STATE OF MAfNE BUSfNESS AND CONSUMER COURT CUMBERLAND, ss Locfltion: Portland Docket No,: BCD-14-35 'V

) HUGHES BROS., INC., ) ) Plaintiff, ) ) FINDINGS AND ORDER FOR ENTRY v. ) OF JUDGMENT ON COUNTS I AND IT ) OF PLAINTIFF 1S COMPLAINT TOWN OF EDDINGTON, ) ) ) Defendant. )

I. INTRODUCTION

Before the Courl are Counts I imd II of Plaintiffs Complaint. Judgment on Count . r - · - - -... - - ..

I , m was entered by the Court on August 7, 2014. 1 Plaintiff alleges in Cmml I that the I Town conducted an illegal executive session on Jmrnary 29, 2014. CO\ml II is a

Dech1rnlory Judgment in which Plaintiff 11lleges tlrnt the Town ridopted an illegal

moratorium against a qunrry owned by the Plaintiff in th~ Town of ~df!iugton, The pnrties submitted a stipulated tdal record in the fo1·111 of a ustipl1lated Ti.mellnc and Relevant Facts" dated Seplember29, 2014. 2 The parties also filed written argm11cnts1 the last of wWch was received by !he Comt on Novembe1· 12, 2014.

The foots of !his cHse are well set out in the stipulated record, and the Co,nt he1·ein adopts those focts ns having been proven by « preponderance of evidence. While there

1 A subsequent order cnplloned "First Order on Motion to Reconsider" was entered on August I3, 201,1 thl\l nddressed ccrtoln documents t11111 were omitted from the privilege log which wns inspected by the Court in camern on Count 111. The Court Is advised 111111 thc Town has produced oll documents ordered relcosed by the Comt In these two orders, The Com\ hereby corrects on Its own motion the dote II August 6, 2013" in piuogrnph one of the latter order which now will read "August 6, 201,1." 2 An omcnded stipulnted record wos tiled October 14, 2014. nrc ccrtnin pnrngrnpJis (see, e.g. paragraphs 12, 13, and 14) in the Stip\1lated Timeline 1lrnt reference the nbility ofthe parties to supplement the record, the parties confil'med with the Business rmd Consumer Comt on JRmmty 2, 2015 that they would be relying on the Stipulated Timellne and Exhibits as the trial record. The Court lrns rnviewed the stipulated trial record, considered the parties' wl'ittcn arguments, and issues the following findings nnd order for entry of judgment on Counts I and II.

II. FINDINGS AND CONCLUSIONS

A. COUNT 1 - Claim of Illegnl Executive Session l/29/14

On Janumy 29, 2014 the Eddi11gto11 Bomd of Selectmen and Planning Board conducted a joJnt executive session, ostensibly lb consult with Town legal counsel pmsunnt to 1 M.R.S.A § 405(6)(D). Selectmen minutes from. a 11 Special Joint Phmning Board and Selectmen's Meeting" indicate the meeting was called to order at 5:45 p.m. Roll cnll wns conducted and n motion w11s made and approved (3-,0) to go into Ex.ec\1tlve Session. (Ex. 9.) By 7:07 p.m. a motion was made to return to Regulm· Session, The meeting ndjournecl at 7:08 p.m. The minutes ful'ther indicnte t,hat 11 0lher Business" consisted of the following: "Moratorium Ordinance. No Action Tnken." The meeting was adjourned nt 7:08 p.m. id.

Exhibit IO contains the minutes from the Planning Board, 3 which met jointly with the Board of Selectmen. Again, it nppeftl's that the meeting began around 5:38 p.m., nfter which roll call was taken. The Bonrd moved nud approved the joiJlt Executive Session, and Regi1lar Session began again at 7:08 p.m. J These minutes ore in the Court's view clcnrly In be led 11s Planning Board minutes. However, the Town's Attorney J'efers to these minutes RS "the nctunl Selcctmcn 's minutes" on page 8 of its Brief. The Court conferred wllh counsel by phone on Decembel' 23, 2014 nnd the partlcs 11greed tlrnt Exhibit 9 l'epresents the minutes of the B011rd of Selectmen, nnd Exhibit IO represents the minules of the Planning Bo!ll'd.

