Frustaci v. City of South Portland
| Decision Date | 01 April 2002 |
| Docket Number | CUM AP-00-046 |
| Parties | JOSEPH FRUSTACI, Plaintiff v. CITY OF SOUTH PORTLAND, ET ALS, Defendants |
| Court | Maine Superior Court |
SUPERIOR COURT CIVIL ACTION
This matter is before the court on the consolidated Rule 80B appeals of the plaintiff Joseph Frustaci from (1) Discontinuance Order # 127-99/00 issued by the defendant City of South Portland ("City") on April 14, 2000 discontinuing a portion of Charlotte Street (Docket No AP-00-46), and (2) Discontinuance Orders # 85-00/01 and # 89-99/01 issued by the City on December 18, 2000 discontinuing a portion of Edgewood Road and acquiring the fee interest in the discontinued portions of both roads (Docket No. AP-00-46).[1] In substance, the plaintiff asserts that the City's actions violated the Maine constitution by abridging his rights of substantive due process and equal protection,[2] as well as his rights under the takings and public purpose clauses,[3] and that the discontinuances were fatally defective under 23 M.R.S.A. §§ 3206 & 3029.
Also pending is the plaintiffs motion to exclude the documents in the City's Supplemental Appendix from the record on this appeal.
The plaintiff owns a parcel of land in the Town of Cape Elizabeth ("Cape Elizabeth"). The northeast boundary of his land abuts the City of South Portland. The plaintiff has plans to develop the parcel into a residential subdivision to be called Rosewood II. However, he has not yet presented a subdivision application to Cape Elizabeth.
Charlotte Street and Edgewood Road in South Portland run parallel to one another in an established residential development known as Dana Park Subdivision. Prior to the City's discontinuance action that is the subject of this appeal, both roads ran to and terminated at the northeast boundary of the plaintiffs property. The plaintiffs plan for Rosewood II included accessing the development by extending both roads onto his property, and joining them via a U-shaped connector.
At present, a private way extends from Edgewood Road a short way into Cape Elizabeth to serve two existing residences there known as Nos. 59 and 60 Edgewood Road.
In January 2000, the City received a request from Charlotte Street residents to discontinue the last 25 feet of that street as it approaches and terminates at the plaintiffs property. The stated purpose of the request was to give the City and its citizens "a meaningful opportunity to address and influence the imminent development of Rosewood II by the plaintiff.
Appendix to Plaintiffs Brief, Vol. I, Tab 3. In May 2000, citing identical reasons, Edgewood Road residents submitted a request to the City to discontinue the last 25 feet of that road.
Following a public hearing on April 19, 2000, the City discontinued the last 25 feet of Charlotte Street, but retained an easement to repair and maintain existing public utility lines. At the hearing, the plaintiff submitted a letter from a real estate broker opining that the discontinuance would decrease the value of the plaintiffs property. The City determined that no damages should be paid to abutters, including the plaintiff.
At another public hearing on December 18, 2000, the City discontinued the last 25 feet of Edgewood Road, but retained an easement for public utilities and private access easements to benefit the Cape Elizabeth residences at Nos. 59 and 60 Edgewood Road. The City Council also authorized its Manager to accept quit claim deeds from the defendants Yolande D. Fogg, David G. and D. Elizabeth Sawyer, Edward J. and Pauline V. Kane, and Leslie O. Andrews, who were Charlotte Street and Edgewood Road abutters, conveying their respective interests in the discontinued 25-foot portions of Charlotte and Edgewood Streets. The Edgewood Road discontinuance order also provided that no damages should be paid to abutters, including the plaintiff.
The plaintiff argues that the court is limited to the parties' agreed-upon factual record because neither party requested a trial of the facts. M.R.
