The opinion
STATE OF MAINE SUPERIOR COURT
CIVIL ACTION
LINCOLN, ss. DOCKET NO. AP;04-004
pb Hf Vie £4 eer iy f Oe Oe
THE ROBERT M. MacNAMARA sei
FOUNDATION, Le
i. RECEIVED AND FILED
Plaintitt LINCOLN COUNTY SUPERIOR COURT DEC 27 20M
v. DEC 10 20QPECISION AND ORDER
TOWN OF WESTPORT ISLAND, SHARON SIMPSON
et al., CLERK
Defendants
This M.R. Civ. P. 80B matter is before the court on five motions: plaintiff's
motion for trial, defendants’ motion to dismiss, plaintiff's motion for extension of time
to file record, plaintiff’s motion to amend request for trial, and plaintiff's amended
motion for trial.
This case concerns a dispute concerning denial, by defendant Town of Westport,
of an Application for Exemption from Local Property Taxation, sought pursuant to
36 M.R.S.A. § 652(1)(A) by plaintiff MacNamara Foundation (“Foundation”) of a 2.5
acre property and three story residence on Westport Island that fronts on the Sheepscot
River and is backed by a tidal, saltwater marsh.
Plaintiff asserts that the property will be used for hosting mid-career artists in
four to six week residency programs on the island that provides them with “time and
resources for self-exploration, problem solving and focused professional growth,” for
no fee to the artists. The Foundation, established in Nevada as a 501(c)(3) organization,
provided free accommodations to sixteen national and international artists in 2002 and
twenty-six such artists in 2003.
Plaintiff submitted an “Application for Exemption From Local Property
Taxation” with the Assessors of the Town of Westport dated October 10, 2003.
Assessors discussed aspects of the application in numerous meetings from
October 2003 until they voted to deny plaintiff's application on March 10, 2004. The
assessors found that the foundation was not a Maine corporation, that the residence was
a “private home which will only be open to their invited guests,” that there is no
significant public benefit offered by the foundation and it is not operating the site
exclusively for benevolent or charitable purposes and that the foundation does not
operate the site to provide a service that would otherwise have to be funded by
taxpayers.’
Pursuant to M.R. Civ. P. 80B plaintiff filed a timely complaint with this court on
April 2, 2004, and filed a motion to amend that complaint on April 9, 20042 No
opposition to this motion was filed.
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.” M. R. Civ. P. 15(a). This mandate means that if the moving party is not acting
in bad faith or for delay, the motion will be granted in the absence of undue prejudice.
John W. Goodwin, Inc. v. Fox, 642 A.2d 1339, 1340 (Me. 1994), citing Diversified Foods, Inc.
v. First Nat'l Bank of Boston, 605 A.2d 609, 616 (Me. 1992) (citation omitted). To overturn
a denial of leave to amend, the appealing party "must demonstrate a clear and manifest
"A copy of this decision was filed by defendant along with its April 22, 2004 motions. The record in this matter
does not appear to contain a copy of this decision. The record is in three volumes with consecutively numbered
pages but no index or table of contents.
* This motion was accompanied by a draft order but did not contain the “twenty one day notice” required by M.R.
Civ. P. 7(b)(1)(B).
abuse of . . . discretion and must demonstrate granting such motion is necessary to
prevent injustice." Miller v. Szelenyi, 546 A.2d 1013, 1022 (Me. 1988) (citation omitted);
see FIELD, MCKusICK & WROTH, 1 Maine Civil Practice § 15.4 (2d ed. 1970 & Supp. 1981).
If the party filing the motion to amend is not acting in bad faith or for delay, the
motion should be granted in the absence of undue prejudice. Chrysler Corp. v. L/A Auto
Sales, 1998 ME 53, ¢ 15, 707 A.2d 1311, 1315.
This motion, filed one week after the original complaint, has not been opposed
by defendants. The amended complaint, according to plaintiff addresses changes made
by assessors in the written findings of fact that came to plaintiff counsel’s attention after
his vacation. The motion wiil be granted.
