# Nangle v. Town of Windham

> Superior Court of Maine · February 23, 2016

URL: https://www.frixlaw.com/law-library/cases/10811132

## Case

- **Court:** Superior Court of Maine
- **Decided:** February 23, 2016
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Judges:** Lance E. Walker
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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STATE OF MAINE SUPERIOR COURT
CUMBERLAND, SS. CIVIL ACTION
DOCKET NO. CUMSC-AP-15-0040

TIMOTHY NANGLE and ELIZABETH )
NANGLE, )
)
Plaintiffs-Appellants, )
)
v. ) ORDER ON RULE 808 APPEAL
)
TOWN OF WINDHAM, MICHAEL )
MANNING, MGM BUILDERS, INC. , & )
ERNEST VALENTE, ) STATE OF MAINE
Cumberland , ss , Clerk 's Office
)
Defendants-Appellees. )
)
FEB 2 4 2016

Plaintiffs-Appellants Timothy and Elizabeth Nangle ~~~fJ{~(,lf-Qpeal from a

decision by the Town of Windham Planning Board pursuant to Maine Rule of Civil Procedure

808. Based on the following, the Nangles appeal is denied. The decision of the Town of

Windham Planning Board is affirmed.

I. BACKGROUND

On July 2, 2015 , Michael Manning, MGM Builders, Inc., and Ernest Valente

(collectively, the "Applicants") submitted an application to the Town of Windham Planning

Board (the "WPB") for final site plan review. (R. 1.) The Applicants sought approval of their

site plan for the construction of a 2,000-foot private road connecting River Road, a public

roadway, to Evans Ridge Road, a private road. (Id. ) The proposed road would be located over

two properties referred to as Lot 21 and Lot 22 on the Town of Windham Tax Map 5. (Id.)

Initially, the application was comprised of three applications for each phase of the

project. (Id.) Manning was the applicant for Phase 1, MGM Builders, Inc. was the applicant for

Phase 2, and Ernest Valente was the applicant for Phase 3. (Id.) The preliminary site plans, the
revised site plans, and the road survey plan submitted with the application showed that, as part of

Phase 3, the Applicants intended to connect the proposed road to Evans Ridge Road where Evans

Ridge Road crosses a parcel of land referred to as Lot 21-3C. 1 (R. 37, 42, 45.) Included in the

application was a copy of an access easement deed, dated June 2, 2010, purporting to grant

Michael S. Manning an easement to use Evans Ridge Road as it crosses Lot 21 -3C . (R. 20.)

The WPB's Staff Review Committee held a site walk on July 27, 2015, and reviewed the

application on July 28, 2015. (R. 48.) A public hearing on the Applicants ' site plan was held

during the WPB's August 10, 2015 meeting. (R. 58.) A representative spoke on behalf of the

Applicants. (Id.) The Applicants' representative informed the WPB that the application was no

longer three separate applications with three separate applicants. (Id.) The application was now

a single application by the three Applicants. (Id.)

Mr. Nangle spoke at the public hearing. (R. 61-62.) Mr. Nangle asserted that Evans

Ridge Road ran across his property and that he had an easement to use Evans Ridge Road. (R.

62.) Mr. Nangle asserted that connecting the proposed road to Evans Ridge Road would

overburden his easement because there was no way to control access and egress over Evans

Ridge Road or prevent others from crossing his property. (R. 61 -62 .)

Following the public hearing, the Applicants ' counsel sent an email to the WPB on

August 21, 2015 . (R. 76.) The email sought to address issues raised by WPB's attorney

regarding whether the Applicants ' had demonstrated sufficient right, title, or interest in order to

connect the proposed road to Evans Ridge Road. (R. 73-76.) Attached to the email was another

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According to the preliminary plans, the revised plans, and the proposed road survey contained in the
record, Lot 21-3C is owned by Eric Kollman-Furnish, Maya Kollman, and Barbara Bingham. (R. 37, 42,
45.) Though Mr. Kollman-Furnish did appeared before the WPB at the August 10, 2015 public hearing,
the owners of Lot 2 1-3C are not parties to this Rule SOB appeal. (R. 63.)

