 8, 1975, but they argue that Cardinali did not have such an application pending on that date. Pointing to the conflicting versions of the facts manifest in the pleadings, defendants argue that summary judgment was clearly improper since it could not be said that Cardinali had an application pending as a matter of law.

We do not agree. M.R.Civ.P. 56(c) states that summary judgment may be rendered if there 'is no genuine issue as to any material fact and . . . (if) any party is entitled to judgment as a matter of law.' (emphasis ours). That the exact factual scenario is disputed here is not sufficient to preclude summary judgment unless the conflict is as to material facts. See generally 73 Am.Jur.2d Summary Judgment § 27 (1974). Here, in spite of several minor factual differences, the record contains numerous examples of statements, supportive of Cardinali's position, which defendants either affirmatively admit or fail to deny. Considered collectively, these facts lead us to our conclusion that, as a matter of law, Cardinali had an application pending on March 8, 1975.

Cardinali is the owner of approximately 186 acres of land in South Lebanon, Maine which had been used as a campground since July 1972. In December, 1974 Cardinali notified the Board that, having decided to convert the campground into a mobile home park, he would be seeking the Board's approval as required by 30 M.R.S.A. § 4956. Acting Chairman of the Board, George Stackpole (Stackpole), admits that he was shown a rough plan for the park during the latter part of the week of December 15, 1974. Then on December 23, 1974 a special meeting of the Board was held in order to review Cardinali's request for subdivision approval.

Cardinali claims that he appeared at the meeting and presented a written preliminary drawing dated December, 1974. He further asserts that the Board made certain suggestions, requested that he revise his proposal and submit proposed park regulations and restrictions, and decided that a public hearing on the matter was in order. Stackpole's affidavit admits that a sketch plan was presented at the special Board meeting.

Cardinali claims that he delivered a second copy of the preliminary plan dated December, 1974 to Stackpole and to the selectmen at their weekly meeting on January 20, 1975. In addition to the plan, he claims that he submitted a written proposal which contained a soils map of the area, a summary of services, a statement of management criteria and objectives, and a listing of the proposed rules and regulations of the park. Defendants admit in their answer that they saw this preliminary plan and that Cardinali delivered the summary of services, objectives and rules. Stackpole's affidavit does not deny that a plan was delivered. It simply states:

The records of the Planning Board do not disclose that a copy of the so-called preliminary plan or soil map are a part thereof. The deponent has no copy of any such plan or map, and any such copies which he may have had were returned to plaintiff.

After notice was published in two newspapers, ⁴ a public hearing was held on January 20, 1975. Defendants admit that Cardinali read his written proposal and discussed the preliminary plan at the hearing.

Cardinali claims that, pursuant to a suggestion made at the public hearing, the Board met on January 21, 1975 to draft a moratorium on subdivisions. Defendants deny that the Board met for that purpose, but they do admit that the Board convened on January 21 and set January 28 as a date to meet with Cardinali.

Cardinali was present at the Board meeting on January 28, 1975. His complaint avers: 'Chairman Stackpole claimed at that meeting that no preliminary drawing had been received but he and the Planning Board did admit to receiving the written proposal dated January 20, 1975.' The Chairman in his affidavit and the Board in its answer do not deny this assertion.

Cardinali further claims that at the January 28 meeting, he submitted still another copy of the preliminary plan dated December, 1974. He contends that the Board members suggested to him that, before submitting a revised plan, he await a letter from them which would outline in more detail the particular criteria which would be imposed upon him. Stackpole's affidavit admits that there was a 'long discussion' of Cardinali's proposal and that the Board agreed to submit a letter to him.

In February, 1975 the proposed moratorium on subdivisions was placed in the warrant of the town meeting to be held on March 8, 1975. Cardinali contends that Stackpole told him by telephone that the moratorium would not affect his proposed park since his preliminary plan had been accepted. Although defendants dispute this claim in their answer, Stackpole in his affidavit does not deny that he so advised Cardinali.

Defendants admit that on February 21, 1975, Cardinali's attorney submitted to the Board a preliminary plan dated December, 1974. They claim, however, that the plan was returned to Cardinali, at his request, on ...