COASTAL MAINE BOTANICAL GARDENS v. TOWN OF BOOTHBAY MAINE

Filing 36

ORDER ON JOINT MOTION SEEKING APPROVAL OF CONSENT DECREE re 29 Joint MOTION for Entry of Consent Decree By JUDGE JON D. LEVY. (akr)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
COASTAL MAINE BOTANICAL
GARDENS,
Plaintiff,
v.
TOWN OF BOOTHBAY, MAINE,
Defendant,
VAUGHN C. ANTHONY, et al.,
Intervenors.

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ORDER ON JOINT MOTION SEEKING APPROVAL
OF CONSENT DECREE
This case arises from a dispute between Plaintiff Coastal Maine Botanical
Gardens (“Coastal Maine”) and Defendant Town of Boothbay (the “Town”) over the
Town’s Board of Appeals’ decision to rescind a development permit which was
previously granted to Coastal Maine by the Town’s Planning Board. Coastal Maine
and the Town have submitted a Joint Motion for Entry of a Consent Decree (ECF No.
29).
I. BACKGROUND
A.

The Parties
Coastal Maine filed its Complaint (ECF No. 1) against the Town in December

2017 asserting that the Town violated its procedural due process rights under the
Fourteenth Amendment of the United States Constitution (Count I). The Complaint

also seeks review of a governmental action pursuant to the judicial review process
established by Maine Rule of Civil Procedure 80B (Count II); alleges a violation of
Coastal Maine’s procedural due process rights under the Maine Constitution (Count
III); and requests a declaratory judgment (Count IV). The Town filed a responsive
Motion to Dismiss (ECF No. 9) pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure, asserting that the Complaint’s procedural due process allegations fail to
state a claim upon which relief can be granted. The Motion to Dismiss seeks the
dismissal of the federal due process claim and also urges the Court to decline to
exercise supplemental jurisdiction over the Complaint’s remaining state law claims.
See ECF No. 9 at 1; see also 28 U.S.C.A. § 1367(c)(3) (2018).
The Intervenors – Vaughn C. Anthony, Joanne A. Anthony, Kevin Anthony,
and Jason C. Anthony (collectively, the “Anthonys”) – own property that abuts
Coastal Maine’s property. Their unopposed Motion to Intervene (ECF No. 15) was
granted by an Order entered March 5, 2018 (ECF No. 18).

On March 22, the

Anthonys filed a cross-claim against the Town (ECF No. 24) which seeks relief
pursuant to Maine Rule of Civil Procedure 80B, and a Motion to Dismiss the
Complaint (ECF No. 25) in which they joined the arguments previously asserted by
the Town in support of its Motion to Dismiss (ECF No. 9).
The issues raised by the parties in this proceeding largely overlap with the
issues raised by the same parties in a proceeding pending in the Lincoln County
Superior Court, docket no. WISCSC-2018-AP-1. See ECF No. 9 at 11; ECF No. 15 at
2. The Superior Court action was ordered stayed pending resolution of this federal
action. See ECF No. 15 at 2.
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B.

Coastal Maine’s Development Permit
According to the Complaint, Coastal Maine operates a nationally recognized

botanical garden. In an effort to accommodate a growing number of visitors, Coastal
Maine sought to expand its permitted use of its property. Specifically, Coastal Maine
sought the necessary permits to construct a new visitor center, a new entrance with
a drop-off plaza and pedestrian bridge, and new visitor and staff parking lots, as well
as to improve the existing entrance road. The Town’s Planning Board unanimously
approved Coastal Maine’s development permit. With the permit in hand, Coastal
Maine began construction in early 2017.

The Anthonys appealed the Planning

Board’s permitting decision to the Town’s Board of Appeals.
The Board of Appeals initiated hearings on the appeal in February 2017. It
then conducted a review process which included public fact-gathering hearings and
the receipt of expert evidence.

