This case involves the downzoning of a parcel slated for development as a retail shopping center by plaintiff Kittery Retail Ventures, LLC, (“KRV”). In 1999, KRV started work to develop a retail shopping mall as permitted by the Kittery zoning law then in effect. That zoning ordinance permitted up to 30% of a parcel to be developed for retail purposes. Because many town citizens opposed additional retail development, the Town passed a referendum on June 13, 2000 amending the zoning bylaw to restrict development to 15% of a parcel. When anti-development forces determined that the KRV project and others were grandfathered and would continue despite the zoning change, the citizens passed a referendum making the June 13, 2000 amendment retroactive to September, 1999. Campaign literature indicated that the intent of the retroactivity referendum was to prohibit otherwise grandfathered development. After the retroactivity referendum passed, the Town rejected KRV’s application to develop the property. KRV then appealed to Superior Court, which granted summary judgment for the Town. KRV then appealed to the Maine Supreme Judicial Court (“SJC”).
In an amicus brief filed in support of KRV, NELF argued that retroactive zoning specifically intended to prohibit a particular development violates the Maine and United States Constitutions’ due process and equal protection provisions. Moreover, Maine recognizes the doctrine of equitable vested rights, which applies where the municipality has exhibited bad faith by amending a zoning provision during a real estate developer’s application process but before legal vested rights could accrue under a valid building permit.
On May 11, 2004, the SJC affirmed the decision below, ignoring NELF’s argument that the inhabitants of the town violated KRV’s due process rights by referendum and justifying the town’s conduct based on the good faith of the town selectmen and boards. On May 24, 2004, KRV requested reconsideration and NELF submitted an amicus letter in support of reconsideration. The SJC denied reconsideration August 12, 2004. Thereafter, KRV petitioned the United States Supreme Court for certiorari on January 10, 2005, and NELF filed an amicus brief in support. On March 7, 2005, the Supreme Court denied certiorari.