The opinion
STATE OF MAINE 88" SUPERIOR COURT
BEST aS oe CIVIL ACTION
KNOX, ss. Pn eprcs DOCKET NO. AP-04-010 _
DEM ~ KINO - ats 2087
HILARY HARWOOD and oe
FRANK BRIDGES, we epee ue
Plaintiffs :
Vv. DECISION AND ORDER
TOWN OF CAMDEN and
WAYFARER PARTNERS, LLC,
Defendants
DEC 29 2M
This matter is before the court on plaintiffs’ motion for trial of the facts or
remand. This case was initiated by a MR. Civ. P. 80B complaint for review of
governmental action in which the plaintiffs seek to overturn a decision of the Town of
Camden Planning Board to issue a construction permit to defendant Wayfarer Partners,
LLC. The record reveals that at a hearing before the Camden Planning Board on
December 3, 2003, an opponent of the application made the following statement on the
record:
An interesting incident happened at an earlier hearing when somebody
overheard one of the principals of Wayfarer after the meeting talking to
one of the members of the Planning Board, and one asked the other what
are we going to do about all the old people here; and the response was, let
em name or select the color, that will make them happy. Well, believe
me, it doesn’t make me happy at all.
At the conclusion of the hearing, the following exchange took place between
counsel for the plaintiffs and the Chairman of the Planning Board:
Mr. Carver: Mr. Chairman may I ask the Chair to inquire of the
gentleman who the planning board: member was that had that
conversation that he just disclosed with the principal and the applicant?
Chairman: No.
Mr. Spaulding: I don’t know about the plan.
Mr. Carver: I would just like to note for the record I think it may be
important on issues of bias to know who that was if there was such a
conversation. That’s why I’m asking.
Plaintiffs complained that the Chairman of the Planning Board limited counsel's
ability to make inquiry by requiring all questions to be directed through and subject to
approval of the Chair. They complain that the failure to allow the plaintiffs’ counsel to
confront and examine a witness and obtain the information necessary to explore the
issue of bias deprived them of a fair hearing, due process, and the right of
confrontation, cross-examination and examination of witnesses thereby tainting the
proceeding. In their detailed statement of facts to be adduced by a trial, plaintiffs
suggest that the testimony of the witness as described raised issues concerning contact
and conduct between a principal of defendant Wayfarer Partners and a member of the
Planning Board outside of a public meeting. They allege that this raises the specter of
improper contact or possible bias or interference which was compounded by the refusal
of the Chair of the Planning Board to allow examination by plaintiffs’ counsel.
Defendant Wayfarer Partners, LLC argues that plaintiffs’ statement by way of
offer of proof falls short of the requirement as it is predicated solely upon a “rumor.”
The Town of Camden complains that the offer of proof simply indicates double hearsay
which would not be reliable in any event.
An applicant before an administrative board is entitled under the Due Process of
the United States and Maine Constitutions to a fair and unbiased hearing. Gorham v.
Town of Cape Elizabeth, 625 A.2d 898 (Me. 1993). The law requires judicial review of
administrative action to be confined to the record upon which the agency decision was
based except in certain specified circumstances. Cutler v. Transco, et al., 472 A.2d 913
(Me. 1984). Our procedural rules require a party to file with a motion for trial of the
3
facts a detailed statement in the nature of an offer of proof of the evidence that the party
intends to introduce at trial. The statement must be sufficient to permit the court to
make a proper determination as to whether any trial of the facts as presented in the
motion and offer of proof is appropriate under the rule and if so to what extent. Ryan v.
Town of Camden, 582 A.2d 1973 (Me. 1990).
The reviewing court may order the taking of additional evidence before
the agency if it finds that additional evidence, including evidence
concerning alleged unconstitutional takings of property, is necessary to
decide the petition for review; or if application is made to the reviewing
court for leave to present additional evidence and it is shown that the
additional evidence is material to the issues presented in the review, and
could not have been presented or was erroneously disallowed in
proceedings before the agency.
