# Bryant v. Town of Wiscasset

> Superior Court of Maine · March 20, 2017

URL: https://www.frixlaw.com/law-library/cases/10811429

## Case

- **Court:** Superior Court of Maine
- **Decided:** March 20, 2017
- **Precedential status:** Unpublished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

STATE OF MAINE SUPERIOR COURT
LINCOLN, ss Docket No.: AP-15-1

)
KATHLEEN BRYANT and THOMAS )
BRYANT )
)
Plaintiffs, ) ORDER ON DEFENDANTS'
) MOTION TO DISMISS
v. )
)
TOWN OF WISCASSET, )
ALLEN COHEN, )
MELISSA COHEN, and )
BIG AL'S OUTLET, INC.,

Defendants.

Before the Court is Defendants Allen and Melissa Cohen's Motion to Dismiss.

Cohen Defendants seek dismissal of the final remaining count of this case (Count IV).

Defendant claims that the Court does not have jurisdiction over the matter because the

count, seeking declaratory judgment that the Cohens' storage of fireworks is in violation

of Maine law, should have been brought as an administrative appeal pursuant to Maine
I

Rule of Civil Procedure 80C. Defendants make this assertion based upon the February

24, 2015 letter from Timothy Fuller, Inspection Supervisor for the Office of the State Fire

Marshal, to Plaintiffs' attorney, Jonathan Pottle confirming the Cohen Defendants'

compliance with Maine Law and NFPA regulation (the "Letter"). According to

Defendants, Plaintiffs' only avenue for relief is administrative appeal of the Letter to the

Superior Court. Because Plaintiffs failed to timely assert any claim pursuant to 80C,

Defendants contend that Plaintiffs are now barred from seeking relief.

Maine Rule of Civil Procedure 12, governing Defenses and Objections, requires

the Court to look solely to the Complaint to determine its sufficiency for motions to

1
j

dismiss brought pursuant to M.R. Civ. P. 12(b)(6). For motions to dismiss for lack of

subject matter jurisdiction, the Court is permitted to consider materials outside of the

pleadings. Gutierrez v. Gutierrez, 2007 ME 59, 110, 921 A.2d 153. Furthermore, in

determining whether the Court has subject matter jurisdiction, the court makes "no

favorable inferences in favor of the plaintiff such as ... when reviewing a motion to

dismiss for failure to state a claim upon which relief can be granted." Tomer v. Me.

Human Rights Comm'n, 2008 ME 190, 19,962 A.2d 335.

The Superior Court does not have jurisdiction over claims for declaratory

judgment claim where the legislature has provided an alternative remedy to the conflict

through appeal of an administrative decision. Fisher v. Dame, 433 A.2d 366,372 (Me.

1981) ("[W]hen a legislative body has made provision, by the terms of a statute or an

ordinance, for a direct means by which the decision of an administrative body can be

reviewed in a manner to afford adequate remedy, such direct avenue is intended to be

exclusive"). In the ClllTent case, Defendants argue that because Plaintiffs had the

opportunity to bring an action for administrative appeal ofthe determination madb by

Fuller, Plaintiffs are barred from seeking declaratory relief. The Court looks not only to

the Complaint, but the Court must also look to the Letter in order to determine whether

the Court has jurisdiction to consider Plaintiff's claim for declaratory judgment. The

Court reviews the Letter in order to determine whether final agency action has occurred.

The Maine Administrative Procedures Act defines final agency action as "a

decision by an agency which affects the legal rights, duties or privileges of specific

persons, which is dispositive of all issues, legal and factual, and for which no further

recourse, appeal or review is provided within the agency." 5 MRS 8002(4).

2
The Letter declares that the property in question and building thereon are not in

violation of any Maine law or regulation concerning the storage of consumer fireworks.

The Letter determines that the property is in compliance with Maine law on firework

safety, which affects the legal rights of the parties. The Letter is dispositive of all issues

presented to the Office of the State Fire Marshal, and there is no further recourse within

the agency. The Court finds that the Letter constitutes final agency action.

Because the Letter constitutes final agency action taken by the Office of the State

Fire Marshal, and because declaratory relief may not be sought where there is a

legislatively created remedy, Plaintiffs' sole remedy to the determination made

concerning the rights and duties of the parties in complying with the state code on

fireworks was to appeal the Letter pursuant to Maine Rule of Civil Procedure 80C within

the 30 days allowed. See 5 M.R.S. § 11002(3). Therefore, the Court dismisses Count IV

for lack of subject matter jurisdiction.

