State ex rel. Brennan v. R.D. Realty Corp.

Decision Date18 December 1975
Citation349 A.2d 201
PartiesSTATE of Maine ex rel. Joseph E. BRENNAN, Attorney General and the Board of Environmental Protection v. R. D. REALTY CORPORATION.
CourtMaine Supreme Court

Cabanne Howard, Asst. Atty. Gen., Augusta, for plaintiff.

Marshall, Raymond & Beliveau by John G. Marshall, Lewiston, for defendant.

Before DUFRESNE, C. J., and WEATHERBEE, POMEROY, WERNICK, ARCHIBALD and DELAHANTY, JJ.

POMEROY, Justice.

The jurisdiction of the Maine Board of Environmental Protection to issue or deny approval of a development under the Site Location of Development statute, 38 M.R.S.A. § 481 et seq., is in issue in this case as a result of the denial of a permanent injunction.

That appellee, R. D. Realty Corporation is creating a subdivision within the meaning of 38 M.R.S.A. § 482(5) is not denied.

Also agreed is that appellee did not 'notify the commission in writing of his (sic) intent and of the nature and location of such development' before commencing its construction. 38 M.R.S.A. § 483.

The complaint for injunction was denied as the result of a finding by the Court that the claim asserted by appellee that it was exempt from the provisions of the Act under the provisions of 38 M.R.S.A. § 488 1 was valid.

This appeal by the State was seasonably entered following the denial of a complaint for injunction.

We deny the appeal.

The facts are not in dispute. In late 1966 or early 1967, the property in question was acquired by the Dube family. A corporation was subsequently formed with family members as sole stockholders with the intention of developing the area sufficiently to permit the sale of lots.

In 1967 a contractor was hired to clear 5 miles of rough roads to enable prospective purchasers to be shown the property during periods of favorable weather.

In that same year a cottage was built on the property. The cottage was used as an office and occasionally as an overnight dwelling. Electricity was connected to the cottage. A small area was cleared and made suitable for use as a small airplane landing area.

In 1968 an engineer was employed to prepare a rough plan of the area and to cause the lot sketched on the plan to be generally indicated on the surface of the earth. This work was completed during that year.

Many thousands of dollars have been expended by the developer in preparation of the development for the sale of lots.

All these facts were found as fact by the presiding Justice.

The complaint for injunction was in two Counts.

Count I of the complaint alleged a violation of the Site Location of Development law, 38 M.R.S.A. § 481 et seq.

Count II alleged violation of the municipal subdivision law, 30 M.R.S.A. § 4956.

In ruling as he did the presiding Justice based his conclusion that there was no violation of law on Sec. 488 of 38 M.R.S.A. and Sec. 4956 of 30 M.R.S.A.

Sec. 488 provides that:

'This Article shall not apply to any development in existence or in possession of applicable state or local license to operate or under construction on January 1, 1970.'

The conclusion which the Justice below reached was:

'I find that this development was 'under construction' on January 1, 1970, and therefore is exempted by section 488 from application of the Site Location of Development Law.'

As to Count II of the complaint, the Justice referred to 30 M.R.S.A. § 4956, paragraph 5, which reads as follows:

'This section shall not apply to proposed subdivisions approved by the planning board or the municipal officials prior to September 23, 1971 in accordance with laws then in effect nor shall they apply to subdivisions as defined by this section in actual existence on September 23, 1971 that did not require approval under prior law . . ..'

He then concluded as follows:

'I find that the area under consideration was subdivided prior to September 23, 1971 and that the lots were actually surveyed and marked either by steel pins or regular markers and numbered at a time when no approval was required by the municipality under prior law and therefore was exempted by the terms of 30 M.R.S.A. Section 4956.'

The 'prior law' was the municipal subdivision law as it read in 1964. This section provided, among other things, 'A municipality may regulate the subdivision of land.'

At all times material hereto the Town of Phippsburg had no regulation controlling the subdivision of land. The State points to subsection B of Section 1, 30 M.R.S.A. § 4956, which reads, in part, as follows:

'In a municipality which does not have a planning board, the municipal officers shall act in its stead for the purposes of this section.'

This, the appellant says, requires that the municipal officers give approval to a proposed subdivision before it can be lawfully made, even though the municipality has no planning board and has adopted no regulations for subdivisions.

