# Miner v. Inhabs. of the Town of Benton > Superior Court of Maine · December 31, 2008 URL: https://www.frixlaw.com/law-library/cases/10809007 ## Case - **Court:** Superior Court of Maine - **Decided:** December 31, 2008 - **Precedential status:** Unpublished - **Opinion:** Opinion - **Judges:** Nancy Mills - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10809007 ## Opinion text STATE OF MAINE SUPERIOR COURT KENNEBEC, ss. CIVIL ACTION Docket No. AP-06-:?7 t , l / i r~v\ v r, J,L;\- I) ' . J Ie, \-) j JANlES MORGAN MINER and LOUISA MINER, Plaintiffs v. DECISION AND ORDER INHABITANTS OF THE TOWN OF BENTON, et al, Defendants and Interested Parties Pursuant to M.R. Civ. P. BOB, the plaintiffs seek judicial review of an October 19, 2006 decision of the Board of Appeals for the Town of Benton (Board). The Board upheld decisions by the Code Enforcement Officer (CEO) for the Town to issue land use permits to (1) Lance Shores and Nichole Higgins, and (2) Debra Hood.! (See R. Index 5, Tabs I, 2).) Proper issuance of a land use permit requires compliance with a Benton ordinance, which states that "[n]o land use permit shall be issued to erect any structure on a lot without required frontage on a public way." Benton, Me., Land Use Ordinance, § VIII(A)(I). The ordinance further provides that an access road "constructed within [a] right-of-way deeded in favor of the lot(s) to be developed" may be provided in place of frontage on a public road. 2 Id. at § VIII(A)(I)(a). Because the deed by which Debra Hood acquired her property did not include the grant of a right-of-way/ whether the CEO's decision to issue Debra Hood the permit was proper depended upon the 1 Plaintiffs are not seeking review of the Board's decision with regard to Lance Shores and Nichole Higgins's land use permit. (Pis.' Br. at 5 n.2.) 2 At the hearing before the Board, both parties agreed to apply section VIII(A)(1)(i) of the Benton Ordinance, which requires that the right-of-way "be a minimum of 20 feet in width." (R. Index 1 at 1-2.) 3 (R. Index 5, Tab 5.) existence of a public right-of-way to her property. Before the Board, the CEO testified to her determination that a public right-of-way existed over Stagecoach Lane,4 based upon an opinion letter by an attorney for the permittees, documents referenced in that letter, and upon an examination of the site itself. (R. Index 2 at 2.) The plaintiffs acquired their property, which abuts the western entrance of Stagecoach Lane, on October 29, 1988 by warranty deed. s They argued that Stagecoach Lane had been discontinued. The Board found that the plaintiffs had "not carried their burden to present 'substantial evidence' that the pertinent road sections had been discontinued." (R. Index 1 at 3.) For the following reasons, the Board's decision is affirmed. STANDARD OF REVIEW On an appeal pursuant to M.R. Civ. P. 80B, the record is examined to determine if the Board abused its discretion, committed errors of law, or made findings that are not supported by substantial evidence in the record. Tinsman v. Town of Falmouth, 2004 ME 2, c;:t8Tldpd to Jrtl,U'lTy 9 s 7007 aT'(1. Fu1 (' BOn [jtn.yr.d l1T~t:U f;llCh t tme: • COl)ipr'; lnr\.i l_(~d to :'itt~y~: of T(~c('lrd. Date of Entry Docket No. 12/15/06 Original summons with return of service made upon Annette Hood on 11/8/06. Original summons with return of service made upon Ronald Hood on 11/8/06. Original summons with return of service made upon Elizabeth Day on 11/8/06. Original summons with return of service made upon Gerald Day on 11/8/06, Original summons with return of service made upon Bonnie Thornhill on 11/8/06. Original summons with return of service made upon James Thornhill on 12/7 /06. Acknowledge of Receipt of Summons and Cpmplaint received by Alton C. S'tevens, Esq. 12/26/06 Ronald & Annette Hood, Brian & Debra Hood, Roger & Rachel Averill and James & Bonnie Thornhill's Third Amended Answer to Plaintiffs' Petition for Review, filed. s/Nale, Esq. Letter entering appearance, filed. s/Nale, Esq. 1/8/07 Gerald T. Day & Elizabeth M. Kenny-Day's Answer to Plaintiffs' Petition for Review and Counterclaim, filed. s/Dawson, Esq. Certificate