# Bauer v. Town of Gray

> Superior Court of Maine · September 7, 2000

URL: https://www.frixlaw.com/law-library/cases/10806732

## Case

- **Court:** Superior Court of Maine
- **Decided:** September 7, 2000
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Judges:** Thomas D. Warren
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

STATE OF MAINE eae SUPERIOR COURT

CUMBERLAND, ss. en CIVIL ACTION
wera S40 DOCKET NO. AP-99-90
bows ot BONA ci: i £5

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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)
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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 |
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Lhomas VU. varien

Justice, Superior Court

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10806732. Public record. Not legal advice.