Dahlem v. City of Saco

• Docket Number: Docket: Yor-23-154
• Decision Date: 02 May 2024
• Citation: 314 A.3d 280
• Parties: Michael DAHLEM v. CITY OF SACO et al.
• Court: Maine Supreme Court

314 A.3d 280

2024 ME 32

Michael DAHLEM

v.CITY OF SACO et al.

Docket: Yor-23-154

Supreme Judicial Court of Maine.

Argued: February 6, 2024

Decided: May 2, 2024

Timothy S. Murphy, Esq., Prescott JamiesonMurphy Law Group LLC, Saco, for cross-appellantCity of Saco

Jana Kenney, Esq., Bergen & Parkinson, LLC, Saco, and Luke Rossignol, Esq., Bemis & Rossignol, LLC, Presque Isle, for appellantsAmarjit Singh Dhillon and Ajinder Kaur

Keith P. Richard, Esq., and Richard L. Qualey, Archipelago, Portland, for appellee/cross-appellantMichael Dahlem

Panel: STANFILL, C.J., and MEAD, HORTON, CONNORS, LAWRENCE, and DOUGLAS, JJ.

DOUGLAS, J.

[¶1] The City of Saco, Amarjit Singh Dhillon, and Ajinder Kaur(collectively Appellants) appeal from the Superior Court’s (York County, Mulhern, J) grant of partial summary judgment to Michael Dahlem, who owns property neighboring Dhillon and Kaur’s property and who challenged a contract zone agreement that would have allowed development of Dhillon and Kaur’s property in Saco.Dahlem cross appeals from the court’s dismissal of his Rule 80B appeal and subsequent denial of his motion to reconsider that dismissal, and from the court’s denial of summary judgment on two counts in his complaint.We affirm in all respects and dismiss Dahlem’s cross-appeal as moot.

I.BACKGROUND

[¶2] The following facts are drawn from a joint statement of material facts and a stipulated record submitted to the court on cross-motions for summary judgment.¹SeeRoss v. Acadian Seaplants, Ltd., 2019 ME 45, ¶ 3, 206 A.3d 283.

[¶3]This case involves a decade-long effort to obtain permission to build a single-family residence on Oceanside Drive in the Saco neighborhood of Kinney Shores.In 1980, J. George and Nancy Driscoll² jointly acquired, by a single deed, two adjacent lots, identified as Lots 201 and 202.There was a single-family residence on Lot 201; Lot 202 was undeveloped.At the time, both lots were "grandfathered" nonconforming uses that did not comply with the City’s zoning ordinances.In 1986, George conveyed his interest in Lot 202 to Nancy and Nancy conveyed her interest in Lot 201 to George.

[¶4] In 2009, the Driscolls applied for a permit to build a single-family residence on Lot 202, then owned only by Nancy.The code enforcement officer denied their application.The Saco Zoning Board of Appeals affirmed the denial, and the Superior Court(York County, Brennan, J.) affirmed the Board’s decision.The Driscolls appealed, and we affirmed the court’s holding in a memorandum of decision, stating that Lot 202 "lost its grandfathered status as a buildable lot" under the City’s zoning ordinances when it was held in common ownership with Lot 201 and that the subsequent division of the parcels did not restore its grandfathered status.Driscoll v. City of Saco, Mem-11-138at 1(Sept. 22, 2011).We explained that "the Board’s denial of the request for a variance is final, and absent a change in factual circumstances, the Driscolls are precluded from applying for a variance for" Lot 202.Id. at 2(citations omitted).

[¶5] The Driscolls continued to explore options that might allow them to build a residence on Lot 202.In 2015, they applied for a contract zone agreement that would "legislatively establish" their land "as two separate, buildable lots."See30-A M.R.S. § 4352(8)(2024)(allowing municipal zoning ordinances to include provisions for contract zoning);see alsoSaco, Me., Zoning Ordinance§ 1403-2(2012)(authorizing contract zoning in Saco).The Saco Planning Board held a public hearing to consider the request and recommended that the Saco City Council deny the application.After holding its own public hearing, the City Council agreed with the Board’s recommendation and denied the application.

[¶6] The Driscolls applied again in 2017 to have their property rezoned by contract.This time, the City Council reversed course and voted to approve the application.The rezoning was codified in the "Contract Zone Agreement By and Between J. George and Nancy S. Driscoll and the City of Saco, November 20, 2017," which exempted Lots 201 and 202 from the zoning restrictions that had prevented the Driscolls from building a house on Lot 202.

[¶7] The 2017 agreement required the Driscolls to seek the U.S. Environmental Protection Agency’s (EPA) consent before connecting the new house to the City’s sewer system.³The 2017 agreement also contained two deadlines:

Failure of the Applicants to secure site plan approval from the Planning Board within one year of the approval of this Contract by the Saco City Council shall render this Contract null and void.In the event that permits or approvals are delayed due to circumstances beyond the control of the Applicants, this one year deadline may be extended by one year upon written request to the City Council.