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copy of the June 2, 2010 access easement deed purporting to grant Michael S. Manning the right

to use Evans Ridge Road where it crosses Lot 21-3C. (R. 77.)

The Applicants' site plan was discussed again at the WPB' s August 24, 2015 meeting.

(R. 82.) Mr. Nangle and Elizabeth Nangle both spoke during the meeting. (R. 83-84, 88-89.)

Mr. Nangle asserted that the Applicants' right, title, or interest to use land in the manner for

which they sought approval had not been fully investigated by the WPB. (R. 84.) Mr. Nangle

again asserted that people would use Evans Ridge Road to cross his property despite the fact that

they were not paying to maintain Evans Ridge Road. (R. 88.)

On August 25, 2015, the WPB issued a letter informing the Applicants that the WPB had

approved their site plan to construct a new private roadway. (R. 95 .) The letter contained the

WPB 's findings of fact and conclusions. (R. 96-99.) The WPB considered the Applicants' site

plan for the proposed road as a single application. (R. 95-99 .) The WPB found that the

proposed road would in fact connect to Evans Ridge Road. (R. 96.) The WPB found that

sufficient evidence of the Applicants' right, title, or interest to connect the proposed road to

Evans Ridge Road at Lot 21 -3C had been provided in the email from Applicants' counsel. (Id.)

On September 23, 2015 , the Nangles filed a complaint against the Town of Windham and

the Applicants pursuant to Rule 80B, appealing the WPB ' s decision.2 The Nangles filed their

2
Recently, in Bryant v. Town of Camden, the Law Court clarified the need for finality in municipal
decisions before the municipal agency ' s decision may be appeal ed to the courts. Bryant v. Town of
Camden, 2016 ME 27, ~ 1, _ A.3d _. In that case, the town's ordinances required the applicant to
obtain a special exception permit from the zoning board of appeals before seeking site plan approval from
the town planning board. Id. ~ 2. Appeals from the planning board's decision regarding site plan
approval would be taken to the zoning board of appeals, from which an aggrieved party may appeal to
this court. Id. ~ 16. However, the appel lant in that case appealed the zoning board of appeals' granting of
a special exception permit to the courts before any action had been taken on the site plan by the planning
board or the zoning board of appeals. Id. ~ 19. The Law Court held that appellant had not exhausted the
administrative remedies and that there was no final agency action for the courts to review until the
planning board and the zoning board of appeals had fully considered the site plan. Id. ~ 20.
This case does not present the same sort of problems regarding exhaustion of adm inistrative remedies
and whether there has been a final agency action. Maine's statute on planning and land use regulation

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brief and copy of the administrative record on November 2, 2015. The Town of Windham filed

its brief on December 1, 2015 .3 The Applicants filed their brief on December 2, 2015. The

Nangles also filed a reply brief on December 16, 2015. Oral argument was held on January 26,

2016.

II. WHETHER THE NANG LES HA VE STANDING TO BRING THIS APPEAL

As a threshold matter, the Applicants assert that the Nangles do not have standing to

pursue this appeal. (Applicants' Br. 3.) In order to have standing to bring a Rule 80B appeal,

the appellants must prove ( 1) that they were a party at the administrative proceeding, and (2) that

they have suffered a particularized injury as a result of the agency's decision. Norris Family

Assocs., LLC v. Town ofPhippsburg, 2005 ME 102, ~ 11 , 879 A.2d 1007.

