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Madore v. L.U.R.C.
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MAINE SUPREME JUDICIAL COURT				Reporter of Decisions
Decision:	1998 ME 178
Docket:	Ken-97-754	
Argued:	June 9, 1998
Decided:	July 17, 1998	


Panel:	WATHEN, C.J., and ROBERTS, CLIFFORD, RUDMAN, DANA, SAUFLEY, JJ.

ARMAND S. MADORE et al.

v.

MAINE LAND USE REGULATION COMMISSION et al.

SAUFLEY, J.

	[¶1]  Armand S. and Kathleen G. Madore appeal from the judgment of
the Superior Court (Kennebec County, Alexander, J.) dismissing their
complaint for lack of standing.  On appeal, the Madores argue that the court
erred in concluding that they lacked standing to litigate their M.R. Civ. P.
80C appeal and federal Fair Housing Act claim, and erred in denying their
requests for reconsideration.  Finding no error, we affirm the judgment.
	[¶2]  In December 1995, the Madores applied to the Maine Land Use
Regulation Commission for approval to develop "Western Maine Academy," a
residential education and treatment facility for adolescent male sex
offenders, on a parcel of land they owned in Rangeley Plantation.  LURC,
however, did not act on the application because of questions concerning the
environmental suitability of the Madores' land.  The Madores then filed a
revised application in September 1996 for the same development, to be
located on a larger parcel consisting of their original parcel and a contiguous
parcel owned by Pamela Lemoine, the Madores' sister-in-law.  Because the
Madores were required to demonstrate title to the entire development site,
they entered into an "Agreement for Sale of Real Estate" with respect to
Lemoine's property, dated December 30, 1996, which conditioned the sale
in the following manner:

	Buyer's obligation to purchase the property is subject to it
being able to obtain all necessary permits from the Maine Land
Use Regulation Commission and other State of Maine agencies to
construct and operate a school on property and on its adjacent
property.  If the permits cannot be obtained within six (6)
months from the date hereof, this Agreement will be void.

	[¶3]  Following an adjudicatory hearing on the Madores' application at
which LURC received testimony and written comments from the Madores,
the public, and intervenor Mooselookmeguntic Improvement Association,
LURC concluded that the Madores' proposed facility was primarily a
residential treatment center and not a school.  Because residential
treatment centers are not permitted in residential development
subdistricts,{1} LURC denied the Madores' application in a written decision
dated June 19, 1997.  Accordingly, the Madores' agreement to purchase
Lemoine's property then became void by its own terms on June 30, 1997. 
The Madores did not renew the agreement at that time.
	[¶4]  Notwithstanding the lapse of the agreement, the Madores filed a
complaint seeking review of LURC's decision pursuant to 5 M.R.S.A. 
§§ 11001-11007 (1989) and M.R. Civ. P. 80C and alleging that LURC's
decision constituted a violation of the Federal Fair Housing Act, 42 U.S.C.
§ 3613 (1994).{2}  The court consolidated all issues for briefing and oral
argument.  During the briefing period, counsel for the intervenor inquired
whether the Madores had renewed their agreement to purchase Lemoine's
property and was told that they had not.  The Madores did not renew the
agreement in response to that inquiry.  When the intervenor filed its brief, it
noted the Madores' failure to maintain an interest in the entire development
site and suggested that the Madores therefore lacked standing to pursue
their complaint.  Although the Madores responded to this argument in their
reply brief, their response did not address the central issue of their failure
to maintain an interest in Lemoine's property.  Further, the Madores again
failed to secure a renewed interest in the property. 
	[¶5]  Following oral argument, the court concluded that the Madores
lacked standing because they had not maintained right, title, or interest in
Lemoine's parcel, a property necessary to their proposed development,
throughout the existence of the litigation.  The court therefore dismissed
both counts of the Madores' complaint.{3} 
	[¶6]  Immediately after the court rendered its decision, the Madores
wrote a letter to the court suggesting the high likelihood that a renewed
agreement could be secured and requesting that the court accept it into the
record when filed and reconsider its dismissal of the complaint.  The
Madores then obtained a renewal of the agreement and sent it to the court
with another letter requesting the same relief.  Treating these letters as
motions for reconsideration, the court denied the motions in a more
detailed written order of dismissal.  This appeal followed.  

