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Bryant v. Town of Wiscasset

Supreme Court of Maine

December 19, 2017

KATHLEEN BRYANT et al.
v.
TOWN OF WISCASSET et al.

          Argued: October 13, 2017

          Jonathan A. Pottle, Esq. (orally), and Patrick W. Lyons, Esq., Eaton Peabody, Bangor, for appellants Kathleen Bryant and Thomas Bryant

          Mary E. Costigan, Esq. (orally), Bernstein Shur, Portland, for appellee Town of Wiscasset

          Chris Neagle, Esq. (orally), Troubh Heisler, PA, Portland, for appellees Allen Cohen, Melissa Cohen, and Big Al's Outlet, Inc.

          Panel: ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.

          HUMPHREY, J.

         [¶l] Kathleen Bryant and Thomas Bryant appeal from a judgment of the Superior Court (Lincoln County, L. Walker, J.) affirming, pursuant to M.R. Civ. P. 80B, the Town of Wiscasset Planning Board's approval of Allen and Melissa Cohen's application to expand a building used to store fireworks for the Cohens' business-Big Al's Outlet, Inc. (Count 1). The Bryants also appeal from the judgments entered in favor of the Town on their independent claims asserting violations of their due process rights pursuant to the United States and Maine Constitutions (Counts 2 and 3) and the judgment dismissing their claim seeking declaratory relief (Count 4). We affirm the judgment on the Rule 80B appeal and dismiss the appeal of the judgments entered on the independent claims.

         I. BACKGROUND

         [¶2] In September 2014, the Cohens applied to the Town of Wiscasset Planning Board for a site plan review approval and to the Code Enforcement Officer for a permit for a proposed 35-by-60-foot addition to their storage building. The Cohens' site plan review application recited, "Fireworks storage approved and inspected by State Fire Marshal[']s Office." The Bryants objected to the application. After an administrative process that involved an initial appeal to and remand from the Board of Appeals, the Planning Board granted the Cohens' application. The Bryants appealed that decision to the Board of Appeals, and the Board of Appeals issued its final decision on March 24, 2015, affirming the decision of the Planning Board.[1] The Bryants appealed to the Superior Court, which affirmed the Planning Board decision on September 21, 2016. Because the decision of the Planning Board is the operative one for purposes of this appeal, the facts recited below are taken from the record before the Planning Board and from the decisions the Planning Board issued on September 22, 2014, and January 12, 2015.[2]

         [¶3] On September 8, 2014, the Planning Board held its first public hearing on the Cohens' application. Allen Cohen presented the application to the Planning Board.[3] The Bryants opposed the application, expressing concerns about the proximity of the fireworks storage building to their home.[4]The Planning Board approved the application in a written decision finding that the Cohens were already storing fireworks in the existing building on their property and "concluding"[5] that the "current building and proposed expansion have been previously approved and inspected by the State Fire Marshal []'s Office."

         [¶4] The Bryants appealed from the Planning Board's decision to the Board of Appeals, asserting, in relevant part, that (1) the Planning Board failed to review the application against applicable legal standards, particularly National Fire Protection Association Code 1124 (NFPA1124); (2) the Planning Board's findings were not supported by substantial evidence in the record; and (3) Allen Cohen's presentation of his application to the Planning Board violated Maine's conflict-of-interest law. The Board of Appeals "denied" the appeal, but nonetheless remanded the application to the Planning Board to determine whether the Cohens had written approval from the State Fire Marshal's Office for the proposed expansion.

         [¶5] On remand, the Planning Board held two hearings in November 2014 and, at the conclusion of the second hearing, unanimously approved the Cohens' application. The Bryants were not given personal notice of the hearings and did not appear at either hearing. On December 22, 2014, the Bryants filed a second appeal to the Board of Appeals, asserting in relevant part that the Planning Board's failure to give them personal notice of the November hearings violated their right to due process.

         [¶6] Despite the pending appeal, the Planning Board met in January 2015 to "again consider" the Cohens' application and to give the Bryants "the opportunity to address the Board on the application." The Bryants attended the hearing and reiterated their objections to the Cohens' application. At the January hearing, Allen Cohen displayed for the Board his federal licenses to sell fireworks; the State Fire Marshal's signed approval of the property for the storage of fireworks; and a letter from the Wiscasset Fire Department stating that it had "no issues" with the property. The Planning Board again voted on and reapproved the application.

         [¶7] In March 2015, the Board of Appeals "denied" the Bryants' second appeal and affirmed the Planning Board's ...


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