For the purposes of Rule 80B, the term "party" is broadly interpreted to mean an "any

participant in the proceedings who is aggrieved" by the decision of the municipal agency . Id. ~

16. "Participation" in the municipal proceeding may be formal or informal, in person or through

an attorney . Id. The "party" is not required to have initiated the municipal proceeding from

which the appeal is sought. Id.

provides: "Any municipality which adopts a zoning ordinance shall establish a board of appeals." 30-A
M.R.S. § 4353 . "The board of appeals shall hear appeals from any action or failure to act of the official
or board responsible for enforcing the zoning ordinance, unless only a direct appeal to Superior Court has
been provided by municipal ordinance." Id. § 4353(1). Section 815 of Windham ' s land use ordinances
provides: "Appeal of any actions taken by the Planning Board with respect to this section shall be to the
Superior Court in accordance with the Maine Rules of Civil Procedure, Rule 80B." Windham, Me., Land
Use Ordinance§ 815(B) (Oct. 22, 2009). Therefore, under 30-A M .R.S . § 4353 and Ordinance§ 815 , the
WPB 's decision constitutes a final agency action and the Nangles were permitted to appeal the decision
directly to this court, See Hodsdon v. Town ofHermon, 2000 ME 181, ~ 3, 760 A.2d 22 1.
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Attached to Town of Windham's brief was a copy of its tax map, which was not included in the record.
(Town of Windham Br. 3 n.2.) When the court reviews municipal agency action pursuant to Rule 80B,
except where otherwise provided by statute or rule , the court's review "shall be based upon the record of
the proceedings before the governmental agency ." M.R. Civ. P. 80B(f). Therefore, the court may not
consider the tax map attached to the Town of Windham's brief.

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When the appellant is an abutting landowner, the requirements for establishing a

particularized injury are minimal. Witham Family Ltd. v. Town ofBar Harbor , 2011 ME 104, ~

15 , 30 A .3d 811. "An abutting landowner has a particularized injury if there is a conceivable

injury." Norris Family Assocs., 2005 ME 102, ~ 19, 879 A.2d 1007 (internal quotation marks

and citation omitted) . The abutting landowner need only assert a "reasonable allegation of a

potential for particularized injury" or "a relatively minor adverse consequence" in order to

establish standing. Witham Family Ltd., 2011 ME 104, ~ 15, 30 A.3d 811 (internal quotation

marks and citation omitted); Norris FamilyAssocs. , 2005 ME 102, ~ 19, 879 A.2d 1007.

Here, the Applicants do not dispute that the Nangles participated in the proceeding before

the WPB . (Applicants Br. 3.) Rather, the Applicants only contend that the Nangles have not

demonstrated a particularized injury. Id. The record discloses that the Nangles are abutting

landowners. The preliminary plans, the revised plans, and the proposed road survey contained in

the record demonstrate that Timothy E. Nangle and Elizabeth Day Nangle are the owners of Lot

21-2, which abuts Lot 21 on which the proposed road would be constructed. (R. 36-37, 41-42,

45.) The application and the site plans contained in the record disclose that the Applicants intend

to connect the proposed road to the existing Evans Ridge Road. (R. 1, 37, 42.) The WPB found

that the proposed road would in fact connect to Evans Ridge Road. (R. 96.) Mr. Nangle

appeared at the August 10 and 24, 2015 , meetings of the WPB and asserted that Evans Ridge

Road ran across his lot and that he had an easement to use Evans Ridge Road; that connecting

the proposed road to Evans Ridge Road would overburden his easement because there was no

way to control access and egress over Evans Ridge Road or prevent others from crossing his

property; and that the people would use Evans Ridge Road to cross his property despite the fact

that they were not paying to maintain Evans Ridge Road. (R. 61-62, 83-84, 88-89.)

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The record sufficiently discloses that the Nangles are abutting properties owners. Thus,

the Nangles need only put forth a "reasonable allegation of a potential for particularized injury."

Witham Family Ltd., 2011 ME 104, ~ 15, 30 A.3d 811. Because the Nangles asserted before

WPB that connecting the proposed road to Evans Ridge Road would overburden their easement

to use Evans Ridge Road, the record contains sufficient allegations of a conceivable injury.

Therefore, the Nangles have met their minimal burden as abutting landowners and have standing

to pursue this appeal.

III. WHETHER THE APPLICANTS HA VE ADMINISTRATIVE ST ANDING TO
PURSUE THEIR APPLICATION

Turning to the Nangles ' argument on appeal, the Nangles argue that the WPB's finding

that the Applicants had sufficient right, title, or interest to connect the proposed road to Evans

Ridge Road was "clearly erroneous and unsupported by substantial evidence in the record before

it." (Nangle Br. 4.)

