Kittery Retail Ventures v. Town of Kittery

• Decision Date: 11 May 2004
• Citation: 856 A.2d 1183,2004 ME 65
• Parties: KITTERY RETAIL VENTURES, LLC et al. v. TOWN OF KITTERY.
• Court: Maine Supreme Court

856 A.2d 1183

2004 ME 65

KITTERY RETAIL VENTURES, LLC et al. v. TOWN OF KITTERY.

Supreme Judicial Court of Maine.

Argued: November 5, 2003.

Decided: May 11, 2004.

Durward W. Parkinson (orally), Susan B. Driscoll, Leah B. Rachin, Bergen & Parkinson, LLC, Kennebunk, U. Charles Remmel II (orally), Kelly, Remmel & Zimmerman, Harold J. Friedman, Michelle Giard, Friedman Gaythwaite Wolf & Leavitt, Portland, for plaintiffs.

William H. Dale (orally), Sally J. Daggett, Jensen Baird Gardner & Henry, Portland, Duncan A. McEachern, McEachern & Thornhill, Kittery, for defendant.

Robert S. Frank, Harvey & Frank, Portland, for amicus curie New England Legal Foundation.

Panel: SAUFLEY, C.J., and CLIFFORD, RUDMAN, DANA, ALEXANDER, CALKINS, and LEVY, JJ.

CLIFFORD, J.

[¶1] Kittery Retail Ventures, LLC, DSS Land Holdings, LLC, and Stephen A. Hynes (collectively KRV) appeal from the judgments of the Superior Court (York, Fritzsche, J.) entered in favor of the Town of Kittery on both counts of KRV's complaint. KRV contends that the Superior Court erred when, in an appeal KRV had brought pursuant to M.R. Civ. P. 80B, it affirmed the Kittery Planning Board's decision to apply the terms of the zoning ordinance amendment enacted in September of 2000 to deny KRV's permit application. KRV also contends that the court erred when it entered a summary judgment in favor of the Town on Count II of KRV's complaint, seeking a declaratory judgment that the September amendment could not be applied against KRV. We affirm the judgments.

I. BACKGROUND

[¶2] In early 1999, KRV began negotiations with DSS Land Holdings, LLC, and Stephen A. Hynes, trustee of Real Property Trust Agreement, to purchase two parcels of adjoining land located close to Route 1 in Kittery. At that time, the land was located in a mixed-use district, and pursuant to the Town's zoning ordinance, up to thirty percent of the land could be applied to retail use, and the land was eligible for the transfer of retail development rights.¹ KRV's intent was to purchase the land and build Kittery Marketplace, a 250,000-square-foot retail outlet mall. In July 1999, KRV met with Kittery's town manager and town planner and presented preliminary sketches of the proposed development. On January 13, 2000, KRV filed a sketch plan with the Planning Board, and on March 23, 2000, KRV filed a site plan application and tendered its application fee. The Board requested additional information regarding KRV's application on April 13, April 27, and June 7, 2000.

[¶ 3] During this time period, there was activity in the Town regarding changes to mixed-use districts. The Town Council discussed the use of mixed-use districts and the transfer of retail development rights during several meetings between February and July 2000. On March 6, 2000, a proposed emergency ordinance to amend the mixed-use district and eliminate the availability of transferred retail development rights failed of passage at a Town Council meeting. On March 27, 2000, a citizen group filed a petition for a citizen vote on the enactment of an ordinance that would amend the mixed-use district provisions of the Town's zoning ordinance and eliminate the availability of transferred retail development rights.

[¶ 4] The citizen-proposed amendment to the zoning ordinance altering the requirements in the mixed-use district by reducing the retail coverage area from thirty to fifteen percent and eliminating the availability of transferred retail development rights was approved by the voters on June 13, 2000. Pursuant to the Kittery Town Charter, the effective date of the zoning ordinance amendment was July 14, 2000.

[¶ 5] After the June amendment was enacted, but before its effective date, KRV submitted a revised preliminary plan application to the Board, and on June 29, 2000, the town planner notified KRV that its application had met the submission requirements. On July 13, 2000, one month after the June ordinance was enacted, the Board voted unanimously to approve, as substantially complete, the site plan for the Kittery Marketplace and accepted the application for review. A public hearing regarding the Kittery Marketplace was held on August 23, 2000.

[¶ 6] On September 26, 2000, the voters approved another amendment to the zoning ordinance, which mirrored the language of the June zoning ordinance amendment, but added the following language:

Notwithstanding the provisions of 1 M.R.S.A. § 302, and regardless of the date on which it is approved by the voters, this amendment shall be effective as of September 30, 1999, and shall govern any and all applications for permits or approvals required under the Land Use and Development Code of the Town of Kittery, Maine that were or have been pending before any officer, board, or agency of the Town of Kittery on or at any time after September 30, 1999.