I.  Justiciability, Mootness, and Standing

	[¶7]  This case involves the application of intertwining concepts of
justiciability.  "Justiciability requires a real and substantial controversy,
admitting of specific relief through a judgment of conclusive character." 
Halfway House, Inc. v. City of Portland, 670 A.2d 1377, 1379 (Me. 1996).  A
justiciable controversy involves a claim of present and fixed rights based
upon an existing state of facts.  "'Accordingly, rights must be declared upon
the existing state of facts and not upon a state of facts that may or may not
arise in the future.'" Campaign for Sensible Transp. v. Maine Turnpike Auth.,
658 A.2d 213, 215 (Me. 1995) (quoting Connors v. International Harvester
Credit Corp., 447 A.2d 822, 824 (Me. 1982)). 
	[¶8]  Standing and mootness are closely related concepts describing
conditions of justiciability.  To have standing, a party must have a sufficient
personal stake in the controversy, at the initiation of the litigation, to seek a
judicial resolution of the controversy.  See Halfway House, Inc., 670 A.2d at
1379 (citing Sierra Club v. Morton, 405 U.S. 727, 731 (1972)).  Mootness,
in contrast, has been referred to as "'the doctrine of standing set in a time
frame:  The requisite personal interest that [existed] at the commencement
of litigation (standing) must continue throughout its existence (mootness).'"
Halfway House, Inc., 670 A.2d at 1379 (quoting Henry P. Monaghan,
Constitutional Adjudication:  The Who and When, 82 Yale L.J. 1363, 1384
(1973)).  When a party initially holds the requisite personal interest, but is
later divested of that interest, the justiciability concept at issue is best
described as mootness.  A court confronted with a claim of mootness must
determine "whether there remain sufficient practical effects flowing from
the resolution of the litigation to justify the application of limited judicial
resources." Bureau of Employee Relations v. Maine Labor Relations Bd., 655
A.2d 326, 327 (Me. 1995).    
	[¶9]  Here, the Madores do not dispute the court's findings that they
did not hold the requisite interest in Lemoine's property when they filed
their complaint, did not renew that interest during the briefing period, and
did not hold that interest on the day of the hearing in the Superior Court.{4} 
At the hearing, the Madores asserted that because they had lost before LURC
and might also lose on appeal, they should not be required to expend the
funds necessary to renew the agreement to purchase.  This argument
exposes the flaw in their efforts to proceed without the necessary interest. 
While it will always be preferable from a financial perspective to determine
whether an expenditure is justified by obtaining a court ruling before
incurring the expense, such an approach would, in effect, transform the
courts into advisory bodies.  Hence we have consistently held that a party
may not seek judicial (or administrative) action concerning land use without
having an interest in the property at issue.  See Halfway House, Inc., 670
A.2d at 1379; Walsh v. City of Brewer, 315 A.2d 200, 207 (Me. 1974). 
Absent that interest, the applicant does not present an actual controversy to
be resolved by judicial action. 
	[¶10]  Nonetheless, the Madores argue that their claims were not
moot because "sufficient practical effects" existed to justify a decision on
the merits where the agreement could easily and quickly be renewed.  The
court, however, was required to act on the facts before it, and not on an
agreement that may or may not be renewed in the future.  See Campaign for
Sensible Transp., 658 A.2d at 215.  Indeed, if the agreement could so
readily have been renewed, the Madores could have done so once the
intervenor brought the significance of its lapse to their attention.  The
suggestion that a court should act on the merits of an otherwise
nonjusticiable matter because the facts known to the court at the time of its
action may change in the future is antithetical to the requirement that
courts act only on real controversies before them.  To expand the concept of
"sufficient practical effects" to include such instances would consistently
place courts in the position of providing advisory opinions.
	[¶11]  Accordingly, regardless of whether the issue at bar is framed in
terms of standing or mootness, the Madores' Rule 80C appeal did not
present a live controversy to the Superior Court either at the time of its
filing or on the date of the hearing.{5}   The court therefore did not err in
concluding that the Rule 80C appeal was not justiciable.

II.  The Fair Housing Act Claim

	[¶12]  The Madores next argue that even if their Rule 80C appeal is
nonjusticiable, they have standing to litigate their FHA claim because they
are seeking injunctive relief, declaratory relief, and attorney fees pursuant to
that claim and therefore need not have a present interest in the property on
which they seek to develop housing.  
	[¶13]  It is well established, however, that to have standing to seek
injunctive and declaratory relief, a party must show that the challenged
action constitutes "an invasion of a legally protected interest which is (a)
concrete and particularized, and (b) actual or imminent, not conjectural or
hypothetical."  Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)
(footnote, citations, and internal quotation marks omitted).  More
specifically, a party raising an FHA claim must show that he has suffered a
distinct and palpable injury that is likely to be redressed by a favorable
judicial resolution.  See South-Suburban Hous. Ctr. v. Greater South Suburban
Bd. of Realtors, 935 F.2d 868, 878 (7th Cir. 1991).  
	[¶14]  Here, the Madores did not have title, right, or interest in the
full property which they sought to develop.  Nor did they raise any other
legally protected interest that would warrant either injunctive or declaratory
relief.  See, e.g., Halfway House, Inc., 670 A.2d at 1381 (finding that Pharos
House had standing to challenge constitutionality of City ordinance where its
existing business interests were directly affected by the ordinance).  The
court therefore did not err in dismissing the Madores' FHA claim.

