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Elvin Corp. v. Longley

Superior Court of Maine, Cumberland

July 25, 2019

ELVIN COPP. et al., Petitioners
v.
WILLIAM LONGLEY, et al., Respondents

          ORDER

          Nancy Mills, Justice

          Before the court are petitioners' motion for leave to file a second amended complaint; petitioners' motion for leave to file a first amended motion for trial of the facts or in the alternative, motion to supplement the record with newly located evidence; petitioners' motion for recusal; and petitioners' motion for clarification and to consolidate hearing on the complaint and counterclaims.

         The court previously denied petitioners' motion for trial of the facts, motion to dismiss respondent's counterclaim, and motion to supplement the record. (Orders dated 4/5/19 & 4/12/19.)

         Motion for Leave to File a Second Amended Complaint

         In their proposed second amended complaint, petitioners seek to add count II, declaratory judgment; count III, equitable estoppel, and count IV, deprivation of property and denial of due process. Petitioners do not bring an anticipatory challenge. They ask for a declaration that they are in compliance with the zoning code. They seek the same relief in count I of their first amended complaint. See Sold. Inc. v. Town of Gorham. 2005 ME 24, ¶ 14, 868 A.2d 172, Equitable estoppel can be asserted against a municipality only as a defense and not as an affirmative cause of action. See Buker v. Town of Sweden. 644 A.2d 1042, 1044 (Me. 1994). All of the proposed amendments were known to petitioners at the time they filed the first amended complaint.

          Petitioners specifically agree they could have brought their constitutional claims earlier. (Pet'rs' Reply Mot. for Leave to File Second Amend. Compl. 1.) Considering the circumstances of this case, justice does not require the granting of the second motion to amend. M.R. Civ. P. 59(e). The motion is denied.

         Petitioners' Motion for Leave to File a First Amended Motion for Trial of the Facts or Motion to Supplement the Record

         Petitioners seek to file an amended motion for trial of the facts or motion to supplement the record. The parties' Rule 80B memoranda and the record have been filed. Petitioners' original motion for trial of facts was denied on April 5, 2019 because it did not comply with Rule 80B(d) and (e). (Order April 5, 2019.)

         "Where a motion is made for a trial of the facts pursuant to subdivision (d) of this Rule, the moving party shall be responsible to ensure the preparation and filing of the record and such record shall be filed with the motion." M.R. Civ. P. 80B(e)(1). Petitioners' amended motion for trial of facts does not comply with Rule 80B(e) because petitioners failed to prepare or attach their proposed supplement to the record, the July 10, 2017 transcript and development plan. Petitioners refer to the evidence as newly discovered, but provide no valid reason as to why this evidence could not have been made part of the record below, (Pet'rs' Mot. for Leave to File Amend. Mot, for Trial of Facts 7.)

         Petitioners also argue in their amended motion for trial of facts that the Board did not base its findings on substantial evidence. In a Rule 80B proceeding, the court reviews the "local agency's decision for abuse of discretion, errors of law, and findings not supported by the evidence." Beal v. Town of Stockton Springs. 2017 ME 6, 5 13, 153 A.3d 768, Petitioners may not argue their Rule 80B motion in their amended motion for trial of facts in order to retry the facts presented to the Board, See Baker's Table. Inc. v. City of Portland, 2007 ME 7, ¶ 9, 743 A.2d 237. Finally, petitioners' vague allegations of bias in the offer of proof do not meet the Rule 80B(d) requirement that petitioner provide "a detailed statement, in the nature of an offer of proof, of the evidence that the party intends to introduce at-trial. That statement shall be sufficient to permit the court to make- a proper determination as to whether any trial of the facts as presented in the motion and offer of proof is appropriate." M.R. Civ. P. 80B(d); see also Ryan v. Camden. 582 A.2d 973, 975 (Me. 1990). Petitioners' motion for leave to file a first amended motion for trial of facts is denied. Petitioners' motion to supplement the record is denied.

         Petitioners' Motion for Recusal

         The motion for recusal is denied. M. Code Jud. Conduct Canon 1, R. 2.11.

         Petitioners' Motion for Clarification and to Consolidate Hearing on Complaint and Counterclaim

         In the court's order dated and filed April 5, 2019, the court denied petitioners' motion for trial of the facts filed on November 26, 2018 and motion to strike or ...


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