Marshall v. Town of Dexter

• Decision Date: 22 October 2015
• Docket Number: Docket No. Pen–14–440.
• Citation: 125 A.3d 1141
• Parties: Gerald MARSHALL v. TOWN OF DEXTER.
• Court: Maine Supreme Court

125 A.3d 1141

Gerald MARSHALL

v.TOWN OF DEXTER.

Docket No. Pen–14–440.

Supreme Judicial Court of Maine.

Argued: June 18, 2015.

Decided: Oct. 22, 2015.

Erik M. Stumpfel, Esq. (orally), and Anthony V. Trask, Esq., Rudman Winchell, Bangor, for appellant Gerald Marshall.

Frederick F. Costlow, Esq. (orally), and Heidi J. Hart, Esq., Richardson, Whitman, Large & Badger, Bangor, for appellee Town of Dexter.

Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, and HJELM, JJ.

SAUFLEY, C.J.

[¶ 1] Gerald Marshall appeals from a judgment entered in the Superior Court (Penobscot County, Anderson, J. ) granting the Town of Dexter's motion to dismiss his civil rights action for failure to state a claim upon which relief can be granted pursuant to M.R. Civ. P. 12(b)(6). Marshall contends that his complaint sufficiently stated a claim for relief pursuant to 42 U.S.C.S. § 1983 (LEXIS through Pub. L. No. 114–51 ) and 42 U.S.C.S. § 1988 (LEXIS through Pub. L. No. 114–51 ), and Maine civil rights laws, see 5 M.R.S. §§ 4681 –4685 (2014).¹ We affirm the judgment.

I. STANDARD OF REVIEW

[¶ 2] When the trial court acts on a motion to dismiss pursuant to M.R. Civ. P. 12(b)(6), facts are not adjudicated; instead the allegations in the complaint are evaluated to determine if there is "any cause of action that may reasonably be inferred from the complaint." Saunders v. Tisher, 2006 ME 94, ¶ 8, 902 A.2d 830. When reviewing the trial court's dismissal of a complaint pursuant to Rule 12(b)(6), we view the facts alleged in the complaint as if they were admitted. Ramsey v. Baxter Title Co., 2012 ME 113, ¶ 2, 54 A.3d 710. We then "examine the complaint in the light most favorable to the plaintiff to determine whether it sets forth elements of a cause of action or alleges facts that would entitle the plaintiff to relief pursuant to some legal theory." Moody v. State Liquor & Lottery Comm'n, 2004 ME 20, ¶ 7, 843 A.2d 43 (quotation marks omitted). We will affirm a Rule 12(b)(6) dismissal "only when it appears beyond doubt that a plaintiff is entitled to no relief under any set of facts that he might prove in support of his claim." Bean v. Cummings, 2008 ME 18, ¶ 7, 939 A.2d 676. "The legal sufficiency of a complaint challenged pursuant to M.R. Civ. P. 12(b)(6) is a question of law" that we review de novo. Id. (quotation marks omitted).

II. BACKGROUND

A. Facts Alleged

[¶ 3] Based on that standard of review, the facts are drawn from the complaint and its attachments. In September 2011, Gerald Marshall purchased a former school property from the Town of Dexter for $205,000 in an arms-length transaction. Marshall purchased the property for future redevelopment. The property consisted of 45.27 acres, with significant shore frontage on Lake Wassookeag. Structures on the property included two old school buildings and five portable classroom structures. The school buildings had been vacant for about a year.

[¶ 4] The Town initially supported Marshall's redevelopment efforts. It approved rezoning the property to allow for commercial use and, in October 2012, the Town's Code Enforcement Officer (CEO) approved Marshall's permit application to move the five portable classroom structures to new locations on the property.

[¶ 5] About a month before the CEO approved Marshall's permit application, and a year after Marshall had purchased the property, the Town issued a tax commitment for Marshall's property, assessing the value of the property at $1,308,300. The property had not been previously assessed for tax purposes because of its tax-exempt status as a municipal school property.

[¶ 6] Marshall filed an application for abatement with the Town's municipal assessor, and an administrative hearing was held before the Town's municipal board of assessment review. The board approved a reduction to $381,500 in the assessed valuation of the property. On March 14, 2013, Marshall appealed the reduced valuation to the Superior Court pursuant to 36 M.R.S. § 843(1) (2014) and M.R. Civ. P. 80B. That appeal was pending at the time he filed his complaint in this action, but the court (Cuddy, J. ) has since affirmed the Town's assessment. See Marshall v. Town of Dexter, PENSC–AP–2013–8 (Me. Super. Ct., Pen. Cty., July 15, 2013).²

[¶ 7] On March 21, 2013, one week after Marshall filed his Rule 80B appeal of the tax abatement, the Town's CEO posted a "Stop Work" order on a building located on Marshall's property. Although the order cited a violation of the Uniform Plumbing Code, no plumbing work had been initiated on the premises when the order was posted. Dexter's Land Use Ordinance authorizes the CEO to issue notices of violation, but it does not explicitly authorize the separate issuance of stop work orders. See Dexter, Me., Land Use Ordinance § 4(F)(1)(c).³

[¶ 8] On April 25, 2013, the CEO issued another document, described as a "Notice of Violation/Order for Corrective Action," that indicated the alleged violation as "Plumbing without [a] permit or licensed master plumber on site and changing the use of land or structure with[out] first obtaining a permit."⁴ At the time that the notice was issued, no plumbing work had been initiated or was underway on the premises, and there had been no change in use since Marshall had purchased the property and obtained the CEO's permit to move the five portable structures.