A. Standard of Review

When reviewing the decision of a municipal planning board pursuant to Maine Rule of

Civil Procedure 80B, the court reviews the decision of the planning board "for abuse of

discretion, errors of law, or findings not supported by the substantial evidence in the record."

Wyman v. Town ofPhippsburg, 2009 ME 77, ~ 8, 976 A.2d 985 (internal quotation marks and

citation omitted). The party seeking to vacate the decision bears the burden of persuasion on

appeal. Bizier v. Town a/Turner, 2011 ME 116, ~ 8, 32 A.3d 1048.

The interpretation of a local ordinance is a question of law that the court reviews de nova.

Rudolph v. Golick, 2010 ME 106, ~ 8, 8 A.3d 684. The court examines the ordinance for its

plain meaning. Id. ~ 9. If the meaning of the ordinance is clear on its face, the court looks no

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further. Id. However, the planning board's characterizations or findings of fact as to what meets

ordinance standards will be accorded substantial deference. Id. ~ 8.

B. Administrative Standing

Section 802(A) of Windham's land use ordinance provides: "A person who has right,

title, or interest in a parcel of land shall obtain site plan approval prior to commencing any of the

following activities on the parcel, ... " Windham, Me. , Land Use Ordinance§ 802(A) (Oct. 22,

2009). Section 81 l(B)(l )(c)(4) of Windham's land use ordinance requires that final site plan

applications include: "A copy of a deed to the property, an option to purchase the property or

other documentation to demonstrate right, title or interest in the property on the part of the

applicant." Windham, Me., Land Use Ordinance§ 81 l(B)(l)(c)(4) (Oct. 22, 2009). Thus, under

these ordinances, applicants must produce sufficient evidence of right, title, or interest in the

property in order to have administrative standing to pursue their application. Murray v.

Lincolnville, 462 A.2d 40, 42-43 (Me. 1983).

The Law Court has held that the evidence of right, title, or interest provided by applicants

need only demonstrate that the applicants have a relationship to the property that gives them "a

legally cognizable expectation of having the power to use that site in the ways that would be

authorized by the permit or license." Id. at 43. The mere possibility that applicants do not have

the actual rights to use the property as they seek, and that approval might later be revoked, does

not deprive applicants of administrative standing. Southridge Corp. v. Ed. of Envtl. Prat., 655

A.2d 345, 348 (Me. 1995).

Furthermore, a municipal agency has only those powers conferred to it by statute.

Rockland Plaza Realty Corp. v. La Verdiere's Enters. , Inc., 531 A.2d 1272, 1274 (Me. 1987).

Municipal authorities have no power to adjudicate property rights or questions of title. Id. at

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1273-74. Municipal authorities also have no power to interpret easements or covenants, which

are private agreements between landowners. Portland Museum ofArt v. Town ofScarborough ,

2012 Me. Super. LEXIS 53 , at *9 (Jan. 27, 2012) (citing Whiting v. Seavey, 159 Me. 61 , 67­

68 ,188 A.2d 276, 280-81 (1963 )).

Here, the land use ordinances grant the WPB only "review and approval authority" over

site plans. Windham, Me. , Land Use Ordinance§ 803(A) (Oct. 22, 2009). Thus,§ 802(A) and§

811 (B)( 1)(c)(4) do not authorize the WPB to determine whether applicants have an actual right,

title, or interest to use the property. Rather, the ordinances only require the WPB to determine

whether the evidence of right, title, or interest put forth by applicants was sufficient to find that

applicants have at least "a legally cognizable" right to use the property in the manner for which

they seek approval.

