The Witham Family Ltd. Partnership v. Town of Bar Harbor

STATE OF MAINE SUPERIOR COURT

HANCOCK, ss. 90CKET AP-09-07, !

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THE WITHAM FAMILY LIMITED PARTNERSHIP

Plaintiff,

v.

RECEIVED & FILED

TOWN OF BAR HARBOR,

DEC 22 2010

Defendant,

and HANCOCK COUNTY

COURTS ".

NORTH SOUTH CORPORATION,

Defendant.

DECISION

MOTION TO DISMISS

Defendant North South has filed a Motion to Dismiss

this 80B complaint Pursuant to Rile 12(b)(1), lack of

subject matter jurisdiction. The preliminary question is

whether the Plaintiff had standing to bring this 80B

appeal. That question is answered by determining both

whether the Plaintiff participated in the administrative

process in question and whether the Plaintiff will suffer a

particularized injury. Norris Family v. Town of Phippsburg,

2005 ME 102, ~~ 11-13, 879 A.2d 1007, 1012.

Count 1 of 80B Complaint

This count involves allegations of errors on the part

of the Bar Harbor Board of Appeals in granting the appeal

of Defendant North South Corp. from the decision of the Bar

Harbor Planning Board. There is no dispute between the

parties, and the record shows, that the Bar Harbor Planning

Board previously denied North South's application for

1

authority to develop what has been identified as the West

Street Hotel.

The record as submitted confirms that Plaintiff,

individually and through its attorney, were parties before

the Planning Board. (See Planning Board Minutes of June 17,

2009 at 3.) That confirms the first element of standing

with respect to Plaintiff's participation during the

Planning Board administrative process, but it is the

administrative process before the Board of Appeals that is

being contested along with its decision granting the North

South appeal and over turning the Planning Board.

The partial transcripts of the Board of Appeals

Meetings of April 13 and April 22, 2010, (filed as

attachments to North South's Reply to Plaintiff's

Opposition to Defendant's Motion to Dismiss) confirm that

neither the Plaintiff nor its counsel participated in those

meetings as parties in the administrative process other

than as members of the public. The partial transcripts

confirm that the Plaintiff, through counsel, was

specifically invited to participate in the administrative

process as a party opponent before the Board of Appeals and

declined to do so. The materials filed with and in

opposition to the Motion to Dismiss confirm that the above

hearing dates involved the North South appeal of the

Planning Board denying North South's development

application. (See Binder B, Tab 2 at 2.)

This matter involving the Witham Family Limited

Partnership is not a case like Pride's Corner, Etc. v.

Westbrook Bd., Etc., 398 A.2d 415, 417 (Me. 1979)1, where

one of the parties who initially petitioned the Board of

Zoning Appeals and thereafter petitioned that Board for

reconsideration was found not to have standing. The status

and standing of Mr. Swan as a participant was less then

clear in Pride's Corner.

In this case, unlike Pride's Corner, Plaintiff

explicitly elected not to participate in the appeal of the

Planning Board decision (i.e. administrative process) by

North South to the Board of Appeals. Accordingly Plaintiff

lacks standing to contest the decision of the Bar Harbor

Board of Appeals that ultimately reversed the Planning

Board's decision, which had initially denied the North

See also Lewis v. Town of Rockport, 2005 ME 44, ~~8-10,

870 A.2d 107, 110.

2

South application. The Motion to Dismiss is granted as to

Count 1 of this 80B complaint.

Count 2 of 80B Complaint

Although Defendant North South argues that Plaintiff

did not participate before the Bar Harbor Planning Board,

the record as submitted confirms that position to be

inaccurate. (See, e.g., Binder E, Tab 6 at 3; Tab 7 at 3.)

The question is whether by appealing a decision in

favor of the plaintiff, that is, a decision that denies

approval of a development application by the Planning

Board, the Plaintiff has demonstrated suffering a

particularized injury?

In terms of a particularized injury, that standard is

low and an abutter, as Plaintiff is understood from the

submissions to be, need only show a minor adverse

consequence such as parking impact. See Norris Family

Assoc., 2005 ME 102, ~ 19, 879 A.2d at 1013 ("An abutting

landowner has a particularized injury if there is a

conceivable injury.") (citation omitted). Plaintiff

appealed the Board of Appeals decision denying the North

South application, not because it was dissatisfied with the

denial of the application by North South, but because

Plaintiff was dissatisfied with the Planning Board's

reasons in the decision, which approved most of North

South's arguments other than the building height

requirement. That is, Plaintiff argued that there should

have been more reasons for denying North South's

application other than the height requirement. Plaintiff's

dissatisfaction with the reasons set forth in the Planning

Board's decision denying North South's application do not

constitute particularized need. Brooks v. Town of North

Berwick, 1998 ME 146, ~ 10, 712 A.2d 1050, 1053. The

decision of the Board of Appeals opining on the adequacy of

the Planning Board's decision with regard to grounds on

which it did not rely to deny North South's application

is a nullity. (Binder B, Tab 3.) The Motion to Dismiss

Count 2 of the 80B Complaint is granted.

Plaintiff lacks standing to proceed on either Count 1

or Count 2 of its Rule 80B Complaint.

The entry is:

3

1. The Defendant North South Corp.'s Motion to Dismiss

Plaintiff's M.R. Civ. P. BOB Complaint, Counts 1

and 2, is GRANTED.

2. All other motions which are pending, including the

Motions to expand the record or for trial of the

facts are dismissed as moot.

December 22, 2010

Kevl.n M. Cuddy

Justice, Superior C

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Date Filed 6/2/2010 HANCOCK Docket No. AP-2010-007

County

Action RULE 80B APPEAL

SPECIALLY ASSIGNED TO JUSTICE KEVIN M. CUDDY

TOWN OF BAR HARBOR

NORTH SOUTH CORPORATION, SUB NOMINE

THE WITHAM FAMILY LIMITED PARTNERSHIP YS. North South Construction _ T.T.r. .

Plaintiff's Attorney Defendant's Attorney

6emefte-~.-Be~r~r,-E~q--w/d 12/10/2010 Lee K. Bragg, Esq for Town of Bar Harbor

John K. Hamer, Esq 146 Capitol Street

84 Harlow Street POBOX 5057

POBOX 1401 AUGUSTA ME 04330

BANGOR ME 04402-1401

William Devoe, Esq

John C. Bannon, Esq. entered 12/9/2010 P. Andrew Hamilton, Esq

POBOX 9785 for North-South Corp.

Date of I Portland ME 04104-9785 Eaton & Peabody

Entry POBOX 1210, Bangor ME 04402-1210

6/2/2010 Complaint for Review of Government Action Pursuant to M.R. Civ. P. 80B

Filed.

6/3/2010 Notice and Briefing Schedule Issued. Copy forwarded to Plaintiff's Attorney

6/9/2010 Acceptance of Service by Lee Bragg, Esq for Defendant, Town of Bar Harbor

(s.d. 6/4/2010)