[¶ 9] Marshall and his contractor sought clarification of the stop work order and the notice of violation from the CEO. The CEO responded that the stop work order and notice of violation prohibited all work of any kind on the property, including routine maintenance and repair work, relocating the five portable classroom buildings, and the removal of a single dangerous tree. Marshall asserts that the CEO was without the authority, pursuant to the Ordinance, to prohibit these activities.

[¶ 10] Based on the actions and statements of the CEO, Marshall's contractor declined to continue work on the property, which "potentially expos[ed] the existing buildings on the property to accelerated deterioration due to exposure to the elements."

Marshall's complaint alleges that the actions and statements by the CEO were "undertaken for an improper reason, in retaliation for [Marshall's] decision to contest the Town's [tax assessment]."

B. Court Proceedings

[¶ 11] Marshall did not seek review of the CEO's actions or orders by the Dexter Board of Appeals, although the documentation provided with the record indicates that Board of Appeals review was available to challenge one or more of the CEO's actions. Instead, on May 3, 2013, Marshall sought an ex parte temporary restraining order, M.R. Civ. P. 65(a), from the Superior Court to restrain the Town and the CEO from preventing certain work on Marshall's property. The court (A. Murray, J. ) denied the TRO request and set the matter for hearing with notice to consider a preliminary injunction. See M.R. Civ. P. 65(b).

[¶ 12] On May 10, 2013, the hearing for the preliminary injunction was held and the court (Cuddy, J. ) took the motion under advisement. The court later denied Marshall's motion for a preliminary injunction, citing the availability of an adequate remedy at law by appealing the CEO's actions to the Dexter Board of Appeals. By the time the court had signed its decision on June 13, 2013, the time period for appealing the CEO's actions to the Board had expired.See Dexter, Me., Land Use Ordinance § 5(B)(1) (stating that appeals to the Board "shall be taken within thirty (30) days of the date of the decision appealed from").⁵

[¶ 13] Also on May 10, 2013, Marshall filed the complaint that is the subject of this appeal. The complaint stated two counts against the Town and the CEO. Count I alleged that the Town's actions "through its municipal code enforcement officer are arbitrary, capricious and without a legal basis." Such actions, the complaint asserted, deprived Marshall of equal protection of law and the use and enjoyment of property, "contrary to the fifth and fourteenth amendments to the United States Constitution and title 42 U.S.Code section 1983." Count II alleged that the Town and CEO violated Marshall's state constitutional rights pursuant to article I, sections 1 and 6–A of the Maine Constitution. The complaint sought relief in the form of a permanent injunction against the Town and the CEO, an award of damages, and an award of attorney fees pursuant to 42 U.S.C.S. § 1988(b).

[¶ 14] In his brief to us, Marshall includes additional facts and an "offer of proof" that do not appear to have been presented to the Superior Court, although Marshall must have been aware of those facts while the action was pending in the Superior Court. Marshall asserts in his brief that the CEO resigned from her position on May 13, 2013, and that she has since been replaced. The new CEO, Marshall's brief indicates, "promptly rescinded" the stop work order and notice of violation issued to Marshall and has "worked cooperatively" with Marshall to allow his redevelopment project to proceed.

[¶ 15] On March 14, 2014, the Town moved to dismiss Marshall's complaint pursuant to M.R. Civ. P. 12(b)(6). The Superior Court (Anderson, J. ) granted the Town's motion, citing Town of Shapleigh v. Shikles, 427 A.2d 460, 466 (Me.1981), in support of its conclusion that Marshall had failed to exhaust his administrative remedies.

Marshall brought this timely appeal.⁶ See 14 M.R.S. § 1851 (2014) ; M.R.App. P. 2.

III. LEGAL ANALYSIS

[¶ 16] To determine the outcome of Marshall's appeal, we consider each of three grounds that might support the court's dismissal of Marshall's complaint against the Town: (A) Marshall's failure to allege facts demonstrating that the CEO's actions were undertaken pursuant to official municipal policy, (B) Marshall's failure to exhaust the available administrative remedies in the Town before filing a claim for damages, and (C) Marshall's failure to allege facts sufficient to demonstrate a violation of his equal protection rights. The second count of...