# Marquis v. Town of Kennebunk > Superior Court of Maine · September 30, 2010 URL: https://www.frixlaw.com/law-library/cases/10809532 ## Case - **Court:** Superior Court of Maine - **Decided:** September 30, 2010 - **Precedential status:** Unpublished - **Opinion:** Opinion - **Judges:** G. Arthur Brennan - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment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/10809532 ## Opinion text STATE OF MAINE SUPERIOR COURT CIVIL ACTIONS CONSOLIDATED YORK, ss. DOCKET NOS. CV-08-226 Ci AS-· '{oQ ~Pq~~-8Y)t1-iH0 SCOTT MARQUIS, Plaintiff v. ORDER TOWN OF KENNEBUNK, et al., Defendants Plaintiff Scott Marquis appeals from decisions of the Town of Kennebunk's Planning Board and Zoning Board of Appeals pursuant to Rule 80B. 1 BACKGROUND Mr. Marquis owns real property on Truman's Field Road in Kennebunk, Maine. This property abuts a large parcel of land that was once owned jointly by Kenneth and Eleanor Berdeen. Kenneth predeceased Eleanor, leaving her sole owner of the property. Eleanor passed away on March 15, 1994. In her will, Eleanor gave "all of the rest, residue, and remainder of [her] estate" to her children, Conrad Berdeen, Cynthia Sirois, and Kent Berdeen. She also empowered her personal representative "to retain and hold any property which is part of my estate without obligation to dispose of it, and to make distribution in cash or in kind or partly in each." After Eleanor died, her estate drafted a "Plan Showing a Division of Land of the Estate of Eleanor F. Berdeen" ("the Plan"). Under the Plan, the property was divided 1 There is an outstanding motion to join indispensable parties, which is not addressed herein. into three parcels. By Deeds of Distribution by Personal Representative dated February 24, 2007, Parcel 2-A was deeded to Kent Berdeen, Parcel 2-B was deeded to Cynthia Sirois, and Parcel 2-C was deeded to Conrad Berdeen. Following the distribution of the estate, Cynthia Sirois, by deed dated March 19, 2007, conveyed Parcel 2-B jointly to herself and her two children, Brent Sirois and Lynette Mascioli. Subsequently, by deed dated June 6, 2007, Cynthia Sirois and Brent Sirois deeded the northwesterly portion of Parcel 2-B to Cynthia and Lynette Mascioli as joint tenants, and Cynthia and Lynette deeded the southeasterly portion of Parcel2-B to Cynthia and Brent Sirois as joint tenants. On July 8, 2008, defendant Brent Sirois submitted to the Town Code Enforcement Officer ("CEO") an application for a permit to Fill, Grade, Lagoon, Dredge or Harvest in Any Shoreland or Resource Protection Zoning District. The application proposed "the installation of culverts for the crossing of a small stream." It contained a description of the work proposed, and explained that the culvert was intended to provide an area where the stream could cross the already existing wood road. Under the Town's Zoning Ordinance the Planning Board ("PB") was required to ensure that the project met "all applicable Federal and State permit requirements" before the CEO could approve the application. Kennebunk, Me., Zoning Ordinance, Art. 10, §§ 3(C)(10), 3(P)(1)(b) (Feb. 21, 2008). The PB gave its approval at a special meeting on July 28, 2008, but did not make written findings of fact or conclusions of law. Mr. Sirois constructed the culvert shortly after this meeting. On July 31, 2008, Mr. Marquis sent a letter to the CEO requesting that he undertake an investigation into alleged violations of state and local law. 2 Specifically, 2 The Zoning Ordinance requires that "upon being informed in writing of a possible violation," the CEO "shall make or cause to be made an investigation of the facts and inspect the premises where such 2 Mr. Marquis alleged that (1) Brent Sirois started work on a stream crossing without the necessary permit(s), (2) Brent Sirois, through his work on the road, was changing and expanding the use of the pasture road and surrounding land, and (3) that Brent Sirois' activity violated State and local subdivision requirements. Mr. Marquis sent another letter to the CEO on August 8, 2008, asking for an update on his investigation. The letter stated that "[i]f you do not intend to investigate this matter, please inform me in writing of this decision as well." Mr. Marquis also informed the CEO that if his attorney did not receive an update on the investigation by August 15, 2008, that he would appeal his inactivity to the Town Zoning Board of Appeals ("ZBA").3 On September 9, 2008, based on the "CEO's decision not to fulfill his obligation under Article 4 of the Ordinance," Mr. Maquis filed an appeal with the ZBA notifying them of his concerns and asking for appropriate relief. Mr. Marquis also initiated a civil lawsuit against Mr. Sirois during this period. On the day of the ZBA hearing, the CEO sent Mr. Marquis an electronic correspondence summarizing the actions he took in regard to Mr. Marquis's complaint. 