Conclusiod

The Court Grants Defendant Cohen's Motion to Dismiss Count IV.

Date: March 20, 2017

Justice, Superior Court

3
Date Filed: 12/23/14 Lincoln County Docket No. AP-15-01
Action: 808 Appeal

Kathleen Bryant vs. Town of Wiscasset
Thomas Bryant Allen Cohen
Melissa Cohen
Big Al's Outlet, Inc.

Plaintiff's Attorney Def's. Attorney Cohen's & Big Al's Outlet, Inc.
Jonathan A. Pottle, Esq. Chris Neagle, Esq. #1074
Eaton Peabody Troubh Heisler, P.A.
P.O. Box 1210 PO Box 9711
Bangor, ME 04402-1210 Portland, ME 04104

Def. Attorney Town of Wiscasset
Mary E. Costigan, Esq.
100 Middle St., PO Box 9729
Portland, ME 04104
STATE OF i'VIAINE SUPERJOR COURT
LINCOLN, SS. CIVIL ACTION
DOCKET NO. LINSC-AP-15-001

KATHLEEN BRYANT and )
TH01-'1AS BRYAl'-iT, )
)
Plaintiffs-Appellants, )
)
v. ) ORDER ON RULE 80B APPEAL
)
TOWN OF W1SCASSET, )
ALLEN COHEN, 1Y1E1ISSA COHEN, and )
BIG AL'S OUTLET, INC., )
)
Defendants-Appellees. )

Plaintiffs-Appellants Kathleen and Thomas Bryant ("the Bryants") appeal from a

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

80B. The Bryants have also brought independent claims for violation of their rights to due

process of law under the United States and Maine Constitutions.

Based on the following, the Bryants' appeal is denied and the decision of the Town of

Wiscasset Planning Board is affirmed. Regarding the Bryants' claims for violation of their rights

to due process of law, judgment is entered for Defendant the Town of Wiscasset.

I. BACKGROUND

Defendants-Appe!lees Allen and MeHssa Cohen ("the Cohens") are the owners of a lot

and storage building located at 2 JB's Way in Wiscasset, Maine. (R 1.) The Cohens' property

is located in the Town's rural zoning district. (R. L) The building is used to store consumer

fireworks for the Cohens' business. (R. 26.) The Bryants reside at 32 JB's Way in Wiscasset,

Maine. (R. 22 .) The Bryants' property abuts the Cohens' property and they share a common

driveway. (R. 28.)
On August 28, 2014, the Cohens submitted an application for site plan review to the

Town's Planning Board seeking approval to constrnct a 35' x 60' addition on the storage

building. (R. 1-2.) A Planning Board meeting to discuss the Cohens application was held on

September 8, 2014. (R. 23 .) Allen Cohen and his surveyor for the construction protect, Karl

Olson, are both members of the Planning Board. (Id.) .ivlr. Cohen and .ivir. Olson recused

themselves from the Planning Board during discussion of the Cohens' application. (Id) Mr.

Cohen spoke before Planning Board in supp011 for his application. (id.)

As abutting property owners, the Bryants were provided notice of the meeting. (R. 22.)

The Bryants appeared at the September 8, 2014 meeting and objected to the expansion of the

storage building. (R. 28, 31.) The Bryants expressed concern about having fireworks stored in

such close proximity to where they live. (R. 28-31.) The Planning Board voted to approve the

Cohens' application for site plan review. (R. 23.)

The Planning Board issued a written decision on September 22, 2014. (R. 46-47.) In its

written decision, the Planning Board concluded that the Cohens' current building and proposed

expansion met the site plan review standards for the storage of hazardous materials because it

"had been previously approved and inspected by the State Fire Marshall's Office." (R. 47.) The

Bryants appealed the decision to the Town's Bomd of Appeals asserting: (1) that the Planning

Board erred by failing to review the Cohens' application against all applicable legal standards,

including National Fire Protection Association Standard 1124 ("NFPA 1124"); (2) that the

Planning Boards finding that the State Fire Marshall had "approved" and "inspected" the

building and expansion was not supported by substantial evidence; and (3) that Nb:. Cohen, a

member of the Planning Board, violated Maine's conflicts of interest law by personally

advocating for approval of his application. (R. 49.) Following a purely appellate hearing, the

2
Board of Appeals voted to remand the matter back to the Planning Board with instructions to

reconsider approval and to obtain the State Fire Marshall's approval in writing. (R. 57-58, 95.)

