Opinion

Bauer v. Town of Gray

Court
Superior Court of Maine
Filed
Sep 7, 2000
Status
Unpublished
On the bench
Thomas D. Warren
Cited by
0 cases
Authority
More cited than 34.1%

The opinion

STATE OF MAINE eae SUPERIOR COURT

CUMBERLAND, ss. en CIVIL ACTION

wera S40 DOCKET NO. AP-99-90

bows ot BONA ci: i £5

boas

$ wt 2.

Lies Lots

ALLEN BAUER,

OCT 11 on

Bi /

Plaintiff 7D ~CUN 4/ 7 (3000

VS. ORDER ON DEFENDANT'S MOTION

FOR A TRIAL OF THE FACTS

TOWN OF GRAY,

Defendant

Defendant Town of Gray has moved for a trial of the facts pursuant to Rule

80B(d). After review of the submissions of the parties, the court denies the motion.

The Law Court has stated that Rule 80B(d) "is not intended to allow the

reviewing court to retry the facts that were presented to the governmental decision

maker." Baker's Table Inc. v. City of Portland, 2000 ME 7 99, 743 A.2d 237, 240-41.

The implication of that decision and other decisions relating to Rule 80B(d) is that

trials pursuant to Rule 80B(d) should be limited to claims of procedural irregularity

or other issues on which there was no opportunity to make a record below. See id.;

Palesky v. Secretary of State, 1998 ME 103, {{5-8; 711 A.2d 129, 131-32.

In this case, all parties had an opportunity to make a record on the issues on

which the Town now seeks a trial before the Planning Board. Bauer is correct that if

the record does not contain substantial evidence to support the Board's decision, the

granting of the Town's Rule 80B(d) motion would provide the Town with an

unjustified opportunity to bolster the record after the fact. Nor is this conclusion

altered by the fact that the issue in this case may turn on intent to evade the

subdivision law. The Planning Board made a finding on that issue, and the issue in

the case is whether there is substantial evidence to support that finding. Although

the Planning Board did not have subpoena power, it was also not constrained by the

rules of evidence. M.R.Evid. 1101{a).

In light of the disposition of the instant motion, plaintiff's brief and the filing

of the record shall be due within 30 days of the date this order is filed and briefing

shall thereafter be governed by Rule 80B(g). The clerk is directed to incorporate this

order in the docket by reference pursuant to Rule 79({a).

Dated: September é , 2000 ~ Aw

Thomas D. Warren

Justice, Superior Court

Date Filed 10-25-99 CUMBERLAND Docket No. AP 99-90

County

Action __APPEAL - 80(B)

Y &

&

oy 8

ALLEN BAUER TOWN OF GRAY o!|U8

ae

a2 5

vs 23°

ie

Plaintiff's Attorney Defendant’s Attorney 8

WILLIAM S. KANY ESQ 282-1527 WILLIAM DALE ESQ. 775-7271

PO BOX 1179, SACO ME 04072 PO BOX 4510

PORTLAND ME 04112

Date of |

Datea: v-, _.

Lhomas VU. varien

Justice, Superior Court

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

A word about cookies

We need a few to keep you signed in and the library working. The rest help us see which pages people use and where they get stuck. They stay off unless you say yes.