Storie v. Land Use Planning Commission

STATE OF MAINE SUPERIOR COURT

PENOBSCOT, ss Civil Action

Docket No. AP-20-0006

Michael E. Storie, ORDER on

David B. Storie, and Motions to Dismiss Counts I, II and VI,

Jay T. Storie, Motion to Specify the Future Course of

Proceedings,

Petitioners/Plaintiffs,

V. Motion to Sever,

Motion to Amend, and

Land Use Planning Commission,

Scheduling Order

Respondent,

David Cox,

Ashley Cox, and

Ronald Gerard,

Defendants.

After many false starts, this matter came before the Court on July 26, 2021 for a remote

hearing on the pending motions. Patrick Hunt, Esq. appeared for the Plaintiffs. AAG Elwell

appeared for the Land Use Planning Commission (LUPC); Daniel Nelson, Esq. appeared for

the Coxes; and Charles Cox, Esq. appeared for Ronald Gerard.

This case involves real estate located in Mt. Chase Township, Maine. Before the Court are

four motions:

I. The LUPC's motion to dismiss Counts I, II, and VI of the Stories' SOC petition and

complaint, joined by the Coxes, and joined by Gerard as to Counts II and VI;

2. The Stories' motion to specify the future course of proceedings pursuant to M.R. Civ.

P. 80C(i), resulting in a Scheduling Order;

3. LUPC's motion to sever; and

4. The Stories' unspecified motion to amend their complaint.

1

I. Background

The LUPC is a state government agency within the Department of Agriculture, Conservation

and Forestry. It is charged with implementing certain land use statutes and effectively acts as

a zoning and planning board for the unorganized and deorganized areas in the State. See 12

M.R.S. §§ 683-A to 685-B (2020). To implement Maine's land use statutes regarding these

areas, the LUPC prescribes various land use regulations and rules to govern the public's usage

of the land the LUPC administers. 12 M.R.S. § 685-B. One of the conservation statutes the

LUPC implements provides that no person may erect or alter structures in the areas under the

LUPC's administration without a permit from the LUPC. 12 M.R.S. § 683-B.

The Stories' complaint/ petition 1 makes the following allegations:

• Michael Storie, David Storie, and Jay Storie are brothers who own a parcel ofland

in Mt. Chase Township. (Pl.'s Compl. ,r 1.) David Cox and Ashley Cox own

property that abuts the Stories' property. (Id. ,r 2.) The Coxes acquired the abutting

property from Ronald Gerard. (Id.) The Stories allege that the land Gerard sold

to the Coxes is part of a larger parcel that Gerard had wrongfully organized into

an illegal subdivision. (Id. ,r 4.)

• Sometime in August 2015, the LUPC issued a building permit to the Coxes to

construct a building on their property that abuts the Stories. (Id. ,r 5.) The Stories

allege that this permit should not have been issued because the Coxes' property is

part of an illegal subdivision and because the Coxes had not met the minimum

shoreline frontage requirement to construct the building. (Id. ,r 6.) The Stories assert

that, as abutting property owners, they were entitled to notice of the building

permit but were not provided such notice. (Id. ,r,r 5, 15.)

• The Coxes began construction sometime after receiving the permit. (Id. ,r 7.) When

the Stories noticed the construction, they complained to the LUPC that the Coxes'

property was not eligible for a construction permit. (Id.) After making their

complaints, the Stories remained in contact with the LUPC about their concerns

and requested to be notified of any developments. (Id. ,r 8.) The Stories believed

that the LUPC was investigating the Stories' concerns and that the LUPC would

enforce Maine's land use planning laws by revoking the permit and stopping the

construction; however, the LUPC never revoked the Coxes' building permit and

construction continued. (Id. ,r,r 8-9.)

• After the Coxes finished construction, they applied for a certificate of compliance

for their building, but the L UPC declined to issue the certificate. (Id. ,r 11.) On

January 6, 2020, the LUPC issued a notice ofviolation to the Coxes. (Id. ,r 6.) The

LUPC began settlement negotiations with the Coxes regarding their land use

violation and reached a proposed settlement agreement. (Id. ,r 12.) The Stories did

1The Court will refer to this document as the "complaint/petition" or simply as either the "complaint" or

upetition. ,, Whatever term is used, the Court is always referring to the same document.

