Smith v. Town of Pittston

• Decision Date: 07 April 2003
• Parties: Jerald SMITH v. TOWN OF PITTSTON
• Court: Maine Supreme Court

820 A.2d 1200

2003 ME 46

Jerald SMITH v. TOWN OF PITTSTON

Supreme Judicial Court of Maine.

Argued: September 11, 2002.

Decided: April 7, 2003.

James E. Mitchell, (orally), Jim Mitchell and Jed Davis, P.A., Augusta, for plaintiff.

Gregory M. Cunningham, (orally), Bernstein, Shur, Sawyer & Nelson, P.A., Portland, (for Town of Pittston), Thomas B. Federle, Esq., Dyer Goodall & Federle, LLC, Augusta, (for intervenors), for defendants.

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

Majority: CLIFFORD, RUDMAN, ALEXANDER, and CALKINS, JJ.

Dissenting: SAUFLEY, C.J., and DANA, and LEVY, JJ.

RUDMAN, J.

[¶ 1] The Town of Pittston appeals from the summary judgment entered and the injunctive relief granted by the Superior Court, (Kennebec County, Marden, J.), declaring the Town's ordinance, which prohibited the spreading of septage, illegal because it is preempted by state law. The Town asserts that its ordinance is not preempted by state statute but, rather, it is within the police powers granted to it by the state constitutional amendments and statutes extending "Home Rule" to the Towns. Jerald Smith cross-appeals, arguing that the Superior Court erred, first, when it concluded that Smith's application for septage spreading was "moot" because the court had invalidated the Town's ordinance, and second, when the court denied Smith injunctive relief requiring the Town to consider Smith's application before it passed another moratorium. We agree with the Town that its ordinance prohibiting the spread of septage does not violate state law. We, therefore, vacate the judgment of the Superior Court and remand for entry of judgment in favor of the Town.

I. BACKGROUND

[¶ 2] In April 1999, Smith attended the monthly meeting of the Town of Pittston's municipal officers seeking permission to spread septage over property he was in the process of purchasing. At that time, the Town of Pittston did not have an ordinance controlling the spreading of septage. Smith returned to the May 1999 meeting of the municipal officers, and was referred to the Planning Board to file a new business permit application.

[¶ 3] Smith appeared before the Planning Board at its May 27, 1999, meeting and was directed to file an application for consideration at its June meeting. The Planning Board, however, conducted a site visit of the Hunts Meadow Road property Smith held under contract, contingent upon his receiving the permit. At the June 24, 1999, meeting of the Planning Board, Smith presented a new business application, an incomplete site plan review application, and a copy of a Department of Environmental Protection (DEP) application for a permit to spread septage. Smith also paid a twenty-five dollar application fee. The Planning Board tabled action on Smith's application pending its receipt of "legal advice from the Maine Municipal Association (MMA) as to the legal requirements for septage spreading applications." The MMA advised the Planning Board that the municipal officers were the appropriate reviewing body for a septage spreading permit application.

[¶ 4] The municipal officers, on June 23, 1999, certified a petition for a 180-day moratorium on septage spreading to be placed on a warrant at a special Town meeting. On July 28, 1999, the day Smith purchased the property, the voters approved a 180-day moratorium on permits for septage spreading. At their August 4, 1999, meeting, Smith asked that the municipal officers cause his application to be reviewed by DEP prior to the Town's review. The municipal officers declined to act because of the moratorium.

[¶ 5] In October 1999, the Town certified a petition for the Town's first septage ordinance. This proposed ordinance prohibited the "spreading, storing, or dumping of septage in the Town of Pittston" unless approved by the voters of the Town of Pittston. The ordinance also established a minimal performance criteria tied to state statutes and DEP rules, and required the operator to have a monitoring system.

[¶ 6] On November 24, 1999, Smith submitted another DEP septage spreading permit application to the municipal officers for referral to the DEP for review. The parties dispute whether this is the first complete application. Smith contends that the Town officials never faulted Smith's application for incompleteness and that, in fact, one of the Planning Board members indicated what Smith needed to do to complete the June 1999 application. The Town contends that Smith's November application is his only application.