On September 21, 2017, the Board closed the

evidentiary record and established a process for deliberations. On the same day, the
Board of Appeals conducted a straw poll, which resulted in a 4-1 initial decision in
favor of upholding the permit.
Sometime after the September 21 meeting, two members of the Board of
Appeals each conducted private tours of the development site and the Anthonys’
property (hereinafter, the “ex parte site visits”), that were guided by the Anthonys.
The ex parte site visits became known to the full Board of Appeals on October 4. In
response, the Board as a whole sought to cure the potential prejudice of the ex parte
site visits by conducting an on-the-record site visit on October 17. Also on October
17, during a meeting of the Board of Appeals, one of the members who had
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participated in an ex parte site visit stated that he intended to withdraw his support
for the permit. During the same meeting, the other member who had participated in
an ex parte site visit stated that he had routinely engaged in independent evidence
gathering when ruling on matters before the Board of Appeals, and that he believed
Board members were entitled to identify and rely upon information outside the record
when ruling on matters before the Board.
Coastal Maine submitted a letter to the Board dated November 7, which
requested that the two members who engaged in ex parte site visits be recused from
the final vote on the appeal, which was scheduled for November 9. At the November
9 meeting, the Board reviewed details of the ex parte site visits, and voted
unanimously not to require the recusal of any of its members.
The Board ultimately voted by a 3-to-2 margin to rescind Central Maine’s
permit. The Board’s decision contained two parts. Part one of the decision, which
was the basis for the Board’s ultimate decision to rescind the permit, found that the
proposed development was not a permitted use in the Watershed Overlay Zone. Part
two of the decision found that Coastal Maine’s development application met all of the
remaining relevant development review criteria contained in the Boothbay Zoning
Ordinance. Had the two members who participated in the ex parte site visits been
recused, the remaining Board members’ votes suggest that the Board would have
upheld the permit by a vote of 2-to-1.
C.

The Proposed Consent Decree
In March 2018, settlement negotiations yielded an agreement between Coastal

Maine and the Town, which they now seek approval of through their Joint Motion for
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Entry of a Consent Decree (ECF No. 29). The proposed Consent Decree was approved
by a vote of the Town’s Board of Selectman in late March, see ECF No. 29 at 2, and if
approved by the Court, the Decree will vacate the Board of Appeals’ decision and
authorize Coastal Maine to “complete all construction pursuant to the Development
Permit approved by the Boothbay Planning Board on December 15, 2016 and as
amended April 19, 2017 and all associated building permits and, thereafter, to use all
structures and facilities on its current property . . . in compliance with all applicable
law, ordinances, regulations, licenses, permits and approvals.” ECF No. 29-1 at ¶ 2.
The proposed Consent Decree also provides that Coastal Maine will dismiss all claims
against the Town, rendering the Town’s Motion to Dismiss moot. See ECF No. 29-1
at ¶ 8.
A hearing on the proposed Consent Decree and the Anthonys’ Motion to
Dismiss was held on April 5, 2018. See ECF No. 30. Thereafter, the Anthonys filed
their Response in Opposition to the Proposed Consent Decree, arguing that the
Decree’s entry will prevent them from mounting their challenge to part two of the
Board’s decision pursuant to Rule 80B of the Maine Rules of Civil Procedure. See
ECF No. 33. In response, Coastal Maine and the Town argued at the April 5th
hearing, that the Consent Decree will not have that effect, and, to make that a
certainty, they subsequently proposed revising the Consent Decree to explicitly
acknowledge and preserve the Anthonys’ pending Rule 80B appeal in state court.1

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Initially, the relevant portion of the proposed Consent Decree stated:
2. Current Construction. CMBG is allowed to complete all construction pursuant to the
Development Permit approved by the Boothbay Planning Board on December 15, 2016 and as
amended April 19, 2017 and all associated building permits and, thereafter, to use all structures
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See ECF No. 35 at 3. For the reasons explained below, I grant the Joint Motion for
Entry of Consent Decree.
II. LEGAL ANALYSIS
A.

