The opinion
STATE OF MAINE SUPERIO COURT
LINCOLN, SS. CIVIL ACTION
Docket No. AP-2014-04
MICHAEL R. KASTELEIN )
AndKATEKASTELEIN, )
Plaintiff, )
)
)
v. ) ORDER ON PENDING MOTIONS
)
)
EDGECOMB PLANNING )
BOARD and THE TOWN )
OF EDGECOMB, )
Defendant. )
Pending before the court are various motions that the court must address. First,
the Defendants' Motion for Reconsideration is GRANTED. Counsel for the Defendants
accepted service on October 2S, 2014. Therefore, the Defendants' opposition to the
Plaintiff's Motion for Enlargement of Time to File Rule SOB Complaint filed on
November 14, 2014 was timely filed and the Order granted by the court on November
13, 2014 was premature.
Next the court must address the substance of the Plaintiffs' Motion for
Enlargement of Time to File Rule SOB Complaint. As a preliminary matter, this court
finds that the "excusable neglect" standard discussed by the Law Court in Lane v.
Williams, 521 A.2d 706 (Me. 19S7), applies to the Plaintiffs' motion and not the "good
cause" standard established in later cases where the moving party was not provided
notice of the action to be appealed. See Viles vs. Town of Embden, 2006 ME 107, 905
A.2d 29S; Brackett vs. Town of Rangely, 2003 ME 109, S31 A.2d 422. In this case, the
Plaintiffs were aware of the Planning Board's decision when it was made. Therefore,
they must establish "excusable neglect'' for their failure to file a timely appeal.
The Plaintiffs explanation for their failure to file a timely appeal is that they
relied upon an appeal form on the Town's website that indicated that the Board of
Appeals heard appeals from the Planning Board. The Plaintiffs completed and filed the
form and were later informed that the Town ordinance was amended in 200S to limit
the jurisdiction of the Board of Appeals to decisions of the Code Enforcement Officer.
While the Plaintiffs were attempting to appeal to the Board of Appeals, the deadline to
appeal the Planning Board's decision to the Superior Court expired. The Plaintiffs
argue that these circumstances amount to "excusable neglect" because they reasonably
relied upon an appeal form on the Town's website and took the steps they believed
necessary, due to that form, to bring a timely appeal.
In response, the Defendants argue that it was not reasonable for the Plaintiffs to
rely on the appeal form because it contains only general language and does not contain
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specific language about the exact nature of each appeal. In addition, the Defendants
point out that the actual ordinance establishing the jurisdiction of the Board of Appeals
and the proper method of appeal of Planning Board decisions is clear and was available
to the Plaintiffs on the same website where they found the appeal form.
The circumstances described above do not constitute one of the "extraordinary
instances where injustice would result." Lane, 521 A.2d at 707. The ordinance was
readily available to the Plaintiffs and their failure to read it does not constitute
"excusable neglect." No injustice will result from holding the Plaintiffs responsible for
their failure to read the ordinance and to bring a timely appeal.
The Plaintiffs' Motion to Enlarge Time to File SOB Complaint is DENIED and this
matter is dismissed.
The Plaintiffs' Motion for Leave to Amend Rule SOB Complaint is MOOT.
The Clerk is directed to incorporate this Order by reference into the docket for
this case, pursuant to Rule 79(a), Maine Rules of Civil Procedure.
Dated: May 1S, 2015
JUSTICE, MAINE SUPERIOR COURT
Date Filed: 10/24/14 Lincoln County Docket No. AP-14-4
Action: BOB Appeal
Michael R. Kastelein vs. Edgecomb Planning Board and
Kate Kastelein Town of Edgecomb
Plaintiff's Attorney Defendant's Attorney
Tamlyn M. Frederick, Esq William Dale, Esq 408
Birney & Frederick, LLC Natalie Burns, Esq
50 Exchange Street Suite 400 Jensen Baird Gardner & Henry
Portland, Maine 04101 PO Box4510
Portland, Maine 04112
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