STATE OF MAINE
SUPERIOR COURT
CUMBERLAND COUNTY
CIVIL ACTION
DALE HOLMAN,
Plaintiff, VERIFIED COMPLAINT
vs. DOCKET NO.: _
CITY OF PORTLAND, MAINE,
Defendant.
COMES NOW, Plaintiff, DALE J. HOLMAN (“Holman”), with this Motion for a
Preliminary Injunction and hereby Moves pursuant to Civ. P. 65(b) for the issuance of a
Preliminary Injunction against Defendant CITY OF PORTLAND, MAINE (“Defendant”).
FACTUAL BACKGROUND
On March 31, 2004, Plaintiff purchased his current residence at 10 Willow Lane in
Portland, Maine. His house is two stories high with a 2-car garage and his house lot is 16,464
square feet in size.
Behind Plaintiffs property is a watercourse, which has existed for decades, has a bed with
banks and sides and flows in an even and unflooded manner, then properly discharges itself into
some other body or stream of water.
During heavy rain storms and when large amounts of snow melts, water flows down Mitton
Street, which connects with Willow Lane, and then into a basin followed by a pipe that drains into
the watercourse.
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Further, significant storm water runoff and melting snow from Powsland Street also fills
this watercourse.
Under these afore-stated heavier water flow conditions, when the water reaches a certain
volume in the watercourse, it flows down the watercourse into a larger retention pond owned by
Central Maine Power before flowing through a pipe underneath some appurtenant railroad tracks
and eventually the water flow discharges itself into the Fore River.
On or about March 1997, the planning Board of the City’s Department of Planning and
Urban Development recommended to the Town Council that parcels of land on Powsland Street be
zoned from R-2 (Residential Zone) to B-5 (Urban Commercial Mixed Use Zone).
Pursuant to the Board’s recommendation, the City adopted the Board’s recommendation
and rezoned the area around Powsland Street to B-5.
The City’s current map show the aforesaid area zoned as B-5.
Upon Plaintiff’s information and belief, the rezoning of the aforesaid area did not follow
due process. Pursuant to 30-A M.R.S. § 4352(1), “[t]he public shall be given an adequate
opportunity to be heard in the preparation of a zoning ordinance.” Further, 30-A M.R.S. § 4352(2)
provides that “a zoning ordinance must be pursuant to and consistent with a comprehensive plan
adopted by the municipal legislative body.”
Besides, the City was obligated to post and publish a notice before adopting a new zoning
ordinance or map or amending an existing zoning ordinance or map. See 30-A M.R.S. § 4352(9).
As a result of the rezoning of the aforesaid area, Plaintiff’s property has been subjected to
flooding from storm water. Besides, the owner of the property around Powsland Street proposed to
construct five houses on the property. The current B-5 zone allows him to have 140 units of
housing.
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Pursuant to this Motion, Plaintiff is requesting an Order which:
i. Enjoins Defendants to rezone the area around Powsland Street from B-5
to R-2, as it was initially; and
ii. Enjoins the property owner at Powsland Street from constructing the
additional five houses.
STANDARD OF REVIEW
A party seeking a preliminary injunction must show that (1) the party will suffer irreparable
injury if the injunction is not granted; (2) the injury outweighs any harm that granting the
injunction would inflict on the other party; (3) the party has a likelihood of success on the merits;
and (4) the public interest will not be adversely affected by granting the injunction. Ingraham v.
Univ. of Me., 441 A.2d 691, 693 (Me. 1982); M.R. Civ. P. 65(b). “Failure to demonstrate that any
one of these criteria are met requires that injunctive relief be denied.” Bangor Historic Track. Inc.
v. Dep’t of Agric.• Food & Rural Res., 2003 ME 140, ~ 10, 837 A.2d 129.
LEGAL ARGUMENT
A. Holman Is Entitled to Injunctive Relief
i. Plaintiff will Suffer Irreparable Injury
An “irreparable injury” is an injury for which there is no adequate remedy at law. Bangor
Historic Track v. Dept. of Agriculture, 2003 ME 140, ¶ 10, 837 A.2d 129 (citation omitted).
“Clear evidence of irreparable injury should result in a less stringent requirement of
certainty of victory; greater certainty of victory should result in a less stringent requirement of
proof of irreparable injury”. See Developments in the Law — Injunctions, 78 Harv. L. Rev. 994,
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1056 (1965).
In the instant action, Plaintiff’s home is subjected to floods from storm water, which
condition results from the action and/or inaction of the Defendant. Notably, the current B-5 zone
allows the property owner to have 140 units of housing, which poses a threat of flooding to
Plaintiff. Accordingly, Plaintiff has already suffered damage to his home due to flood water.
Plaintiff’s home will continue being affected by flood water if Defendant is not enjoined to rezone
the said area.
ii. Plaintiff’s injury outweighs any harm that Defendant would face as a result
of the injunction
A remedy at law is adequate, when it is “as practical and as efficient to the ends of justice
and its prompt administration, as the remedy in equity.” Throumoulos v. Bernier, 61 A.2d 681, 683
(1948).
Defendant’s action and/or inaction subjected not only Plaintiff but also other citizens
around Powsland Street to the ravages of flood water. This poses a threat, and has indeed affected
Plaintiff’s property. Plaintiff no longer enjoys the fill benefit of his property because of the
Defendant’s unlawful decision. It follows; therefore, this Court’s decision to grant an injunction as
requested would not subject Defendant to any known harm, and if any harm would exist thereby,
the harm would not outweigh and/or equal the harm already suffered and yet to be suffered by
Plaintiff and other residents along Powsland Street.
iii. Likelihood of Success on the Merits
The requirement to prove the likelihood of success is the “sine qua non” of the four-part
standard for entry of a preliminary injunction. See National Organization for Marriage v.