4 The letter focuses on three distinct issues: (1) alleged illegal tree cutting in 2007, (2) permitting for the stream crossing, and (3) alleged subdivision violations. The letter contained the CEO's conclusion that the there had been no tree cutting or subdivision violations. The CEO did, however, find Mr. Sirois had violated the permitting violation is alleged to exist." Kennebunk, Me., Zoning Ordinance, Art. 4, § 4(A) (Feb. 21, 2008). If a violation if found, the CEO "shall give written notice ... to the owner and/or to the occupant of such premises and ... demand in such notice that such violation be abated ... ."!d. at Art. 4, § 4(B). 3 The ZBA has the power to hear "appeals where it is alleged there is an error in any order, decision or ruling made by the [CEO] .... "Kennebunk, Me., Zoning Ordinance, Art. 6, § 2(A) (Feb. 21, 2008). "In all cases a person aggrieved by a decision of the [CEO] ... shall commence his appeal within thit1y (30) days after the issuance of a written decision from the [CEO] ... ."!d. at Art. 6, § 3(A). 4 The letter is dated February 12, 2009. Copies of the letter were also sent to the Town's attorney, Brent Sirois, and the ZBA members. 3 requirements for the stream crossing because he had started work on the culvert prior to the issuance of a written permit by the CEO. The CEO charged Brent Sirois a "'double fee' as is customary for the violation of starting work without the proper permit." At the hearing, the ZBA heard from Mr. Marquis's counsel concerning the CEO's alleged errors. These included, but were not limited to, the CEO's failure to completely and appropriately investigate and respond to Mr. Marquis's concerns, the CEO's ir;_adequate and incomplete findings, the illegal subdivision, and the absence of a building permit required for "uses projecting into water bodies." Kennebunk, Me., Zoning Ordinance, Art. 4, § 1(D) (Feb. 21, 2008). The CEO acknowledged the difference between a stream crossing permit and a building permit and, along with the Town Attorney, admitted that no building permits had been applied for or granted to Brent Sirois and/ or the Berdeen family. After hearing the CEO's testimony, the ZBA voted to affirm the actions of the CEO and adopt findings in support of its decision. The ZBA issued a Notice of Administrative Appeal Decision on February 19,2009. Mr. Marquis separately appealed both the PB's July 28, 2008 decision to approve Mr. Sirois's Application for a dredge and fill permit, and the ZBA's February 19, 2009 decision to affirm the CEO's response to Mr. Marquis's letter. This court addressed the PB appeal in an order dated August 20, 2009, in which it found that Mr. Marquis did have standing, that the PB's approval was the first legally cognizable act subject to appeal, and that the PB was required to ensure that the subdivision plan included with the Application met State and local subdivision standards. The court also determined that the PB' s failure to adopt written findings precluded judicial review. The court thus remanded the matter to the PB "for a full evidentiary hearing and for entry of findings of fact with respect to the application for a wetlands fililng permit, which will include 4 findings determining whether there has been or will be a violation of State law or local ordinance with respect to subdivision of land." The court reached the appeal from the ZBA in its order dated November 18, 2009. First the court consolidated the civil action and the two appeals, staying deadlines relating to the private causes action pending resolution of the appeals. Over the defendants' objections regarding "jurisdiction and the sufficiency of the findings," the court remanded the ZBA's decision "for the limited purpose of making specific written findings on whether the [CEO] properly investigated and determined that the division of the [defendants'] land does not constitute a subdivision." The PB held its remand hearing on October 19, 2009. After taking substantial amounts of evidence, the PB determined that there had been no violation of State or local subdivision law. The PB then held a site visit on October 24, 2009, and resumed the hearing on November 9, 2009. There