The opinion
STATE OF MAINE 4 SUPERIOR COURT
“ny, 4p CIVIL ACTION
LINCOLN, ss. , “iy, DOCKET NO. AP-01-006
“Op SO { ! : yoy, I
Op ° G0.
NORMAN R. BRACKETT eo. CE&
and SANDRA BRACKETT, “hy, “Z5, % %
LeSy, PB
Plaintiffs ipa, \ / -
ys DECISION AND ORDER
THE INHABITANTS OF THE meneay ey.
TOWN OF BRISTOL,’
Defendant
NOV & AMtly
This matter is before the court on plaintiffs’ motion to amend their petition for
review and defendant Town of Bristol’s motion for summary judgment.
This case concerns a controversy over reconstruction of a private pier in Bristol,
Maine. Plaintiffs Norman and Sandra Brackett (“Plaintiffs”) are abutting landowners to
Donald Wotton (“Wotton”), who constructed a new pier on his property.
In June 2000, Wotton applied for a permit to “rip rap” his land for erosion during
repair of his existing pier. On June 15, 2000, the Town of Bristol Planning Board
(“Planning Board”) authorized Frank King, its CEO (“CEO”), to issue a Shoreland
Permit upon receipt from Wotton of a Shoreland Application, a fee, and a sketch. On
July 11, the CEO issued the Shoreland Permit to Wotton.
Wotton submitted a second Application for Project Review and Permit approval,
seeking approval for more extensive changes to his pier, in October 2000; the proposed
project was “pier, access ramp, bait house.” On November 22, 2000, the DEP approved
1 Originally, the Town of Bristol Planning Board, the Town of Bristol Board of Appeals, and Donald Wotton were
named defendants in this petition. They were each dismissed as named defendants. See Order, J. Atwood (Aug. 16,
2001); Order, J. Marden (December 11, 2001). Thus, the only defendant is Inhabitants of the Town of Bristol.
Wotton’s the application to construct a new pier; on December 1, 2000, the CEO issued a
new building permit to Wotton.
Plaintiffs received no notice of Wotton’s permit applications or of any hearings
conducted by the Planning Board. Plaintiffs attended the March 1, 2001 Planning Board
Meeting, and were informed that the Planning Board had delegated its authority to the
_
or -~ loess ays ~ TAS Ana WA MATA aAtarial cat 1 ;
CEO to issue a permit to Wotton after the required materials had been submitted.
Plaintiffs appealed to the Town of Bristol Board of Appeals (“Board of Appeals”),
claiming that the Planning Board’s delegation to the CEO was an improper delegation
of its authority. The Board of Appeals denied Plaintiffs’ appeal on the basis that it was
untimely.
Plaintiffs then brought their original action: an 80B Petition asserting that the
Planning Board made an improper delegation of authority, that the Planning Board
failed to follow notice requirements, and asserting that Plaintiffs timely appealed to the
Board of Appeals. The Petition included independent claims alleging violation of due
process. Id.
This court remanded to the Board of Appeals for that body to determine if there
was good cause for Plaintiffs’ untimely 80B Petition. The Board of Appeals determined
there was no good cause. Plaintiffs then filed an amended 80B Petition with the
Superior Court, adding a count appealing the Board of Appeals’ determination of no
good cause.
This court denied Plaintiffs’ 80B Petition, but did not rule on Plaintiffs’
rocess claims. Before the court is Plaintiffs’ motion to amend the
petition to include an additional claim of violation of 38 M.R.S.A. § 1022 (regarding
notice requirements for construction of a pier), and Defendant’s motion for summary
judgment.
“Whether to allow a pleading amendment rests with the court’s sound
discretion.” Kelly v. Michaud’s Ins. Agency, Inc., 651 A.2d 345, 347 (Me. 1994) (citing
Diversified Foods, Inc. v. First Nat’l Bank of Boston, 605 A.2d 609, 616 (Me. 1992)). Rule
15(a) provides that leave to amend “shall be freely given when justice so requires”; this
mandate means that
motion will be granted in the absence of undue prejudice. See id. (citing John W.