Plaintiff mnkes a number of arguments as to why this Executive Session was illegal. First, Plnintiff argues that the Town failed to follow Maine's Freedom of Access Act's ("FOAA") requirements fol' going into Executive Session, speclflcnlly ns to the adequacy of the motion made. Second, Plointiff claims that vote to go into the joint session by the Borml of Selectmen was insufficient. Thi.rd, Plaintiff claims that the joint session w11s illegitl. Fom1h, the Plaintiff cliiims that during the Executive Session they deliberated on legislative mnttcrs nnd that this does not fall within any of FOAA 's exceptions to the open meeting requirement. Fifth) Plaintiff cl11i.Jns thnt the moratorium at issue in the· cnse wos approved in the Executive Session, i. Adeq11ac11 ofthe Mo(fo/1 for E.,'ecl/tlve Session

..__ Plaintiff contends that the motion made by both bodies (Board of Selectmen and Pla1u1ing Board) insufficiently described the nntme of the business to be con'ductecl during the closed session. However, as the Town points out, a similal' notice was upheld as sufficient by the Law Court in Vella v. Town ofCamden. 677 A.2d 1051, l 055 (Me. J 996). In actdHionJ given the clear notice from six clays before, on January 23, fOl 4, there can be little doubt tlrnt the public was oware of the purpose of the Executive Session, which would be the "only thing on the agenda" for the Jonua1y 29, 2014 I meeting. (Ex. 8.) The Comt is unpersuaded that !he notice provided in the joint motion wns legally insufficient. ii. Ademwcy o(/he Vote Taken by the Bo(lrd o[Selectmen to go lnlo Exec11/lve Session

Plaintiff argues that Exhibit l Oproves thnt there were not eno,1gh members from the Boill'CI of Selectmen to constitute n (]\IOrnm or to vote to go into Executive Session, or that this exhibit when rend 111 conjunction with Exhibit 9 ntises questious as to whether there wcl'e enough votes by Selectmen to authol'ize the session. However, as noted J previously, the Court interpl'ets Exhibit 9 to be the actual Boat'cl of Selectmen minutes as the members listed for the roll cull (Brooks) Ooodwin 1 Lyford) ai·e the same Selectmen listed in Exhibit 7. The Court finds ExWbit 9 unambiguously estnblishes that that the e

three members voted t~ go into Execu.tive Session, and so concludes that the Plaintif~sV - - - -<( ,, p..,. 1wgument on tmsissfteis\vithout merit } iJ. ().... iii. Lcga/i/y o[Jo/1/1 Executive Session 1i 1~ 1

-­ The Town l'ightfully notes tlmt the Plaintiff cites no cRse law in suppo1t of its

position thnt (he Joint Executive Session was not m1thorized l>y FOAA. Ho),vevor, the Court would note that the public wns provided notice six days priol' that the Town \) intended to follow this procedure (Bx. 8) so it conld lumlly be said this process was n

-- secret from anyone. The Court would furl her note that Plaintiff seems to Imply that If the two bodies conducted joint Executlve Sessions that were otherwise independently legal, that would be permissible, The Comt, having found no improprieties in the prncedme followed by both

Bonrds as to notice and votes taken to go into Executive Sesslon'1 concludes that the joh1t ('"""-···•· ..""··. ..• . ...._" mcetin~.were legal. The Plainflff does not orgue ti.lat the advice given to both Boards by l

the Town's attorney would htwe been different 1 and the Court concludes that under these cil'cumstances no vioh1tion of FOAA has occurred. I Iv. ~T. ,e Subjecr Maller o(llle Exec111/r1e Session

