The opinion
STATE OF MAINE SUPERIOR COURT
YORK, SS. CIVIL ACTION
DOCKET NO. AP-15-8
RONALD A. BOUTET, et al.,
Plaintiffs,
v. ORDER
TOWN OF OLD ORCHARD BEACH and
DOMINATOR GOLF, LLC,
Defendants.
Originally approved in 19SS as a 5S9-condominium project and golf course, the
Dunegrass subdivision has been the subject of a number of proceedings before the Town
of Old Orchard Beach Planning Board. The most recent efforts to develop Dunegrass are
the subject of this Rule SOB appeal. The Boutets, Pine Ridge Realty, and Dominator Golf
are all currently involved in a matter pending before this court also concerning
development at Dunegrass. 1 Before the court is Dominator Golfs motion to strike
documents from the record and to excise portions of the plaintiffs' Rule SOB brief.
Dominator Golf moves to strike five specific items and the reference to one of those
items in the brief.
Regarding record contents, Rule SOB provides in relevant part:
The record shall include the application or other documents that initiated
the agency proceedings and the decision and findings of fact that are
appealed from, and the record may include any other documents or
1
Dominator Golf LLC v. Pine Ridge Realty Corp. et al., CV -14-33.
1
evidence before the governmental agency and a transcript or other record
of any hearings. In lieu of an actual record, the parties may submit
stipulations as to the record; however, the full decision and findings of fact
appealed from, and the applicable ordinances, regulations, or private and
special laws as detailed above shall be included.
M.R. Civ. P. 80B(e)(2).
Dominator Golf generally contends items 1, 5, 6, 8, and 19 were not before the
Planning Board and therefore cannot be part of the record in this appeal. See Rule 80B(t)
("Except where otherwise provided by statute or by order of the court pursuant to
subdivision (d) hereof, review shall be based upon the record of the proceedings before
the government agency.")
Item 1 is the December 10, 1987 Planning Board minutes at which the original
Dunegrass subdivision was approved. Item 5 is a copy of the deed transferring portions of
the Dunegrass subdivision from the original developer to Pine Ridge, and Item 6 is a
copy of the deed transferring Dunegrass property from Pine Ridge to Dominator Golf.
Item 8 is a memorandum of understanding entered between Pine Ridge and Dominator
Golf in which Dominator Golf agreed to purchase development approvals granted by the
Planning Board. Item 19 is a letter from corporate counsel to the Town Planner
addressing compliance with Maine Department of Environmental Protection approvals
for Dunegrass.
The Planning Board drafted, considered, or was aware of each item in granting
either the original approval in 1988 or subsequent amendments and relief to Dunegrass
developers over the years.
Dominator Golf correctly points out review of the Rule SOB appeal is limited to
"the record of the proceedings before the government agency." M.R. Civ. P. 80B(f). Read
2
narrowly, this would strictly limit the record to evidence considered during the
underlying proceedings a plaintiff appeals from. The purpose is obvious: to limit the
record to evidence that was actually considered by the Planning Board in rendering the
decision under review. Otherwise, litigants could present new evidence in the Rule 80B
appeal that the Board never had occasion to consider in the first instance, which would be
prejudicial and inefficient. Here, however, the long and complex history of development
at Dunegrass leads the court to interpret Rule SOB(e)(2) broadly to include not only
documents expressly considered in the most recent approval on appeal, but also other
related approvals, deeds, and other documents that have been submitted to, considered,
and acted upon by the very same government agency-the Town Planning Board.
The court therefore denies the motion. The court's substantive review of plaintiffs' Rule
SOB appeal will not turn on items unknown to the Board in acting on the most recent
amendment to the subdivision approval. Dominator's motion is denied because Rule
SOB(e)(2) does not require the court to strike items that illuminate the uniquely long and
complex subdivision approval and amendment process at Dunegrass. Those items were
part of "proceedings before the government agency" within the meaning of the rule and
therefore may be considered by the court in this Rule SOB appeal. M.R. Civ. P. SOB(f).
The entry shall be:
3
Defendant's motion to strike is hereby DENIED.
SO ORDERED.
DATE: October Lfg 2015
{\Q
John O'Neil, Jr.
Justice, Superior Court
4
AP-15-8
ATTORNEY FOR PLAINTIFF:
EDWARD S MACCOLL
THOMPSON BULL FUREY BASS & MACCOLL
P 0 BOX447
PORTLAND ME 04112-0447
ATTORNEY FOR DEFENDANT DOMINATOR GOLF LLC:
MATTHEWS WARNER
PRETI FLAHERTY BELIVEAU LLP
POBOX9546
PORTLAND ME 04112-9546
ATTORNEY FOR DEFENDANT THE TOWN OF OLD ORCHARD BEACH:
PHILIP R SAUCIER
BERNSTEIN SHUR SAWYER & NELSON
POBOX9729
PORTLAND ME 04104-5029