5 M-R-S.A. § 11006(1)(B) as cited in Cutler v. Transco, 472 A.2d at 918.
Considering the argument by the plaintiffs that the failure [of the Chairman of
the Planning Board] to allow plaintiffs’ counsel to confront and examine a witness in
obtaining information necessary to explore the issue of bias deprives the plaintiffs of a
fair hearing, due process and the right of confrontation assumes facts that would
establish such bias. Plaintiffs, in their pleadings, make it clear they simply wish to
discover and determine whether the statement by the witness contained in the record
has any basis in fact. This falls short of the requirement that the plaintiff make it clear
that it has evidence which it wishes to bring before the court of that bias and violation
of due process rights. Further, the statement taken by itself would not provide matters
that would be particularly necessary to decide the petition for review or relevant to the
substantial issues.!
‘It is not clear to the court why plaintiffs could not conduct such investigation with the witness in
question, an independent nonparty, to determine the source of his information and to otherwise
investigate whether substantive evidence exists to show improper conduct by a member of the board.
The entry will be:
Defendants’ motion for trial of facts or remand is DENIED; notice
and briefing schedule dated May 6, 2004, is VACATED; it is hereby
ORDERERD plaintiffs’ brief is due 40 days after December 20, 2004, the
defendants’ brief is due 30 days after service of the brief by the plaintiffs,
the plaintiffs has 14 days after service of the brief by defendants to file a
reply brief.
Dated: December @ | 2004 OLE j
Donald H. Marden
Justice, Superior Court
Date Filed
5/3/04 Knox
Docket No. AP-04-010
Action 80B Appeal
HILARY HARWOOD AND FRANK BRIDGES
TOWN OF CAMDEN
vs, and WAYFARER PARTNERS LLC
Plaintiff’s Attorney
John L. Carver, Esq.
Defendant’s Attorney
Rendle A. Jones, Esq. (Wayfarer Partners
PO Box 190
10 Church St
Belfast ME 04915 Camden ME 04843 236-8836
338-5171 s444
William §. Kelly, Esq. (Town of Camden)
90 High St
Belfast ME 04915 338-2702
Date of
Entry
5/6/04 On 5/3/04, 80B Appeal and Summary Sheet filed by Attorney Carver.
5/6/04 Notice and Briefing Scheduled mailed to Attorney Carver, Attorney
William Kelly and Attorney Rendle Jones.
5/11/04 |Defendant's Answer to Rule 80B Complaint filed by Attorney Jones.
5/13/04 Response to Rule 80B Complaint filed by Attorney Kelly.
5/14/04 |Acknowledgment of Receipt of Summons and Complaint filed:
-William S. Kelly accepts service on behalf of the Town of Camden on 5/7/0
-Rendle Jones, Esq. accepts service on behalf of Wayfarer on 5/6/04.
5/19/04 Motion for Trial of Facts or Remand; Detailed Statement of Facts to be
Adduced and Propose Order filed by Attorney Carver.
5/26/04 Letter to counsel informing them that pursuant to Rule 80B(d), the time
limit contained in this rule shall cease to run due a the pending motion
for trial.
Copy mailed to Attorneys Carver, Jones and Kelly.
5/27/04 Motion for Order Specifying Future Course of Proceeding and Proposed
Order filed by Attorney Carver.
6/2/04 Defendant, Wayfarer Partner LLC Memorandum in Opposition to Plaintiffs'
Motion for Trial of Facts or Remand and Affidavit of John Sanford
filed by Attorney Jones.
6/7/04 Objection to Plaintiffs’ Motion for Trial on the Facts filed by Attorney
Kelly.
6/11/04 |0On 6/8/04, Motion to Establish New Briefing Schedule and/or to Extend
the Time for Plaintiffs to File Plaintiffs’ Brief and the Record
filed by Attorney Carver.