the PB found that the Application met the ordinance's requirements and affirmed the grant of the wetland fill permit. The ZBA addressed the question remanded to it on December 21, 2009. Based on the record from its original hearing of February 17, 2009, the ZBA found that there had been no illegal subdivision, that the CEO and PB had properly approved Brent Sirois's Application for a wetlands fill permit, and that the CEO had appropriately responded to Mr. Marquis's written allegations of violations. Mr. Marquis now appeals from the post-remand decisions. He claims that he "has elected to narrow the scope of his SOB appeals upon remand to the subdivision issue," though he uses this issue to make expansive attacks on the validity of the boards' actions. (Pl.'s Brief at 1 n.1, 17-18.) The Town defends the ZBA's decision on the law and facts, and alternatively argues that Mr. Marquis lacks standing to challenge the CEO's decision to undertake an enforcement action or not. Mr. Sirois and his relatives 5 defend the PB's decision on its merits, and also argue that the PB did not have to address the subdivision question. DISCUSSION "When the Superior Court acts as an appellate court," it directly reviews "the operative decision of the municipality." Mills v. Town of Elliot, 2008 ME 134, rJustice, Superior Court 11 STATE OF MAINE SUPERIOR COURT York, ss CONSOLIDATED CIVIL ACTION DOCKET NO. CV-08-226 DOCKET NO. AP-09-013 .. .. C\. \.. d ' ,." , 011'1') - i v IL ' : } : J 0 II SCOTT MARQUIS, ) ORDER GRANTING PLAINTIFF'S Plaintiff ) MOTION FOR ENTRY OF FINAL ) JUDGMENT ON CONSOLIDATED 80B v. ) CLAIMS PURSUANT TO M.R. CIV. P ) 54(b)(1) OR, IN THE ALTERNATIVE, TOWN OF KENNEBUNK, BRENT D. ) FOR REPORT OF INTERLOCUTORY SIROIS, KENT C. BERDEEN, AND ) RULINGS TO THE LAW COURT CLAUDIA S. BERDEEN, ) PURSUANT TO M. R. APP. P. 24(c), AS Defendants ) WELL AS MOTION TO MAINTAIN 2009 ) STAYORDERRELATINGTO ) INDEPENDENT CAUSES OF ACTION 1. Motions Granted The Court GRANTS Plaintiffs motions for final judgment on his 80B claims, for report of interlocutory rulings on the 80B claims to the Law Court and to maintain the 2009 stay order relating to Plaintiffs independent causes of action in place during the pendency of the Law Court's review and determination of Plaintiffs 80B claims. II. Entry of Partial Final Judgment The Court finds no just reason for delay and ENTERS a final judgment on the claims indicated in this Judgment in accordance with M.R.Civ.P. 54(b)(l), and following the Law Court directive in Guidi v. Town of Turner, 845 A.2d 1189, 1193 (Me. 2004). More specifically, upon review of the Guidi factors, the Court finds as follows: A. Relationship of the Adjudicated and Unadjudicated Claims A final determination on the 80B claims is appropriate because a resolution of the subdivision issue will allow for a final determination on all claims against the Town of Kennebunk, as opposed to requiring the Town to participate in litigation for another several years. A final adjudication on the - 1­ subdivision issue, which is contained within the 80B claims will also inform the proper adjudication of Plaintiffs independent causes of action, as well as inform which federal, state and local laws and regulations govern the type of development that may occur on the subdivided land and the road leading to the subdivided land. B. Possibility That Need For Review May Be Mooted By Future Developments In this case there is absolutely no possibility that the need for review of the subdivision question may be mooted by future developments. Not only does the Plaintiff have a property interest that is directly impacted by the final adjudication of the subdivision question, but the subdivision question is significant enough that it will not lose its "controversial vitality" with the passage of time. See Price v. State, 20 lOME 66, ,-r 6. Even if something were to occur to render the subdivision question technically moot, all three exceptions to technical mootness would apply, thereby making the subdivision question one that should still be heard and ultimately decided by the Court. See id. For example, municipal agencies across the state have an interest in having this matter heard and decided by the Law Court, as it will impact subdivision review within their districts. Similarly, if the decision of the Superior Court is allowed to stand, personal representatives throughout the State of Maine will have new and unfettered powers to divide real property as they see fit and without having to abide by environmental standards and the