Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Bryant v. Town of Wiscasset

Superior Court of Maine, Lincoln

September 21, 2016

KATHLEEN BRYANT and THOMAS BRYANT, Plaintiffs-Appellants,
v.
TOWN OF WISCASSET, ALLEN COHEN, MELISSA COHEN, and BIG AL'S OUTLET, INC., Defendants-Appellees.

          Plaintiff's Attorney Jonathan A. Pottle, Esq.

          Def's. Attorney Cohen's & Big Al's Outlet, Inc. Chris Neagle, Esq. Troubh Heisler, P.A.

          Def. Attorney Town of Wiscasset Mary E. Costigan, Esq.

          ORDER ON RULE 80B APPEAL

          Lance E. Walker Justice.

          Plaintiffs-Appellants Kathleen and Thomas Bryant ("the Bryants") appeal from a decision by the Town of Wiscasset Planning Board pursuant to Maine Rule of Civil Procedure 80B. The Bryants have also brought independent claims for violation of their rights to due process of law under the United States and Maine Constitutions.

         Based on the following, the Bryants' appeal is denied and the decision of the Town of Wiscasset Planning Board is affirmed. Regarding the Bryants' claims for violation of their rights to due process of law, judgment is entered for Defendant the Town of Wiscasset.

         I. BACKGROUND

         Defendants-Appellees Allen and Melissa Cohen ("the Cohens") are the owners of a lot and storage building located at 2 JB's Way in Wiscasset, Maine. (R. 1.) The Cohens' property is located in the Town's rural zoning district. (R. 1.) The building is used to store consumer fireworks for the Cohens' business. (R. 26.) The Bryants reside at 32 JB's Way in Wiscasset, Maine. (R. 22.) The Bryants' property abuts the Cohens' property and they share a common driveway. (R. 28.)

         On August 28, 2014, the Cohens submitted an application for site plan review to the Town's Planning Board seeking approval to construct a 35' x 60' addition on the storage building. (R, 1-2.) A Planning Board meeting to discuss the Cohens application was held on September 8, 2014. (R. 23.) Allen Cohen and his surveyor for the construction protect, Karl Olson, are both members of the Planning Board. (Id.) Mr. Cohen and Mr. Olson recused themselves from the Planning Board during discussion of the Cohens' application. (Id.) Mr. Cohen spoke before Planning Board in support for his application. (Id.)

         As abutting property owners, the Bryants were provided notice of the meeting. (R. 22.) The Bryants appeared at the September 8, 2014 meeting and objected to the expansion of the storage building. (R. 28, 31.) The Bryants expressed concern about having fireworks stored in such close proximity to where they live. (R. 28-31.) The Planning Board voted to approve the Cohens' application for site plan review. (R. 23.)

         The Planning Board issued a written decision on September 22, 2014. (R. 46-47.) In its written decision, the Planning Board concluded that the Cohens' current building and proposed expansion met the site plan review standards for the storage of hazardous materials because it "had been previously approved and inspected by the State Fire Marshall's Office." (R. 47.) The Bryants appealed the decision to the Town's Board of Appeals asserting: (1) that the Planning Board erred by failing to review the Cohens' application against all applicable legal standards, including National Fire Protection Association Standard 1124 ("NFPA 1124"); (2) that the Planning Boards finding that the State Fire Marshall had "approved" and "inspected" the building and expansion was not supported by substantial evidence; and (3) that Mr. Cohen, a member of the Planning Board, violated Maine's conflicts of interest law by personally advocating for approval of his application. (R. 49.) Following a purely appellate hearing, the Board of Appeals voted to remand the matter back to the Planning Board with instructions to reconsider approval and to obtain the State Fire Marshall's approval in writing. (R. 57-58, 95.)

         The Planning Board reconsidered the Cohens' application for site plan review at its meeting on November 10, 2014. (R. 61.) Mr. Cohen and Mr. Olson again recused themselves from the Planning Board during discussion of the Cohens' application. (Id.) There is no evidence that the Bryants were sent notice of the meeting and the Bryants did not appear. (Id.) Because a quorum was not present, no vote was taken on the Cohens' application. (Id.) The Planning Board considered the Cohens' application again at its meeting on November 24, 2014. (R. 63.) Mr. Cohen and Mr. Olson again recused themselves from the Planning Board. (Id.) There is no evidence that the Bryants were sent notice of the meeting and the Bryants did not appear. (Id.) The Planning Board voted again to approve the Cohens' application. (Id.) No written decision was issued. (R. 94.)

