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Dubois v. Town of Arundel

Supreme Court of Maine

February 12, 2019

MARCEL DUBOIS et al.
v.
TOWN OF ARUNDEL et al.

          Submitted On Briefs: November 28, 2018

          Marcel Dubois, appellant pro se Sol Fedder, appellant pro se

          Leah B. Rachin, Esq., and Benjamin T. McCall, Esq., Bergen & Parkinson, LLC, Kennebunk, for appellees Town of Arundel et al.

          Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, JABAR, HJELM, and HUMPHREY, JJ.

          JABAR, J.

         [¶1] Marcel Dubois and Sol Fedder appeal from an order of the Superior Court (York County, O'Neil, J.) granting the Town of Arundels motion to dismiss their complaint and imposing sanctions on Dubois and Fedder. We affirm the order dismissing Dubois and Fedders complaint, but vacate the order of sanctions and remand to the Superior Court.

         I. BACKGROUND

         [¶2] This appeal relates to the Town of Arundel Planning Boards denial of an application to renew a conditional use permit submitted by Dubois Livestock, Inc.[1] Dubois and Fedder were not listed as the applicants for the renewal permit, were not listed as the property owners, and were not listed as the authorized agents of Dubois Livestock. Dubois Livestocks application was denied by the Town of Arundel Planning Board on July 21, 2017, during a public hearing that was not attended by any representative of Dubois Livestock.[2] Dubois and Fedder did not participate in the public hearing in any capacity.

         [¶3] On September 18, 2017, Dubois and Fedder filed a complaint against the Town of Arundel, individual members of the Planning Board, and the Arundel Town Planner. Dubois and Fedders complaint alleged that a memorandum drafted by the town planner and distributed to the members of the Planning Board led to an illegal executive session or sessions. Following the submission of briefs pursuant to a Rule 80B Notice and Briefing Schedule, the Town of Arundel moved to dismiss Dubois and Fedders complaint as untimely filed, for lack of standing, and for failure to state a claim. On February 1, 2018, the Superior Court granted the motion to dismiss, concluding:

[T]he plaintiffs lack standing to bring the action, no subject matter jurisdiction exists for the court to properly review the matter, and plaintiffs fail to state a claim upon which relief can be granted under the [Freedom of Access Act]. Defendants motion to dismiss is granted. Given the significant problems with the present litigation, the court also awards defendants reasonable attorneys fees and expenses pursuant to Rule 11 of the Maine Rules of Civil Procedure ....

         At the invitation of the Superior Court, the Town of Arundel subsequently submitted an affidavit of attorney fees and costs, seeking $5, 862.50 in attorney fees and $231.75 in costs, which the court then determined was reasonable. Dubois and Fedder moved for reconsideration and relief from the Superior Courts judgment, but both motions were denied. This timely appeal followed. See M.R. Civ. P. 80B(n); M.R. App. P. 2B(c)(1)-(2)(D).

         II. DISCUSSION

         [¶4] It is unclear from the face of the complaint whether Dubois and Fedder rely on the Freedom of Access Act (FOAA), 1 M.R.S. §§ 400-414 (2017), as the statutory avenue for review under Maine Rule of Civil Procedure 80B, or if they are asserting a separate cause of action pursuant to FOAA. Nevertheless, the present appeal fails in either event because Rule 80B is not the proper mechanism to assert a FOAA claim, Dubois and Fedder lacked ...


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