Nugent v. Town of Camden, corrected 5-13-98
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	1998 ME 92
Docket:	Kno-97-346	
Argued:	December 5, 1997	
Decided:	April 30, 1998	

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

JOHN S. NUGENT III

v.

TOWN OF CAMDEN

SAUFLEY, J.

	[¶1]  John S. Nugent III appeals from the summary judgment entered
against him in the Superior Court (Knox County, Marsano, J.) on his
complaint challenging a parking restriction contained in his 1996 Daysailer
License Agreement with the Town of Camden.  On appeal, Nugent argues
that the Town acted beyond its authority when it regulated his employees'
use of the parking lot adjacent to the Town's public landing.  Additionally,
Nugent argues that the ordinance on which the Town relies is
unconstitutionally vague and that the Town violated his rights to equal
protection and substantive due process.  We disagree and affirm the
judgment.
	[¶2]  Nugent owns and operates a commercial daysailer business
offering two-hour day trips out of Camden Harbor.  A daysailer, as classified
by the Town, is a vessel whose sailing voyages do not extend beyond one day. 
In order to procure a launch site for his daysailer business, Nugent has
repeatedly applied for and received yearly licenses for use of the town float. 
The town float is located near the Town's public landing.{1}  	
	[¶3]  Parking adjacent to the public landing, with its two-hour time
limit, has long been a focus of both concern and study for the Town and its
Parking Committee.  The Town, however, did not address this concern in
its Daysailer License Agreements prior to 1996, instead issuing parking
permits to daysailer captains such as Nugent on the informal understanding
that they would have their employees park in locations other than the public
landing.  On November 6, 1995, pursuant to its Harbor and Waterways
Ordinance, the Town formally adopted paragraph 5(G) for inclusion in all
Daysailer License Agreements to be awarded for the 1996 season.{2} 
	[¶4]  Paragraph 5(G) governed daysailer employee parking on the
public landing, and provided in pertinent part that:

The Licensee shall prohibit any employee, supplier, contractor,
or agent of the licensee, or any crew member of the daysailer
vessel, from parking in the parking spaces at the Public Landing,
with the exception only of one parking space for one vehicle
owned or used by the Licensee, or an employee of the Licensee. 
It is the intent of Camden to allow the Licensee to use one
parking space at the Public Landing for a vehicle to be parked in
that parking space during emergencies, for the storage of
brochures and other supplies, to provide shelter for employees
during inclement weather, and for no other purpose whatsoever. 
In accordance with Chapter VIII, Schedule 12 of the Parking
Ordinance of the Town of Camden, this one parking space is
available to the Licensee only during the time that the Licensee
operates a vessel from the Town float in accordance with the
Harbor and Waterways Ordinance and for the commercial
purposes allowed by this license.

. . . . 

Any violation of the provision set forth in this subparagraph shall
be a cause for termination of this License agreement . . .

	[¶5]  Although Nugent objected to paragraph 5(G), he ultimately
signed his 1996 Daysailer License Agreement as written.  Nugent then filed
a complaint in the Superior Court, pursuant to 5 M.R.S.A. §§ 11001-11007
(1989) and M.R. Civ. P. 80B, seeking review of the Town's adoption of
paragraph 5(G).  The complaint also sought a declaratory judgment, pursuant
to 14 M.R.S.A. § 5954 (1980), that the Town lacked the authority to adopt
paragraph 5(G) that paragraph 5(G) violated Nugent's constitutional rights to
equal protection and due process.  The court dismissed the Rule 80B appeal
for want of prosecution and granted a summary judgment to the Town on
Nugent's claims concerning the Town's authority and his alleged
constitutional violations.{3}  This appeal by Nugent followed.

I.  Mootness

	[¶6]  As a preliminary matter, the Town argues that this appeal is
moot because Nugent's challenge involves a provision within his 1996
Daysailer License Agreement, that agreement has run its course, and any
future agreements between Nugent and the Town will be subject to separate
negotiations.  The test for mootness is whether there remain sufficient
practical effects flowing from the resolution of the litigation to justify the
application of limited judicial resources.  See Campaign for Sensible Transp.
v. Maine Turnpike Auth., 658 A.2d 213, 215 (Me. 1995).  An exception to
this test exists, however, for issues that are capable of repetition yet evade
review because of their fleeting or determinate nature.  See id.  Here,
Nugent's demonstrated interest in continuing daysailer operations from the
town float and the Town's demonstrated interest in regulating parking with
respect to such daysailer operations lead us to conclude that the issue now
before us will arise annually in a context that may repeatedly evade review.
We therefore reach the issue now.  