III.  Requests for Reconsideration

	[¶15]  Finally, the Madores argue that the court abused its discretion
when it denied their requests to reconsider the dismissal.  "Although the
Maine Rules of Civil Procedure do not provide specifically for a motion for
reconsideration to the Superior Court, we have previously held that such
motions should be treated as motions made to alter or amend a judgment
pursuant to M.R. Civ. P. 59(e)."  Scott v. Lipman & Katz, P.A., 648 A.2d 969,
972 (Me. 1994).  We have also recognized that a motion for reconsideration
can be treated as a motion for relief from judgment pursuant to M.R. Civ. P.
60(b).  See Ocean Nat'l Bank v. Conley, 670 A.2d 921, 922 (Me. 1996);
Pallaci v. Pallaci, 613 A.2d 951, 953-54 (Me. 1992).  In either instance, we
review the trial court's action for an abuse of discretion.{6}  See Department of
Human Servs. v. Sabattus, 683 A.2d 170, 171 (Me. 1996) (Rule 60); LeClair
v. Commercial Union Ins. Co., 679 A.2d 90, 92 (Me. 1996) (Rule 59).  When
the court has correctly understood all material factors relevant to the
exercise of its discretion, we will not disturb its decision unless the court
has made a "serious mistake" in weighing those factors.  See West Point-
Pepperell, Inc. v. State Tax Assessor, 1997 ME 58, ¶ 7, 691 A.2d 1211,
1213 (citing Coon v. Grenier, 867 F.2d 73, 78 (1st Cir. 1989)).
	[¶16]  The Madores did not invoke either Rule 59 or Rule 60 in their
letters to the court.  Instead, they argued in essence that they had no notice
that "mootness," rather than "standing," would be an issue until they were
questioned about mootness by the court.  On the basis of this alleged
surprise, they urged the court to set aside the dismissal and provide them
with additional time to obtain a renewed agreement.  	
	[¶17]  Justiciability requirements in land use proceedings are not
applied in any unique fashion.  A litigant must possess a present right, title,
or interest in the regulated land which confers lawful power to use that land
or control its use when invoking the jurisdiction of the court and throughout
any period of appellate review.  Without that interest, the controversy
becomes nonjusticiable, as there is no possibility of effective relief arising
from a judicial resolution of the facts before the court.  See Halfway House,
Inc., 670 A.2d at 1379.  Whether the justiciability issue was framed in terms
of standing or mootness, therefore, the Madores had precedential, oral, and
written notice that the lapse of their agreement to purchase Lemoine's
property affected the justiciability of their claims.  Any claim of surprise or
newly discovered evidence therefore fails.  
	[¶18]  In addition, the Madores argue that the renewal of the
agreement was never seriously at risk and that the court should therefore
have reopened the record upon proof of that renewal.  The Madores
believed, apparently throughout the proceedings below, that a renewed
agreement could easily be obtained if they succeeded on appeal. 
Notwithstanding that belief, and although the lapse of the agreement
completely divested them of a cognizable interest in the Lemoine property,
the Madores went forward without completing that purportedly simple step
of renewing the agreement, apparently in an effort to conserve resources. 
They thus have no factual basis for alleging mistake, inadvertence, or
excusable neglect.
	[¶19]  Only after it became clear that the court would rule against
them did the Madores take action to renew the agreement.  Responding to
this action, the court stated that the Madores "cannot be placed on notice of
a problem as a matter of law in June of 1997 and as a matter of fact in
October of 1997, ignore the problem, wait to see how the court rules and
then try to address the apparent legal problem."  On this record, we cannot
say that the court abused its discretion in denying the Madores' requests for
reconsideration.
	The entry is:
Judgment affirmed.
Attorneys for plainitffs:

Catherine R. Connors, Esq., (orally)
Helen L. Edmonds, Esq.
Matthew D. Manahan, Esq.
Pierce Atwood
One Monument Square
Portland, ME 04101-1110

Attorneys for defendants:

Andrew Ketterer, Attorney General
Jeffrey Pidot, Asst. Atty. Gen., (orally)
6 State House Station
Augusta, ME 04333-0006
(for Land Use Regulation Comm.)

Richard A. Spencer, Esq.
Kaighn Smith, Jr., Esq., (orally)
Drummond, Woodsum & MacMahon
P O Box 9781
Portland, ME 04104-5081
(for intervenor Mooselookmeguntic Improvement Ass'n)