The first motion, filed on April 2, 2004 requests a trial of facts on the sole issue
of bias of the Selectmen ~ specifically the question of whether the Selectmen made their
decision prior to the public hearing.
The 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. Rule 80B(d) is not intended to allow the reviewing court to retry
the facts that were presented to the governmental decision-maker, nor
does it apply to any independent civil claims contained in the complaint.
Rather, it is intended to allow the reviewing court to obtain facts not in the
record that are necessary to the appeal before the court.
Baker's Table, Inc. v. City of Portland, 2000 ME 7, J 9, 743 A.2d 237, 240.
Plaintiff alleges that the First Selectman phoned an attorney and asked him to
write up a decision against plaintiff before the meeting was held.‘
On April 22, 2004, defendants filed timely opposition to this motion arguing that
this motion should be denied for two reasons. First, plaintiff had failed to timely file a
° This motion did was accompanied by a draft order but did not contain the “twenty one day notice”
required by M.R. Civ. P. 7(b)(1)(B).
* Defendant does not deny this took place.
4
record pursuant to M.R. Civ. P. 80B(e) and second that a “prima facie showing of
misconduct is required before plaintiff is permitted to inquire into the mental processes
of an administrative decisionmaker.” Quoting, Ryan v. Town of Camden, 582 A.2d 973,
975 (Me. 1990).
On May 7, 2004, plaintiff filed an Amended Motion for Trial° wherein more
detail of the phone call to the wrong attorney (attorney Vianiotis, the attorney for the
Barrretts, and the foundation) seeking a written decision for the board before the public
hearing and stating that an adequate record does not exist for trial.
As to defendants’ second objection, the plaintiff's failure to timely file a record,
this matter is addressed in plaintiff's opposition to defendants’ motion to dismiss.
Basically, plaintiff avers that it did not receive the record from defendants, despite
discussions prior to briefing deadlines and, in fact, received the record itself from
defendants four days after it was required to file it. Plaintiff avers the record is still
incomplete.
Regarding defendants’ first objection, inquiry into the mental processes of the
decisionmakers, plaintiff has pointed to evidence of preparation to vote a certain way
by members of the board but that alone is insufficient to show misconduct. “[T]here is
no prohibition on a hearing officer reviewing documents in advance and preparing
memos of potential findings and issues to assist the officer or the Board in consideration
of matters that may arise at the hearing.” Turbat Creek Preservation, LLC v. Town of
Kennebunkport, 2000 ME 109, ¥ 9, 753 A.2d 489, 491,
Plaintiff points to other irregularities in the Selectmen’s deliberations, including
hearings that were not advertised, documents appearing in the record which plaintiff
was not advised of or copied, and consideration of evidence that was not presented at
° This motion contained a draft order, a memorandum of law and a 21-day notice.
5
any public hearing. At the very least, these allegations, if substantiated, would support
a prima facie finding of ex parte communication.
The Maine procedural rules “require a party to file with a motion for trial of the
facts ‘a detailed statement, in the nature of an offer of proof, of the evidence that the
party intends to introduce at trial.’ That 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 this rule and if so to what extent.’”
Ryan v. Town of Camden, 582 A.2d 973 (Me. 1990). Furthermore, a “prima facie showing
of misconduct” is required before plaintiff is “permitted to inquire into the mental
processes of an administrative decisionmaker.” Ryan v. Town of Camden, 582 at 975,
citing Frye v. Town of Cumberland, 464 A.2d 1995 (Me. 1983). The details provided in
plaintiff's amended motion for trial, while marginal, do provide some prima facie
suggestion of available relevant evidence. Given the insufficient record and the
averments of significant irregularity in the process, a trial of the facts will aid this court
significantly. The court will granted defendants’ amended motion for trial.
Plaintiff filed this motion for retroactive extension of time to file the record in this
matter on May 7, 2004. Pursuant to the workings of M.R. Civ. P. 80B(e) the record was
due at the same time or before plaintiff's brief due April 14, 2003. Plaintiff asserts that it
did not receive the record from defendants until four days after it was due. Plaintiff
admits it possessed a small percentage of the record but the vast majority was in the
custody of defendants.
