COMES NOW, Plaintiff, DALE J. HOLMAN (“Holman”), and responds to
Defendant’s Motion to Dismiss Plaintiff’s Complaint and states as follows:

On or about [ENTER DATE], Plaintiff filed a Complaint against Defendant alleging, inter
alia, that Defendant had illegally rezoned the area around Plaintiff’s property, which action
subjected Plaintiff’s property to flooding from storm water. Accordingly, the Plaintiff sought
remedies including declaratory judgment; a permanent injunction; and compensatory damages.
Plaintiff also filed a Motion for Preliminary Injunction together with the Complaint.
On or about November 15, 2021, the Defendant filed a response to Plaintiff’s filings.
Notably, Defendant filed a Motion to Dismiss Plaintiff’s Complaint pursuant to M.R.Civ.Pr. 12(b)
(1) and b (6); and an Opposition to Defendant’s Motion for Preliminary Injunction. In the said
Motion to Dismiss, Defendant alleged, inter alia, that the Court lacks jurisdiction over Plaintiff’s


claims because the claims are time barred; and that the Complaint fails to state a claim upon which
relief can be granted.


A. Legal Standard
  When a complaint is dismissed as legally insufficient, we review it de novo in the light
most favorable to the plaintiff, accepting the material facts it alleges as true, to determine whether
the complaint could entitle the plaintiff to relief on some theory.  Doe v. District Attorney, 2007
ME 139, ¶ 20, 932 A.2d 552, 558.  “A dismissal is proper only when it appears beyond doubt that
a plaintiff is entitled to no relief under any set of facts that he might prove in support of his claim.”
 Id. (citation omitted).
B. Plaintiff’s claims are not time barred
Plaintiff avers that statutory limit may cease to apply in cases of public interest. The Maine
Supreme Court accepted a case challenging the 30 year-old decision in Bell v. Town of Wells, 557
A.2d 168 (1989) that limited the public’s enjoyment of private beaches. Also, the Maine Supreme
Court accepted to reconsider its decision in Almeder v. Town of Kennebunkport, 2014 ME 12,
issued on February 4, 2014, which was past the statutory limit.
Plaintiff further avers that the Defendant cannot claim that the Plaintiff’s case is time-
barred because the Defendant’s actions were illegal hence were void ab initio. Defendants cannot
claim reliance on an illegal ordinance. Plaintiff further avers that the controversy in the case is
amplified by the recent decision of the Defendants to permit developments on the subject land,
which developments expose Plaintiff’s property to floods.
It is trite law that when reviewing the decisions of Municipal Boards, the Court examines


the record before the municipal body “to determine if it abused its discretion, committed an error of
law, or made findings not supported by substantial evidence.” Mills v. Town of Eliot, 2008 ME
134, err 5, 955 A.2d 258, 261. It follows; the factual evidence presented before this Honorable
Court shows how the Defendant violated 30-A M.R.S. § 4352(1) by failing to give the public an
adequate opportunity to be heard in the preparation of the zoning ordinance. See Exhibit (Letter to
Jennifer Thompson). There were no council orders adopting the rezoning. See Exhibit (Barbara
Barhydt’s Letter). Further, the Defendant acted in disregard of the fact that notice requirements for
enacting zoning ordinances are mandatory. See 5 McQuillan, Municipal Corporations, § 16.78.
Section 4962(1) of 30 M.R.S.A. provides in that regard that:
Any zoning ordinance, or provision thereof , adopted pursuant to the home rule
power granted to all municipalities under the Constitution, Article VIII, Part
Second and chapter 201-A, specifically section 1917, shall be subject to the
following. In the preparation of a zoning ordinance, the public shall be given an
adequate opportunity to be heard. (Emphasis added).
In light of the foregoing, it is evident that the Defendant cannot claim that the Plaintiff’s
case is statutory barred.
C. Plaintiff’s complaint states a claim upon which relief can be granted.
Clearly, the Defendant violated even its own mission statement. The Defendant’s Planning
own mission Statement states in pertinent part that:
“The Department of Planning & Urban Development’s mission is to strengthen
and revitalize the City of Portland’s neighborhoods and communities and to
preserve and positively transform our physical, social and economic
environment, while protecting the health, safety and welfare of our residents and
visitors. In doing so, we will work collaboratively toward comprehensive and
sustainable solutions, streamline systems and processes to be efficient and
responsive, and engage the public through open communication and ready access
to information.”
As already alleged above, the Defendant failed to give the public an adequate opportunity
to be heard in the preparation of the zoning ordinance. There were also no council orders adopting


the rezoning. Further, the Defendant acted in disregard of the fact that notice requirements for
enacting zoning ordinances are mandatory. All these acts and/or omissions were not only in
violation of the aforesaid law(s), but also of the Defendant’s mission statement.


For the foregoing reasons, Plaintiff respectfully submits that the Court dismisses
Defendant’s opposition to Plaintiff’s Motion for Preliminary Injunction in its entirety and grant
Plaintiff’s prayers in the said Motion.

Dated this _ day of __, 2021


I certify that a copy of this Motion was served on [ENTER DATE] to the Defendant in this action.


Respectfully submitted:

Dale J. Holman

Dated: __

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