The Comt has reviewed l M.R.S.A §40S(6)(E) and disagrees with Plaintiff's argument regarding the exceptions to Maine's open meeting law. Sull.s.®tion E contains,

4 The Plaintiff does not contest the legality of the votes taken by the Planning Board to go into Executive Session.

flS the Town points 0111, a m1mber of disjunctive clauses which include the following as a ,.------­ discree1 excep!ion: ''[c]onsultations between ri body 01· agency and its attorney concerning the legal rights nnd duties of the body or agency .. . ." The Comt finds thnt the Town }ms met i(s bt ·den to prove that the subject matter of the Executive Session (which was explicitly defined in the Janmuy 23, 2014 notice (Ex. 8) llS a 1·equest for their rittorney 11 to expm1cl on the bnsis.-for his wording in the proposed Moratorium Ordinance") falls within this exception to Maine's open meeting requirement. Underwood v. City ofPresque Isle, 715 A.2<1 148 (Me. 1998).

V. Whether the Mora/or/um was Approved In rite Ex<Jcullve Sess/011

The Plriintiff relies upon a statement made by the Planning Board Chairman at n Selcctmen 's Meeting on March 4, 2014 in which he mentions the Executive Session in ql1estion, He stated 11 questio11s were nsked dtufog it in orde1· to help them decide on how to proceed with wording of such morntorh1m ordinance." (Ex. 15.) The Court construes this statement as entirely consistent with the publicly stated renson for the Executive Session, rind concludes that this isolated statement docs not support the tll'gument that the Morato1'iu111 was actually approv~~ in th~ Ex~cutive Session. To the contrmy, ot'het· L . ... rc;. - • "'>· l•.j • d r J. t - ~ . exhibits including Exhibits 15 indicate thftt the Selectmen sent the issue to a Town Meeting where the Mornto1fom was voted upon and approved by citizens of the Town.

B. COUNT II - Chall enge to Moratorium

Plninti ff raises n number of arguments regmding the Moratodum 5 enacted by the Town ngninst qunrry development, including thut there was no bnsls for its enactment, but also that enacting a morntorium with retrnnctive effect violates Maine law given 1he ~ The Town enacted the morntol'ium ordinance on April 8, 2014 at a Special Town Meeting. The six-month momtorium wns extended on Sept. 23, 2014 by the Selectmen purs\lant to 30-A M.R .S.A § 4356(3) . (Exs. 27 nnd 27(A-D).)

plain langm1ge of the statute which states that a morntorlum "may be adopted on an emergency basis and given immediate effect." 30-A M.R.S.A § 4301(11). The Town argues tlrnt the reasons asserted by proponents for the moratorium are sufficient jt1stification for it, and also that a moratorium can be retroactive since it is defined in part ftS "a bmd use ordinance or other regulation," nncl under Maine law ordinances cnn be

rctrortctivc nssmning certain criteria arn met. v 30-A M.R.S.A § 4356 establishes !he requirements fol' imposition of moratorin by i municipulities. It states, in applicable pm1, that tile morntorhun must be needed !....•..____

-- "[b]ecause the upplicntion of existing comprehensive pl1111s, land use ordinances 01· reg\1lntions 01· other applicable law, ihny, is inadequate to prevent serious public harm from residential, commercial or inclusllfal development in the affected geographic are11. 11

Fmther, 30-A M.R.S.A § 4301(11) defines n mol'ntorium ns:

[A] land use ordinance or other regulation approved by a municipal legislative body, that if necessiuy, may be adopted on an emerge11cy bnsls nncl given immediate effect and tlrnt tcmpornl'ily defers all development, or fl type of development, by withholding any permit, authol'ization or Elpprovul necessnry fo1· the specified type or types of development. Id. i. Retroacf/vlt y oflv!omtor/11111