principles of smart growth embodied within subdivision laws and regulations. C. Chance of Same Issues Being Presenting to Law Court More Than Once If the consolidated action is brought to its conclusion and then appealed, there is a possibility of the same issues being presented to the Law Court more than once. This is so because if the Law Court decides the subdivision question in Plaintiffs favor after the independent causes of action are litigated in the Superior Court, some of the independent causes of action, which involve questions surrounding whether the property is treated as a subdivision or not, may need to be remanded and re­ -2­ decided by the Superior Court. If either or both of the parties disagree with the decisions of the Superior Court on remand, the Law Court may see the same issues again on a second appeal. In contrast, severing the 80B claims from the independent causes of action and entering final judgment on the 80B claims as Plaintiff has suggested allows the Law Court to address the subdivision question once and eliminates the possibility that the Superior Court will improperly rely on its own determination that the property at issue forms part of a subdivision in its review of the independent causes of action, thereby requiring it to go back and reconsider these causes of action after a later inconsistent decision by the Law Court. Further, as is also noted above, presenting the subdivision question to the Law Court for final determination at this time will create greater certainty and clarity on this area of the law for municipalities and members of the public, thereby decreasing the chances of the Law Court being presented with the subdivision question in the future. D. Impact ofImmediate Appeal on Trial Court's Work As discussed above, an immediate appeal affords this Court greater certainty in this area of law for the purposes of this case and other similar cases, as well as eliminates the possibility that this Court will need to decide some of the independent causes of actions twice (before and after the subdivision question is decided by the Law Court). Further, there is always a possibility that a final determination on the subdivision issue will foster settlement discussions between the parties and/or change the course of, or result in a termination of the proceedings. E. Nature of the Legal Questions The subdivision question is a novel question of sufficient legal importance for the Law Court to decide the 80B claims without further delay. The manner in which the judiciary interprets the "division accomplished by devise exception" to Maine subdivision will have a direct impact on the environment, the preservation of natural resources and the manner and quality of development in the communities where questions surrounding the applicability of the exception arise. Further, if the -3­ judiciary interprets the exception in a manner that was not intended by the legislature, the court's interpretation may inform future courses of legislative action and guide appropriate policy development. F. Economic Impacts of Appeal and Delay on All Parties Allowing for an immediate appeal of the 80B claims to the Law Court will have a positive economic impact on all parties and the Court. The costs associated with the uncertainty over whether the land at issue actually forms part of a subdivision are tremendous. A delay in the final determination on this question not only increases the costs of litigation for the parties and the courts as described above, but the uncertainty surrounding the subdivision question impacts the values of the parties' properties, as well as the marketability and transferability of their properties. Further, delay in the final determination on the subdivision question may mean that Plaintiff Marquis is subjected to further harm associated with unregulated subdivision growth and/or that Defendants invest substantial time and money into development under one set of standards only to find out after-the-fact that they are required to go back and comply with subdivision laws. As is also discussed above, severing the 80B claims from the independent causes of action will save the Town of Kennebunk the costs associated with remaining in this consolidated litigation for several more years. In addition, determination of the subdivision question before the independent causes of action makes economic sense for the parties and the courts, as it decreases the chances of certain causes of action being litigated more than once. In fact, this case is much like Boothby