The Law Court has previously determined that evidence of interests in land less than a

fee simple were sufficient evidence of right, title, or interest to confer administrative standing. In

Murray v. Lincolnville , the Law Court held that a contract to purchase land conditioned upon the

seller obtaining subdivision approval was sufficient evidence of right, title, or interest to confer

administrative standing. Murray, 462 A.2d at 41. In Southridge Corp. , the applicant's pending

adverse possession claim based on the existence of a septic system on the property was also

sufficient evidence of right, title, or interest to confer administrative standing. Southridge Corp.,

655 A.2d at 348.

This court has also found evidence of interests in land less than a fee simple were

sufficient evidence of right, title, or interest. In Crispin v. Town ofScarborough, the court held

that an option agreement constituted sufficient evidence of right, title, or interest to use the land

in order for the applicant to seek approval to relocate a right of way, to use a private residential

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driveway for a commercial facility , and to open the private driveway to the public. Crispin v.

Town ofScarborough, 1998 Me. Super. LEXIS 187, at *8 (July 24, 1998). In CPSP, LLC v. City

ofSouth Portland, the court held that written consent from a subsidiary company that owned the

property ratifying, confirming, and approving a parent company's application to a municipal

agency was sufficient evidence of right, title, or interest to confer administrative standing on the

parent company. CPSP, LLC v. City of S. Portland, 2008 Me. Super. LEXIS 126, at *5 (July 8,

2008). In Horton v. Town of Casco, the court held that a lease for a portion of a parcel and a

deed for the entire parcel demonstrating that the parcel was entitled to utilize a right of way was

sufficient evidence that the lessee had right, title, or interest to in right of away to confer

administrative standing on the lessee. Horton v. Town ofCasco , 2012 Me. Super. LEXIS 112, at

*9 (Aug. 16, 2012). The fact that the lessee's right to use the right of way was subject to a

separate quiet title action did not deprive the applicant of administrative standing. Id. at *9 n.8.

Thus, these cases demonstrate that the threshold for establishing right, title, or interest in order to

have administrative standing is decidedly very low.

C. The Nangles Contentions on Appeal

The Nangles argue that the Applicants do not have sufficient right, title, or interest for

two reasons . First, the Nangles argue there is no evidence that the Applicants have sufficient

right, title, or interest that would permit them to connect the proposed road to Evans Ridge Road.

(Nangle Br. 5-6.) Specifically, the Nangles assert that neither MGM Builders, Inc. nor Valente

have an interest in Lot 21-3C, where the proposed road will connect to Evans Ridge Road. (Id.)

The initial application had been submitted to the WPB as three applications with Valente

as the applicant for Phase 3, where the proposed road will connect to Evans Ridge Road at Lot

21-3C. (R. 1-5.) However, according to the minutes from the August 10, 2015 meeting, the

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applications had become a single application by the three Applicants. (R. 58 .) The WPB ' s

approval letter and its findings of fact and conclusions considered the Applicants ' site plan for

the proposed road as a single application. (R. 95 -99.) The WPB found that sufficient evidence

of the Applicants ' right, title, or interest to connect the proposed road to Evans Ridge Road at

Lot 21 -3C had been provided in the email from Applicants' counsel. (R. 96.) The email

contained a copy of the June 2, 20 10 access easement deed purporting to grant Manning a right

of way easement to use Evans Ridge Road as it crosses Lot 21 -3C. (R. 77.)

This court must give substantial deference to the WPB ' s characterizations or findings of

fact as to what meets its ordinance standards. Rudolph, 20 10 ME 106, ~ 8, 8 A.3d 684.

Therefore, the WPB ' s determination that the applications by Manning, MGM Builders, Inc., and

Valente should be considered a single application and its determination that the evidence of

Manning 's right to use Evans Ridge Road was sufficient evidence right, title, or interest for all of

the Applicants in order to satisfy § 802(A) and § 81 l (B)(l )(c)(4) of its ordinance must be

accorded substantial deference. Furthermore, the fact that there may be questions about whether

certain Applicants can in fact rely on Manning' s right to use Evans Ridge Road does not deprive

the Applicants of administrative standing. Southridge Corp ., 655 A.2d at 348.

