Posted by: Patricia Salkin | July 31, 2012

Maine Supreme Court Upholds City’s Right to Enter into Consent Decree to Settle Zoning Dispute but Remands as to Performance and Use Standards

In 2008, IDEXX learned that Pike was going to expand its quarrying operations, and complained to the City that Pike did not have a right to quarry on the property. Pike claimed it had grandfathered rights to operate the quarry. Pike, the City, and IDEXX eventually agreed to a consent decree, which was approved by the City Council. The decree “effectively treats quarrying activity at the Spring Street property as a grandfathered use that is not subject to the Westbrook Zoning Ordinance’s current prohibition against extractive industries; adopts performance standards that delimit the use; and establishes a scheme for the enforcement of those standards.” Over the objections of Artel and Smiling Hill, the lower court approved the consent decree in 2010. Artel and Smiling Hill appealed.

“The issues raised in this appeal center on the standards and process a court should employ when it reviews a proposed consent decree that will substitute the decree’s requirements for the otherwise applicable requirements of an existing land use ordinance.” The Court first looked into the City’s authority to enter into a consent decree that declares property to be grandfathered under the City’s Zoning Ordinance. “In the zoning context, a municipality’s authority to make a zoning determination must be expressly granted by statute or ordinance.” Westbrook has been granted such authority. The Court noted that its precedent “has long recognized that municipal governments clearly have the right to settle disputed claims against them, thus saving the cost, vexation and uncertainty necessarily attendant upon litigation. Accordingly, a municipal government may settle litigation and compromise land use related claims through a consent decree because the authority for them falls naturally within the authority to sue and be sued.” Therefore, the Court held that the City was authorized to enter into such a consent decree.

Next, the Court considered the standard for judicial review of a consent decree. Artel argued that the court “abused its discretion by failing to ascertain whether the consent decree was fair, reasonable, adequate, and lawful.” In the present case, the Court noted that the “consent decree results in an exercise of judicial authority that superseded the otherwise applicable requirements of a validly enacted municipal zoning ordinance, thereby having an impact on the broader public within the municipality.” The Court also noted that it had not previously addressed the standard by which such consent decrees should be reviewed. The Court held that “consent decrees that affect the public rights should be subject to closer scrutiny than those that resolve purely private disputes, particularly where the consent decree is premised on the exercise of a court’s equitable authority.” The Court then laid out five elements that should be met when reviewing such consent decrees.

(1) The parties have validly consented; (2) reasonable notice has been given to possible objectors and they have been afforded a reasonable opportunity to present their objections; (3) the consent decree will not violate the United States or Maine Constitutions, a statute, or other authority; (4) the consent decree is consistent with express legislative objectives and other zoning-related public policy considerations; and (5) the consent decree is reasonable and is not legally impermissible in its effect on third parties.

The Court stated since “the court could not have anticipated our adoption of the preceding factors and, therefore, it did err by failing to address them.” Furthermore, the Court was satisfied that the court “implicitly considered the factors in conducting the review.” Therefore, the Court held that Artel’s argument failed.

The Court then turned to the process for the approval of the consent decree. “It is well established that a court may enter a consent decree over the objections of intervenors as long as the decree does not dispose of an intervenor’s valid claim. Thus, if an intervenor has brought no independent claims against the other parties to the action, its opposition alone is insufficient to prevent those parties from settling and thereby ending the litigation.” The Court held that since Artel and Smiling Hill was sufficiently informed by the existing record and had an ample opportunity to be heard in opposition, an evidentiary hearing was not warranted.

Finally, the Court turned to Artel’s challenge to the “detailed performance and use standards adopted by the consent decree that will supersede otherwise applicable provisions of the City’s zoning ordinance.” The Court held that “because the decree’s performance standards are not embodied in a contract zoning agreement or, more generally, in the City’s zoning ordinance, the right otherwise afforded to any person by the zoning ordinance to file a complaint with the Code Enforcement Officer that the Ordinance is being violated, thus requiring the CEO to immediately examine the subject of the complaint and take appropriate action will not apply to Pike’s property.” The Court, however, stated that the court could preliminarily approve the consent decree “with its final approval conditioned on the City Council’s adoption of the consent decree’s performance and use standards in a contract zoning agreement or as amendments to the zoning ordinance, following the completion of the applicable procedures.”

Based on the foregoing, the Court affirmed the determination that the City had the authority to enter into the consent decree, they vacated the judgment because of the performance and use standards and remanded for further proceedings.

Pike Industries, Inc. v. City of Westbrook, 2012 WL 2149558 (Me. 6/14/2012)

The opinion can be accessed at: http://www.courts.state.me.us/opinions_orders/opinions/2012_documents/12me78pi.pdf

 


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