Jurisdiction
“[A] Consent Decree must spring from and serve to resolve a dispute within

the court’s subject-matter jurisdiction.” Local No. 93, Int’l Assoc. of Firefighters v.
City of Cleveland, 478 U.S. 501, 525 (1986). Thus, as a threshold matter, the Court
must be satisfied that it has jurisdiction in order to proceed. See Steel Co. v. Citizens
for a Better Env’t, 523 U.S. 83, 94 (1998) (“Without jurisdiction the court cannot
proceed at all in any cause.”) (quoting Ex parte McCardle, 7 Wall. 506, 514 (1868)).
Generally, when a party asserts federal question jurisdiction, “[d]ismissal for lack of
subject-matter jurisdiction because of the inadequacy of the federal claim is proper
only when the claim is ‘so insubstantial, implausible, foreclosed by prior decisions of
this Court, or otherwise completely devoid of merit as not to involve a federal
controversy.’” Id. at 89 (quoting Oneida Indian Nation of N.Y. v. County of Oneida,
414 U.S. 661, 666 (1974)).

and facilities on its current property (the “Property”) in compliance with all applicable laws,
ordinances, regulations, licenses, permits and approvals. The Board of Appeals decision dated
November 9, 2017 is vacated. Any further development beyond the December 15, 2016 Planning
Board approval, as amended, will need to comply with then existing law. Parking lots within the
Watershed Overlay Zone shall be monitored for stormwater quality in accordance with the
monitoring plan as set forth in Paragraph 6 below.
ECF No. 35 at 3. The updated Consent Decree replaces the sentence “The Board of Appeals decision
dated November 9, 2017 is vacated[]” with the following language:
That portion of the November 9, 2017 Board of Appeals decision concluding that CMBG’s use is
not an allowed use within the Watershed Overlay Zone is vacated. Nothing herein is meant to
bar the Intervenors from litigating their pending Rule 80B appeal in state court, Vaughn C.
Anthony, et als. v. Town of Boothbay, et al., Docket No. WISSC-AP-2018-02.
Id.
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Here, Coastal Maine’s Complaint – in Count I – asserts a federal due process
violation as the basis for federal question jurisdiction. ECF No. 1 at ¶¶ 5764. Specifically, the Complaint – as characterized by Coastal Maine in its Opposition
to the Motion to Dismiss – alleges a procedural due process violation based on the
Board of Appeals’ failure to require the recusal of the two members who participated
in ex parte site visits of the properties. See ECF No. 14 at 5. Coastal Maine avers
that this deprived it of due process because the ex parte site visits were conducted
after the Board of Appeals had closed the evidentiary record, and the visits were led
by the Anthonys, who were, at the time, actively opposing Coastal Maine’s permit
application. Id.
Federal courts do not “sit as a super zoning board or a zoning board of appeals.”
Raskiewicz v. Town of New Boston, 754 F.2d 38, 44 (1st Cir. 1985); see also Vill. of
Belle Terre v. Boraas, 416 U.S. 1, 13 (1974) (Marshall, J., dissenting). Thus, cases
involving “run of the mill dispute[s] between a developer and a town planning agency”
do not rise to the level of a federal due process violation. Creative Env’ts, Inc. v.
Estabrook, 680 F.2d 822, 833 (1st Cir. 1982).

Nonetheless, federal due process

challenges to land use and zoning decisions are not per se dead on arrival. Although
an “error by a zoning board is . . . not federally actionable in and of itself,” it may
become actionable if the allegedly violative decision is “‘tainted with fundamental
procedural irregularity, racial animus, or the like.’” Chongris v. Bd. of Appeals of
Town of Andover, 811 F.2d 36, 42 (1st Cir. 1987) (quoting Creative Env’ts, 680 F.2d
at 833).

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The constitutional claim asserted by Coastal Maine in this case – arising from
the Board of Appeals’ decision not to require the recusal of the two members who
engaged in ex parte site visits led by opponents of the proposed development – does
not, on its face, “clearly appear[] to be immaterial and made solely for the purpose of
obtaining jurisdiction or . . . wholly insubstantial and frivolous.”2 Steel Co., 523 U.S.
at 89 (1998). Further, it is reasonable to interpret the Complaint’s allegations as
challenging conduct that could, depending on all of the attendant circumstances, rise
to the level of a fundamental procedural irregularity.