Goodwin, Inc. v. Fox, 642 A.2d 1339, 1340 (Me. 1994)(quoting Diversified Foods, Inc., 605
A.2d at 616). The passage of time is not, in and of itself, a ground to deny a motion to
amend the pleadings. See Mutual Fire Ins. Co. v. Richardson, 640 A.2d 205, 207 (Me.
1994). A refusal to grant a plaintiff a second opportunity to amend his complaint when
there is no evidence of bad faith, undue delay, dilatory motive, or futility of
amendment... was deemed an abuse of discretion. Barkley v. Goodwill Home Assoc., 495
A.2d 1238, 1240 n.1 (Me. 1985).
Here, Plaintiffs move to amend the complaint to add a fifth count, for violation of
38 M.R.S.A. § 1022 (this statute establishes the procedure for an applicant and a
municipality to give public notice of the proposed construction of a wharf, fish weir, or
trap).”
Defendant opposes the motion, arguing that the statute of limitations of § 1022
and MLR. Civ. P. 80B prohibit Plaintiffs from alleging a violation of 38 M.R.S.A. § 1022.
Defendant argues that Plaintiffs’ motion should be denied for undue delay and undue
rejudice to Defendant (should it be required to defend itself from this claim).
Title 38 M.R.S.A. § 1022 provides in pertinent part,
2 Plaintiffs submit this motion to amend two days after expiration of the time to move to amend the pleadings,
pursuant to the January 8, 2003 Scheduling Order.
p
the application in a newspaper... and shall designate in
the notice a day and time on which they or their designee will meet... to
examine the [premises] and hear all parties interested... The municipal
officers shall, within 10 days after the date of hearing, give written notice
by mail of their decision to all parties interested. Any person aggrieved
by the decision of the municipal officers, in either granting or refusing to
grant a license as provided, may appeal to the Superior Court within 10
astro aftaes the wmailin
days aiter tne mailing of such no
See 38 M.R.S.A. § 1022. However, as Defendant concedes in its memo, the time
limitation of section 1022 does not apply because Defendant failed to provide notice of
any form.
The proper method of appealing a municipality’s actions is by filing an 80B
Petition. Rule 80B provides that, in the case of failure of a municipality to act (here,
Defendant's failure to provide notice and conduct a hearing), a plaintiff must appeal
within six months after “expiration of the time in which the action should reasonably
have occurred.” See M.R. Civ. P. 80B(b). Therefore, Plaintiffs are precluded from
bringing a count for violation of 38 M.R.S.A. § 1022 because it is more than six months
past December 31, 2000 (the motion to amend was filed March 10, 2003).°
A summary judgment is proper if the citations to the record found in the parties’
Rule 56(h) statements demonstrate that there is no genuine issue as to any material fact
and that the moving party is entitled to judgment as a matter of law. See Dickinson v.
Clark, 2001 ME 49, 4, 767 A.2d 303, 305. “A fact is material if it has the potential to
3 At oral argument, Plaintiffs argued that under the provisions of M.R. Civ. P. 15(c) they were entitled to a
relation back of the amendment such as to effectively amend the complaint at date of filing. The
Defendant suggests that the rule does not allow relation back where the statute of limitations has run
because this court has no jurisdiction over a matter presented to it beyond the time period allowed by
statute. The court is not sympathetic to the argument of the Town of Bristol that it would be unduly
prejudiced by having to defend a claim at this late date but is satisfied that the rule does not provide for a
relation back under these circumstances. The town may well have violated the law in authorizing the
CEO to grant the permit to build a pier. That prejudice to the Plaintiffs certainly exceeds any prejudice to
the town. This matter is decided solely on the law.
nD oo
affect the outcome of the case under governing law.” Levine v. R.B.K. Caly
ME 77, 7 4,n.3, 770 A.2d 653, 655, n.3 (citing Burdzel v. Sobus, 2000 ME 84, { 6, 750 A.2d
573, 575). “The invocation of the summary judgment procedure does not permit the
court to decide an issue of fact, but only to determine whether a genuine issue of fact
me Ly Away Fee a oaAaATY
exists. The Court cannot decide an issue of fact no matter how improbable seem the
opposing party’s chances of prevailing at trial.” Searles v. Trustees of St. Joseph's College,
1997 ME 128, { 6, 695 A.2d 1206, 1209 (quoting Taliwood Land & Dev. Co. v. Botka, 352
A.2d 753, 755 (Me. 1976)). “The party having a burden of proof at trial is ‘required to
produce evidence sufficient to resist a motion for a [judgment as a matter of law] if it
produced at trial nothing more than was before the court on its motion for a summary
judgment.” Fleming v. Gardner, 658 A.2d 1074, 1076 (Me. 1995) (quoting Keyes Fibre Co. v.