Second, the Nangles argue that the June 2, 201 0 access easement deed purporting to grant

Manning the right to use Evans Ridge Road is not sufficient evidence of right, title, or interest to

permit the Applicants to connect the proposed road to Evans Ridge Road at Lot 21-3C. (Nangle

Br. 6-8. ) The Nangles assert that, if the access easement deed is an easement appurtenant, then

Manning has not provided evidence that Manning owned any property benefited by Evans Ridge

Road at the time the easement deed was granted or that he currently owns any property with a

right to use Evans Ridge Road. (Id. at 7.) If the access easement deed was an easement in gross,

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the Nangles assert that the easement is personal to Manning and not assignable to others or to

lots that may be developed elsewhere on Evans Ridge Road. (Id. at 7-8.)

The WPB has only the authority to review and approve or disapprove the site plan.

Windham, Me., Land Use Ordinance § 803(A). The WPB has no authority to adjudicate

property rights or interpret easements. Rockland Plaza Realty Corp., 531 A.2d at 1273-74;

Portland Museum ofArt, 2012 Me . Super. LEXIS 53, at *9 (citing Whiting, 159 Me. at 67-68,

188 A.2d at 280-81). Thus, the WPB had no authority to determine whether the June 2, 2010

access easement deed was an easement appurtenant or an easement in gross; whether Manning

held property benefited by the access easement deed; or, whether the easement was assignable to

other persons or other lots. Furthermore, the possibility that Manning may not have any actual

right to use Evans Ridge Road in the manner for which the Applicants seek approval, does not

deprive the Applicants of administrative standing. Southridge Corp., 655 A.2d at 348. Under §

802(A) and§ 81 l(B)(l)(c)(4), the WPB was only required to determine whether the Applicants

had produced sufficient evidence of right, title, or interest demonstrating "a legally cognizable

expectation of having the power" to use the property the manner for which they sought approval.

Murray, 462 A.2d at 43 . Therefore, the WPB had no authority to determine these issues.

D. The WPB's Decision

The WPB found that evidence of the Applicants' right, title, or interest to connect the

proposed road to Evans Ridge Road at Lot 21-3C had been provided in the email from the

Applicants' counsel. (R. 96.) That email contained a copy of the June 2, 2010 access easement

deed. (R. 77 .) The June 2, 2010 access easement deed purports to grant Michael S. Manning the

fo llowing :

A perpetual right of way easement, for access and egress on foot and with
vehicles, for establishing, constructing, usmg and maintaining a drive or

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roadway, ... over, under, and across the following described parcels of land, being
a portion of premises known as the private way known as Evans Ridge Road,
Windham, Cumberland County, State of Maine conveyed to the Grantor herein by
warranty deed to John W. Manning by Michael S. Manning dated February 5,
2001, and recorded in the Cumberland County Registry of Deeds in Book 16006,
Page 171 (also known as Lot 3-3 or Windham Tax Map 5, Lot 21-3C) ...

(R. 77.) This access easement deed appears, on its face , to grant Manning the right to use the

portion of Evans Ridge Road that crosses Lot 21-3C for access and egress and for establishing,

constructing, using and maintaining a drive or roadway. Therefore, this access easement deed is

sufficient evidence that one of the Applicants has "the kind of relationship to" the property that

gives them at least "a legally cognizable expectation of having the power" to connect the

proposed road with Evans Ridge Road where it crosses Lot 21-3C. Murray, 462 A.2d at 43.

Therefore, the WPB' s conclusion that the Applicants had produced sufficient evidence of right,

title, or interest in the property to have administrative standing under § 802(A) and §

811 (B )( 1)( c )( 4) was supported by substantial evidence in the record. Furthermore, because the

threshold for establishing right, title, or interest in order to have administrative standing is very

low, and because courts have held that evidence of interests in land less than a fee simple are

sufficient to establish administrative standing, this court cannot conclude that the WPB's

determination was an error of law.

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IV. CONCLUSION

Based on the foregoing, Plaintiffs-Appellants Timothy and Elizabeth Nangle's Rule 80B

appeal is denied. The Town Windham Planning Board's decision is affirmed.

The Clerk is directed to enter this Order on the civil docket by reference pursuant to

Maine Rule of Civil Procedure 79(a).

Date: -ii2.._o /;~

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10811132. Public record. Not legal advice.