WASHINGTON (AP) – The Supreme Court let stand without comment Monday a Maine Supreme Court ruling that upheld a retroactive zoning amendment that was used to block plans to expand shopping malls in Kittery in 1999.
By electing not to hear the case, the Supreme Court closed the books on a legal battle by Kittery Retail Ventures, which sought to develop the 250,000-square-foot Kittery Marketplace. Another developer, Shafmaster of Exeter, N.H., proposed a similarly sized mall project.
Residents concerned about the potential impact on Route 1 traffic pushed for an emergency referendum that led to zoning law changes that blocked the two projects. The new rules cut in half the portion of a lot that can be taken up by retail buildings in the area of the proposed development and also eliminated the transfer of development rights.
In September 2000, voters decided to apply the zoning law amendment retroactively to September 30, 1999, which killed both projects.
The two developers went to court, arguing that the referendum was illegal and that the projects should be grandfathered. When those appeals were denied, Kittery Retail Ventures appealed to the Supreme Judicial Court, which ruled unanimously in favor of the town.
The justices concluded that the amendment was legal and that developers were given adequate warning that their projects would be affected.
Both sides agreed chances were slim that the supreme court would take up the case.
“The town is pleased but not particularly surprised,” said William Dale, who represented Kittery before the state supreme court.
The Kittery Retail Ventures case was taken up by the Pacific Legal Foundation in Sacramento, Calif., a nonprofit legal group involved in property rights issues.
James Burling said the foundation was concerned about how the state court denied due process to the developer based on its determination that it had no vested right in the project.
“It’s kind of a chicken and egg problem,” he said.
Burling said the issue is one that the foundation had been concerned with for some time and thought the Maine case was worthy of its assistance.
Still, he said, the prospect of getting the court to take up the case was a long shot.
“The court grants only about 1 percent of the petitions it gets. So we’re disappointed but it’s not terribly surprising because they take so few anyway,” he said.
AP-ES-03-07-05 1317EST
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