The Planning Board reconsidered the Cohens' application for site plan review at its

meeting on November 10, 2014. (R. 61.) Iv1r. Cohen and Mr. Olson again recused themselves

from the Planning Board during discussion of the Cohens' application. (Id.) There is no

evidence that the Bryants were sent notice of the meeting and the Bryants did not appear. (Id.)

Because a quornm was not present, no vote was taken on the Cohens' application. (Id.) The

Planning Board considered the Cohens' application again at its meeting on November 24, 2014.

(R. 63.) iVIr. Cohen and Mr. Olson again recused themselves from the Planning Board. (Id.)

There is no evidence that the Bryants were sent notice of the meeting and the Bryants did not

appear. (Id.) The Planning Board voted again to approve the Cohens' application. (Id.) No

written decision was issued. (R. 94.)

After learning of the Board's decision, the Bryants wrote a letter to the Planning Board

on December 10, 2014, complaining of the lack of notice to them that the matter would be

reconsidered. (R. 65.) The Bryants filed a second administrative appeal on December 22, 2014.

(R. 67-68.) The Bryants' appeal asserted that, in addition to the objections raised by their prior

appeal, they were deprived of due process by the lack of notice and opportunity to be heard by

Planning Board at the November 10 and 24, 2014 meetings. (R. 67.) The Bryants also filed a

complaint with this comt for review pursuant to Maine Rule of Civil Procedure 80B and

asserting independent causes of action on December 23, 2014. The Bryants filed a motion to

specify the future course of proceedings on January 2, 2015.

During the pendency of the Bryants' appeals, on December 23, 2014, the Planning Boa.rd

sent a letter to the Bryants stating that, although it was not required to send the Bryants personal
notice of the November 10 and 24, 2014 meetings, the Planning Board would reconsider the

Cohens' application for site plan review at its January 12, 2015 meeting in order to provide the

Bryants with an opportunity to be heard. (R. 72.)

The Bryants appeared at that January 12, 2015 meeting. (R. 77.) The Bryants submitted

additional evidence to the Planning Board and presented argument regarding NFPA 1124. (Id)

The only issue discussed at that January 12, 2015 meeting was whether the Cohens' application

must comply with NFPA 1124 in order to meet the Ordinance's hazardous materials site plan

review standards. (R. 77-89.) Nlr. Cohen and Mr. Olson again recused themselves from the

Planning Bomd. (R. 77.) Mr. Cohen spoke before the Planning Board in support for his

application. (Id.) At the conclusion of the meeting, the Planning Board voted again to approve

the Cohens' application. (R. 78.) The Planning Board did not review or apply NFPA 1124. (R.

77-89.) The Planning Board did not make any additional findings of fact or conclusions of law

on the record. (Id.) The Planning Board did not issue a written decision containing findings of

fact or conclusions of law. (R. 94.)

On January 22, 2015, the Bryants filed a motion with this court for a trial of facts on their

Rule 80B appeal and independent claims. Sometime thereafter, the Bryants learned that Board

of Appeals would hold a hearing on their second administrative appeal. (Pis. Mot. Stay ~ 11.)

The Bryants moved to stay their Rule 80B appeal and independent claims on January 29, 2015,

in order for the Board of Appeals to consider their second administrative appeal.

The Board of Appeals met on March 19, 2015, to consider the Bryants' second appeal.

(R. 96.) The Bryants raised four objections before the Board of Appeals: (1) again, that the

Planning Board committed an enor of law by approving the storage facility in violation of NFPA

1124, and thereby, in violation of the Town's Ordinance; (2) again, that the Planning Board's

4
finding that State Fire Marshall "approved" and "inspected" the building and proposed expansion

was not supported by substantial evidence; (3) again, that Mr. Cohen's presentation before the

Planning Board violated Maine's conflicts of interest law; and (4) that the lack of notice and

opportunity to be heard at the November 10 and 24, 2014 meetings deprived the Bryants of due

process. (R. 97-99.) Following a purely appellate hearing, the Board of Appeals voted to deny

the Bryants' appeal and affirmed the decision of the Planning Board. (R. 100.) A written

decision was issued March 24, 2015. (Id.)

The Bryants filed an amended complaint for review pursuant to Rule 80B and

independent claims on April 17, 2015. The Town and the Cohens filed their answers to the

amended complaint and their oppositions to the Bryants' motion for trial of facts and motion to

specify the future course of proceedings on May 8, 2015. The Bryants replied on May 15, 2015.