2

not learn about these settlement negotiations until January 7, 2020 when the

Stories were informed that the proposed settlement agreement would be ratified at

the LUPC's meeting in February. (Id.~ 13.) The Stories attempted to intervene in

the LUPC's settlement negotiations with the Coxes and requested that the LUPC

postpone the settlement ratification until after its February 12, 2020 meeting to

allow them time to prepare and present their objections; however, the LUPC

declined to postpone its proceedings. (Id.~ 16.) On February 10, 2020, Plaintiffs

submitted a legal memo to the LUPC in opposition to the LUPC's settlement

agreement with the Coxes. (Id.~ 17.) The LUPC ratified the settlement agreement

at its February 12, 2020 meeting, "effectively resolving the Notice of Violation and

providing the Coxes with a Certificate of Compliance." (Id.~ 18.)

The Stories filed a six-count complaint based on the above allegations.

• Count I alleges that the Stories were aggrieved by the LUPC's February 12, 2020

decision to ratify the settlement agreement with the Coxes and requests review of

the LUPC's decision under M.R. Civ. P. SOC. The Stories seek an order

remanding the matter to the LUPC for entry of an order finding that the Coxes

violated land use planning law and requiring the Coxes to remove the offending

building. Count I is brought against the LUPC and the Coxes, but not against

Gerard.

• Count II seeks a declaratory judgment that the Coxes and Gerard violated Maine's

land use planning laws, an injunction requiring the Coxes to remove the structure,

and an injunction requiring the Coxes and Gerard to correct the illegal subdivision.

• Count III alleges a common law nuisance claim against the Coxes and Gerard.

• Count IV alleges a statutory nuisance claim against the Coxes and Gerard.

• Count V alleges negligence against the Coxes and Gerard.

• Count VI alleges fraudulent misrepresentation against Coxes and Gerard.

II. Standard of Review

A motion to dismiss tests the legal sufficiency of the complaint. McAfee v. Cole, 63 7 A.2d

463, 465 (Me. 1994). On a motion to dismiss for failure to state a claim upon which relief

may be granted, the Court does not adjudicate the facts; instead, the Court treats the factual

allegations in the complaint as true and evaluates those allegations in the light most favorable

to the plaintiff to determine if the complaint sets forth the "elements of a cause of action or

alleges facts that would entitle the plaintiff to relief pursuant to some legal theory." Argereow

v. Weisberg, 2018 ME 140, ~ 12, 195 A.3d 1210; Marshall v. Town ofDexter, 2015 ME 135, ~ 2,

125 A.3d 1141. The complaint does not need to "identify the particular legal theories that will

be relied upon, but it must describe the essence of the claim and allege facts sufficient to

demonstrate that the complaining party has been injured in a way that entitles him or her to

relief." Burnsv. Architectural Doors & Windows, 2011 ME 61, ~ 17, 19 A.3d 823. Thus, a plaintiff

may not proceed to litigate a cause of action if the plaintiff's complaint "has failed to allege

facts with sufficient particularity so that if true, the facts would satisfy the elements of a cause

of action." America v. Sunspray Condo. Ass'n, 2013 ME 19, ~ 13, 61 A.3d 1249; Burns, 2011 ME

61, ~ 17, 19 A.3d 823. In examining the complaint, the Court is not bound to accept the

3

complaint's legal conclusions as true; merely reciting the legal elements of a claim is

insufficient. Sunspray Condo. Ass'n, 2013 ME 19, ~ 13, 61 A.3d 1249; Carey v. Bd. ofOverseers

ofthe Bar, 2018 ME 119, ~ 23, 192 A.3d 589; Seacoast Hangar Condo. II Assoc. v. Martel, 2001

ME 112, ~ 16, 775 A.2d 1166. Dismissal will not be granted unless "it appears beyond doubt

that [the] plaintiff is entitled to no relief under any set of facts that he might prove in support

of his claim." Argereow, 2018 ME 140, ~ 12, 195 A.3d 1210; Barnes v. McGough, 623 A.2d 144,

145 (Me. 1993) (a motion to dismiss tests the legal sufficiency of the plaintiff's allegations

"not the sufficiency of the evidence the plaintiffs are able to present").

