The opinion
STATE OF MAINE SUPERIOR COURT
CUMBERLAND, ss. STATE OF MAINE CIVIL ACTION
Cumberland, ss, Clark's OffigOCKET NO. AP 05/36
SUPERIOR COURT REC - COM -4 RS 3902)
CHARLES D. SWANSON and SEP 23 2003. = ORDER ON PLAINTIFFS’
JOEL K. NICKLESS, MOTION FOR TRIAL OF
RECEIVED THEFACIS
Plaintiffs
DONALD i. . SREGHT
LAW LIBRARY
Vv.
2005
TOWN OF FREEPORT, et al, ocr 1
Defendants.
FACTUAL BACKGROUND
On April 16, 2003, the Town of Freeport Planning Board (the “Planning Board”)
found that L.L. Bean’s use of the Mallett Barn and adjacent property at Wolfe’s Neck
Farm for Outdoor Discovery School kayaking classes was sufficiently extensive to make
the barn a “school.” Record (“R”), Ex. B-18 at 12. The Freeport zoning ordinance defines
a “school” as a “building, the principal use of which is conducting educational classes.”
Freeport, Me., Code § 104. Wolfe’s Neck Farm is located in Freeport’s Rural
Residential- II (“RR-II”) zone. R. B-16 at 11. A school is permitted in an RR-II zone, so
long as the Planning Board is satisfied that the use of the property meets the site plan
review standards set forth in the Town of Freeport’s land use code. R., Ex. E at §
403(B)(11).
During the April 16, 2003 meeting, Planning Board members specifically heard
arguments on whether L.L. Bean’s use of the Mallet Barn and adjacent property was a
school. R., Ex. C. At this hearing, Planning Board members were also reminded that in
January 2003, plaintiffs had questioned the characterization of L.L. Bean’s Outdoor
Discovery School classes as a “school.” R., Ex. B-18 at 9. In addition, at the hearing,
Plaintiffs Swanson and Nickless opposed L.L. Bean’s use of the site and argued that L.L.
Bean’s instructional activities on the site did not comprise a school. Ex. B-18 at 10. Both
Plaintiffs argued that L.L. Bean’s activities amounted to a commercial operation rather
than a school. R., Ex. C at 32-34, 42. Finally, at the hearing, the Planning Board
members themselves debated whether L.L. Beans kayaking classes satisfied, as a factual
matter, the definition of a “school,” as well as whether the definition of school
distinguishes between commercial and non-commercial schools. R., Ex. C. at 37-41.
Plaintiffs are now asking that the court grant them a trial of the facts in which to
introduce evidence not in the record and not stipulated to by the parties.
DISCUSSION
The Law Court has held that Rule 80B(d) is not intended to allow the Court to
retry facts that were presented to the governmental decision maker. Rather, “[t]he
purpose of Rule 80B(d) is to allow the parties to an appeal of a governmental action to
augment the record presented to the reviewing court with those facts relevant to the
court's appellate review of agency action.” Baker’s Table, Inc. v. City of Portland, 2000
ME 7, { 9, 743 A.2d 237, 240-41 (citing Palesky v. Secretary of State 1998 ME 103, TF 5-9,
711 A.2d 129, 131-132 (applying M. R. Civ. P. 80C). The Court may, for example, allow
a party to augment the record “where there are claims of ex parte communication or
bias alleged, with sufficient particularity, to have had an effect on the fairness of
governmental proceedings.” Id., 2000 ME 7,19, 743 A.2d at 240-41. In addition, the
Court may allow the record to be supplemented “if the government took action,
reviewable by the court, in circumstances that did not allow for the making of a
record.” Id. (citing Moreau v. Town of Turner, 661 A.2d 677, 679 (Me. 1995); Palesky v.
Town of Topsham, 614 A.2d 1307, 1310 n.3 (Me. 1992); Marxsen v. Board of Dirs.,
M.S.A.D. No. 5, 591 A.2d 867, 871 (Me. 1991).
In the present action, Plaintiffs make no claims of ex parte communications or
bias. Nor is this a situation where there were circumstances that did not allow for the
making of a record. Rather, Plaintiffs wish to augment the record in order to retry the
same issues that have already been heard by the Planning Board: whether the kayaking
operation constitutes a school and whether the Mallet Barn and the adjacent property is
primarily being used for educational purposes. The record shows that the Planning
Board has already entertained these exact questions and afforded the plaintiffs an
opportunity to present evidence on these topics. Therefore, the record need not be
augmented.
Moreover, the additional evidence that Plaintiffs would like to present at a trial of
the facts is evidence that Plaintiffs could have presented to the Planning Board,
including: (1) details of the actual use of the Mallet Barn on the property, and details
regarding the overall kayaking operation and its role in L.L. Bean’s aggressive
marketing plan, including recent growth rates and strategy; (2) articles illustrating how
the kayaking operation is integrated into L.L. Bean’s marketing plan; and (3)
advertisements for the kayaking classes, wherein the term “school” is used
infrequently. See Pls.’ Offer of Proof at 3; Pls.’ Exhibits A, B, and C. In addition, the
record indicates that Plaintiffs were in possession of at least some of this evidence at the
time of the April 16, 2003 hearing, as several of the same Pieces of evidence were also
offered in Plaintiffs’ February 2003 application for a hearing with the Zoning Board of
Appeals. See R., Ex. D-1.
Allowing Plaintiffs to augment the record with evidence that could have been
presented at an earlier time would be inconsistent with the holding in H.E. Sargent, Inc.
v. Town of Wells, 676 A.2d 920, 926 (Me. 1996). In that case, the Law Court upheld the
denial of a motion for trial by an appellant who sought to add to the record evidence
that the appellant was unprepared to address at the hearing before the local board. The
3
Court noted that the appellant had ample notice and opportunity to present evidence at
the hearing. Id. at 926-27. Similarly, in a more recent decision, the Superior Court held
that “a trial of the facts is unavailable for those issues that could have been raised below
concerning the substance of the case.” Chutter v. Inhabitants of Bristol, AP-00-004 (Me.
Super. Ct., Lin. Cty., Oct. 26, 2000) (Gorman, J.). Given that the Plaintiffs in the present
action had ample notice and opportunity to present evidence to the Planning Board, the
Court will not allow them to now develop the record with this additional evidence.
The entry is
Plaintiff's Motion for Trial of the Facts is DENIED
Dated at Portland, Maine this 22nd day of September, 2003.
LL
bert E. Crowley
Justice, Superior Court
~ Date Filed 02-16-2903 Cumberland
County
Action 80B Appeal
CHARLES D. SWANSON
JOEL K. NICKLESS
INHABITANTS OF THE TOWN OF FREEPORT
THE FREEPORT PLANNING BOARD
L.L. BEAN, INC.
WOLFE'S NECK FARM FOUNDATION
vs.
Plaintiff's Attorney
Paul E. Peck, Esq. (Bar No: 3527)
Andrew W. Sparks, Esq. (Bar No: 3649)
Drummond & Drummond, L.L.P..
One Monument Way
Portland, ME O4101
(207) 774-0317
Defendant’s Attorney
Martin I. Eisenstein Esq.
Kevin J. Beal, Esq.
P.O. Box 3070
Lewiston, Maine 04243-3070
(207) 786-3566
PETER PLUMB, ESQ. (773-5651) Wolf Neck
. : Farm Foundation
CHRISTOPHER L VANIOTIS, ESQ. (774-1200)
Inhabitants of the Town of Freeport &
The Freeport Planning Board