The court (Billings, J.) issued an order regarding the Bryants' pending motions on June 3,

2015. The court denied the Bryants' motion for a trial of facts. (Order 6/3/15.) The court

granted the Bryants' motion to specify the future course of proceedings. (Id.) The court ordered

that the Bryants' Rule 80B appeal (Count I) and claims for violation of due process under the

United States and Maine Constitutions (Counts II and Ill) would be considered together. (Id)

The court stayed consideration of the Bryants' claim for declaratory judgment (Count IV)

pending resolution of the other clain1s. (id)

Following an enlargement of time, the Bryants filed their brief and the admiuistrative

record with the court on July 28, 2015. 1 The Town and the Cohens both filed their briefs on

1 Attached to the Brynnts' brief is a copy NFPA 1124. (Pls. Br., Ex. A.) Rule 80B provides that, except
where a motion for trial of fact has been granted, review shall be confined to the administrative record.
M.R. Civ, P. 80B(f). As discussed further below, because the copy of NFPA l 124 attached to the
Bryants' brief is not included in the record, it is not properly before the court and cannot be considered.

5
Angust 27, 2015. 2 Following an enlargement of time, the Bryants filed a reply on September 25,

2015.

11. STAt~DARD OF REVIKW

When reviewing the decision of a municipal agency pmsuant to Maine Rule of Civil

Procedure 80B, the court reviews the operative decision of the municipal agency "for abuse of

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

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

citation omitted). Substantial evidence is evidence that a reasonable mind would accept as

sufficient to form a conclusion, even if the evidence would also support a contrary conclusion.

Sproul v. Town of Boothbay Harbor, 2000 ME 30, ,r 8, 746 A.2d 368. The party seeking to

vacate the municipal agency's decision bears the burden of perslmsion on appeal. Bizier v. Tmvn

a/Turner, 2011 ME 116, ,r 8, 32 A.Jd 1048.

III. ANALYSIS

The Bryants assert that the Planning Board erred in approving the Cohens' application for

site plan review on four grounds: (1) the Planning Boa.rd committed an error of law by failing to

apply NFPA 1124 as pmi of the hazardous materials site plan review standard contained in the

Ordinance; (2) the Planning Board's finding that the State Fire Marshall "approved" and

2 Attached to the Cohens' brief are five additional exhibits not included in the record. (Cohens Br., Exs.
A-E.) The Cohens assert Exhibits A, B, and C were a part of their application to the Planning Board and
should have been included in the record. (Id. at 2.) As discussed above, Rule 80B provides that, except
where a motion for trial of fact bas been granted, review shall be confined to the administrative record.
M.R. Civ. P. 80B(f). Rule 80B forther provides, "The parties shall meet in advance of the time for filing
the plaintiff's brief or motion for trial of the facts to agree on the record to be filed. Where agreement
cannot be reached, any dispute as to the record shall be submitted to the court." M.R. Civ. P. 80B(e)(2)."
The court presumes that, in compliance with Rule 80B, the parties conferred and agreed upon the record
filed with the court. Neither party submitted any dispute to the court prior to the filing of the record.
Thus, Exhibits A, B, and C are not part of the administrative record and cannot be considered by the
com1. Exhibits D and E attached to the Cohens' brief are also not part of the administrative record. The
Cohens do not argue the Exhibit D or E should have been included in the record. Because Exhibits D and
E are not part of the administrative record, they are not properly before the court and cannot be
considered.

6
"inspected" the proposed building expansion was not suppo1ied by substantial evidence in the

record; (3) the Bryants were denied due process of law; and (4) iv1r. Cohen attempted to

improperly influence the decision of the Planning Board. (Pls. Br. 8-15.)

A. .The Operative Dec[sion for Review

As a threshold matter, the co-urt must determine the operative decision for review. \Vhere

a board of appeals acts as a tribunal of original jurisdiction, making findings of fact, the court

reviews the bomd of appeals decision. 1vfills v. Town ofEliot, 2008 .ivffi 134, ~ 13, 955 A.2d 258

(citation omitted). However, where a board of appeals acts strictly in an appellate capacity, the

court directly reviews the decision of the previous municipal fact finder. Id. ~ 13. The general

rnle is that a board of appeals conducts a de nova review and renders the operative decision

unless the municipal ordinance expressly provides otherwise. Id. ~ 14; see 30-A M.R.S. §

2691(3)(D).