On October 26, 2000, the town planner notified KRV that the September amendment would apply to KRV's proposed project. In response, KRV filed a complaint in Superior Court, requesting review of the Board's decision, a declaratory judgment, and injunctive relief. The Superior Court dismissed the complaint without prejudice, holding that the October 26, 2000 communication from the town planner to KRV did not constitute a final decision of the Board, and remanded the case back to the Board. The Board met on May 9, 2002, and formally denied KRV's development application on the basis that it did not comply with the zoning ordinance as amended by the September amendment.

[¶ 7] In response, KRV filed a two-count complaint in the Superior Court. In Count I, KRV alleged that the Board's decision was arbitrary, capricious, and unlawful, and requested Superior Court review pursuant to M.R. Civ. P. 80B. In Count II, KRV requested a declaratory judgment that the terms of the September amendment could not be applied to its application based on various legal and equitable principles.

[¶ 8] KRV filed a motion for a summary judgment on Count II, but pursued Count I through a hearing. Following that hearing, the Superior Court affirmed the Board's decision to apply the terms of the September zoning ordinance amendment to KRV's application. The court also entered a summary judgment for the Town on Count II, the declaratory judgment action. KRV subsequently filed this appeal.

[¶ 9] KRV contends that the Superior Court erred when it concluded that: nothing in the Kittery Town Charter prohibits retroactive legislation; KRV did not acquire vested rights because it did not begin construction and no bad faith existed; the referendum did not violate due process because it furthers legitimate legislative purposes and is rational; the Town was not equitably estopped from applying the referendum because KRV did not prove reasonable reliance on the town planner's opinion or the silence of other Town officials; and the Town did not violate the Contract Clause of the Maine and United States Constitutions. We agree with KRV that a portion of the September amendment violates the Town Charter, but because the offending portion can be severed from the remainder of the amendment, and the remaining portion of the September amendment includes a retroactivity provision that validly applies to KRV's application, we affirm the judgments.²

II. DISCUSSION

A. The Town Charter

[¶ 10] The interpretation of an ordinance is a question of law and is reviewed de novo. Brackett v. Town of Rangeley, 2003 ME 109, ¶ 15, 831 A.2d 422, 427. When interpreting the terms of an ordinance, we look first to the plain meaning of the terms in an effort to give effect to the legislative intent. Griffin v. Town of Dedham, 2002 ME 105, ¶ 7, 799 A.2d 1239, 1242.

[¶ 11] At the outset, we make the distinction between when an ordinance or statute is retroactively applied and when an ordinance or statute becomes effective. An ordinance is retroactively applied "`when applied so as to determine the legal significance of acts or events that occurred prior to its effective date.'" Coates v. Me. Employment Sec. Comm'n, 406 A.2d 94, 96 (Me.1979) (emphasis omitted in part) (quoting State Comm'n on Human Relations v. Amecon Div. of Litton Sys., Inc., 278 Md. 120, 360 A.2d 1, 3-4 (1976)). We have regularly discussed ordinances and statutes that affected events that occurred prior to the ordinance or statute's effective date. E.g., Portland Sand & Gravel, Inc. v. Town of Gray, 663 A.2d 41, 42 (Me.1995); Morgan-Leland v. Univ. of Me., 632 A.2d 748, 748 (Me.1993).

[¶ 12] When a statute becomes effective, however, is more of a procedural matter and is governed, for state statutes, by ME. CONST. art. IV, pt. 3, § 16.³ The effective date of ordinances passed in Kittery is governed by section 2.14(3) of the Kittery Town Charter, which provides: "Except as otherwise provided in this charter, every adopted ordinance shall become effective at the expiration of 30 days after adoption or at any later date specified therein."⁴ Kittery, Me., Town Charter § 2.14(3) (1967) (emphasis added).

[¶ 13] Just as the Legislature does not violate ME. CONST. art. IV, pt. 3, § 16 when it enacts statutes with retroactive applicability, State v. L.V.I. Group, 1997 ME 25, ¶¶ 1, 6, 690 A.2d 960, 962, 963 (upholding the retroactive application of an amendment to 26 M.R.S.A. § 625-B); City of Portland v. Fisherman's Wharf Assocs. II, 541 A.2d 160, 164 (Me.1988) (recognizing the Legislature's ability to enact statutes with retroactive application); Opinion of the Justices, 460 A.2d 1341, 1347 (Me. 1982), the September amendment does not violate section 2.14(3) of the Town Charter simply because it applies retroactively.

[¶ 14] Nonetheless, the language in the September amendment goes further than the language in the typical retroactive ordinance or statute. For example, when it enacted 39-A M.R.S.A. § 224 (Supp.2003), the Legislature stated: "`This Act applies retroactively to benefit calculations made under the Maine Revised Statutes, former...