Currier Builders, Inc. v. Town of York, Maine, Docket No. 01-68-P-C (D. Me. 7/20/2001)
| Decision Date | 20 July 2001 |
| Docket Number | Docket No. 01-68-P-C. |
| Parties | Currier Builders, Inc., et al., Plaintiffs, v. Town Of York, Maine, Defendant. |
| Court | U.S. District Court — District of Maine |
Jonathan S. Piper, Preti, Flaherty, Beliveau, Pachios & Haley, Llc, Portland, Me, for plaintiffs.
Mark V Franco, Thompson & Bowie, Portland, Me, for defendant.
RECOMMENDED DECISION ON DEFENDANT'S MOTION TO DISMISS
The defendant, the Town of York, Maine, moves to dismiss this action which it removed to this court from the Maine Superior Court (Kennebec County). The complaint alleges that a zoning ordinance adopted by the residents of the town in August 2000 both on its face and as applied violates Maine's "home rule" statute, 30-A M.R.S.A. § 4352(2); violates the federal and state constitutional guarantees of due process and equal protection; represents an unconstitutional taking; and violates 30-A M.R.S.A. § 4356(1), which allows building permit moratoriums to be imposed by municipalities only under certain conditions. The plaintiffs, Currier Builders, Inc., Cape Neddick Estates, Inc., and Home Builders Association, Inc., all Maine corporations, object vigorously to the motion. I recommend that the court grant the motion in part and deny it in part.
The motion to dismiss invokes Fed.R.Civ.P. 12(b)(6). Defendant's Motion to Dismiss, etc. ("Motion") (Docket No. 3) at 4. "When evaluating a motion to dismiss under Rule 12(b)(6), [the court] take[s] the well-pleaded facts as they appear in the complaint, extending the plaintiff every reasonable inference in [his] favor." Pihl v. Massachusetts Dep't of Educ., 9 F.3d 184, 187 (1st Cir. 1993). The defendant is entitled to dismissal for failure to state a claim only if "it appears to a certainty that the plaintiff would be unable to recover under any set of facts." Roma Constr. Co. v. aRusso, 96 F.3d 566, 569 (1st Cir. 1996); see also Tobin v. University of Maine Sys., 59 F. Supp.2d 87, 89 (D.Me. 1999).
The complaint includes the following relevant factual allegations.
Plaintiff Currier Builders, Inc. ("Currier") builds affordable housing in York, Maine. Complaint (attached to Notice of Removal of Defendant, Docket No. 1) ¶ 2. Currier typically purchases individual building lots that do not require subdivision approval on which it builds houses that sell for $125,000 to $140,000. Id. ¶ 3. Currier typically applies for a building permit, arranges financing, builds a house and then sells it. Id. ¶ 4. Currier purchased lots (presumably in York) for this purpose before the ordinance at issue was adopted. Id. ¶ 6.
Plaintiff Cape Neddick Estates, Inc. ("Neddick") was formed to develop one or more subdivisions in York. Id. ¶ 12. Since September 1999 Neddick has been involved in the development of an 8-unit subdivision on nine acres in York. Id. ¶ 13. It has invested $50,000 in development and site work on this land. Id. ¶¶ 14-15. It began this work in September 1999 and sought subdivision approval in or about April 2000. Id. ¶ 16. It received no building permits before the ordinance at issue was adopted and has been unable to obtain any since that time. Id. ¶¶ 16-17. The waiting list for building permits is backed up for at least one year. Id. ¶ 17.
Plaintiff Home Builders Association, Inc., d/b/a/ Home Builders and Remodelers Association of Maine ("Home Builders"), a Maine non-profit corporation with headquarters in Augusta, Maine, has approximately 330 members, including general contractors, building suppliers, subcontractors, and providers of home building ancillary services, some of whom do business or plan to do business in York. Id. ¶ 20.
The population of York is between 13,000 and 14,000. Id. ¶ 22. The town has issued the following numbers of residential building permits in the years shown:
1980 142
1981 105
1982 105
1983 122
1984 210
1985 324
1986 422
1987 95
1988 66
1989 89
1990 65
1991 65
1992 86
1993 77
Id. ¶ 23. Under the town charter, an ordinance may be proposed by petition, with adoption by general referendum after a public hearing. Id. ¶ 24. On May 22, 2000 a petition was circulated and signed by some York residents to enact a residential growth ordinance. Id. ¶ 25. On July 10, 2000 a public hearing was held on the proposed ordinance. Id. ¶ 26. On August 26, 2000 the ordinance was adopted by a special general referendum. Id. The ordinance stated that it was retroactive to May 22, 2000. Id. The town required building permit applicants to sign a building permit application addendum providing that any permit issued after May 22, 2000 might be revoked. Id.