Here, Article VIII, § 13 of the Town's Ordinance provides that, regarding appeals of

Planning Board decisions on applications for site plan review:

The Board of Appeals' jurisdiction shall be limited to hearing requests for a
variance from a dimensional requirement, to interpreting the meaning of terms
which are called into question, and to hearing a request to determine if the
Planning Board acted in accordance with the procedures of this Article. The
Board of Appeals shall not have the authority to substitute its judgment for that of
the Planning Board with respect to any of the standards of this Article.

Wiscasset, Me., Zoning Ordinance, Art. VIII,§ 13 (Nov., 2012). Thus, the Board of Appeals in

this case acted strictly in an appellate capacity. Therefore, the decision of the Planning Board is

the operative decision for review before this court.

The com1 also notes that the Planning Board voted three times to approve the Cohens'

application for site plan review. (R. 23-24, 63, 77-78.) However, only one written decision

containing findings of facts and conclusions of lmv was issued on September 22, 2014, following

7
the Planning Board's initial consideration of the Cohens' application. (R. 46-48, 94.) No

changes were made to the Planning Board's decision at the November 24, 2014 meeting or the

January 12, 2015 meeting. (R. 63, 77-7&.) Thus, on reconsideration, the Planning Board

effectively reaffi11ned its earlier decision. Therefore, there is only one operative decision for

review: the Planning Board's September 22, 2014 decision, which it reaffirmed on

reconsideration. See Fitanides v. City ofSaco, 2015 ME 32, ~ 9, 113 A.Jd 1088 (The planning

board voted twice on two conditional use permits, once when the permits were issued, and again

following a remand by the board of appeals. Although there were two votes, the planning board

issued the permits only once, merely voting the second time to keep the permits unchanged. The

Law Comi held that there was only one operative decision for review: the Board's decision to

grant the conditional use permits.).

B. Applying the Hazardous Materials Standard

The Bryants argue that the Planning Board committed an error of law by failing to apply

NFPA 1124 as pmi of its hazardous materials site plan review standard. (Pl. Br. at 8.)

The Town of Wiscasset Zoning 01·dinance classifies patterns of land use into twelve

zoning districts, including residential and rural zoning districts, and outlines the permitted uses in

each district. Wiscasset, Me., Zonjng Ordinance, Art. Vl, §§ 2.1, 4.1 (June 2012). As previously

discussed, the Cohens' property is located in the rural zoning district. (R. 1.) Planning Board

approval in accordance with the Ordinance's site plan review standards is required to store

hazardous materials in the rural zoning district. Wiscasset, Me., Zoning Ordinance, Ali. VI,

Schedule of Uses- Land Use Matrix,§ 3 (June 2012). Section 9.L.1 of the Ordinance's site plan

review standards states:

8.
The handling, storage and use of all materials identified by the standards ·of a
federal or state agency as hazal'dous, special, or radioactive shall be done in
accordance with the standards of these agencies.

Wiscasset, Me., Zoning Ordinance, Art. Vlll, § 9.L. l (Nov., 2012). Consumer fireworks are

classified as hazardous materials under both state and federal law. See 8 M.R.S. ~ 221-A(l-A);

27 CPR§ 555.11; 49 CPR§ 172.101.

Maine law provides that a person authorized to sell consumer fireworks may store and

sell fireworks only in a permanent, fixed, stand-alone building dedicated solely to the storage and

sale of consumer fireworks. 8 M.R.S. § 223-A(4). Maine law fm1her provides that the building

must be constructed, maintained and operated, and all · consumer fireworks must be stored in

compliance with the requirements of NFPA 1124, as adopted by the Office of the State Fire

Marshall. Id. § 223-A(4)(A). It is generally assetied tluoughout the administrative record that

NFPA 1124 prohibits consumer firework storage buildings in residential areas. 3 (R. 49, 59, 65,

75-76, 77, 81, 95.)

The B1yants m·gue that in order to satisfy Ordinance's hazardous materials site plan

review standard, § 9.L.1, the Cohens' storage of consumer fireworks must comply with NFPA

1124. (id. at 9-10.) The Bryants assert that the Planning Board erred as a matter of law because

it failed to review or apply NFPA 1124 as part of its site plan review. (Id at 12.) The Bryants

further assert the Planning Board ened in approving the Cohens' site plan review application

3 AJtbough NFPA 1124 is discussed throughout the administrative record, there is no copy of NFPA
1124 or its express tem1s contained in the administrative record. As discussed above, the Bryants have
attached a copy NFPA l 124 to their brief. (Pis. Br., Ex. A.) Section 6.2.4 of NFPA l 124 states,
"Consumer fireworks storage buildings sball not be used for residential occupancies and shall not be
located in residential areas." (Id.) However, because the court's review is limited to the administrative
record on appeal, the Bryants' copy of NFPA 1124 is not propedy before the court and cannot be
considered. See M.R. Civ. P. 80B(f). However, because the com1 finds that the interpretation and
application ofNFPA standards is not within the Planning Board's authority, the exact language ofNFPA
1 I 24 is not required for court to reach its conclusion. ·

9
because the Cohens' storage building violates of the plain language of NFPA 1124 because it is

located in residential area. (Id. at 1O~ 11.)