Because the Complaint’s

allegation of a federal controversy is not patently frivolous, federal question
jurisdiction exists and it is appropriate for me to consider the proposed Consent
Decree without separately deciding whether the Complaint fails to state a claim upon
which relief may be granted. See Chiplin Enters., Inc. v. City of Lebanon, 712 F.2d
1524, 1528 (1983) (concluding that a federal complaint challenging a zoning decision
which failed to state a viable federal claim should have been dismissed by the trial
court for failure to state a federal claim, and not for lack of federal subject matter
jurisdiction).
B.

Evaluation of the Proposed Consent Decree
“A consent decree ‘embodies an agreement of the parties,’ that they ‘desire and

expect will be reflected in, and be enforceable as, a judicial decree.’” Aronov v.
Napolitano, 562 F.3d 84, 90-91 (1st Cir. 2009) (quoting Frew ex rel. Frew v. Hawkins,

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This standard is less demanding than the Fed. R. Civ. P. 12(b)(6) standard for failure to state a claim upon
which relief may be granted. To survive a motion to dismiss pursuant to Rule 12(b)(6), a “complaint must contain
sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Wood v. Moss,
134 S. Ct. 2056, 2067 (2014) (internal quotation marks omitted). A claim is facially plausible “when the plaintiff
pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
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540 U.S. 431, 437 (2004)). A consent decree, unlike a private settlement agreement,
“may ultimately be enforceable by contempt.” Id. Thus, “[t]he parties to a consent
decree expect and achieve a continuing basis of jurisdiction to enforce the terms of
the resolution of their case in the court entering the order.” Id. at 91 (internal
quotation marks omitted). It follows that “[c]ourt approval of a Consent Decree must
involve some appraisal of the merits.” Id.
In assessing the merits, the “[C]ourt’s discretion is restrained by the clear
policy in favor of encouraging settlements.” Durrett v. Housing Authority of City of
Providence, 896 F.2d 600, 604 (1st Cir. 1990) (internal quotation marks omitted).
“Subject to this principle, the district court must assure itself [(1)] that the parties
have validly consented; [(2)] that reasonable notice has been given possible objectors;
[(3)] that the settlement is fair, adequate, and reasonable; [(4)] that the proposed
decree will not violate the Constitution, a statute, or other authority; [(5)] that it is
consistent with the objectives of Congress; and, [(6)] if third parties will be affected,
that it will not be unreasonable or legally impermissible as to them.” Id.; see also
Pike Industries Inc. v. City of Westbrook, 45 A.3d 707, 717 (Me. 2012). I consider each
of the Durrett criteria in turn.
1. Valid Consent
Coastal Maine and the Town filed the Consent Decree after having secured a
vote by the Town’s Board of Selectman at a public hearing held on March 28, 2018,
approving of the same. See ECF No. 29 at 2. Based on the representations of their
attorneys, valid consent has been given by both Coastal Maine and the Town.

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2. Reasonable Notice
The Anthonys received notice of the agreement on March 19, 2018. See id. On
March 23, 2018, a public notice was posted at the Boothbay Town Office alerting the
public to the Board of Selectman’s March 28, 2018 hearing. See id. On the same day,
copies of the proposed Consent Decree were made available to the public at the
Boothbay Town Office and a copy was provided directly to counsel for the Anthonys.
See id. at 2-3. Thus, reasonable notice was provided.
3. Whether the Proposed Decree is Fair, Adequate, and Reasonable
Coastal Maine and the Town contend that the Consent Decree is fair, adequate
and reasonable as to both parties because its ends their time-consuming and costly
dispute. Additionally, they contend that the agreement benefits the Town because it
(1) resolves Coastal Maine’s attorneys’ fee claim against it “with an additional
indemnity provided by Coastal Maine if necessary,” id. at 3; (2) permanently protects
75 acres of land owned by Coastal Maine through a conservation easement; and (3)
establishes an enforceable storm water monitoring plan. Id. at 3. As for Coastal
Maine, they contend that the agreement provides clarity about its development plans
and allows it “to complete pending development work in time to avoid financial losses
caused by a delay of the [Coastal Maine’s] seasonal opening.” Id. at 4. A plain reading
of the Consent Decree supports Coastal Maine and the Town’s contentions.
Furthermore, the Anthonys have not suggested that the process and negotiations
resulting in the Consent Decree were unfair in any respect, and there is no indication
that the negotiations were not conducted at arms’ length.