III. Defendants' Motion to Dismiss

A. Count I - Petition for Review of Government Action Pursuant to M.R. Civ. P.

soc

In count I of their petition, Petitioners/Plaintiffs ask for judicial review of the LUPC's

decision to enter into a particular settlement agreement with the Coxes. Petitioners/Plaintiffs

assert count I against LUPC and the Coxes only. The LUPC and Coxes move to dismiss

count I on two separate grounds: 1) the appeal is not timely because the Stories, in essence,

are asking for review of the LUPC's decision to issue the Coxes a building permit in 2015,

and 2) the Stories lack standing to appeal the ratification of the February 12, 2020 settlement

agreement between the L UPC and the Coxes.

Timeliness ofthe Appeal

The LUPC and Coxes' first argument is based upon the filing deadline set forth in the

Administrative Procedure Act (APA), 5 M.R.S. §§ 11001-11008 (2020). They argue that the

petition is untimely under § 11002(3) and that therefore the Court lacks subject matter

jurisdiction over the petition and must dismiss it pursuant to M.R. Civ. P. 12(b)(l).

The time limits set forth in the APA are jurisdictional. Mutty v. Dep 't ofCorr., 201 7 ME 7, ~

8, 153 A.3d 775. Pursuant to§ 11002(3) of the APA, a person who is aggrieved by the agency

action but is not a party to the proceeding, must file his or her petition for review within "40

days from the date the decision was rendered." 5 M.R.S. § 11002(3). If the petition is not

timely filed, the Court lacks subject matter jurisdiction and must dismiss the case. Mutty v.

Dep't ofCorr., 2017 ME 7, ~ 8, 153 A.3d 775. When reviewing a motion to dismiss an SOC

petition for lack of subject matter jurisdiction, the Court does not accept the material facts of

the complaint as true and "makes no favorable inferences in favor of the plaintiff" as it would

when examining a motion to dismiss for failure to state a claim upon which relief may be

granted. Mutty, 2017 ME 7, ~ 8, 153 A.3d 775; Tomerv. Me. Human Rights Comm'n, 2008 ME

190, ~ 9,962 A.2d 335; Francis v. Dana-Cummings, 2004 ME 4, ~ 17,840 A.2d 708 ("[c]ourts

are not required to deem allegations in a complaint as admitted when determining whether

subject matter jurisdiction exists.") When ruling on a motion to dismiss for lack of subject

matter jurisdiction, the Court considers the pleadings and "any material outside the pleadings

submitted by the pleader and the movant." Norris Family Assocs., LLC v. Town ofPhippsburg,

2005 ME 102, ~ 17 n.5, 879 A.2d 1007; Davric Maine Corp. v. Bangor Historic Track, Inc., 2000

ME 102, ~ 6, 751 A.2d 1024.

4

There is no question that the Stories did not appeal the LUPC's issuance of the building permit

in 2015. 2 There is also no question that the Stories filed an appeal within 40 days of the

ratification of the settlement agreement in 2020. The question posed by the motion to dismiss

is whether the Stories' SOC petition is an appeal of the ratification of the settlement agreement

or is, in essence, an appeal of the granting of the permit. If the petition is properly considered

an appeal of the granting of the permit, then the petition is untimely. However, if it is

considered an appeal of the February 12, 2020 settlement agreement, the petition is timely.

The LUPC argues that the Court should consider the date on which the LUPC's staff issued

the 2015 building permit to the Coxes as the operative date for purposes of the filing deadline.

(The exact date of that issuance is uncertain, but clearly the permit was issued sometime

between August 18 and August 31, 2015.) The LUPC contends that the Stories' SOC petition

seeks review of the February 12, 2020 ratification of the settlement agreement solely on the

basis that the LUPC's staff's decision to issue the 2015 building permit to the Coxes was in

error and that, in substance, the Stories' SOC petition is "nothing more than a belated attempt"

to appeal that permit decision. (Mot. Dismiss 7.) The LUPC reasons that because the Stories

did not file a petition within 40 days of the issuance of that 2015 permit, the Stories' petition

is untimely under§ 11002(3), and therefore the Court lacks subject matter jurisdiction over

the petition.