v. Grindle, 2009 ME 132, ~ 9, 985 A.2d 1147, 1150, where the Law Court affirmed the decision of the Superior Court to enter a partial final judgment. In that case, just as in this case, the plaintiff argued that because the claims that survived dismissal involved only some of the original parties in interest, any judgment resulting from a trial of those claims would bind only the remaining parties and would mean that if he successfully appealed the dismissal of his complaint, all of the original parties would -4­ have to relitigate almost the entire case. Here, the same logic applies and dictates in favor of the Court entering final judgment on Plaintiffs 80B claims. G. Miscellaneous Factors In this case, the Court takes note of and gives weight to the fact that the parties have agreed all along to leave a stay in place during the pendency of the 80B claims. The stay has remained in place for all of this time because it is logical and in the interests of judicial economy and efficiency for the courts to decide the subdivision issue before proceeding with a determination on the independent causes of action. HI. Rule 24(c) Report of 80B Claims to the Law Court The Court also finds that Plaintiffs 80B claims are appropriate for report to the Law Court and ORDERS that the claims be certified for review by the Law Court. This case is much like Despres v. Moyer, which was successfully reported to the Law Court, because it met all the M.R.App. R. 24(c) requirements for a Law Court report and meets all of the other legal mandates. See Despres v. Moyer, 2003 ME 41, ~ 15, 827 A.2d 61,65. First, resolution of the subdivision question is sufficiently important to justify an immediate report of the question to the Law Court. The Law Court has previously determined that "questions involving novel issues of law may meet the requirements for importance and doubt." Liberty Ins. Underwriters, Inc. v. Estate of Faulkner 98 2008 ME 149, ~ 7, 957 A.2d 94, (citing Butler v. Mooers, 2001 ME 56, ~ 7,771 A.2d 1034, 1037; Thermos Co. v. Spence, 1999 ME 129, ~ 5, 735 A.2d 484, 486). As this Court pointed out in its September 30, 2010 Order, this case raises an issue of first impression in Maine and the Court's decision amounts to a "close call." Moreover, the issue is one capable of frequent repetition. See Despres, 2003 ME 41, ~ 15, 827 A.2d 61,65. Other courts, municipalities and members of the public are likely to be faced with similar questions regarding the -5­ applicability of the subdivision exception in the future. Further, as noted above, review by the Law Court at this time prevents, rather than encourages, piecemeal litigation. Second, as discussed above in the Court's review of the Rule 54(b)( 1) factors, supra, there is no possibility that the question raised on report is an issue that "might not have to be decided at all because of other possible dispositions." Plaintiff has indicated that the subdivision question is central to his case, and the question will not disappear with the passage of time or as a result of the determination of the remaining issues left for adjudication. Third, a decision on the subdivision issue will dispose of the 80B claims in their entirety, as well as result in a final determination of the 2009 case that now forms part of the consolidated action. Fourth, involvement of the Law Court prior to the entry of final judgment on all claims will not encourage piecemeal litigation in cases involving similar circumstances. To the contrary, deciding the subdivision question now will create more certainty for future litigants in this area of law and prevent the need for similar reports to the Law Court. IV. Stay The Court ORDERS that the 2009 stay order relating to Plaintiff's independent causes of action remain in place during the pendency of the Law Court's review and determination of Plaintiff's 80B claims. ~ ~/»h ~ W-f/V--, ~ ~ ~ ~6~ -1 ~ Yn.D-rY> ~ f~ 6-v--J, ~, "'< ~ L.. A.t.--~4 The Clerk is directed to incorporate this Judgment by reference in the docket in accordance with M. R. Civ. P. 79(a). -6­ ATTORNEYS FOR PLAINTIFF: TIMOTHY NORTON LAURI BOXER-MACOMBER KELLY REMMEL & ZIMMERMAN PO BOX 597 PORTLAND ME 04112-0597 ATTORNEYS FOR DEFENDANT TOWN OF KENNEBUNK: NATALIE BURNS WILLIAM H DALE JENSEN BAIRD ET AL PO BOX 4510 PORTLAND ME 04112 ATTORNEY FOR DEFENDANTS KENT C BERDEEN, CLAUDIA S BERDEEN AND BRENT D SIROIS: THOMAS DANYLIK WOODMAN EDMANDS DANYLIK & AUSTIN PO BOX 468 BIDDEFORD ME 04005 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10809532. Public record. Not legal advice.