Walsh v. City of Brewer
| Decision Date | 05 February 1974 |
| Parties | Thomas T. WALSH v. CITY OF BREWER et al. |
| Court | Maine Supreme Court |
Edward H. Keith, Bangor, for plaintiff.
Libhart & Ferris, by Wayne P. Libhart, Brewer, for defendants.
Before DUFRESNE, C. J., and WEBBER, WEATHERBEE, POMEROY, WERNICK and ARCHIBALD, JJ.
Plaintiff, Thomas T. Walsh, instituted an action in the Superior Court (Penobscot County) and achieved judgment in his favor. The defendants 1 have appealed from the judgment.
Plaintiff filed his complaint on September 29, 1970, and was permitted to amend, on November 25, 1970, by substituting a new complaint, designated 'Complaint for Declaratory Judgment', which included additional allegations concerning events occurring after the action had been commenced.
Basically, plaintiff claimed legal rights (1) to a license for a mobile home park on Eastern Avenue in Brewer under the City's 'Mobile Home Park, Trailer Park and Camping Park' (hereinafter 'Mobile Home Park') ordinance and (2) to a permit from the Zoning Board of Appeals approving the project, as required by the 'Zoning' ordinance. Plaintiff asserted that various acts, and omissions to act, by defendants had deprived him of such license and permit to which he was legally entitled and thus he had been wronged by defendants. Plaintiff prayed, inter alia, that the Court enter a declaratory judgment that plaintiff (1)
'. . . is entitled to the issuance of a license to operate a mobile home park as proposed by him in his plan submitted to the Planning Board of the City of Brewer'
and (2)
'. . . is entitled under the zoning ordinance to the issuance of a permit to operate (such) . . . mobile home park . . ..'
Since we conclude, as hereinafter more fully explained, that on the record before us plaintiff lacks 'standing to sue', we sustain the appeal of defendants and remand the case to the Superior Court for further proceedings.
Plaintiff's interest in developing a mobile home park in Brewer began in the spring of 1969.
The Brewer Mobile Home Park ordinance (Chapter 25 of the City Ordinances), enacted on March 10, 1969, had declared it
'. . . unlawful for any person to maintain or operate within the limits of the City of Brewer, any . . ., mobile home park . . ., unless such person shall first obtain from the licensing authority, (the Brewer City Council) a license therefor.'
subject to the further conditions that any mobile home park shall be set back 200 feet from any right-of-way line and otherwise conform to requirements of the Mobile Home Park ordinance.
On April 28, 1970, plaintiff filed an application for a mobile home park license with the Brewer City Clerk, Arthur Verow. The Clerk forthwith referred the application to the Planning Board.
Plaintiff-his wife, Patricia A. Walsh accompanying him-first met with the Planning Board at the beginning of May, 1970.
On May 16, 1970 plaintiff and a surveyor whom he had engaged to assist him, Dana W. Bartlett, attended another meeting of the Planning Board. At this meeting the Board 'approved' a plan for a mobile home park on Eastern Avenue
'with the qualification that 'final layouts and engineering arrangements should meet with the approval of the City Engineer and the Consultant Planner' (Mr. Hans Klunder).'
Plaintiff was given a list which, over and above 'the regular requirements', included special requirements relating to the 'State Plan', the manner and placement of mobile homes on both interior and exterior lots and distances to separate the western boundary and the eastern line of the property from any mobile home.
Plaintiff and Mr. Bartlett conferred on various occasions thereafter with the City Engineer (defendant, Harry Woodhead) and the Planning Consultant, Mr. Klunder.
On June 4, 1970 plaintiff filed with the Building Inspector (defendant, William L. Wetherbee) a request, addressed to the Zoning Board of Appeals, for
'permission to construct and operate a mobile home park of approximately 100 units, on Walsh Property located on the northerly side of Eastern Avenue.'
The Building Inspector informed plaintiff that this request to the Zoning Board of Appeals would not be considered at the June meeting of the Board-to avoid giving the impression that the Board was 'rushing it through.'
On June 22, 1970 the Planning Board held another meeting at which the Eastern Avenue mobile home park project was on the agenda. The Planning Board had received a memorandum from Mr. Klunder, the City's Consultant Planner, in which he had expressed reservations about use of the property for a mobile home park but nevertheless indicated that 'the latest layout of the proposed park was adequate.' Plaintiff did not attend this June 22, 1970 meeting. Many Brewer residents were present, however, and voiced opposition to the mobile home project. The meeting produced no action by the Planning Board.
At a meeting of the City Council on June 29, 1970, a number of residents protested against the mobile home park being contemplated for Eastern Avenue. Plaintiff was not in attendance. At this meeting, the City Council passed an
'order . . . directing the City Solicitor to prepare a revision of the Mobile Home Park Ordinance (Chapter 25).'
At the beginning of July, 1970, plaintiff and his attorney were informed that, upon the direction of the Assistant City Solicitor, the Zoning Board of Appeals would postpone hearing the request of plaintiff for a mobile home park on Eastern Avenue
'until such time as they had been formally notified that the Planning Board had finally approved the plan.'
The Planning Board held a meeting on July 6, 1970 at which plaintiff submitted the latest revision of a plan for the mobile home park. Approximately 200 persons expressed strong opposition. The Planning Board took no action. Thereafter, it continued with non-action during several months while the Brewer City Council proceeded to amend both the Brewer Mobile Home Park and Zoning ordinances.
A proposed revision of the Mobile Home Park ordinance was first presented to the City Council on July 13, 1970. Plaintiff appeared and objected to some of the modifications proposed. Suspending its rules, the City Council gave the revision first and second readings. At a special meeting held on July 20, 1970 the City Council again suspended its rules and gave final passage to a revised Mobile Home Park ordinance. It became effective July 30, 1970. The revised Mobile Home Park ordinance would permit a mobile home park on the Eastern Avenue site consisting of not more than 45 mobile home lots and would thus effectively frustrate the project envisioned by plaintiff, which involved 100 mobile home lots.
On September 10, 1970, the City Council received a proposed amendment to the Brewer Zoning ordinance placing the Eastern Avenue tract in the 'single residence' zone in which use for a mobile home park was prohibited. The proposed amendment was submitted to the Planning Board. On October 28, 1970, the Planning Board advised the City Council that it did not recommend the change of the zone. Nevertheless, at a special meeting on November 2, 1970, the City Council suspended its rules, gave the amendment a first and second reading and, again suspending its rules, passed the amendment to be engrossed and finally enacted it, effective November 12, 1970.
which it put into effect, thereby precluding
'. . . the Planning Board, the Building Inspector, the City Engineer, the Chief of the Fire Department, and Chief of Police and the Health Officer from taking further action upon Plaintiff's license application.'
After a full hearing, the presiding Justice found: (1)
'(p)laintiff was unable to get a written statement from the Planning Board either recommending or disapproving his proposal'
and (2)
'(t)here appears to be no justification for the Planning Board's refusal to act.'
The presiding Justice further determined, as ultimate conclusions of law, that (1)
'The amendment to Chapter 24 (Zoning Ordinance) enacted on November 2, 1970 is not applicable to Plaintiff's application (regarding the Eastern Avenue site at issue) . . . nor to any subsequent application by Plaintiff for a license to operate under Chapter 25 ;
and (2)
'The amendment to Chapter 25
Accordingly, the presiding Justice ordered the Brewer Planning Board to (1)
'. . . resume consideration of Plaintiff's application . . . as to the proposed site and to apply...
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