To support its position, the LUPC relies on Juliano v. Town ofPoland, 1999 ME 42, ,i,i 7-8, 725

A.2d 545, which concerned the timeliness ofan appeal brought to the Town ofPoland's Board

of Appeals pursuant to the procedural rules set forth in the Town's zoning ordinance. In

1995, the Town's Code Enforcement Officer (CEO) issued Juliano a building permit to

expand his small commercial bottling plant. However, in 1997, a new CEO ordered Juliano

to cease construction because he did not have a valid building permit. Juliano appealed the

stop work order to the Town's Board of Appeals. The Board upheld the stop work order on

the grounds that Juliana's building permit was invalid. The Town's zoning ordinance

required that an appeal from the decision of CEO to the Town's Board of Appeals must be

brought within thirty days of the CE O's decision. The Law Court determined that the 1997

stop work order was an appeal from the former CEO's decision to issue the permit in 1995.

Because the stop work order (i.e. appeal) "was issued nearly two years after the permit was

granted," the Law Court determined that the stop work order "was not timely due to the

thirty-day appeal period specified in the ordinance." Id. ,i 7. In its analysis, the Law Court

emphasized that "strict compliance with the appeal procedure of an ordinance is necessary to

ensure that once an individual obtains a building permit, he can rely on that permit with

confidence that it will not be revoked after he has commenced construction." Id. ,i 7 (internal

citation omitted).

The LUPC also points to Salisbury v. Town of Bar Harbor, 2002 ME 13, 788 A.2d 598, as

additional support. Salisbury was issued a building permit by the Town of Bar Harbor to

demolish and reconstruct a residence on his land with the same footprint as the existing

2 The Stories allege they were not notified when the permit was granted, but there is no indication that they

asked for an extension of the filing deadline or a stay of the decision to issue the permit.

5

structure. After construction began, the CEO issued a stop work order but then revoked the

order a month later. The Utsches, neighboring property owners, challenged the revocation.

During that litigation, the CEO issued Salisbury a certificate of occupancy. Thereafter, the

Town's Board of Appeals determined that the stop work order was wrongfully revoked and

the CEO wrongfully issued the certificate of occupancy. Salisbury then filed an 80B action

arguing in part that the Board of Appeals lacked jurisdiction to review the CEO's decision to

issue the certificate of occupancy. The Law Court held that the "issuance or denial of a

certificate of occupancy is a decision subject to judicial review" and that, as the Utsches had

timely appealed that issuance, the Board had jurisdiction to consider the appeal. Id.~ 13. The

Law Court also held that the Board acted within its authority when it reviewed the Utsches

allegation that Salisbury exceeded the scope of the building permit. The Law Court noted

that "an appeal of a certificate of occupancy may not ... substitute for an appeal of the

underlying permit" but if the perrnittee has "meaningfully exceeded the authority contained

in the permit, or otherwise violated conditions of the permit, the issuance of the certificate of

occupancy may be challenged." Id. ~ 14. The Law Court determined that the Board of

Appeals made findings regarding whether Salisbury exceeded the bounds of the building

permit and therefore the Board acted within its authority to review the issuance of the

certificate of occupancy. Id.~ 15.

Turning to the issue presented in this case, the key section of the Stories' complaint states:

At the February 12, 2020 LUPC meeting, the LUPC ratified the Settlement

Agreement with David Cox and Ashley Cox, effectively resolving the Notice

of Violation and providing the Coxes with a Certificate of Compliance ...

As abutting property owners, Plaintiffs are aggrieved by the February 12, 2020

decision of the LUPC. Without limitation, plaintiffs are aggrieved that LUPC

failed to rescind the building permit, entered into a settlement agreement with

the Coxes, failed to frnd a violation and requirement of abatement of the

violation, and issued a certificate of compliance for the structure.

(Comp!. ~ 19). While the Court agrees with the LUPC that the Stories' argument against the

LUPC's approval of the settlement agreement is based in part on their contention that the

Coxes should not have been issued the 2015 building permit in the first place, the Court

disagrees that the Stories' 80C petition functions as an appeal of the 2015 building permit.

Count I of the complaint requests review of the LUPC's decision to settle its claims against

the Coxes for their land use violations without requiring the Coxes to remove the offending

structure. The LUPC's arguments based on the Juliano and Salisbury decisions are not

persuasive because the LUPC's characterization of the complaint as petitioning for review of

the issuance of the 2015 building permit is too narrow. When fairly read, the Stories' petition

is properly construed as a challenge to the LUPC's decision as to how to enforce the applicable

land use rules and regulations (i.e. its ratification of the February 12, 2020 settlement

agreement) after it determined that the Coxes had violated those rules and regulations.

