Plaintiff's Attorney Jonathan A. Pottle, Esq.
Def's. Attorney Cohen's & Big Al's Outlet,
Inc. Chris Neagle, Esq. Troubh Heisler, P.A.
Attorney Town of Wiscasset Mary E. Costigan, Esq.
ORDER ON RULE 80B APPEAL
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.
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.
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.)
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.)
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.)
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.)
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.)
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.
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.
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.)
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.
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,
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.
an enlargement of time, the Bryants filed then-
brief and the administrative record with the court on July
28, 2015. The Town and the Cohens both filed their
briefs on August 27, 2015. Following an enlargement of time, the
Bryants filed a reply on September 25, 2015.
STANDARD OF REVIEW
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