A municipal agency has only those powers expressly conferred to it by statute or those

that are necessarily implied in order for the municipal agency to carry out its express powers.

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

The Bryants have not cited, and the court is not aware of, any statute or ordinance. giving the

Planning Board the power or authority to interpret and apply NFPA standards adopted by the

State Fire Marshall. Moreover, courts have generally held that municipal officials and boards

cannot independently judge compliance with state and federal regulations and that such matters

fall within the jurisdiction of the appropriate federal or state agencies. Consolidated Wasle

Servs. v. Inhabitants a/Norridgewock, 1988 Me. Super. LEXIS 134, at *6 (June 2, 1988).

Here, compliance with NFPA standards fails within the jurisdiction of the State Fi.re

Marshall. The Planning Board has no authority to review or apply NFP A 1124 as part of its site

plan review hazardous materials standard. Therefore, the Plmming Board did not err as a matter

of law by declining to review or apply NFPA 1124 as part of its hazardous materials cite plan

review standard and approving the Cohens' application.

C. The Planning Board's Finding that the State Fire Marshall "Approved" and
"Inspected" the Building Expansion

The Bryants next asse1i that the Planning Board's finding that the State Fire Marshall had

. "approved" and "inspected" the building and proposed expansion was not supported by

substm1tial evidence. (Pl. Br. 12.) In its written decision issued on September 22, 2014, the

Planning Board concluded that the Cohens' applkatio.n complied with § 9.L.l of the site plan

review standard for storage of hazardous materials because "[t)he current building and proposed

expansion have been previously approved and inspected by the State Fire Marshall's Office."

10
(R. 47.) 1l1e Plam1ing Board made no changes to its earlier findings at the November 24, 2014

meeting or the January 12, 2015, meeting and again approved the Cohens' application. (R. 63,

77-78.)

As discussed above, substantial evidence is evidence that a reasonable mind would accept

as sufficient to fonn a conclusion, even if the evidence could also support a contrary conclusion.

Sproul, 2000 1YIB 30, ~ 8, 746 A.2d 368. As fact finder, the municipal agency determines the

credibility of the evidence. Adelman v. Town oj'Baldwin, 2000 ME 91, ~ 14, 750 A.2d 577. On

appeal, the court may not substitute its judgment for that of municipal agency. York v. Town of

Ogunquit, 2001 1vfE 53, ~ 6, 769 A.2d 172. In order to vacate a municipal agency's findings of

fact, the appellant must demonstrate that no competent evidence suppo1is the municipal agency's

conclusions. Adelman, 2000 NIE 91, ~ 12, 750 A.2d 577.

In their application to the P lancing Board, the Cohens stated, "fireworks storage

approved and inspected by State Fire Marshall's Office." (R 3'.) At the September 8, 2014

meeting, Mr. Cohen represented to the Planning Board, " ... the State Fire ~arshal, when they

came and inspected, approved me up to 7,000 feet - this will bring it under 5,000 feet - under the

existing laws of storage." (R. 26.) Mr. Cohen fmiher stated, "There are signs on all four sides of

the building, as you're aware. The State required me to put up signs that it's fireworks." (R. 32­

33.) Later in the meeting, Mr. Cohen again stated, "I started with the Fire Marshals and they've

been there and inspected and reinspected ... " (R. 37.)

After the Board of Appeals remanded the matter, the Town;s attorney wrote a

memorandum to the Planning Board dated November 7, 2014. (R. 59-60.) In her memorandllrn,

the Town's attorney stated to Planning Board:

According to Tim Fuller of the State Fire Marshall's Office, Mr. Cohen does not
need a license for his storage facility because it is not on the same parcel as the

11
store. i'.v1r. Fuller stated that he would typically look to a Town's zoning code and
in this case the building is located in a rnrnl zone that allows mixed uses and it is
not a residential zone.

(R. 59.)