of Service, filed. s/Dawson, Esq. 1/17/07 Defendant's Reply to the Counterclaim of Parties-In-Interest Day and Kenny-Day, filed. s/Stevens, Esq. 1/22/07 Plaintiffs' Answer to Counterclaim by Gerald D. Day and Elizabeth M. Kenny-Day, filed. s/Buschmann, Esq. Motion to Add Parties-in-Interest and to:Substitute Parties, filed. s/Buschmann, Esq. Proposed Order, filed. Proposed Order, filed. Certificate of Service, filed. s/Buschmann, Esq. 9/19/07 Hearing/Confernece Record:1.Record of proceedings before Benton Board of appeals to be prepared and filed within 21 days. (2). any motion to be filed within 21 days of filing of reocrd. (3). After motions filed Clerk to set for hearing on all motions includin· petitions motion for trial of the fact. s/Studstrup copis sent to all parties 10/24/07 Town of Benton's Record on Appeal, filed. s/Buschmann, Esq. (Record in vault) 10/25/07 Entry of Appearance, filed. s/Gasink, Esq. 10/30/07 Motion to Expand Time to File Record, filed. s/Buschmann, Esq. (l0/10/Q/, Proposed Order, filed. 11/5/07 Motion to Expand Time to file Recordof proceedings before Benton Town Boa",? Appeals is extended to October 24,2007. Judge Mills Copies mailed to parties 11/8/07 Motion To Enlarge Time To File Motions, filed 11/7/07. s/Buschmann, Esq. 11/9/07 ORDER, Mills, J. 11/8/07 Motion to Enlarge Time to File Motions is granted and the deadline for the parties to file motions to extend is January 10, 2008. Copy to attorneys. Page J James M. and Louisa Miner vs. Inhabitants of the Town of Benton, et al. Date of Entry Docket No. -"-A""'P~---'O"_'6"__-_7'__7'___ _ 2/7 /08 2/1/08: No record has been filed pursuant to MRCiv.P. 80R(e). This case is dismissed for want of prosecution. 80R(h)/s/Nancy Mills, Justice 2/7/08: copy of the above order mailed to counsel of n.>cord this d?te. 2/14/08 Motion To Reconsider and To Set Aside, filed. s/Buschmann, Esq. Record on Appeal, filed. s/Buschmann, Esq. 2/20/08 Letter with attachment, filed 2/19/08. s/Stevens, Esq. 2/26/08 Defendants' Objection To Motion To Reconsider And To Set Aside, filed 2/19/08, with copy of Notice and Briefing Schedule. s/Nale, Esq. Letter regarding Motion To Determine Future Course and Record On Appeal, filed 2/20/08, with attachments. s/Buschmann, Esq. 3/3/08 Amended Motion To Reconsider and To Set Aside, filed 2/27/08. s/Buschmann, Esq. 3/6/08 Defendants' Memorandum In Opposition To Plaintiff's Amended Motion To Reconsider, filed 3/3/08. s/Nale, Esq. 4/29/08 Plaintiffs' Motion to set aside the Court's February 1, 2008 Order is GRANTED. Mills, J. (4/28/08) Copy mailed to attorneys of record. 5/21/08 Proposed Order, filed 5/19/08. s/Buschmann, Esq. 6/11/08 Offer of Proof (unsigned) and Supplemental Offer of Proof, filed 6/9/08. s/Buschmann, Esq. 6/11/08 Defendants' Memorandum In Opposition To Plaintiff's Offer Of Proof And Supplemental Offer Of Proof, filed. s/Nale, Esq. 6/24/08 Motion To Amend Complaint and to Join Additional Parties, filed 6/23/08. s/Buschmann, Esq. 7/7/08 Notice And Briefing Schedule mailed to attorneys of record. ORDER, Mills, J. (7/2/08) Neither the complaint nor this supplemental offer constitutes the required detailed statement of evidence. M.R.Civ.P. 80B(d). Case will proceed on Count I. 7/23/08 ORDER on Motion To Amend Complaint and to Join Additional Parties, Mills, J. (7/21/08) Motion DENIED. Corrective deed was recorded 2/27/08. Copy mailed to attorneys of record. 8/29/08 Plaintiffs' Brief, with attachment, filed 8/18/08. s/Buschmann, Esq. 9/19/08 Defendants' Reply Brief, filed 9/17/08. s/Nale, Esq. Attachments filed. 9/29/08 Plaintiffs' Reply Brief, filed 9/26/08. s/Buschmann, Esq. 10/6/08 Letter informing the court that no brief will be filed on behalf of Town as the Town has instructed not to do so. s/Stevens, Esq. Date of Entry Docket No. 12/31/08 DECISION AND ORDER, Mills, J. The Decision of the Board of Appeals for the Town of Benton is AFFIRMED. Copy mailed to attorneys of record. Copy mailed to repositories. 12/31/08 Notice Of Removal Of ExhIbits mailed to attorneys of record. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10809007. Public record. Not legal advice.