Because it is clear from the record that the Stories' petition was filed within 40 days of the

LUPC's official decision to enter a settlement agreement with the Coxes on February 12, 2020

6

(the date the settlement agreement was finalized and signed by LUPC), this 80C action is

timely under 5 M.R.S. § 11002(3).

The motion to dismiss the Stories' 80C appeal due to the untimeliness of the petition is denied.

The hearing on the merits of this petition will be strictly limited to evidence and arguments

pertaining to the LUPC's enforcement decision, not to whether the 2015 building permit

should have been issued.

Standing

The L UPC and the Coxes also argue that count I should be dismissed because the Stories lack

standing to appeal the LUPC's decision to settle its claims against the Coxes. Although the

LUPC appears to move to dismiss on this ground pursuant to M.R. Civ. P. 12(b)(l) (lack of

jurisdiction), Maine courts do not consider standing to sue as a matter of subject matter

jurisdiction. 3 Accordingly, the Court will examine the standing aspects of the motions to

dismiss count I under Rule 12(b)(6). 4 See National Hearing Aid Centers, Inc. v. Smith, 376 A.2d

456, 458 (Me. 1977) ("[i]n determiningjusticiability we must ascertain whether the complaint

alleged a claim of right justifying relief and whether a sufficiently substantial interest is

asserted to warrant judicial protection.").

Standing is a threshold requirement to pursue litigation in the courts-the term is used to refer

to whether the "party, at the commencement of the litigation, has sufficient personal stake in

the controversy to obtain judicial resolution of that controversy." Haljway House v. City of

Portland, 670 A.2d 1377, 1379 (Me. 1996); see also Roop v. City oJBelfast, 2007 ME 32, ~ 7, 915

A.2d 966; Lindemann v. Comm 'n on Governmental Ethics & Election Practices Ethics, 2008 ME 187,

~ 8, 961 A.2d 538. In the context of administrative appeals, the right to seek judicial review

of an administrative action is governed by statute; thus, "whether a party has standing

depends on the wording of the specific statute involved." Nelson v. Bayroot, LLC, 2008 ME

3

In the Maine courts, standing to sue is a matter of jurisprudential principle; it is not considered a matter of

subject matter jurisdiction like constitutional standing is in the federal courts. Bank ofN. r: v. Dyer, 2016 ME 10,

1]1] 8-9, 130 A.3d 966 (standing is a matter of justiciability not subject matter jurisdiction); Bank ofAm., N.A. v.

Greenleaf, 2015 ME 127, 1] 7, 124 A.3d 1122 ("although standing relates to the court's subject matter jurisdiction,

it is an issue theoretically distinct and conceptually antecedent to the issue of whether the court has subject

matter jurisdiction") (internal citations omitted); Norris Family Assocs. LLC, 2005 ME 102, 1] 13, 879 A.2d 1007

(standing to appeal an administrative decision is analyzed separately from subject matter jurisdiction).

4

The Court will treat the factual allegations of the Stories' petition/ complaint as true and view those facts and

the reasonable inferences that can be drawn from them in the light favorable to the plaintiff/petitioner for

purposes of determining whether the Stories have sufficiently shown that they have standing to sue at this stage

of the proceedings. See e.g. Conservation Law Found. v. LePage, Cum-CV-18-0089, 2018 Me. Super. LEXIS 156, at

*25 (July 20, 2018) ("It is the allegations of the complaints that determine standing for purposes ofa Rule 12(b)(6)

motion"); Cedars Nursing Case Ctr, v. Me. HHS, Cum-AP-15-0021, 2015 Me. Super. LEXIS 147, at *2 (Aug. 24,

2015) (treating the allegations contained in the complaint as true and admitted on a motion to dismiss due to

lack of standing); see also generally Lu}:zn v. Defenders ofWildlife, 504 U.S. 555, 561 (1992) ("[a]t the pleading stage,

general factual allegations of injury resulting from the defendant's conduct may suffice" to establish federal

constitutional standing "for on a motion to dismiss we presume that general allegations embrace those specific

facts that are necessary to support the claim").

7

91, 1 9, 953 A.2d 378. The statute authorizing appeals from the decisions of the LUPC

provides that appeals must be brought pursuant to the Administrative Procedure Act (APA).