[¶ 7] At a special Town meeting on December 22, 1999, the voters approved the proposed ordinance. That same day, Town officials forwarded Smith's septage spreading application for DEP review. The Town clerk certified a second petition for a warrant article for a second septage ordinance on January 10, 2000, and the voters approved the second ordinance at a special Town meeting on March 18, 2000. In addition to reiterating the prohibition on new septage spreading applications and having an effective date of January 10, 2000, this second ordinance established a fee schedule, a septage monitoring board, and revised and expanded performance criteria.

[¶ 8] On January 6, 2000, the DEP returned Smith's septage spreading permit application because it was incomplete. Smith returned to the municipal officers on February 2, 2000, and requested that his revised application be forwarded to the DEP for review.

[¶ 9] The voters adopted this second ordinance at a special Town meeting on March 18 and voted to appropriate $10,000 to reimburse the Town residents who expended funds to draft and defend the first septage ordinance, and to enter into a septage disposal contract with Interstate Septic Systems to comply with 38 M.R.S.A. § 1305(6) (2001).

[¶ 10] The municipal officers voted to disburse those funds on May 24, 2000. The Town approved a third septage ordinance at a special Town meeting on October 19, 2000. This third ordinance (Ordinance III) replaced the previous two and contained a retroactive date making it effective as of July 23, 1999. Among other requirements, the new ordinance boosted the annual renewal fee to $5,000 per year.

[¶ 11] The DEP approved Smith's permit application on May 15, 2001, granted a five-year license, and set performance requirements and license conditions. Of the almost twenty-five acres Smith proposed to use, the DEP permitted Smith to spread septage on approximately eighteen acres in two separate areas.

[¶ 12] On May 25, 2001, Smith asked the Town to comply with the statute and approve his application, contending that the subsequently adopted ordinance did not apply to his application. The Town replied that its ordinance, adopted in October 2000, prohibited the spreading of septage and as a result the Town would not comply with the statute or consider Smith's request for a permit.

[¶ 13] On December 21, 1999, Smith filed his first three-count complaint against the Town seeking a declaratory judgment that the first Town ordinance violated state law. Smith amended his complaint on May 25, 2000, seeking a declaration that the second ordinance was illegal and demanding that the Town be reimbursed the $10,000 expended in litigation costs.

[¶ 14] After several months of discovery, the Town moved for a summary judgment on January 10, 2001. Smith then further amended his complaint to incorporate twelve counts seeking declaratory and injunctive relief declaring the Town's ordinances illegal and enjoining their application to Smith's permit application.

[¶ 15] The Superior Court entered a summary judgment in favor of the Town on Smith's first eight counts; the first five counts addressed the previous two ordinances, and the three other counts, which the court denied because Smith did not show a particularized injury, addressed Smith's claims about the Town's appropriations. The court reserved judgment on the final four counts pending further briefing and pleading by the parties. Nonetheless, the court did expressly indicate in dicta how it expected to rule on the legality of Ordinance III. The court suggested that the Town's ordinance is preempted by the state statute, concluding "[m]unicipalities may regulate but not prohibit the spreading and dumping of septage."

[¶ 16] On February 5, 2002, the court issued its second opinion entering a summary judgment in favor of Smith on his claim that the Town's ordinance violated state law (Count IX). The court granted the Town a summary judgment on Count XI of Smith's complaint, thereby upholding the saving clause of Ordinance III, which repealed the previous two ordinances.¹ The court concluded that it did not need to decide whether Smith's application was a "pending" application:

This decision renders moot the plaintiff's argument that his application was pending prior to passage of the Town's septage spreading ban. The governing statute directs a municipality without ordinances dealing with septage to follow the DEP guidelines. 38 M.R.S.A. § 1305(6). As this court's order will leave the Town without a valid septage ordinance, the municipal officers under DEP siting and design guidelines may review the plaintiff's application.

[¶ 17] After the court issued its second order, Smith sought the court's reconsideration of whether his application was "moot" and sought a temporary restraining order (TRO) against the Town to keep the Town from adopting another moratorium. Smith indicated in his affidavit that he requested the Pittston municipal officers to review his application approved by the DEP, but the municipal officers declined to do so on the ground that a special Town meeting was scheduled a week later to consider another moratorium. The court denied the motion for reconsideration. It ruled that it would not grant Smith a TRO against the Town from passing another moratorium, but enjoined the Town from enforcing the moratorium, which was scheduled to be considered by the...