Applicants seeking approval for subdivision development projects in York must first obtain approval from the planning board of a sketch plan, a preliminary plan and a final plan. Id. ¶ 27. They may then apply for residential building permits. Id. The ordinance provides that no more than seven building permits for residential dwellings may be issued in one month. Id. ¶ 28. Four of these permits are earmarked for non-subdivision dwelling units. Id. Each unit within a multi-family dwelling must obtain a permit before the building may be built. Id. No more than two applications for dwelling units within the same multi-family residence may be submitted per month. Id. ¶ 33. Applications for no more than two dwelling units per subdivision may be authorized per month. Id. ¶ 32. If more than four non-subdivision applications and three subdivision applications are received in a given month, permits are assigned by a blind lottery and the remaining applications are assigned to a subsequent month. Id. ¶ 28. In practice, however, the town has placed every application submitted in a given month in a blind lottery and placed it in line in the order selected to receive a permit at some time in the future. Id. ¶ 30. A non-subdivision application submitted February 1, 2001 can receive a permit no earlier than May 2002 and a subdivision application submitted on that date can receive a permit no earlier than August 2001. Id. ¶ 31.
A subdivision with 3 to 6 potential units is allowed to have one permit application pending at any time. Id. ¶ 32. A subdivision with 7 to 10 units is allowed to have two pending applications and a subdivision with 11 or more units is allowed three. Id.
The ordinance exempts from its requirements only elderly housing proposed by the York Housing Authority. Id. ¶ 35.
On May 22, 1999 the York board of selectmen adopted the York Comprehensive Plan. Id. ¶ 37.
The town assesses an impact fee of $1,700 for new residences with three bedrooms and $3,400 for new residences with more than three bedrooms. Id. ¶ 54. Proceeds of the fee amounted to approximately $120,000 in 1999. Id.
Initially, the defendant notes that the plaintiffs failed to serve a copy of their complaint in this action on the Maine attorney general as required by 14 M.R.S.A. § 5963. Unremedied, this oversight would require dismissal of this action. Ferraiolo Constr. Co. v. Town of Woolwich, 714 A.2d 814, 816-17 (Me. 1998). However, the plaintiffs have belatedly complied with the statutory requirement, Exh. A to Opposition to Defendant's Motion to Dismiss ("Opposition") (Docket No. 13), and, in the absence of any showing of prejudice, no purpose would be served by a dismissal for this reason at this time.
A. Count V
Count V alleges that the annual residential building permit limit of 84 units set by the ordinance at issue constitutes a de facto moratorium that fails to comply with 30-A M.R.S.A. § 4356(1), making the ordinance illegal. Complaint ¶¶ 94-99. The defendant contends that the ordinance is not a de facto moratorium as a matter of law, citing Home Builders Ass'n of Maine, Inc. v. Town of Eliot, 750 A.2d 566 (Me. 2000). Motion at 5. The plaintiffs respond that the complaint's allegation that this limit on the number of permits is unreasonable, Complaint ¶ 95, is sufficient to overcome the motion to dismiss because reasonableness is an issue of fact that cannot be determined in connection with a motion to dismiss. Opposition at 2-3.
In Home Builders, the Law Court held that a growth management ordinance that did not prevent all development would not amount to a moratorium under applicable statutes. 750 A.2d at 571 (). Obviously, the ordinance at issue here, which permits 84 starts per year, does not prevent all development. The plaintiffs rely on the Law Court's dictum to the effect that "an unreasonable limit on development could, in certain circumstances, constitute a de facto moratorium." Id. at 572. That statement is followed by the observations that the limit imposed by the ordinance at issue had been reached only five times in twenty years and that the ordinance had been amended twice during that period to increase the cap "as the Town's growth permitted." Id.1 The plaintiffs conclude that their allegation that applications for permits in the defendant town had exceeded 84 in number sixteen times since 1980, when the ordinance at issue was not in effect, means that they have alleged the kind of circumstances under which the Law Court would allow a factfinder to determine that a de facto moratorium existed. That conclusion places too much weight on the dictum. The Law Court's holding in Home Builders is what matters for purposes of the motion to dismiss, and that holding is fairly clear. The dictum does not specify conditions that would create a de facto moratorium that are sufficiently similar to those alleged in this case to allow this court to conclude that such an exception to the Law Court's holding might exist here. Accordingly, because the ordinance in permitting 84 residential building permits a year clearly does not foreclose all development, I conclude that it does not constitute a de facto moratorium as a...
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