See 12 M.R.S. § 689 ("Persons aggrieved by final actions of the commission ... may appeal

therefrom in accordance with Title 5, chapter 375, subchapter 7."). In turn, Section 11001 of

the APA provides that any person aggrieved by a final agency action or by the failure or

refusal of an agency to act is entitled to judicial review in the Superior Court. 5 M.R.S. §

11001(1)-(2).

A person is aggrieved within the meaning of§ 11001(1)-(2) "if the person has suffered a

particularized injury-that is, if the agency action operated prejudicially and directly upon

the party's property, pecuniary or personal rights." Nelson, 2008 ME 91, 110, 952 A.2d 382.

This particularized injury must "be distinct from any injury experienced by the public at large

and must be more than an abstract injury." Id. "Being affected by a governmental action is

insufficient to confer standing in the absence of any showing that the effect is an injury."

Lindemann, 2008 ME 187, 115, 961 A.2d 538. It must be apparent from the dispute itself or

the surrounding circumstances that the "asserted effect on the party's rights genuinely flows

from the challenged agency action." Nelson, 2008 ME 91, 1 10, 953 A.2d 378. Whether a

party has suffered or will suffer a particularized injury sufficient to confer standing is a mixed

question oflaw and fact. Norris, 2005 ME 102, 113, 879 A.2d 1007.

The Law Court has characterized the showing necessary to demonstrate standing as minimal

in the context of disputes involving abutting landowners. See Roop, 2007 ME 32, 1 8, 915

A.2d 966. "Because of the abutter's proximate location, a minor adverse consequence

affecting the party's property, pecuniary or personal rights is all that is required for the

abutting landowner to have standing." Id. (citation omitted). An abutting landowner may

have standing to challenge a final agency action even in situations where the abutter has not

suffered any economic harm. Id. 11 8-11 (denial of statutorily granted right to meaningful

participation was a particularized injury that conferred standing); see also Laverty v. Town of

Brunswick, 595 A.2d 444, 446 (Me. 1991) (threat of increased public use that could have

resulted from the placement of a business near the plaintiff's property was a particularized

injury that conferred standing); In the Matter of International Paper Co., Androscoggin Mill

Expansion, 363 A.2d 235 (Me. 1976) (plaintiffs who breathed air in the area for which a paper

mill had received air emission and discharge licenses suffered a particularized injury that

conferred standing).

In this case, the Stories' SOC petition is challenging the LUPC's decision to ratify a settlement

agreement that settled the LUPC's claims against the Coxes for violations of the land use rules

that the LUPC administers. Although the petition/ complaint contains no explicit allegation

regarding what injury the Stories have suffered from the LUPC's decision to settle with the

Coxes, a fair reading of the whole of the petition/complaint including incorporated Exhibit

A, reveals that the Stories are alleging that the LUPC's failure to undertake other enforcement

action, such as requiring the Coxes to remove the offending structure, has caused the Stories

to suffer various injuries including: emotional distress, loss of the use and enjoyment of their

8

land, and diminution in the market value of their property. 5 Amongst other details, Exhibit A

asserts that before the Coxes built the offending structure the entrance to the Stories' property

was "wooded and beautiful" but is no longer "wooded and beautiful" because the land was

cleared by the Coxes' construction activities. (Comp!., Ex. A at 9.) Exhibit A also states that

the Stories' property has lost its privacy as the Coxes have brought visitors to the property and

created a potential for noise and disruption. (Id.)

The LUPC did not attempt to persuade the Court that these sort of injuries are not sufficient

to confer standing; instead, the L UPC contends that the Stories have not been aggrieved by

the settlement agreement because there is no direct relationship between the effect of the

settlement agreement and the Stories' rights and interests. To that end, the LUPC asserts that

the Stories were not a party to this settlement agreement, that their rights and obligations were

unchanged by this agreement, and that the settlement agreement does not apply to the Stories'

property.

The LUPC's argument is drawn from the Law Court's opinion in Great Hill Fill & Gravel v.

