Opinion

Boutet v. Town of Old Orchard Beach

Court
Superior Court of Maine
Filed
Oct 16, 2015
Status
Unpublished
On the bench
John O'Neil, Jr.
Cited by
0 cases

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

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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