The opinion
STATE OF MAINE SUPERIOR COURT
CU:tvffiERLAND, ss. CIVIL ACTION
DOCKET NO: AP-12-011
/(,/'{' ,, ! .I >1 ;:?// ~ ..,
TAZEWELL MUMFORD
Petitioner,
v. ORDER
CHIEF EDWARD TOLIN,
FALMOUTH POLICE DEPARTMENT
and
TOWN OF FALMOUTH STATE OF MAINE
Cumberland,ss,Cierk's Office
Respondents,
JUL 2 4 2012
and
FALMOUTH ROD & GUN CLUB
RECEIVED
Party-in-Interest.
Two motions are before the court: petitioner's motion for trial of the facts and
respondents and party-in-interest's motion to dismiss counts tIt and III of the
complaint for lack of jurisdiction.
BACKGROUND
The Falmouth Rod & Gun Club (Gun Club) is a non-profit corporation that has
existed since 1949. In 2004, the Gun Club sought zoning permits to improve their
ranges, those permits were eventually approved. In 201l the Town of Falmouth
(Town) realized that the Gun Club had not been properly permitted to be a shooting
range under the Town's firearms ordinance since the mid-1990s. The Gun Club
temporarily shut down operation and initiated the permit process.
1
During the permit process the Chief of Police Edward Tolin (Chief) accepted
comments from and met with abutting landowners, including Mumford; discussed
necessary changes; and visited the range. Once the necessary changes were in place the
Chief issued the necessary permits pursuant to Falmouth Code of Ordinances§ 10-
1(b)(4). Mumford expressed concern about the range claiming that bullets had entered
his property. He also asked the Gun Club and the Town if his expert could inspect the
ranges and consider the safety features. The Gun Club refused to allow the expert to
inspect the premise and the Town stated that it could not force the Gun Club, a private
organization, to allow the expert to conduct the inspection.
After the permit was issued Mumford asked the Chief to reconsider. The Chief
did not respond to this request. Mumford filed this five-coune Rule 80B appeal in
response to the issuance of the firearm range permits.
DISCUSSION
1. Jurisdiction
The respondents argue that the court does not have jurisdiction to hear counts I,
II, and III. "Rule 80B does not create an independent right to appeal any governmental
action to the Superior Court, but only provides the procedure to be followed for those
disputes in which the court has jurisdiction." Your Home, Inc. v. City of Portland, 505
Mumford addressed whether counts III, IV, and V are governmental actions, controlled
by Rule SOB, or independent actions. Count III alleges a violation of the Freedom of Access Act,
which is a governmental action. See Baker's Table, Inc. v. City of Portland, 2000 ME 7, <JI 11 n.6, 743
A.2d 237 ("We have ... held that FOA claims are in the nature of reviews of governmental
actions, not independent claincs. Accordingly, when there is evidence outside the record that is
relevant to a challenge under FOA, the complainant must file a Rule SOB( d) motion.").
Mumford also brought two civil rights claim, counts IV and V. These claims are
typically considered independent claims, but "when direct review is available pursuant to Rule
SOB, it provides the exclusive process for judicial review unless it is inadequate." Gorham v.
Androscoggin County, 2011 ME 63, <JI 22, 21 A.3d 115. At this point it is not possible to determine
the adequacy of judicial review for the civil rights claims. As a result, the court will not address
counts IV and V and it will treat count III as a governmental action.
2
A.2d 488, 489 (Me. 1986). The Superior Court may review governmental actions when
review "is provided by statute or is otherwise available by law." M.R. Civ. P. 80B(a).
Here, review is clearly not provided by statute. "Review is deemed 'otherwise available
by law' if it is in the nature of that formerly available under the common law
extraordinary writs, such as certiorari, mandamus or prohibition, adapted to current
conditions." Lyons v. Bd. of Dir. of Sch. Admin. Dist. No. 43, 503 A.2d 233, 236 (Me. 1986).
The petitioner maintains that the writ of certiorari applies in this case.
Until 1967, the writ of certiorari was the appropriate procedure to invoke
judicial review of actions taken by a governmental agency performing a
judicial or a quasi-judicial function. An agency's actions are quasi-judicial
in nature when it adjudicates the rights of a party before it.