Board ofEnvironmental Protection, 641 A.2d 184 (Me. 1994). In that opinion, the Law Court

reiterated the basic rule that "to have standing to challenge a final agency action, a litigant

must demonstrate a particularized injury as a result of the action" and that the particularized

injury requirement "is met when the judgment adversely and directly affects the party's

property, pecuniary or personal rights." Id. at 184 (quoting Anderson v. Swanson, 534 A.2d

1286, 1287-1288 (Me. 1988)). 6 Based on that rule, the Law Court held that an adjoining

property owner, Great Hill Fill, lacked standing to challenge a decision by the Board of

Environmental Protection (BEP) to approve a settlement agreement between it and an

offending gravel pit operator, Shapleigh, who operated a gravel pit on land adjoining Great

Hill's. That conclusion was based on the Law Court's determination that" at the time offiling

of its complaint and throughout the period for seeking review, Great Hill was, at most, only

indirectly affected by Shapleigh' s consent agreement[; i]t had no direct, legal relationship with

either the site owner or Shapleigh." Id. at 184. However, context is needed to understand the

Law Court's determination that "Great Hill's legal rights and responsibilities were unchanged

by the Board's decision." Id.

This context is provided by the Superior Court's decision in the subsequent contract dispute,

Great Hill Fill & Gravel, Inc., v. Shapleigh, No. CV-90-0162, 1995 Me. Super. LEXIS 408, (Nov.

14, 1995). In the decision, the Superior Court noted that two landowners agreed to permit

Shapleigh to remove gravel from their respective lands in exchange for payment and an

additional promise from Shapleigh with respect to one of the parcels to "fix the land so that

afterwards the hill would not be steep, but be an easy slope," Id. at *2. These arrangements

5 Documents that are referenced in a party's pleading may be considered on a motion to dismiss without

converting the motion into one for summary judgment as long as the authenticity of the documents have not

been challenged. Moody v. State Liquor& Lottery Comm'n, 2004 ME 20, ,r 9-11, 843 A.2d 43. The authenticity of

the Stories' memorandum to the LUPC has not been challenged by any of the parties.

'In Anderson, the Law Court held that an abutting landowner had standing to challenge the decision of a

municipality when the proposed addition to the neighbor's property threatened obstruction of the abutter's

view. Anderson, 534 A.2d at 1288. The Anderson court noted that a "high degree of proof of a particularized

injury" is not required. Id. (quoting Grand Beach Ass'n v. Old Orchard Beach, 516 A.2d 551, 553 (Me. 1986)).

continued until the landowners received a notice from the BEP informing them that they had

established an illegal gravel pit. Shortly thereafter, Great Hill obtained permission from the

BEP to operate a gravel pit on both parcels on the condition that Great Hill restore the land

afterwards. The landowners and Shapleigh all settled their land use violations with the BEP.

The Law Court's holding that Great Hill had no standing to challenge the BEP's ratification

of its settlement agreement with Shapleigh appears to have been based on the fact that the

settlement agreement concerned violations which occurred before Great Hill had taken over

operation of the gravel pit and on the fact that Great Hill's obligation to restore the land after

extraction was unchanged by the BEP's settlement with Shapleigh. Thus, Great Hill is readily

distinguishable from the situation described in the Stories' petition.

The more recent case, Fox Islands Wind Neighbors v. Dep'tofEnvt. Prat., 2015 ME 35, 116 A.3d

940, although also factually distinct, provides a more useful reference in determining the issue

at hand. The Fox Islands case involved a complaint brought by a community organization

against a wind energy project run by Fox Island Wind. The Department of Environmental

Protection (DEP) approved the wind energy project and issued a certification, which required

Fox Island Wind to implement a noise reduction plan if the wind turbines caused excessive

noise. The wind energy project began operating and soon after the community organization

brought complaints to the DEP about noise from the turbines, which it backed up with

evidence showing that, in particular weather conditions, the turbines were noisier than the

DEP had permitted. The DEP responded by initiating its enforcement process, which

included requiring Fox Island Wind to submit and implement a revised noise reduction plan.