With this argument we cannot agree.

30 M.R.S.A. § 4956 came into being as a result of Public Laws of Maine, 1957, Chapter 405. This Chapter was entitled 'An Act Revising the General Laws Relating to Municipalities.' Section 1 amended the Revised Statutes by adding thereto a new chapter, which it numbered 90-A.

Section 61 of Chapter 90-A (of which subdivision of land is a part), provides:

'A municipality may act for the purpose of municipal development according to the following provisions.' (Emphasis supplied)

Among those provisions is that with which we are presently concerned: 'A municipality may regulate the subdivision of land.'

This was merely an Enabling Act.

Certainly it cannot be argued that the Selectmen of the Town of Phippsburg had authority to regulate the subdivision of land in the absence of any ordinance enacted pursuant to this Enabling Act. Since the Town of Phippsburg did not see fit to adopt a subdivision ordinance until long after the subdivision was commenced in 1967, we think it apparent there was no requirement of municipal approval for the subdivision at that time.

We read the section to which appellant refers, i. e.,

'In a municipality which does not have a planning board, the municipal officers shall act in its stead for the purposes of this section.'

to mean that in any municipality which had adopted a land subdivision ordinance or regulation (which Phippsburg had not) if there was no planning board in the municipality which could approve the plat of a proposed subdivision, the municipal officers were directed to act in the stead of a planning board for the purpose of giving approval.

In the absence of a duly enacted regulation for subdivision no municipal officer's approval was required for a subdivision under the statute as it read at the time this subdivision was undertaken.

We hold the presiding Justice was correct in his conclusion that the subdivision in this case was made at a time when no approval was required by the municipality. 30 M.R.S.A. § 4956.

Appellant directs attention to 30 M.R.S.A. § 4956 and observes that to be free of the application of the municipal subdivision law, the subdivision must have been 'in actual existence' on September 23, 1971.

The Legislature's intention, the appellant says to quote from its brief, is clear 'that in the case of projects for which municipal approval was not required only those actually completed by September 23, 1971, would qualify for grandfather's rights.'

Again we must disagree.

The statute uses the words 'in actual existence' and not the words 'actually completed.'

What was 'in actual existence?'

The answer is: 'Subdivision as defined by this section.'

What section?

The answer is: 'Section 9456, paragraph 5, of 30 M.R.S.A.'

A subdivision was defined by the Act in effect at all times material to this case as 'A division into three or more lots in urban areas or four or more lots in rural areas . . ..'

There is no dispute in this case but that there had been a division of the total parcel of land into many lots and as the presiding Justice found: 'these lots were actually surveyed and marked by steel pins or regular markers and numbered' before September 23, 1971, the critical date under the statute.

We are satisfied then that the presiding Justice was correct in his finding that the subdivision was 'in actual existence' within the meaning of the applicable statute.

We likewise conclude the presiding Justice was correct in his finding that 38 M.R.S.A. § 488 exempted this development from the application of the Site Location of Development law because 'the development was under construction on January 1, 1970.'

The appellant argues that the appellee had abandoned whatever 'grandfather' rights which existed because, it says, nothing was done to prosecute the development for a perior of five years.

The presiding Justice found as fact based on believable evidence that there was active and continuous development of the project during the years 1967, 1968 and 1969.

In view of this finding which is supported by credible evidence, it becomes unnecessary to discuss what period of inactivity will justify a conclusion there has been an abandonment of the subdivision.

That the Superior Court had jurisdiction of the subject matter and the parties is undoubted.

That this Court had jurisdiction to consider and decide the appeal from the denial of the injunction by the Superior Court Justice is likewise apparent.

We have, therefore, reviewed this record and have concluded that the complaint for an injunction was properly denied. This is our decision in the case.

However, we do have another concern. This is a matter which was not raised by the parties, either in their briefs or at oral argument, but which we choose to discuss in some detail.

The complaint for injunction recites that 'the plaintiff, Attorney General of the State of Maine, is acting for himself and on behalf of the Board of Environmental Protection.'

Two separate and distinct statutes, he alleges, are authority for the action taken: to wit, 38 M.R.S.A. §§ 481-488 2 and 30 M.R.S.A....

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