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Commission on Governmental Ethics and Election Practices, 2015 ME 103 ¶ 28, 121 A.3d 792.
“Even if likelihood of success is low, a court might consider injunctive relief based on a
very significant showing of irreparable harm.” Me. Educ. Ass’n Benefits Trust v. Cioppa, 842
F.Supp. 2d 336, 387 (D. Me. 2012).
In the instant action, the Defendant’s decision was legislative. The Court in Friends of
Cong. Square Park v. City of Portland, 91 A.3d 601 (Me. 2014), observed that an act of a
municipal body is legislative if it: (1) makes new law, rather than executes existing law. See
McAlister v. City of Fairway, 289 Kan. 391, 212 P.3d 184, 194 (2009); State ex rel. Upper
Arlington v. Franklin Cnty. Bd. of Elections, 119 Ohio St.3d 478, 895 N.E.2d 177, 181 (2008); (2)
proposes a law of general applicability, rather than being based on individualized, case-
specific considerations. See Carter v. Lehi City, 269 P.3d 141, 154 (Utah 2012); (3) relates to
subjects of a permanent or general character, as opposed to subjects that are temporary in
operation and effect. See Vagneur v. City of Aspen, 295 P.3d 493, 505 (Colo.2013); (4) declares
a public purpose and provides for the ways and means to accomplish that purpose, rather
than implementing existing policy or dealing with a small segment of an overall policy
question. See McAlister, 212 P.3d at 194; (5) requires only general knowledge, rather than
specialized training and experience or an intimate knowledge of the fiscal or other affairs of
government. See id.; (6) does not involve a subject matter in which the legislative body has
delegated decision making power for local implementation. See id. at 195; see also 5 Eugene
McQuillin, The Law of Municipal Corporations § 16:53 (3d ed.1978); (7) establishes or amends
zoning laws. See Friends of Denver Parks, Inc. v. City and Cnty. of Denver, 2013 WL 6814985,
327 P.3d 311 (Colo.App.2013); (8) is informed by historical examples of legislative acts, such as
longstanding parallels in statutes enacted by legislative bodies, rather than traditionally executive
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acts, see Carter, 269 P.3d at 155; or (9) is an amendment to a legislative act, see Vagneur, 295 P.3d
at 505 (presuming that “where an original act is legislative, an amendment to that act is likewise
legislative”).
Further, unlike administrative acts of municipal authorities, legislative acts require public
participation. See Friends of Cong. Square Park v. City of Portland, 91 A.3d 601 (Me. 2014).
In the instant action, the decision of the Defendant altered the zoning of parcels of land in
the City. This decision therefore was a law and/or ordinance of general applicability. It also related
to owners of parcels of land, who are permanent subjects. The council never delegated its authority
to make zoning decisions. In fact, all zoning recommendations are subject to the City’s approval,
through the processes established by law.
It follows; the Defendant’s violation of the requirement(s) to involve the public in its
decision making raises successful and meritorious causes of action against Defendant.
iv. Public interest will not be adversely affected
Plaintiff incorporates the foregoing averments herein. This Court’s decision to grant an
injunction against Defendant would not adversely affect public interest. Instead, it would be in the
public interest because it would help prevent and/or protect the residents around Powsland street
from the ravages of flood water consequential to the Defendant’s decision to rezone the said area,
without involving the public and/or following due procedure.
B. No Security is necessary
Pursuant to M.R. Civ. P. 65(c), a restraining order or preliminary injunction shall not
be issued except upon the giving of security by the applicant, but “for good cause shown and
recited in the order, the court may waive the giving of security.” M.R. Civ. P. 65(c).
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In the instant case, Plaintiff has demonstrated that there is an extremely high likelihood
of success on the merits to their claims, which militates against the imposition of a security
requirement by the Court. See, e.g., In re Kingsley, 802 F.2d 571, 578 (1 st Cir. 1986)
In addition, no unfair prejudice will result to Defendant if the Court grants the prayers
herein. Accordingly, there is no need for additional security and the Court, for good cause
shown, should not require security.
WHEREFORE, Plaintiff Dale J. Holman respectfully requests this Court to enter judgment in
his favor, entering a preliminary injunction ordering that:
a) Enjoins Defendant to rezone the area around Powsland Street from B-5 to R-
2, as it was initially; and
b) Orders the property owner(s) around Powsland Street from proceeding with
further construction of houses in and around the said area.
Dated this _ day of __, 2021
VERIFICATION
I, Dale J. Holman, hereby verify, swear and affirm under oath, under penalty of
perjury, that I have read the foregoing Motion and that everything stated therein is true and
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accurate to the best of my knowledge, except as to those statements made by me “upon information
and belief” and as to those statements I believe them to be true.
Dale J. Holman
NOTICE PURSUANT TO RULE 7
NOTICE: IF YOU WANT TO OPPOSE TIDS MOTION, YOU MUST FILE A
MEMORANDUM IN OPPOSITION WITH THE CLERK’S OFFICE. THE
MEMORANDUM MUST BE FILED WITHIN 21 DAYS OF THE DATE OF THE FILING
OF THIS MOTION. IF YOU FAIL TO FILE A MEMORANDUM IN OPPOSITION
WITHIN 21 DAYS, IT WILL BE ASSUMED THAT YOU DO NOT OBJECT TO THE
MOTION. IF YOU FAIL TO FILE A MEMORANDUM IN OPPOSITION WITHIN 21
DAYS, THE MOTION MAY BE GRANTED BY THE COURT WITHOUT FURTHER
NOTICE TO YOU AND WITHOUT A HEARING.
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CERTIFICATE OF SERVICE
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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