II.  The Town's Authority

	[¶7]  Nugent argues that neither 38 M.R.S.A. § 7 (Supp. 1997) nor the
Town's Harbor and Waterways Ordinance authorizes the Town to regulate
his employees' parking on the public landing because such regulation has
nothing to do with an activity occurring within Camden Harbor.  The
meaning and construction of statutory language presents a question of law.
See Community Telecomm. Corp. v. State Tax Assessor, 684 A.2d 424, 426
(Me. 1996).  The meaning of terms or expressions in an ordinance also
presents a question of law.  See Roberts v. Town of Phippsburg, 642 A.2d
155, 156 (Me. 1994).  We review such questions de novo.  See H.E. Sargent,
Inc. v. Town of Wells, 676 A.2d 920, 923 (Me. 1996).
	[¶8]  Pursuant to 38 M.R.S.A. § 7, a municipality may enact ordinances
"to regulate the assignment or placement of moorings and other activities in
their harbors." (emphasis added).  Accordingly, the Town has enacted its
Harbor and Waterways Ordinance, which states in Article I, § II that two of
its objectives are "to minimize user conflicts and maximize the efficient use
of both the water space and the town-owned waterfront" and "to preserve
public access to and use of the Harbors waters."  Article V, § III of the
Ordinance then authorizes the Town's Board of Selectmen to elect to rent
or lease space on the town float, and states that "[i]n reviewing and acting
upon an application for a lease or rental agreement, the Board of Selectmen
may, among other things, consider . . . the availability of and effect on
parking and traffic." 
	[¶9]  In addition, the Town has enacted a Parking Ordinance which
governs parking in the Town generally.  Chapter VIII, Schedule 12 of the
Parking Ordinance more specifically authorizes "a permit for one space [on
the public landing] for each daysailer using the Town floats, when the vessel
is in commercial use."  Nugent does not dispute the Town's authority to
regulate the flow of traffic and parking within its borders.  See State v. Rush,
324 A.2d 748, 755 (Me. 1974).  Rather, he contends that the Town may not
coordinate its authority to regulate parking with its harbor control authority.  
	[¶10]  Nugent, however, points to no authority forbidding a
municipality from rationally coordinating its regulatory actions.  The Town's
authority to regulate daysailers' parking is properly drawn from two
ordinances, both of which are fully within the Town's authority to enact. 
The resulting inclusion of paragraph 5(G) in the 1996 Daysailer License
Agreements is consistent with the objectives of the Town's ordinances and
well tailored to meet those objectives without overreaching.  The court
therefore committed no error in granting summary judgment to the Town
on Nugent's claim challenging the Town's authority.{4} 

III.  Vagueness

	[¶11]  Nugent next argues that Article V, § III of the Town's Harbor
and Waterways Ordinance is unconstitutionally vague because it fails to
provide sufficient guidance concerning the provisions to be included in
Daysailer License Agreements.  A municipal ordinance is not
unconstitutionally vague where it contains sufficient guidance to allow for
effective judicial review and thus protects the individual from arbitrary
municipal action.  See Secure Env'ts v. Town of Norridgewock, 544 A.2d
317, 324 (Me. 1988).  
	[¶12]  Here, Article V, § III first states that Daysailer License
Agreements "shall contain such provisions as the Board of Selectmen deem
appropriate and consistent with the best interests of the Town of Camden." 
The Ordinance then offers factors to be considered in reaching that
determination: 

	In reviewing and acting upon an application for [a Daysailer
License Agreement], the Board of Selectmen may among other
things consider:

	1.The current uses and users of the facility for which
the application applies.
	2.	The size of the vessel.
	3.The number of passengers which the vessel will
carry and its schedule.
	4.	The availability of and effect on parking and traffic. 
    	5.	The availability of and need for public facilities.
	6.	Access to the facility by the vessel.

	[¶13]  This nonexclusive list of factors concerning the Town's best
interests provides sufficient guidance for the Board's decision, our review of
that decision, and the protection of Nugent's constitutional rights.  Compare
id. at 321-24 (municipal landfill ordinance not unconstitutionally vague
where ordinance provided sufficient guidance for determinations
concerning the terms "adequate," "properly," and "adversely affected")
with Wakelin v. Town of Yarmouth, 523 A.2d 575 (Me. 1987) (municipal
zoning ordinance unconstitutionally vague where ordinance did not provide
any guidance for determinations concerning the terms "intensity of use"
and "density of development") and Cope v. Town of Brunswick, 464 A.2d
223 (Me. 1983) (municipal zoning ordinance unconstitutionally vague where
ordinance did not provide sufficient guidance for determinations concerning
the term "health, safety or general welfare of the public").  Article V, § III of
the Town's Harbor and Waterways Ordinance, through its inclusion of
specific factors for consideration, provides sufficient guidance for a
determination concerning the Town's best interests and is therefore not
unconstitutionally vague.