The Court c~uld find no case in which the issue of retroactivity has been squarely addl'esscd by the Superior Court or the Low Comt. However, the statute by Hs own terms permits ll nnutlcipaUty to withhold "any permit, authorization, or approval necessary fo1· the speci fie type or types of clevelopment (emphasis added)." While the parties focus on the phn,se "given immediate effect" the Court believes that the Town was allowed to withhold approval - by del<1ying finalization of the approval process.-· ctming the mornto1'hlm period. The stah.1te distinguishes mnong permits, authorization, and - approval, S\lggesting to the Court that they mean different things. A permit would b something thnt hns fllreadybeen granted, and approvRI suggests to the Com1 the process of obtaining a permi( (or authorization). The Comt concludes that the Town wiis entitled 1 to stny or defel' completion of the permit approval process by the express terms of this - I ' stntute.

The Cami also reads the phrase "given inu11ediate effect" to mean j\1st that. If a rnorntol'htm is duly approved, ii takes immediate effect, and the 6-monlh clock stiu'ts -..,._...._., .... numing. The Court does not ngree with the Plaintiff tlrnt this phrase prohibits ,­ "retronclivity" particularly where the Legislntme lrns in the Court's view empowered nnmiclpalities to defer, temporarily, certnln types of development uby withholding ... npprovaJ>' for n specified type of development.

ft is quite understandable to the CoUl"t thnt the Plaintiff would be mtlmppy with the decision on "retrnactivlty" given nssurnnces imfol'tunntely made by some Town repl'esenlalives. 111 adclillon, lhe imposition of the morntorlum Jrns no doubt created a financial bt1rden and at least uncertainty f01' the Plaintiff. Such burdens rmcl uncertainty m'e likely by-products of any mornlo1fom, however, which is why the Legislahue has strictly timc-limilcd them. The Coul't trusts that the Town understands tlrnt this mornto1fom cnrmot act as a permanent end-run arnund fair consideration of Plaintiff's permit npplicnlion, but the extended morntorh11n will soon expire, mid the Plaintiff can press fonvard at that time. ii. S11/llcie11c11o(Evidence lo .J11stlfi1 the Moratorium

Plaintiff's final argument is that there is insufficient evidence in the record justifying the imposition of a morntorlum on quarries. However, it is the Plaintiff's bmclen lo "establish the complete absence of any slate of facts that would s\1pport the need fol' a moratol'ium." Minster v. Town o/Grny, 584 A.2d 646, 649 (quoting Tlsei v. Town ofOgunquit, 491 A.2d 564, 569 (Me. I985). It is cle1\l' to the Court based on the stipttlnled record that- thel'e wfts sig11iflcm1t - ---·--· .. .. opposition . . to the ­ quany from members of the Town, and !hey arllc,1lated theil' reasons fol' theit· positions. These reasons included eITecls on iiir quality, walet· q\iality, lrnfftc, nnd prnpel'ly values. Oue c0\1ld 1·ensonnbly disagree with the l'ensons asserted by the quany opponents, ns well ns their view of what is best for the Town. However, proponents of the q\larry were also given fill opportt1nity to make thcil' cnse ond to provlde justification fo1· tl~eir positions, and a vote was taken.

Fimdamentfllly, it wo\11<1 not be appropriate for this Court to inject itself into this sort of legisJo11ve process given the ample opportunity provided to both sides fo innke their cnse in lln open process. Disngl'eement with the O\\tcome of the vote is not equivalent tO CStab)ishiJlg IClllC Coinplete ftbSCI\Ce Of filly Stale Of faCtS 11 S\IPP01111lg this morntol'ium.

ITI. CONCLUSION

Based on the foregoing the entl'y will be:

Judgment 011 Counts I 11nd II c11tc1·ed for Dcfeudnut, Towu of E<lcllugton.

DATE JUSTICE, BUSINESS CONSUMER COURT

Entered on the Docket:_ i.J.Js= 8 Copies sent via Mail__Electronically_£