Tisei v. Town of Ogunquit

• Decision Date: 25 April 1985
• Citation: 491 A.2d 564
• Parties: Ralph TISEI, et al. v. TOWN OF OGUNQUIT. Erland COOMBS, et al. v. TOWN OF OGUNQUIT.
• Court: Maine Supreme Court

Page 564

491 A.2d 564

53 A.L.R.4th 513

Ralph TISEI, et al. v. TOWN OF OGUNQUIT.

Erland COOMBS, et al. v. TOWN OF OGUNQUIT.

Supreme Judicial Court of Maine.

Argued March 7, 1985.

Decided April 25, 1985.

Fine & Cohen, Janis Cohen (orally), Sheila J. Fine, Ogunquit, for plaintiffs.

Murray, Plumb & Murray, John C. Bannon (orally), E. Stephen Murray, Portland, for defendant.

Before McKUSICK, C.J., and NICHOLS, VIOLETTE, WATHEN, GLASSMAN, and SCOLNIK, JJ.

McKUSICK, Chief Justice.

Defendant Town of Ogunquit appeals the order of the Superior Court (York County) granting summary judgment and attorney's fees to the plaintiffs in these consolidated cases. The Superior Court justice found unconstitutional both the Town's Temporary Moratorium on Development and its Public Sewer Usage Limitations Ordinance, and the Town appealed to this court. We now vacate that judgment. We hold initially that the plaintiffs in the Coombs case lack the standing necessary to bring their lawsuit. Moreover, we find that the record demonstrates the existence of genuine issues of material fact, which make summary judgment inappropriate. Accordingly, we remand these cases for dismissal of Coombs v. Town of Ogunquit because of the Coombses' lack of standing, and for a full hearing on the merits in Tisei v. Town of Ogunquit. We also vacate the award of attorney's fees.

Ogunquit has experienced rapid growth in the last several years. This appeal arises from plaintiffs' challenges to two of the Town's attempts to limit that growth. On August 9, 1983, the Ogunquit selectmen enacted a 120-day emergency moratorium on development. The stated purpose of the moratorium was to avoid overloading the Town's public services (police, fire, road maintenance, waterfront protection), to lessen the strain on the Town's water supply and sewer system, and to protect the soil of the Town. At the same time, the selectmen appointed a committee to review the Town's existing ordinances. Plaintiffs never challenged the first moratorium.

The 120-day moratorium expired on December 6, 1983, and on that date the voters at a special town meeting enacted a "Temporary Moratorium on Development." The "necessity" section of that ordinance reads in part:

Since the problems identified by the Selectmen in their emergency ordinance of August 9, 1983 still remain and since there has not been adequate time for public study, consideration and debate of the many suggestions of the committee, it is necessary to extend or re-enact the terms of the moratorium for a period of an additional 88 days or until the annual Town meeting on March 3, 1984.

During the effective period of the temporary moratorium plaintiffs applied for building permits for motel subdivisions. The Code Enforcement Officer and the Planning Board refused to accept those applications. ¹

At a town meeting on March 3, 1984, the voters enacted a "Public Sewer Usage Limitations Ordinance." The ordinance requires all future developers to obtain from the Town a sewer user permit to discharge into Ogunquit Sewer District's system before the Town will approve any construction that is required by law to connect to the sewers. It also limits the total amount of yearly increase in discharge into the system, as well as the number of permits any builder may receive. The applications are processed on a first-come, first-served basis, and simultaneous applications in excess of the remaining available permits are determined by lottery. The purpose section of that ordinance reads:

The Ogunquit Sewer System is inadequate to meet the current and anticipated needs of the Town for the disposal of domestic and commercial sewage.... While the Sewer District is taking steps to cure some of these problems and increase the system's capacity, these steps cannot all be accomplished immediately and further study by the District is necessary to identify all problems and solutions. Accordingly it is the intent of this Ordinance that new or additional sewage be discharged into the system in moderate amounts to permit some growth but to insure that any excess capacity which develops is portioned out fairly and over a period of time until the District has taken all steps necessary to cure the system's problems and significantly increase its capacity.

By March 5, 1984, the applications for sewer user permits exceeded the number available, and permits were issued by lottery, as provided in the ordinance. Plaintiffs did not receive an adequate number of permits to allow them to proceed with construction of their motels.