Defendants filed timely opposition to this motion pointing out that the record
was due two months earlier.* Defendants reject plaintiff’s complaints concerning
custody of the record asserting that the record was available at Town Hall and noting
° Plaintiff actually filed the record with this court the day before, on May 27, 2004.
6
that defendants sent the record to plaintiff the day after it was requested. Defendants
also state that it has repeatedly requested a copy of the record, as filed, from plaintiff
and that there is a dispute about the content of the record as filed.
M.R. Civ. P. 80B(e) anticipates some level of cooperation, certainly a higher level
than is apparent in this matter, between the parties in preparation of the record. M.R.
Civ. P. 80B(e) states in relevant part:
The parties shall meet in advance of the time for filing the plaintiff's brief
to agree on the record to be submitted. Where agreement cannot be
reached, any dispute as to the record shall be submitted to the court. The
record shall include the application or other documents that initiated the
agency proceedings and the decision and findings of fact that are
appealed from, and the record may include any other documents or
evidence before the governmental agency and a transcript or other record
of any hearings.
Arrangements for compilation, and agreement as to completeness is the job of
the parties. That job has obviously not been accomplished here (there is, for example,
no copy of the decision under review in the record). Unless counsel are prepared to be
subject to sanctions, any remaining issues with regard to the completeness of the record
must be resolved immediately.”
Defendants filed a motion to dismiss in conjunction with their opposition to
plaintiff’s motion for trial of the facts. Plaintiff filed timely opposition. Defendants’
argument is that this 80B complaint should be dismissed for want of prosecution
pursuant to M.R. Civ. P. 80B(e) because plaintiff had, as of April 22, 2004, failed to file
the record. As noted above, the record was eventually filed over one month later. Also
as noted above, both parties blame this failure on each other.
” To some extent in a case such as this, the record is under control of the defendant's counsel. On the
other hand, most, if not all, of the record should be a matter of public record. For two counsel to fail to
have the capability to agree on the record to be put before the court is inexcusable. The standard is the
same for both parties, the record must contain all matters relevant and pertinent to the matter before the
court consistent with the nature of the process being reviewed.
7
In addition to moving to dismiss the 80B complaint entirely, defendants moved,
in the alternate, to have Selectmen Richardson and Lee dismissed as defendants.
Defendants cite a 1981 Law Court ruling in a tax abatement case Shawmut Inn v.
Kennebunkport, 428 A.2d 384 (Me. 1981).
The taxpayer and the municipality are the proper adversaries in tax
abatement proceedings in the courts. Assessors, Town of Bristol v. Eldridge,
rs ae ~~~ Me. 392-A:2d-37,-39=40-1978)- “MR-Civ-P.-80B-requires-notice-to-any - Sees -
administrative agency whose decision is being reviewed in the couris but,
absent some statutory provision to the contrary, this requirement of notice
does not make the agency a party to the proceeding in Superior Court.
Id. at 388-89,
Plaintiff objects to dismissal of the Selectmen/assessors because it is concerned
that pursuant to MLR. Civ. P. 80B(a) action of “any department, board, commission or
officer” is properly under review and “failure to name the actual entity issuing the
ruling would subject plaintiff to a motion to dismiss.
Plaintiff has named the Town of Westport, the actual entity issuing the ruling,
and therefore Selectmen Richardson and Lee must be dismissed.
The entry will be:
Plaintiff's motion to amend complaint is GRANTED; plaintiff’s
motion to amend request for trial is GRANTED; plaintiff's amended
motion for trial is GRANTED; plaintiff’s motion for trial is moot and
therefore DISMISSED; plaintiff’s motion for extension of time to file the
record is GRANTED; defendants’ motion to dismiss Town of Westport is
DENIED; defendants’ motion to dismiss defendant George Richardson, Jr.
and Reginald Lee, individually or as tax assessors, 1s GRANTED;
judgment for George Richardson, Jr. and Reginald Lee.
Dated: December & 2004 Bx
Donald H. Marden
Justice, Superior Court
Plaintiff: Defendants:
Richard W. Elliott, II, Esquire Christopher Ss. Neagle, Esquire