Summit Realty, Inc. v. Gipe

• Decision Date: 21 February 1974
• Citation: 315 A.2d 428
• Parties: SUMMIT REALTY, INC. v. Walter W. GIPE.
• Court: Maine Supreme Court

Page 428

315 A.2d 428

SUMMIT REALTY, INC. v. Walter W. GIPE.

Supreme Judicial Court of Maine.

Feb. 21, 1974.

Childs, McKinley & Emerson by Dana W. Childs, Richard S. Emerson, Jr., Richard A. Davis, Portland, for plaintiff.

Wilson, Steinfeld, Murrell & Lane by Henry Steinfeld, Thomas P. Wilson, Portland, for defendant.

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

ARCHIBALD, Justice.

This is a sequel to our decision in Buck v. Kilgore, 298 A.2d 107 (Me.1972).

Summit Realty, Inc., (Summit) held options to purchase property in South Portland for the purpose of constructing thereon a gasoline service station and a car wash. On April 14, 1971, Summit applied for a building permit to the defendant (Building Inspector of the City of South Portland) and this permit was issued on July 9, 1971. Because buck was on appeal to the Law Court and because it would be pointless to construct a gasoline service station without a flammable liquid permit, construction was deferred pending our decision. Buck was decided December 20, 1972, and Summit immediately proceeded to exercise its options and consummate an agreement to cause the land to be conveyed to Humble Oil and Refining Company (Humble), the closing date being January 4, 1973.

Before the closing date Summit learned that the defendant was proposing to revoke the building permit, although no indication of this intent was apparent until after Buck was decided. As a result of this knowledge, on January 3, 1973, Summit instituted a complaint against the defendant seeking injunctive relief to prevent the revocation of the building permit. Following a hearing in the Superior Court the defendant was enjoined and ordered to reinstate the building permit, which he had revoked after the complaint had issued. From this order the defendant has appealed, raising two issues, namely:

(1) Because a South Portland city ordinance allows a building inspector to revoke a building permit under certain conditions, and provides for an appeal to the city council in the event of such revocation, and because Summit did not avail itself of this right to appeal, it has, therefore, failed to exhaust this administrative remedy and has no standing to seek injunctive relief.

(2) Assuming that the plaintiff does have standing, the findings and decision of the Justice are not supported by the facts.

We deny the appeal.

Although the notice for hearing before the single Justice was limited to the issuance of a preliminary injunction, the record makes it clear that both parties and the Justice below considered that the trial was on the merits of the action. In neither brief has it been suggested that the order appealed from was not final, rather than interlocutory. The phraseology adopted by the single Justice in his order makes this apparent. ¹ This is likewise consistent with Maine practice. A trial on the merits is often advanced and consolidated with the hearing on an application for a preliminary injunction. Rule 65(b)(2), M.R.C.P. See Field, McKusick and Wroth, Maine Civil Practice, Commentary 65.4. We consider the case, therefore, as an appeal from a final judgment.

Appellant has the affirmative duty of supplying this Court with an adequate record upon which consideration can be given to the arguments advanced in support of the appeal. Although appellant has cited a South Portland city ordinance in his brief, this ordinance was not made a part of the record. Neither has Summit consented to the consideration of this ordinance as though it were a part of the record. In short, appellant is urging that we support his appeal by interpreting a city ordinance which is not properly before us. We have consistently held that the existence of municipal ordinances must be proved and that they are not subject to judicial notice. Ouelette v. Miller, 134 Me. 162, 165, 183 A. 341, 342 (1936); Neallus v. Amusement Company, 126 Me. 469, 473, 139 A. 671, 673 (1927).

We have recently adhered to this position in holding that if an attack is made upon the validity of a specific ordinance, such an ordinance must be included in the record before the Court is under any duty to pass upon its validity. City of Saco v. Tweedie, 314 A.2d 135 (Me.1974). We see no occasion to depart from this rule.

Assuming, arguendo, that the ordinance had been made a part of the record, it does not necessarily follow that the plaintiff has no standing to seek equitable relief because it did not exhaust the administrative remedies available under the ordinance. We held in Stanton v. Trustees of St. Joseph's College, 233 A.2d 718, 724 (Me.1967):

'We accept the doctrine of exhaustion of administrative remedies as a general principle. We recognize, however, that special circumstances may require a relaxation of the rule. Such circumstances occur when the plaintiffs' complaint alleges persuasive grounds for relief which are beyond the jurisdiction of the administrative agency to determine,...