Plaintiffs filed separate but identical complaints in February 1984. On April 19, 1984, after the complaints had been amended and the cases consolidated, plaintiffs filed motions for summary judgment on two counts of their three-count complaints, and a Superior Court justice held a hearing on the motion on June 6. The justice granted the motion declaring both ordinances invalid, and, pursuant to M.R.Civ.P. 54(b), entered an order of final judgment on those two counts. This appeal followed.

I. Standing of the Plaintiffs in Coombs v. Town of Ogunquit

As we stated recently in Ricci v. Superintendent, Bureau of Banking, 485 A.2d 645, 647 (Me.1984), "[s]tanding of a party to maintain a legal action is a 'threshold issue' and our courts are only open to those who meet this basic requirement." On appeal we will address questions of standing even if the parties have not raised the issue in the Superior Court. Franklin Property Trust v. Foresite, Inc., 438 A.2d 218, 220 (Me.1981); Nichols v. City of Rockland, 324 A.2d 295, 296 (Me.1974).

To have standing to challenge a municipality's land use regulations, a party must possess sufficient "title, right or interest" in the land to confer upon him lawful power to use it or to control its use. Walsh v. City of Brewer, 315 A.2d 200, 207 (Me.1974). In the case at bar, the affidavits before this court demonstrate that plaintiffs in Coombs v. Town of Ogunquit lack any legal interest in the property that they sought to develop. The Coombses do not own the site of their proposed motel, although they did for a time have an irrevocable option to purchase the parcel. That option expired on February 1, 1984, and the Coombses' complaint was not filed until February 17. On that latter date, and at all times since, the Coombses have had no interest in the land adequate to give them standing. Consequently, the action brought by the Coombses against the Town must be dismissed.

II. The Entry of Summary Judgment

A. The Proceedings Below

At the June 6 hearing on the motion for summary judgment, plaintiffs called three witnesses; the Town cross-examined, and introduced exhibits through, those witnesses. Following that testimonial hearing, the justice entered summary judgment for plaintiffs. Holding this testimonial hearing on a motion for summary judgment was completely irregular and unauthorized. The procedure employed on June 6 is not available under the Maine Rules of Civil Procedure, and it transfored summary judgment, a device designed to simplify and expedite litigation, into a mechanism for confusion and delay.

Rule 56(c) provides that summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law." The rule obviously excludes the taking of oral testimony on a summary judgment motion. ² Creating a record through a testimonial hearing is entirely inappropriate when the Superior Court is considering a summary judgment motion. Summary judgment proceedings address only questions of law; they may not, by definition, deal with factual issues except to the extent of determining from documents before the court that there exists no genuine issue of material fact.

Rule 56 was intended to permit the prompt disposition of cases in which the dispute is solely dependent on the resolution of an issue of law. See 2 Field, McKusick & Wroth, Maine Civil Practice § 56.1, at 33 (2d ed. 1970). If a court should take testimony on a motion for summary judgment, it would be trying fact issues and there is no advantage over a full hearing on the merits. Moreover, the taking of a portion of the available evidence, as in this case, serves to obfuscate the issues and hampers the early disposition of the proceedings, exactly contrary to the commendable goal of Rule 56.

Counsel for both sides continue to assert that they and the trial justice, in the unusual proceedings of June 6, were not trying the consolidated cases on their full merits, but rather were merely introducing evidence on the summary judgment question of whether there was a genuine issue of material fact. For the purposes of this appeal, we will take the parties at their word. In our review of the summary judgment entered by the Superior Court, we will treat the sworn testimony of plaintiffs' witnesses, along with the exhibits introduced through them, as if that evidence had come through affidavits presented in support of or in opposition to the summary judgment motion.

B. Temporary Moratorium on Development

This court has held that municipalities possess the power to regulate their growth and development by enacting "slow growth" ordinances, Begin v. Town of Sabattus, 409 A.2d 1269, 1275 (Me.1979), and other jurisdictions have permitted municipalities to establish short-term moratoria on development. See Associated Home Builders v. City of Livermore, 18 Cal.3d 582, 135 Cal.Rptr. 41, 557 P.2d 473 (1976); Golden v. Planning Board of Town of Ramapo, 30 N.Y.2d 359, 334 N.Y.S.2d 138, 285 N.E.2d 291 (1972); see generally 2 R. Anderson, American Law of Zoning 2d § 10.03 (1976 & Supp.1984). We agree that in appropriate circumstances a municipality may use its police powers to withhold for a limited time approval of any new construction projects. We...