The opinion
STATE OF MAINE SUPERIOR COURT
CIVIL ACTION
YORK, ss. DOCKET NO. AP-11-D17
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ROBERT J. TARBOX, et al.,
Plaintiffs
v. ORDER
THE INHABITANTS OF
TOWN OF YORK, et al.,
Defendants
The plaintiffs own real estate at 165 Woodside Meadow Road in York, Maine,
which abuts a proposed unaccepted way depicted on a subdivision plan entitled
"Woodside Meadow Phase Two, York, Maine" recorded at Plan Book 78, page 33. The
history of this dispute can be found at Tarbox v. Blaisdell, 2009 ME 123 and Mem. 10-123.
On January 7, 2011 the York Director of Public Works granted permits to
defendant HDV Enterprises, LLC (HDV) to open a town highway (R.2) and to install a
driveway (R.4) in York to access its land in Kittery. The plaintiffs appealed these
decisions to the York Board of Appeals, which denied the appeal in a decision dated
April 13, 2011, (R.45-6). A further appeal to the Superior Court followed, which has
been briefed and argued.
The prior litigation and the record in this case indicate that there is a vigorous
dispute as to the ownership of a miniscule but essential piece of land that is necessary
for HDV to access its land. The Board of Appeals determined that it "... cannot
determine land ownership, or title to property" and that "The York DPW cannot
determine land ownership, or title to property." It also found that "HDV Enterprises
presented the Town with sufficient evidence of Legal Right, Title and Interest in the
property in question to prima facie establish ownership." Lastly it noted, "Counsel for
HDV Enterprises represented that no action would be taken on the permits without
providing the appellant with notice adequate to seek ... Injunctive Relief." (R.45-6 and
factual determinations S-11).
The initial issue is whether the Board's decision to not decide title was correct
such that a determination of title must be decided in a separate declaratory judgment
action or quiet title action rather than in the context of an appeal pursuant to Rule SOB,
M.R.Civ.P.
HDV is required to have standing in order to seek and obtain the road opening
and driveway permits. "To have standing, that is, a sufficient personal stake in the
outcome of a case, a party must have a 'right, title or interest' in the property he or she
seeks to develop." York v. Town of Ogunquit, 2001 ME 53, <][7.
I agree with HDV' s arguments that it had standing to seek the permits as it had
enough of a claim, however uncertain or disputed, to meet the requirements of "right,
title or interest." Neither the Director of Public Works nor the Board of Appeals were
required to determine whether HDV, the plaintiffs or another person or entity actually
owned the remaining disputed areas. Neither should the Superior Court make that
decision in the sole context of an appeal pursuant to Rule SOB.
After the Board made its decision the Legislature approved and the Governor
signed L.D. 1473 entitled "An Act to Clarify Rights-of-way Laws." These amendments
to 33 M.R.S.A. §469-A become effective this week and, if constitutional (see Driscoll v.
Mains, 2005 ME 52) could well vest title in the plaintiffs and preclude HDV from
building.
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This decision is a narrow one. It does not determine who owns the small
disputed area and does not ultimately determine whether the road opening and
driveway permits can be utilized. This decision determines only that the Board
properly performed the important, but narrow, task assigned to it.
The entry is:
Decision of the York Board of Appeals is affirmed.
Dated: September 27, 2011
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Justice, Superior Court
Plaintiffs' Attorney:
Sandra Guay, Esq.
Woodman Edmands Danylik & Austin
PO Box 468
Biddeford, ME 04005
Defendant, HDV Enterprises, LLC's Attorneys:
David A. Goldman, Esq.
Paul F. Driscoll, Esq.
Norman Hanson & Detroy
PO Box 4600
Portland, ME 04112-4600
Defendants, The inhabitants of the Town of York.Attorneys:
Durward Parkinson, Esq.
Leah Rachin, Esq.
Bergen & Parkinson, LLC
62 Portland Road, Suite 25
Kennebunk, ME 04043
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