IV.  Equal Protection and Due Process

	[¶14]  Nugent finally argues that the court erred in granting a
summary judgment against him on his facial equal protection and due
process claims.{5}   In ruling on a motion for summary judgment pursuant to
M.R. Civ. P. 56(c), "the court is to consider only the portions of the record
referred to, and the material facts set forth, in the Rule 7(d) statements." 
Gerrity Co., Inc. v. Lake Arrowhead Corp., 609 A.2d 293, 295 (Me. 1992). 
On appeal, we view the evidence in a light most favorable to the appealing
party and review the trial court's decision for errors of law.  See Keyes Fiber
Co. v. Lamarre, 617 A.2d 213, 214 (Me. 1992).{6}
	[¶15]  "The prohibition against denial of equal protection of the law to
any person is implicated only when action by the state results in treatment
of that person [that is] different than that given similarly situated
individuals."  Wellman v. Department of Human Servs., 574 A.2d 879, 883
(Me. 1990).  Nugent argues that the Town has violated his right to equal
protection by imposing parking restrictions upon daysailer operations but
not upon similarly situated windjammers and fishermen operations.  
	[¶16]  In his Rule 7(d) statement, however, Nugent has not presented
any fact which would support an inference that either windjammers or
fishermen are similarly situated to daysailers in their use of the town float
and, thus, their impact upon the public landing's parking.  To the contrary,
Nugent alleges that windjammers are "vessels sailing for longer than one
day."  Because windjammers make use of the town float in a manner that is
different from daysailers, they are not, for purposes of this analysis, similarly
situated.  
	[¶17]  As for fishermen, Nugent asserts only that "[t]he Town of
Camden has reserved 8 parking spaces in the Public Landing for use by
fishermen, but does not require the fishermen to ensure that their
employees do not park in the Public Landing."  Although this statement may
bear upon the issue of the Town's respective treatment of daysailers and
fishermen, it does not speak to the issue of whether daysailers and
fishermen are similarly situated.  Because Nugent has failed to raise a
genuine issue of material fact concerning whether daysailers are similarly
situated to windjammers and fishermen, the court committed no error in
granting summary judgment to the Town on Nugent's equal protection
claim.
	[¶18]  Nugent's substantive due process claim is equally without merit.  
"A substantive due process analysis focuses on the rationality of the
enactment, that is, on whether the regulation at issue is in the interest of
the public welfare and whether the methods used bear a rational
relationship to its intended goals."  Daley v. Commissioner, Dept. of Marine
Resources, 1997 ME 183, ¶ 7 n.7, 698 A.2d 1053, 1056; see also Rush, 324
A.2d 752-54 (state action does not violate substantive due process where it
is rationally related to a legitimate state interest).  Concepts of due process
require (1) that the object of the Town's exercise of its police powers be to
provide for the public welfare, (2) that the legislative means employed must
be appropriate to achieve the ends sought, and (3) that the manner of
exercising the power must not be unduly arbitrary or capricious.  See Danish
Health Club v. Town of Kittery, 562 A.2d 663, 665 (Me. 1989); State v. 
Eaton, 577 A.2d 1162, 1165 (Me.  1990).  
	[¶19]  Here, the goals of maximizing the efficient use of the town-
owned waterfront and preserving public access to the Town's harbor fall
well within the interest of the public welfare.  See Rush, 324 A.2d at 753. 
Further, paragraph 5(G) bears a rational relationship to these intended goals
by attempting to mitigate the effect of daysailer-related parking upon the
availability of parking spaces at the public landing.  Although Nugent bears
the burden of proof on this claim,{7} he offers no facts in his Rule 7(d)
statement to challenge either the legitimacy of the Town's goals or the
rationality of paragraph 5(G) in achieving those goals.  Because Nugent did
not raise a genuine issue of material fact regarding the Town's rational basis
for including paragraph 5(G) in his 1996 Daysailer License Agreement, the
court committed no error in concluding that the Town was entitled to
judgment as a matter of law on Nugent's substantive due process claim.
	The entry is:
Judgment affirmed.
Attorney for plaintiff:

John C. Bannon, Esq., (orally)
Murray, Plumb & Murray
P O Box 9785
Portland, ME 04104-5085

Attorney for defendant: 

Terry W. Calderwood, Esq., (orally)
Gibbons & Calderwood, L.L.P.
P O Box 616
Camden, ME 04843