At the January 12, 2015 meeting, Mr. Cohen further stated to Planning Board:

I have a signature from the State Fire Marshal's Office that he came down and
looked at the property and reviewed it on - on 10/1 ~/13 signed by Tim Fuller, the
State Fire Marshal who's in charge of .fireworks. He wanted two "exit" signs and
"fireworks - no smoking" signs outside. So there is documentation.

(R. 84.) Included in the administrative record is a "Valuation Report" of the Cohens' storage

building. (R. 19, 91.) The Valuation Report contains handwritten notes stating: "PLRl\lI

Review," "2 exits," "exit signs," "fireworks, and "no-smoking signs." (Id.) The handwritten

notes also include the date "10/17/13" and what appears to be the signahire of"T Fuller." (Id.)

Town's attorney also spoke at the January 12, 2015 meeting and stated to the Planning

Board:

I've spoken with the Fire Marshal's Office. We have - as 1vfr. Cohen said, we
have the signature from Mr. Fuller that he went to the site. There is no license
needed for the storage facility because a license is only needed if you're selling on
the sume property. So there's no actual, you know, approval from the Fire
Marshal's office, but, as I understand it, to date there's also no letter from the Fire
Marshal's Office that this cannot happen.

(R. 86-87.)

The above evidence is more than sufficient to support the Planning Board's conclusion.

It was the duty of the Planning Board to assess the credibility of the record evidence and Mr.

Cohen's statements that the State Fire Marshall bad inspected and approved the building and the

proposed expansion for the storage of consumer fireworks. The comt will not substitute its

judgment for that of the Planning Board. Therefore, Planning Board's conclusion and

12
reaffirmation that the State Fire Marshall had inspected and approved the Cohens' building and

proposed expansion is suppmied by substantial evidence.

D. Deprivaiion of Due Process of Law

The Bryants next assert in their Rule 80B appeal and in Counts II and ID of their

complaint that the Planning Board's failure to provide them with notice of the November 24,

2014 meeting, where the Cohens' application was reconsidered, constitutes a deprivation of due

process of law under both the United States and Maine Constitutions. (Pls. Br. 13.) The Bryants

also asserts that ivir. Cohen's participation in the November 10 and 24, 2014 meetings without

the presence of the Bryants constitute ex pruie communications in violation of their rights to due

process of law. (Pls. Reply Br. 9-10.)

Applicants before a municipal agency and members of the public who oppose an

application are entitled due process of law ung.er the United States and Maine Constitutions.

Duffy v. Town ofBenvick, 2013 ME 105,, 15, 82 A.3d 148; see U.S. Const. amend. XIV§ 1;

Me. Const. art. I, § 6-A. For adjudicatory hearings, due process generally requires: notice of the

issues, an opportunity to be heard, the right to introduce evidence and present witnesses, the right

to respond to claims and evidence, and an impmiial fact finder. Jusseaume v. Ducat!, 2011 ME

43, ,r 12, 15 A.3d 714. Additionally, "[c]brnmunications between a decision-maker and only one

party, without notifying the opposing parly or providing that party with an opportunity to be

heard, are ex parte communications that implicate the due process rights of the excluded party."

Duffy, 2013 NIB 105, ,r 18, 82 AJd 148. The comi will vacate a municipal agencies decision if

the ex parte communications "affects the integrity of the process and the fairness of the result."

Id (internal citation and quotation marks omitted).

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However, due process is a flexible concept. Id. ~ 16. Due process at the municipal level

does not require full, trial-like procedures. Town ofJay v. Androscoggin Energy, LLC, 2003 rvfE

64, f 9,822 A.2d 1114. A municipal agency's relaxation or modification of procedural rules will

not cause a reversal unless the appellant can demonstrate an injury or substantial prejudice. Id

Technical violations of the notice requirement are not fatal if the inadequate notice has not

prejudiced the appellant. Town ofOgunquitv. Dep'tofPub. Safety, 2001 NIB 47, ~ 11,767 A.2d

291. Furthermore, where the public has had full and fair opporhmity to comment an application,

a municipal agency does not violate due process by permitting the applicant to submit additional

ex paiie comments to the municipal agency without providing further opportunity to the public to

comment. Duffy, 2013 NIB l 05, if 17, 82 A.3d 148 (citing Cunningham v. Kittery Planning Bd,

400 A.2d 1070, 1078-79 (Me. 1979)).

The Bryants have failed to demonstrate that they have suffered any prejudice as a result

of the lack of notice of the November 24, 2014 meeting. After learning of the Planning Board's

decision on November 24, 2014, the Bryants wrote a letter to the Planning Board on December

10, 2014, complaining of the Jack of notice that the matter would be reconsidered. (R. 65.) The

Planning Board sent a letter to the Bryants on December 23, 2014, stating that, although it was

not required to send the Bryants personal notice of the November 24, 2014 meeting, the Planning

Board would reconsider the Cohens' application for site plan review at its January 12, 2015

meeting in order to provide the Bryants with an oppmiunity to be heard. (R. 72.) The Bryants

appeared at that January 12, 2015 meeting, where they submitted additional evidence and

presented argument regarding NFPA 1124 to the Planning Board. (R. 77.) At the conclusion of

the meeting, the Planning Board voted again to approve the Cohens' application. (R. 78.)

