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Tomasino v. Town of Casco

Superior Court of Maine, Cumberland

June 17, 2019

MARK TOMASINO and VALERIE TOMASINO Plaintiffs
v.
TOWN OF CASCO Defendant and COLLEEN DEMIRS, Trustee, Lake Shore Realty Trust Party-in-interest

          DECISION AND JUDGMENT

          A. M. Horton, Justice.

         This case has returned to the court after being remanded to the Town of Casco Zoning Board of Appeals (ZBA) for further findings. The parties have filed a Supplemental Record that includes certain stipulations as well as the ZBA's Decision on Remand dated April 11, 2019 and the minutes of the ZBA's April 11, 2019 meeting at which the ZBA reached its decision. The decision on remand and the meeting minutes are now in the record as Record Documents 20 and 21. The parties have all filed supplemental briefs and the Plaintiffs have filed a supplemental reply brief.

         To expedite resolution, the court elects to decide the case without oral argument. See M.R. Civ. P. 7(b)(7).

         The background and history of the case are summarized in the court's Order of Remand dated March 11, 2019 and will not be repeated here.

         The ZBA's decision on remand has clarified and corrected the ambiguity resulting from the absence of specific findings sufficient to show the Board's reasons for granting the administrative appeal taken by party-in-interest Colleen Demirs as Trustee of Lake Shore Realty Trust [["the Trust"] from the issuance of the tree cutting permit to the Plaintiffs, Mark and Valerie Tomasino.

         The decision on remand contains both factual findings and legal conclusions. The factual findings are were that two of the three trees at issue-the 15" beech and the 20" beech-are located partly on the Trust's side of the easement and partly on the Trust's property outside the easement, and that the easement did not make it clear whether the Tomasinos had the right to cut the third tree-the 12" maple-even though it is located entirely within the easement. Record Document 20, at 1.

         Based on these findings, the Board concluded that "the permit was not properly issued because two of the trees were located partially outside the easement area and on property owned exclusively by Lake Shore Realty Trust and it was unclear whether the Tomasinos had the right to remove the third tree without the agreement of Lake Shore Realty Trust." Id. at 2.

         Implicit in this conclusion is the Board's view that the Tomasinos have no right to remove the two beech trees that straddle the boundary between the easement and the Trust property, and that the Tomasinos had not shown that they have the right to remove the maple located entirely within the easement.

         The Tomasinos in their initial supplemental brief and in their supplemental reply brief challenge the decision on remand on three grounds:

• The ZBA's factual finding that the two beech trees straddle the boundary must be set aside because it has no support in the record.
• The ZBA erred as a matter of law in deciding that the Tomasinos have no right to cut trees located partially in the easement and partly on the Trust property.
• The ZBA erred as a matter of law in deciding that the Tomasinos' right to remove the maple located entirely within the easement is unclear.

         The Trust and the Town say that the ZBA's findings about the location of the three trees in relation to the easement are based on the Tomasinos' own survey plan, and that the ZBA's decision that the Tomasinos had not demonstrated a legal right to remove the trees was appropriate in light of the language of the easement and the state of the law regarding an easement holder's right to remove trees entirely or partly within the easement.

         However, the Tomasinos make a valid point about ZBA having misunderstood the location of one of the three trees-the 15" beech. As noted in the court's Order of Remand, the Tomasinos' survey plan depicts the smaller beech as being located within the easement. See Order of Remand at 2 n.l. See Record at 34. The Tomasinos themselves initially portrayed all three trees as being located partly within the easement. See Plaintiffs Mark and Valerie Tomasinos' Rule 80B Brief at 2. Their Supplemental Brief acknowledges that their attorney was "confused" and attaches a new exhibit that plainly ...


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