ELVIN COPP. et al., Petitioners
WILLIAM LONGLEY, et al., Respondents
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.
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
for Leave to File a Second Amended Complaint
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
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.
Motion for Leave to File a First Amended Motion for Trial of
the Facts or Motion to Supplement the Record
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.)
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.)
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.
Motion for Recusal
motion for recusal is denied. M. Code Jud. Conduct Canon 1,
Motion for Clarification and to Consolidate Hearing on
Complaint and Counterclaim
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 ...