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Even if the Planning Board's failure to notify the Bryants of the November 10 or 24,

2014 meetings violated the notice requirement, the Bryants were provided adequate opportunity

to present additional evidence and have their arguments be heard at the January 12, 2015

meeting. Thus, the Bryants have not suffered any prejudice. Moreover, the Planning Board had

provided the public,_including the Bryants, with a full and fair opportunity to comme~t on the

Cohens' application for site plan review at the September 8, 2014 meeting. Thus, .ivfr. Cohen's

participation in the November 10 and 24, 2014 meetings without the Bryants present did not

constitute the type of ex parte communications that violate their rights to due process of law at

the municipal level. Therefore, the Bryants have not suffered a deprivation of due process undel'

the United States or Maine Constitution.

E. lV.fr. Cohen' s Attempt to lmpropedy Influence the Planning Board

Lastly, the Bryants assert that Mr. Cohen violated Maine's conflicts of interest law by

personally advocating for his application for site plan review. (Pls. Br. 15~16.) As previously

discussed, .ivfr. Cohen is member of the Town's Planning Board. (R. 23.) Mr. Cohen recused

himself from the Planning Board during the discussion of his application at the September 8,

2014 meeting. (Id.) .ivfr. Cohe·n spoke before Planning Board in support for his appfo:ation. (Id.)

:tvfr. Cohen also recused himself from the Planning Board during the November 10 and 24, 2014

meetings. (R. 61, 63 .) Mr. Cohen again rec used himself from the Planning Board during the

January 12, 2015 meeting. (R. 77.) Mr. Cohen spoke before the Platming Board at the January

12, 2015 meeting in support of his application. (Id.)

Title 30~A, § 2605 provides that when an official has a direct or indirect pecuniary

interest in a question before a municipal body, "the vote on the question ... is not voidable and

actionable if the official makes full disclosure of interest before any action is taken and if the

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official abstains from voting, ... and.from otherwise at/empting to fnjluence a decision in which

that ojjicial has an interest." 30-A M.R.S. § 2605(4) (emphasis supplied).

The Bryants argue that Mr. Cohen violated § 2605(4) because lVlr. Cohen otherwise

attempted to influence the Plaru1ing Board's decision by personally appearing before the

Planning Board and directly advocating for his application for site plan review. (Pls. Br. 15-16.)

Mr. Cohen's name appears on the application for site plan review. (R. 1.) The

application and Mr. Cohen's testimony at the September 8, 2014 Planning Board meeting make

clear that pmpose of the application was to obtain Plam1ing Board approval to expand the size of

a building used to store cons1.uner fireworks for the Cohens' business. (R. 3, 26, 34-35.) Thus, .

Mr. Cohen fully disclosed his interest in the application. &Ir. Cohen recused himself from the

Planning Board at each meeting. (R. 23-24, 61, 63, 77-78.) Mr. Cohen did not participate in the

discussion of his application as a member of the Planning Board and did not vote. (Jd) There is

no evidence in the record indicating that :tvfr. Cohen attempted to influence the decision of the

Planning Board regarding his application other than as an applicant before the Planning Board.

There is nothing in the statute that prnhibits Mr. Cohen from appearing before the Planning

Board in his individual capacity as an applicant to advocate for his application for site plan

review. Therefore, Mr. Cohen did not violate Maine's conflicts of interest law.

IV. CONCLUSION

Based on the foregoing, Plaintiffs-Appellants Kathleen and Thomas Bryant's appeal from

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

80B is denied. The decision of the Town of Wiscasset Planning Board is affirmed.

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On Count II and Count III of the amended complaint for violations of due proces~ of law

under the United States and Maine Constitution, judgment is entered in favor of Defendant­

Appellant the Town of Wiscasset.

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

Maine Rule of Civil Procedure 79(a).

Date: Septern ber 21 , 2016

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10811429. Public record. Not legal advice.