Lamarre, 617 A.2d 213, 214 (Me. 1992)).
Defendant moves for summary judgment on the due process claim in Count II.
That is the only present remaining claim subject to plaintiffs’ motion to amend.’
Specifically, Count II claims that Defendant's failure to provide Plaintiffs with proper
notice of the application and of relevant hearings constitutes violation of due process.
Defendant asserts it is entitled to summary judgment on Count II because Plaintiffs
have no 14" Amendment property interest in notification of their neighbor’s application
for a Shoreland Zoning Permit, prior to issuance of the permit. Defendant also alleges it
is entitled to summary judgment on Count II because municipal and state remedies
* The parties agree that Counts III, and IV were disposed of by this court’s remand to the Board of Appeals for a
determination of whether Plaintiffs had good cause for not appealing the permit within the time constraints of the
Ordinance and of Rule 80B; subsequently, this court affirmed the Board of Appeals determination. The parties seem
to dispute whether the Board of Appeals’ hearing for good cause and this court’s denial of review of the 80B Petition
disposed of Count I. Count I, alleging that the Planning Board's delegation of authority to the CEO to issue Wotton’s
permit was an improper delegation of authority and therefore an “error of law, abuse of discretion, and not based on
substantial evidence” (the standard for an 80B Petition), was part of the 80B Petition. This court’s denial of the Rule
80B Petition disposed of Count] as well. The only remaining count is Count II.
5
provided any process that was due, and because Plaintiffs fail to generate any evidence
that Defendant proximately caused their alleged damages.
Plaintiffs oppose the motion, arguing there is a legitimate property interest at
stake and that no post-deprivation remedy was adequate in this case.
There are no genuine issues of fact.
he requirements of due process apply only to the deprivation of interests
encompassed by the Fourteenth’s Amendment's protection of liberty and property. See
Lowe v. Scott, 959 F.2d 323, 334 (1% Cir. 1992)(citing Board of Regents v. Roth, 408 U.S. 564,
92 S.Ct. 2701, (1972). Property interests are not defined by the Constitution, but are
created and their dimensions are defined by existing rules or understandings that stem
from an independent source such as state law. Id. “It is essential to a party’s right to
procedural due process that he be given notice of and an opportunity to be heard at any
proceeding in which [his] property rights are at stake.” Hamill v. Bay Bridge Assoc., 1998
ME 181, { 5, 714 A.2d 829, 831 (quoting Senty v. Board of Osteopathic Examination &
Registration, 594 A.2d 1068, 1072 (Me. 1991)); see also In Re Christmas C., 1998 ME 258, { 5,
714 A.2d 629, 631 (“the fundamental requirement of due process is an opportunity to be
heard upon such notice and proceedings as are adequate to safeguard the right which
the particular pertinent constitutional provision purports to protect”) (quoting In Re
Alexander D., 1998 ME 207, ¥ 13, 716 A.2d 222). “Although specific requirements of due
process may vary according to circumstances, at a minimum, notice must be afforded at
a meaningful time in the proceedings.” Hamill, [ 5, 714 A.2d at 831 (citation omitted).
An elementary and fundamental requirement of due process in any proceeding
which is to be accorded finality is notice reasonably calculated, under all the
circumstances, to apprise interested parties of the pending action and afford them a
as
reasonable opportunity to present their objections.” Mullane v. Central Hanover Bank &
Trust Co., 339 U.S. 306 (1950)(citations omitted.