Civ. P. 80B(d). The City counters that the court can take judicial notice of the additional evidence in its Supplemental Appendix, which includes (1) a declaration of restrictions affecting an existing subdivision in Cape Elizabeth known as Rosewood[4] that is recorded in the Cumberland County Registry of Deeds; (2) a letter from real estate appraiser Daniel Anderson to the plaintiff; (3) a letter from Daniel Anderson to the State of Maine Department of Professional & Financial Regulation Complaints and Investigation Division; (4) a federal Magistrate Judge's Recommended Decision on [the City's] Motion To Dismiss the plaintiffs federal action against the City and the defendants Sawyer and Fogg; (5) the Order and Judgment of the United States District Court affirming the Recommended Decision of the Magistrate Judge; and (6) a Consent Agreement submitted to the State of Maine Board of Real Estate Appraisers in a disciplinary action against Daniel Anderson.
When a party fails to request a trial of the facts, it is limited to the record designated pursuant to M.R. Civ. P 80B(e). Harrington v. Town of Kennebunk, 459 A.2d 557 (Me. 1983). However, the Law Court has not specifically excluded the possibility that a court may take judicial notice of certain evidence to augment the 80B record. See Harrington, 459 A.2d at 560; Harrington v. Town of Kennebunk, 496 A.2d 309 (Me. 1985). In fact, taking judicial notice is mandatory where a party requests it and supplies the court with the necessary information. M.R. Evid. 201(d).
The court concludes that it need not take judicial notice of Item # 2 of the Supplemental Appendix since it is already part of the record. See
Appendix to Plaintiffs Brief, Vol. I, Tab 25. Based upon the criteria set forth in Rule 201(b), the court takes judicial notice of the remaining items of the Supplemental Appendix.[5]
The plaintiff is barred by res judicata from asserting his substantive due process claim with respect to the discontinuance of Charlotte Street because the United States District Court has already ruled on that claim under the federal constitution, and the standards are the same under the Maine constitution. Frustaci v. City of South Portland, 2000 WL 1310671, at *5 (D.Me.); see Draus v. Town of Houlton, 1999 ME 51, ¶¶ 6-8, 721 A.2d 1257, 1259-60; Fichter v. Board of Envtl. Prot., 604 A.2d 433, 436 (Me. 1992) (). Since the substantive due process claim, and its underlying issues, are identically and equally applicable to Edgewood Road and Charlotte Street, the plaintiff is also collaterally estopped from asserting that claim as to Edgewood Road. Cline v. Maine Coast Nordic, 1999 ME 72, ¶ 9, 728 A.2d 686, 688 ().
Even if the plaintiff is not collaterally estopped or barred by res judicata, he cannot prevail on his substantive due process claim in this state action.
A substantive due process claim is generally grounded in the deprivation of an identified and constitutionally protected liberty or property interest as a result of arbitrary and capricious state conduct that "shocks the conscience." Cruz-Erazo v. Rivera-Montanez, 212 F.3d 617, 622 (1st Cir. 2000); Licari v Ferruzzi, 22 F.3d 344, 347 (1st Cir. 1994) () (citations omitted); Amsden v. Moran, 904 F.2d 748, 753-54 (1st Cir. 1990) (); Fichter, 604 A.2d at 436 ().
The plaintiff claims that the City abused its power because its road discontinuance actions were merely a subterfuge for the unlawful exercise of land use control authority over his Rosewood II development plans. He asserts that this illegal animus was at the heart of the citizens' requests to discontinue Charlotte Street and Edgewood Road, and was not disavowed by the City in its discontinuance orders. However, the property rights of which the plaintiff claims to have been deprived -- easement and access rights with respect to the discontinued roads and the utilities that attend them -- do not implicate substantive due process. Licari, 22 F.3d at 349-50. Although the plaintiff asserts that the City was motivated by an outrageous goal of trying to impose inter-municipal control over the development of his property, he "has neither argued, nor offered evidence that [the City's] 'hostility and animus' was aimed at any political affiliation, belief, stance, or immutable characteristic of the plaintiff. Id. at 349.
In order to be arbitrary and capricious, governmental action must be unreasonable, have no rational factual basis, or lack substantial support in the evidence. Central Maine Power Co. v. Waterville Urban Renewal Authority, 281 A.2d 233 242 (Me. 1971). The plaintiff has not established that the discontinuance decisions meet this standard. Although the City did not expressly disavow the reasons espoused by the citizens who sought the discontinuances, it did offer reasons that are legitimate municipal concerns having a rational factual basis -- possible declines in public safety from traffic increase, and...
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