….

Failure of the Applicants, or buyers of a second lot that is created by virtue of this Agreement, to seek a single family dwelling building permit as described in application materials for this Contract Zone within two (2) years from the date of approval shall render this approval and Contract null and void.This two year deadline may be extended by one year upon written request to the City Council.

Because the 2017 agreement’s effective date was November 20, 2017, the Driscolls had to "secure site plan approval from the Planning Board" by November 20, 2018, and "seek a single family dwelling building permit" by November 20, 2019.

[¶8] The Driscolls secured site plan approval on October 16, 2018, thereby meeting the November 20, 2018, deadline.The site plan approval was valid for two years.However, the Driscolls did not obtain a building permit by November 20, 2019, nor did they make a written request to extend that deadline by another year.George passed away at some point following the execution of the 2017 agreement, and there were significant delays in obtaining from the Maine Department of Environmental Protection a permit to alter coastal sand dunes, which was required before the Driscolls could apply for a building permit for Lot 202.See38 M.R.S. §§ 480-B(1), (8),480-C(1)-(2)(2024).Ultimately, the sand dune permit was issued on June 9, 2021.

[¶9] Nancy then requested additional time to seek a building permit.At meetings on August 30 and September 7, 2021, the City Council took up and then approved her request.Nancy and the City entered into an agreement entitled "Amended Contract Zone Agreement by and Between J. George and Nancy S. Driscoll and the City of Saco, ApprovedNovember 20, 2017, Amended September 13, 2021."⁴The 2021 agreement provided, among other things, the following:

Due to unforeseen delays in obtaining permits required to construct the proposed residence, the original Agreement between the Applicants and the City expired on November 20, 2019.

…

Saco City Council and the Applicant agreed to an extension of one year from the date of the DEP issuance[of]the Sand Dune Alteration Permit during the September 7, 2021 Council meeting."

The 2021 agreement further provided that it would be "null and void" if Nancy failed to "secure a single family dwelling building permit … by June 9, 2022"; that this "deadline may not be extended"; and that Nancy was required to seek EPA approval to connect to the City sewer and submit "[e]vidence of undertaking a good faith effort to obtain such approval" before applying for a building permit.

[¶10] By this time, the site plan approval issued by the Saco Planning Board in 2018 had lapsed, so Nancy applied for approval again.At a meeting on October 19, 2021, the Planning Board voted to approve Nancy’s new site plan.

[¶11] On November 17, 2021, Dahlem filed a six-count complaint against the City and Nancy in Superior Court, appealing the City’s approval of the 2021 agreement pursuant to M.R. Civ. P. 80B(Count 6) and seeking a declaration that the contract zone agreement was unlawful on various grounds (Counts 1-5).⁵

[¶12]The court(York County, Mulhern, J.) subsequently dismissed the Rule 80B appeal (Count 6) on the City’s motion.During the pendency of the City’s motion, Nancy sold Lot 202 to Dhillon and Kaur, who were substituted as defendants in the case.SeeM.R. Civ. P. 25(c).Dahlem subsequently moved for summary judgment on the remaining counts and Appellants countered by filing cross-motions for summary judgment.

[¶13]The court granted summary judgment to Appellants on Count 1, determining that our prior decision did not preclude the City from using its legislative authority to allow construction on Lot 202.The court granted summary judgment to Dahlem on Counts 2, 3, and 4, declaring that the 2017 agreement • "became null and void in 2019 and thereafter could not be amended or extended"(Count 2);

• "is invalid and unlawful for noncompliance with the City’s contract zoning ordinance"(Count 3); and

• "is inconsistent with Maine’s Mandatory Shore[land] Zoning statute and therefore preempted and invalid"(Count 4).

The court denied summary judgment to all parties on Count 5 because it could not "definitively say" whether the 2021 agreement was compatible with the City’s comprehensive plan in effect in 2021.⁶The court also denied Dahlem’s motion to reconsiderthe court’s dismissal of Count 6, the Rule 80B appeal.SeeM.R. Civ. P. 7(b)(5).

[¶14]Appellants timely appealed.Their appeal raises three principal issues.First, they contend that Dahlem’s Rule 80B appeal, which the court dismissed for lack of standing, is the exclusive procedural remedy in this case and the court therefore erred by entertaining Dahlem’s declaratory judgment claims.Second, Appellants maintain that the court erred by determining that the 2017 agreement had expired on November 20, 2019, and that it could not be extended thereafter.Third, they assert that the court erred by declaring that the 2021 agreement was unlawful under the City’s contract zoning ordinance and that the 2021 agreement was preempted by state law.

[¶15] Dahlem...