Id. To fulfill this quasi-judicial requirement the party appearing before the agency must
have possessed a right to appear before it in the first instance. Dowey v. Sanford Hous.
Auth., 516 A.2d 957, 960 (Me. 1986).
Here, Mumford is an abutting landowner. As a result, there is a minimal
threshold to demonstrate a particularized injury and establish standing. Friends of
Lincoln Lakes v. Town of Lincoln, 2010 ME 78, 9I 14, 2 A.3d 284; see Fryeburg Water Co. v.
Town of Fryeburg, 2006 ME 31, 9I 11, 893 A.2d 618 (noting that abutting property owners
need only allege a potential for particularized injury to have standing). Mumford has
alleged a particularized injury through his complaints about stray bullets entering his
property. 2 Since Mumford's rights were adjudicated and the act of issuing the permit
falls within the writ certiorari it appears as though this court has jurisdiction to consider
the appeal.
2
Incidentally, if the permit was for a personal range it could not be issued "if there is any
conflict of property abutters." (R. 3.)
3
2. Trial of the Facts
Mumford moves for a trial of the facts pursuant to Rule 80B(d). "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." Baker's Table, Inc., 2000 ME 7, <}[ 9, 743 A.2d 237. As required
by Rule 80B(d) Mumford offered a "detailed statement ... of the evidence that [he]
intends to introduce at trial." M.R. Civ. P. 80B(d). The majority of the additional facts
outlined in the statement are already included in the record. 3 Other statements were
inappropriate for a trial because they were legal conclusions 4 or irrelevant. 5 The
remaining facts relate to the nationally recognized benchmark for target range safety
design and whether the Falmouth Police Department uses this standard. 6
Based on the record, the court cannot determine what standard the Chief used to
determine that the range is now safe? The Town asserts that it is inappropriate for
Mumford to inquire about the mental processes of administrative decision makers. See
Dyer v. DOT, 2008 ME 106, <}[ 1 n.1, 951 A.2d 821 (limiting inquiries into the mental
processes of administrative decision-makers to 'strong showing[s] of bad faith or
improper behavior'). Here, the issue is not the mental processes, but instead the court
needs to understand the basis of the decision in order to have meaningful judicial
review. Chapel Rd. Assocs. v. Town ofWells, 2001 ME 178, <}[ 10, 787 A.2d 137 (requiring a
finding of facts for meaningful judicial review of an agency decision).
3
R. 94, 109-116 covers facts 13 and 22; R. 93-118 covers facts 14-21, and R. 2 and 3 covers fact 1.
4
For example, "facts" 2, 22, and 23 contain legal conclusions.
5
Facts 6-9 discuss the permitting process for the Gun Club and facts 10-12 confer Mumford's
personal relationship with the Gun Club. These facts are irrelevant to the merits of this appeal.
6
Mumford argues that he needs a trial of the facts to determine whether the inspection violated
the Freedom" of Access Act. The detailed statement, however, does not address what happened
at the inspection, only that the inspection took place, which is established in the record.
7
The record contains emails that reference the use of the NRA standard (seeR. 62), but it is
unclear exactly what guidelines the chief followed.
4
Although the court needs to know the standard the Chief used in issuing the
permit, this is not an issue for a trial of the facts. Instead, the court remands this appeal
to allow the Chief to issue a finding of facts and conclusions of laws that outlines the
basis for his decision.
The entry is:
The court REMANDS this appeal for further consideration consistent
with this order.
DATE~tolt.--.
5
Date Filed -=-2---'-2=-----=1::..::2=------ CUMBERLAND Docket No. AP-12-11
County
Action ___8.:._0.:._B_A_P_P_E_A_L___________
TAZEWELL MUMFORD CHIEF EDWARD TOLIN
FALMOUTH POLICE DEPARTMENT
TOWN OF FALMOUTH
FALMOUTH ROD AND GUN CLUB
vs.
Plaintiff's Attorney Defendant's Attorney
RUFUS BROWN ESQ William Plouffe Esq (all except Falmouth R<
PO BOX 7530 and Gun Club)
PORTLAND ME 04112
Daniel Cummings Esq. (Falmouth Rod and
Gun Club)
Date of
Entry
2012