The opinion
STATE OF MAINE SUPERIOR COURT
CUMBERLAND, ss. CIVIL ACTION
DOCKET NO. AP 01-29 fo
peo Sos AP 02-04
CRAIG REYNOLDS and
DIANNE REYNOLDS
Plaintiffs ORDER ON 80B APPEAL
“ DONALD L. GARBRECHT
INHABITANTS OF THE TOWN LAW LIBRARY
OF GORHAM
SEP 9 2002
Defendant
FACTUAL BACKGROUND
This matter is before the court on a Rule 80B appeal by the plaintiffs from the
decision of the Planning Board for the Town of Gorham (“Board”), in which the Board
determined, after remand from a decision of this Court (Reynolds v. Inhabitants of the
Town of Gorham, AP-01-29 (Me. Super. Ct., Cum. Cty., December 20, 2001) (Warren,
J.)), that it had only approved the amendment to Lot 3 of the Riverwood Subdivision
and had not approved the final design or construction plan for a proposed trail.
The plaintiffs own Lot 1 in Riverwood Subdivision. $.B. Gorham, Inc. owns Lot
3 in Riverwood Subdivision, which lot abuts the plaintiffs’ property. Shaw Brothers
Construction, Inc. filed a multi-part application for site plan review that, in part, sought
to amend the Riverwood Subdivision to create an easement to be used as a public trail
to be developed by Maine Department of Transportation. S.B. Gorham Inc. and Shaw
Brothers Construction Inc. have the same two owners, Jon and Dan Shaw. R. 21. Dan
Shaw, President of S.B. Gorham, Inc., appeared before the Board on behalf of Shaw
Brothers Construction, Inc. On December 20, 2001, the Superior Court (Warren, J.)
remanded the matter to the Board for supplementing the record or, in the alternative,
determining that the May 21, 2001 Board approval was limited to the easement across
Lot 3." On January 7, 2002, the Board concluded that at the prior meeting on May 21,
2001, the Board only approved the amendment to Lot 3 of the subdivision and not the
proposed final design and construction plan. The Plaintiffs seek review of the Board
decision alleging that the Board erred in determining that its first decision approved
only the easement, rather than approving the actual construction design for a portion
of the Mountain Division Trail on the easement.
DISCUSSION
On remand, the Board concluded at the January 7, 2002 that it had only approved
the amendment to the lot in the subdivision in the May 21, 2001 meeting. The plaintiffs
argue that although the Board concluded they had not reached a decision on the final
trail design or construction plan, the Board did in fact reach such a decision due to the
scope of the information considered at the May 21* hearing and the subsequent actions
of the Board and its staff. However, the Board concluded explicitly that they have not
approved the final design or construction plans for the trail. R. 32. Therefore, both the
plaintiffs and defendants are left with that determination. If construction commences
on the trail without further approval by the Board or, following an adverse decision by
the Board concerning the final design and construction plan approval, the plaintiffs may
then seek judicial relief.
' Justice Warren stated:
If the Planning Board amends its approval of the subdivision plan amendment to
specify that such approval is limited to the creation of an easement and conditions
that approval on a requirement that a plan for design and construction of the actual
trail across Lot 3 must be submitted for approval in the future, it need not address any
issues that are premature in the absence of a design for construction of the trail.
The entry is
The decision of the Town of Gorham Planning Board is AFFIRMED.
204A
Dated at Portland, Maine this J6th day of August 2002.
)
“ ~ Robert E. Crowley
Justice, Superior Court
Reynolds v. Inhabitants of the Town of Gorham, AP-01-29 (Me. Super. Ct., Cum. Cty.,
December 20, 2001) (Warren, J.)
ee
02-04-02 Cumberland AP-02-004
Date Filed Docket No.
County cons. w/ AP-0Q1-29
Acti RULE 80B APPEAL
ction
CRAIG REYNOLDS TOWN OF GORHAM
DIANNE REYNOLDS 5.B. GORHAM, INC.
VS. SHAW BROTHER'S CONSTRUCTION, INC
Plaintiff's Attorney Defendant’s Attorney
MURROUGH H. O'BRIEN, ESQ. NATALIE L. BURNS, ESQ. (Town of Gorham)
P.O. Box 370 P.O. Box 4510
Portland, ME 04112 Portland, ME 04112
(207) 774-4130 (207) 775-7271
Date of
Entry
2002
Feb. 4 Received 02-04-02:
Summary Sheet filed.
" " Rule 80B Complaint filed.
Feb. 5 On 2-5-02.
Briefing schedule mailed. Plaintiff's brief and recrod due 3-18-02.
Feb. 15 Received 02-15-02:
Defendant Town of Gorham's Motion to Consolidate Actions and Incorporated
Memorandum of Law filed.
" " Defendant Town of Gorham's Proposed Order filed.
Feb. 25 Received 02-22-02:
Entry of Appearance of Natalie L. Burns, Esq. on behalf of Town of Gorham
filed.
March 4 Received 2-28-02.
Order on Motion to Consolidate filed. (Crowley, J.)
There being no opposition, Defendant Town of Gorham's Motion to
Consolidate the matters in Docket Numbers AP-01-29 and AP-02-04 are
hereby consoliated pursuant to M.R.Civ.42. This consolidated Rule 80B
appeal shall be subject to the following briefing schedule:
1. Plaintiffs' Brief and Rule 80B record due on March 13, 2002.
2. Defendant's Brief due 14 days after service of Plaintiffs' Brief.
If the Parties-in-Interest choose to file a responsive brief, it will
be due at the same time as Defendant's brief.
3. Plaintiffs' Reply Brief due 14 days after service of Defendant's
Brief.
Copies mailed Murrough O'Brien, Esq., Natalie Burns, Esq., William Dale,
Esq. and John Bannon, Esq. on 3-4-02.
March 13 Received 03-13-02:
Plaintiffs' Brief filed.
" " Plaintiffs' Record filed.