The central focus in analyzing a due process claim is whether state law remedies
are available to prevent a deprivation of life, liberty, or property from becoming a
45 Kees bans
it due process. See jackson v. inhab. of
failure to follow procedures for processing his general assistance application
constituted a due process violation. A state statute exists to create a remedy for any
person whose application is not acted upon within the statutory timeframe; the court
found that the Town plainly violated state law in this regard. Id. at 853 n.2, 3. The
Maine Supreme Judicial Court affirmed dismissal of plaintiff's claim, specifying “even if
a legitimate property interest were involved, our state procedure available to, and
indeed invoked by, the plaintiff would satisfy due process requirements of the
Fourteenth Amendment.” Id. at 860. The court further explained that, if the plaintiff
was deprived of any “property,” it was “in the derogation of — and not according to -
established procedure.” Id. at 859. “Where a state has provided reasonable remedies to
rectify a legal error by a local administrative body, ... due process has been provided.”
PFZ Properties, Inc. v. Rodriguez, 928 F.2d 28, 31 (1* Cir. 1991)(quoting Creative Envir. v.
Estabrook, 680 F.2d 822, 832 n.9, cert. Denied, 459 U.S. 989, 103 S.Ct. 345, 74 L.Ed.2d 385
(1982)).
In the case at bar, it is undisputed that Defendant gave no notice of any kind, in
violation of state notice requirements. Title 38 M.R.S.A. § 1022 provides that, upon
receipt of an application to construct a whari,
...town officers shall give at least 3 days’ public notice of the application
in a newspaper, published in the town, or, if there is no newspaper
published in the town, in a newspaper published within the county, and
7
shall designate in the notice a day and time on which they or their
designee will meet on or near the premises described, to examine the same
and hear all parties interested... The municipal officers shall, within 10
days after the date of hearing, give written notice by mail of their decision
to all parties interested. Any person aggrieved by the decision of the
municipal officers, in either granting or refusing to grant a license as
provided, may appeal to the Superior Court within 10 days after the
mailing of such written notice.
3
oo
2
Sy
AJ
St)
>
MURS.A. § 1022. However, the state has provided adequate post-deprivation
remedies to rectify a legal error by a local administrative body. See PFZ Properties, Inc.,
928 F.2d at 31. First, as § 1022 specifies, an aggrieved party may appeal a decision
granting or denying approval to construct a wharf to the Superior Court. See 38
M.R.S.A. § 1022. Such appeal is properly made pursuant to M.R. Civ. P. 80B, which
provides for review of governmental action. Under Rule 80B, in the event of a failure to
act [by a government agency], review may be sought within 6 months after expiration
of the time in which action should reasonably have occurred. See MR. Civ. P. 80B(b).
There is no evidence that Plaintiffs were entitled to notice of the application filed
to install rip rap as that appears to have come within the “permit by rule” provision of
the law wherein the installation is deemed lawful provided the terms of the regulation
are followed. However, pursuant to 38 M.RS.A. § 1022, Plaintiffs were entitled to
notice of the October 2000 application to construct a pier, ramp and bait house resulting
in a permit issued December 1, 2000. Because Defendant failed to provide any notice ,
Plaintiffs had six months after the time notice should have been issued to bring their
80B petition. Plaintiffs filed their 80B petition on May 23, 2001, within six months of the
permit issued in December of 2000. However, the Lincoln County Superior Court
denied the Plaintiffs’ 80B appeal by its Order docketed September 24, 20025
° Although the order addressed the issue of whether Plaintiffs had good cause for failing to file an 80B Petition in a
timely manner (as opposed to the issue of notice), this court affirmed the finding that Plaintiffs were aware of (and
8
violation in this case. Defendant is entitled to summary judgment as a matter of law.
For reasons stated herein, the entry will be:
A
ke
Ss
©
ct
hoe
oO
3
ny
Q
hy
Dato eee: tc : A roo WoATIYYN, mor q wf
Miaintitt Miatinn tna mena 2 POH INIER PD: ToaFf gant
a aint is AVE LILLE Lu Amend 1s A/7iss Nia, verTrendant oO
Summary Judgment is GRAN TED; judgment for the Defendant.
Donald H. Marden
Justice, Superior Court
Plaintiffs:
Samuel G. Cohen, Esquire
Defendants (Town of Bristol):
Anne M. Carney, Esquire
thus had actual notice of) the construction of the pier and the issuance of the December 1, 2000 permit to Wotton on
December 4, 2000, and that Plaintiffs were aware of construction as early as September 2000.
9