         After learning of the Board's decision, the Bryants wrote a letter to the Planning Board on December 10, 2014, complaining of the lack of notice to them that the matter would be reconsidered, (R. 65.) The Bryants filed a second administrative appeal on December 22, 2014. (R. 67-68.) The Bryants' appeal asserted that, in addition to the objections raised by their prior appeal, they were deprived of due process by the lack of notice and opportunity to be heard by Planning Board at the November 10 and 24, 2014 meetings. (R. 67.) The Bryants also filed a complaint with this court for review pursuant to Maine Rule of Civil Procedure SOB and asserting independent causes of action on December 23, 2014. The Bryants filed a motion to specify the future course of proceedings on January 2, 2015.

         During the pendency of the Bryants' appeals, on December 23, 2014, the Planning Board sent a letter to the Bryants stating that, although it was not required to send the Bryants personal notice of the November 10 and 24, 2014 meetings, the Planning Board would reconsider the Cohens' application for site plan review at its January 12, 2015 meeting in order to provide the Bryants with an opportunity to be heard. (R. 72.)

         The Bryants appeared at mat January 12, 2015 meeting. (R. 77.) The Bryants submitted additional evidence to the Planning Board and presented argument regarding NFPA 1124. (Id.) The only issue discussed at that January 12, 2015 meeting was whether the Cohens' application must comply with NFPA 1124 in order to meet the Ordinance's hazardous materials site plan review standards. (R. 77-89.) Mr. Cohen and Mr. Olson again recused themselves from the Planning Board. (R. 77.) Mr. Cohen spoke before the Planning Board in support for his application. (Id.) At the conclusion of the meeting, the Planning Board voted again to approve the Cohens' application, (R. 78.) The Planning Board did not review or apply NFPA 1124. (R. 77-89.) The Planning Board did not make any additional findings of fact or conclusions of law on the record. (Id.) The Planning Board did not issue a written decision containing findings of fact or conclusions of law. (R. 94.)

         On January 22, 2015, the Bryants filed a motion with this court for a trial of facts on their Rule 80B appeal and independent claims. Sometime thereafter, the Bryants learned that Board of Appeals would hold a hearing on their second administrative appeal. (Pls. Mot. Stay ¶ 11, ) The Bryants moved to stay their Rule 80B appeal and independent claims on January 29, 2015, in order for the Board of Appeals to consider their second administrative appeal.

         The Board of Appeals met on March 19, 2015, to consider the Biyants' second appeal. (R. 96.) The Bryants raised four objections before the Board of Appeals: (1) again, that the Planning Board committed an error of law by approving the storage facility in violation of NFPA 1124, and thereby, in violation of the Town's Ordinance; (2) again, that the Planning Board's finding that State Fire Marshall "approved" and "inspected" the building and proposed expansion was not supported by substantial evidence; (3) again, that Mr. Cohen's presentation before the Planning Board violated Maine's conflicts of interest law; and (4) that the lack of notice and opportunity to be heard at the November 10 and 24, 2014 meetings deprived the Bryants of due process. (R. 97-99.) Following a purely appellate hearing, the Board of Appeals voted to deny the Bryants' appeal and affirmed the decision of the Planning Board. (R. 100.) A written decision was issued March 24, 2015. (Id.)

         The Bryants filed an amended complaint for review pursuant to Rule SOB and independent claims on April 17, 2015. The Town and the Cohens filed their answers to the amended complaint and their oppositions to the Bryants' motion for trial of facts and motion to specify the future course of proceedings on May 8, 2015. The Bryants replied on May 15, 2015, The court (Billings, J.) issued an order regarding the Bryants' pending motions on June 3, 2015. The court denied the Bryants' motion for a trial of facts. (Order 6/3/15.) The court granted the Bryants' motion to specify the future course of proceedings. (Id.) The court ordered that the Bryants' Rule 80B appeal (Count I) and claims for violation of due process under the United States and Maine Constitutions (Counts II and III) would be considered together. (Id.) The court stayed consideration of the Bryants' claim for declaratory judgment (Count IV) pending resolution of the other claims. (Id.)

         Following an enlargement of time, the Bryants filed then- brief and the administrative record with the court on July 28, 2015.[1] The Town and the Cohens both filed their briefs on August 27, 2015.[2] Following an enlargement of time, the Bryants filed a reply on September 25, 2015.

         II. STANDARD OF REVIEW

         When reviewing the decision of a municipal agency pursuant to Maine Rule of Civil Procedure 80B, the court reviews the operative decision of the municipal agency "for abuse of discretion, errors of law, or findings not supported by the substantial evidence in the record." Wyman v. Town of Phippsburg,2009 ME 77, ¶ 8, 976 A.2d 985 (internal quotation marks and citation omitted). Substantial evidence is evidence that a reasonable mind would accept as sufficient to form a conclusion, even if the evidence would also support a contrary conclusion. Sproul v. Town of Boothbay Harbor,2000 ME 30, ¶ 8, 746 A.2d 368. The ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.