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4. Whether the Proposed Decree Violates the Constitution, a Statute,
or Other Authority
The fourth Durrett criterion requires the Court to ensure that the proposed
decree does not violate the Constitution, a statute, or other authority. I construe
“other authority” to include jurisprudence, see United States v. City of Miami, Fla.,
664 F.2d 435, 441 (5th Cir. 1981) (per curiam), specifically, the jurisprudential edict
that federal courts should not act as “a super zoning board or a zoning board of
appeals.” Raskiewicz, 754 F.2d at 44; see also Vill. of Belle Terre, 416 U.S. at 13
(Marshall, J., dissenting).
The Court’s continuing jurisdiction to enforce the Consent Decree arguably
raises the specter of the Court being asked to intercede in run-of-the-mill zoning
issues. However, in Durrett, the First Circuit Court of Appeals responded to a similar
concern about a district court’s enforcement role under a consent decree that could
potentially require rulings on “weekly or monthly motions relating to many nonfederal matters of a petty nature.” Id. at 604. The Court expressed “every confidence
in the ability of the district court to winnow out any attempted proceedings that
belong in state court.” Id. at 605. Here, the likelihood that run-of-the-mill zoning
issues will be presented as enforcement issues in this Court is low, particularly given
the parallel state court proceeding and the available state process for land use
violations, M.R. Civ. P. 80K, which should provide state forums for most enforcement
questions.

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5. Consistent With the Objectives of Congress
The Consent Decree is consistent with the important public policy of
encouraging the settlement of disputes, and there is no indication that it is
inconsistent with the objectives of Congress or any federal, state, or local laws.
6. Whether the Proposed Decree is Unreasonable or Legally
Impermissible as to Third Parties Affected by It
As previously discussed, the Anthonys object to the proposed Consent Decree,
arguing that it may frustrate or foreclose the claims they wish to assert in the Rule
80B proceeding in the Maine Superior Court. See ECF No. 33 at 4-5. The proposed
Consent Decree does not, however, decide the Anthonys’ objections to the project. At
the April 5 hearing, both Coastal Maine and the Town expressly stipulated that the
Consent Decree is not intended to foreclose the Anthonys from proceeding on their
claims pending in the Maine Superior Court. As amended, the Consent Decree
explicitly acknowledges that it is not “meant to bar the Intervenors from litigating
their pending Rule 80B appeal in state court.” See ECF No. 35 at 3. This express
acknowledgment ensures that the Anthonys will be free to challenge the Town’s
approval of the permit in the Rule 80B proceeding in the Maine Superior Court.
Ideally, the Consent Decree would resolve the claims of all parties, including
intervenor parties such as the Anthonys. Their participation and agreement is,
however, not required. See Local No. 93, 478 U.S. at 529 (“[W]hile an intervenor is
entitled to present evidence and have its objections heard at the hearings on whether
to approve a consent decree, it does not have power to block the decree merely by
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withholding its consent.”). Here, for the reasons I have explained, the Anthonys’ right
to pursue their objections to the project through Rule 80B of the Maine Rules of Civil
Procedure is preserved by the Consent Decree. Id. Thus, my approval of the Consent
Decree is not unreasonable as to the Anthonys’ interests. Id.
III. CONCLUSION
For the foregoing reasons, the Joint Motion Seeking Approval of Consent
Decree (ECF No. 29) is GRANTED. Coastal Maine and the Town shall file the
revised Consent Decree by Tuesday, April 24, 2018.
In addition, a case management conference will be scheduled with counsel to
address (A) whether the Anthonys’ Motion to Dismiss should be dismissed as moot;
(B) the status of the Anthonys’ cross-claim; and (C) any other issues a party wishes
to raise regarding the future course of this proceeding. If the parties are in agreement
as to items (A) and (B) and have no other issues to raise at this time, they may submit
a proposed Order for the Court’s consideration in lieu of the scheduling of a
conference.
SO ORDERED.
Dated this 23rd day of April 2018.
/s/ JON D. LEVY
U.S. DISTRICT JUDGE

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