The opinion
STATE OF MAINE BUSINESS AND CONSUMER COURT
CUMBERLAND, ss Location: Portland
Docket No.: BCD-AP-16-06
)
BARBARA A. BOUTET, BARBARA A. )
BOUTET, INC., and PINE RIDGE )
REALTY CORPORATIONS, )
)
Petitioners, )
) COMBINED ORDER ON MOTIONS
V. )
)
RESIDENTS OF THE TOVIN OF OLD )
ORCHARD BEACH, TOVIN OF OLD )
ORCHARD BEACH PLANNING )
BOARD and DOMINATOR GOLF, LLC, )
)
Respondents. )
)
Petitioners Barbara A. Boutet, Barbara A. Boutet, Inc., and Pine Ridge Realty
Corporation challenge an "apparently granted" Approval to Dominator Golf, LLC ("Dominator")
to amend the Dunegrass Subdivision to develop eight single-family lots on a portion ofland that
used to be part of the Subdivision's Golf Course. (Compl. ,r,r 1, 25, 32.) The approval occurred
on or about February 11, 2016 by the Planning Board for the Town of Old Orchard Beach (the
"Town"). (Id.) Petitioners challenge the approval through a four count Complaint asserting: I) a
M.R. Civ. P. 80B Appeal; II) a request for declaratory relief regarding the development rights of
the eight units at issue; III) a 42 U.S.C. § 1983 claim against the Town alleging due process
violations; and IV) a claim for unjust emichment against Dominator. Petitioners' 80B Appeal
alleges, in pertinent part, that the Planning Board erred in its approval of Dominator's application
because it improperly delegated fact finding to staff; the staff carried out an incomplete and
misleading analysis; the Planning Board failed to recognize Petitioners' right to participate in the
proceedings as a full party or intervenor; failed to provide Petitioners' sufficient notice;
improperly transferred development rights to Dominator; and failed to carry out a complete
analysis of Dominator's application. (See Comp!.~ 35.)
Currently, there are three motions pending before the court: 1) Petitioners' motion for a
trial of the facts and to permit discovery regarding an allegedly removed and concealed
spreadsheet setting out a unit count for the Dunegrass Subdivision; 2) Dominator's motion to
dismiss Counts II and IV of Petitioners' Complaint, stay Petitioners' M.R. Civ. P. 80B Appeal
and, if its motion to dismiss is not granted, stay Counts II and IV; and 3) the Town's motion to
dismiss and/or strike Counts II and III of Petitioners' Complaint.
Here, Petitioners' Complaint arises out of the same core facts as the M.R. Civ. P. 80B
Appeal this court recently ruled on in BCD-AP-16-07. 1 In light of the similarity and numerous
overlapping issues, the court denies Petitioners' motion for a trial of the facts and to permit
discovery without prejudice to subsequent renewal. As an initial matter, Petitioners' failure to
file the record along with their motion for a trial of the facts and discovery, by itself, is sufficient
to deny the motion. M.R. Civ. P. 80B(e)(l) ("Where a motion is made for a trial of the facts
pursuant to subdivision (d) of this Rule, the moving party shall be responsible to ensure the
preparation and filing of the record and such record shall be filed with the motion.") (emphasis
added). While Petitioners argue that they could not have filed the record at the time of their
appeal, the court notes that to date, Petitioners have yet to file the record. Indeed, Petitioners'
filed three motions to extend the deadline for filing the brief and record in this matter as well as a
1
In that case, this court determined that the Planning Board did not err by: 1) refusing to resolve
Petitioners' dispute with Dominator regarding development rights; 2) determining that
Dominator's Application to amend the Dunegrass Subdivision would not exceed the 589 unit
sites originally approved for the Subdivision by focusing its calculation on units available from
Section B of the Subdivision; 3) using the 589 unit sites as a proxy for density; 4) determining
that the dedicated open space requirements were satisfied; or 5) providing Petitioners insufficient
notice and opportunity to be heard. Boutet et. al v. Residents ofthe Town of Old Orchard Beach,
BCD-AP-16-07 at 18 (Me. Super. Ct., BCD Cumb. Cty., Aug. 19, 2016).
2
fourth motion seeking to stay briefing and submission of the record until resolution of the three
pending motions, which the court granted on August 8, 2016. In their motion to stay briefing
and submission of the record, Petitioners explained that resolution of the motions would
determine the course of further proceedings and could obviate the need to resolve potential
disputes concerning the record. The court agrees that a stay on briefing and submission of the
record could streamline and/or simplify the present appeal, but disagrees as to the scope of the
the stay that is warranted.
A stay of proceedings is not a matter ofright and the "grant or denial of the stay rests in
the sound discretion of the court." Society of Lloyd 1s v. Baker, 673 A.2d 1336, 1340 (Me. 1996)'
(quotation omitted). A stay will only be granted "when the court is satisfied that justice will
thereby be promoted." Id. (quotation omitted). Multiple considerations may serve the court in
the exercise of its discretion in granting or denying a stay, such as whether the action was
designed solely to harass the adverse party, the nature of the respective action, whether there will
there be great and unnecessary expense and inconvenience, the availability of witnesses, the
stage at which the proceedings have already progressed, and the delay in obtaining trial. E.g.
Fitch v. Whaples, 220 A.2d 170, 172-73 (Me. 1966). "Each case must perforce present its own
variety of circumstances which may necessitate different results." Id.
Here, the court determines that a stay of proceedings in the present case is warranted until
final resolution ofBCD-AP-16-07 because: 1) BCD-AP-16-07 will adjudicate many of the issues
raised in the present appeal and pending motions; 2) a stay will avoid unnecessary expense and
inconvenience for all parties; 3) the proceedings in the present case are at an early stage as the
3
record has yet to be filed; and 4) the court is not persuaded that the present appeal differs
substantially enough from BCD-AP-16-07 to warrant moving forward simultaneously. 2
Accordingly, the court reserves judgment on Dominator and the Town's motions to
dismiss and/or strike, denies Petitioners' motion for a trial of the facts and discovery without
prejudice to its subsequent renewal, and stays the current proceedings until final resolution of
BCD-AP-16-07.
Pursuant to M.R. Civ. P. 79(a), the Clerk is hereby directed to incorporate this Order by
reference in the docket.
Dated: September 8, 2016 Is
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Mich a ela Murphy
Justice, Business & Consumer Court
2
For instance, Petitioners' allegations of malfeasance by Town planning staff and/or the
Planning Board are not strongly supported by the evidence submitted thus far. Specifically, the
evidence and arguments Petitioners presented regarding an allegedly removed spreadsheet
indicates that the spreadsheet was willingly and promptly provided to them by the Town and/or
its employees before the Planning Board's decision and that the substance of the allegedly
removed spreadsheet-albeit not the actual document-was presented to the Planning Board
through various submissions by Petitioners.
4
Ronald A. Boutet, Barbara A. Boutet, Inc., & Pine Ridge Realty Corp. v. Residents
of the Town of Old Orchard Beach, Town of Old Orchard Beach Planning Board
& Dominator Golf, LLC
BCD-AP-2016-06
Ronald A. Boutet, Barbara A. Boutet, Edward Maccoll, Esq
Inc., & Pine Ridge Realty Corp. Thompon MacColl & Bass
PO Box 44 7 Portland, ME
04112
Daniel Murphy, Esq.
Residents of the Town of Old Orchard Bemstien Shur
Beach, Town of Old Orchard Beach PO Box 97729 Portland,
Planning Board & Dominator Golf, LLC ME 04104