Eventually, Fox Island Wind submitted a plan that met the DEP's noise reduction

requirements and the DEP issued a compliance order determining that the new plan met the

agency's requirements. However, the community organization was not satisfied and brought

an SOC action challenging the DEP's compliance order on the grounds that the compliance

order did not adequately account for the breadth of weather conditions that could cause the

turbines to produce excessive noise. Fox Island Wind moved to dismiss the SOC action on

the grounds that the organization lacked standing as well other grounds. The Law Court

characterized the DEP's compliance order as a consent decree-"an agreement reached by

the parties in lieu ofDEP's pursuing further enforcement action such as sanctions or greater

conditions imposed upon Fox Island" (in essence, a settlement agreement)-and, as to the

standing issue, held that the community organization had standing to challenge the

compliance order because it had demonstrated a particularized injury, "namely the claim of

negative impact from excessive noise emanating from the wind energy development." Id. 1

21 n.9. The Law Court further noted that there was no separation-of-powers issue resulting

from interference with the DEP's prosecutorial discretion because the compliance order was

an "enforcement action, a final agency action for which judicial review is expressly authorized

by statute." Id.

The Stories' petition seeking review of the LUPC's settlement agreement with the Coxes is

similar to the community organization's challenge to the DEP's compliance order in Fox

Island Wind Neighbors. The LUPC's settlement with the Coxes is properly characterized as an

enforcement action taken by the LUPC and the Stories are challenging the LUPC's

enforcement action on the grounds that the LUPC did not go far enough. Namely, the

10

Stories' petition alleges that had the LUPC enforced the applicable land use regulations

appropriately, the LUPC's enforcement action (settlement agreement or otherwise) would

have required the Coxes to remove the offending structure and restore the land to its previous

condition. When an abutting landowner suffers a particularized injury as the result of an

agency's enforcement action such as the LUPC's settlement agreement, the agency's

enforcement action is a proper subject for judicial review under the APA. See Fox Islands Wind

Neighbors, 2015 ME 53, ,, 21-25, 21 n.9, 116 A.3d 940.

When fairly read in its entirety, the Stories' petition alleges that the LUPC's enforcement

action has negatively impacted them by causing them to suffer some diminution in the market

value of their property, loss of use and enjoyment of their land, and other injuries. These

alleged injuries are sufficient at this stage of the proceedings to support the Stories' standing

to seek review ofLUPC's final agency enforcement action (the settlement agreement).

For all of the above reasons, the Respondent's/Defendants' motion to dismiss count I is

denied.

B. Count IT - Declaratory and Injunctive Relief

The LUPC, Coxes, and Gerard seek dismissal of count II against the Coxes and Gerard on

the grounds that the claims in Count II with respect to the Coxes' house are duplicative of the

claims in Count I. And, with respect to Gerard's alleged creation of a subdivision, they argue

that the claims are not ripe for judicial review and judicial determination would offend the

separation of powers by interfering with the LUPC's prosecutorial discretion. Interestingly,

in their opposition, the Stories argued only that the LUPC did not have standing to move to

dismiss Count II. 7

The Stories' Claims Against the Coxes in Count II

When a claim for purportedly independent relief is joined with an SOC or SOB petition but is

in reality duplicative of the petition, the Court has discretion to dismiss the independent claim

on that ground. Cape Shore House Owners Ass'n v. Town a/Cape Elizabeth, 2019 ME 86,, 8, 209

A.3d 102; Kane v. Comm 'r ofthe Dep 't ofHealth and Human Services, 2008 ME 185, ,, 30-32,

960 A.2d 1196; Adelman v. Town a/Baldwin, 2000 ME 91, ,, 6-7, 750 A.2d 577. Ifin raising

the independent civil claim the petitioner relies on the same factual allegations and seeks the

same relief as that sought in the SOC or SOB action, the court is within its discretion to dismiss

the independent claim as duplicative. Kane, 2008 ME 185,, 32, 960 A.2d 1196.

In Kane, the Law Court affirmed dismissal of a 42 U.S.C. § 1983 claim as duplicative of an

SOC appeal, holding that the Superior Court did not abuse its discretion in dismissing the

claim. In its analysis, the Law Court noted that the petitioner relied on the same factual

7

The Stories' have argued that the Court should not consider the motions to dismiss Count II because the

Stories' did not raise this count against the LUPC. Setting aside the matter of whether the LUPC may move

to dismiss claims that are not brought against it, the Coxes (in writing) and Gerard (orally) joined in the

LUPC's motion to dismiss and therefore there is no reason for the Court not to address the arguments raised

with respect to Count II in the LUPC's motion to dismiss.

11

allegations and sought the same relief as she did in her SOC appeal except for a procedural

due process allegation that she raised in the section 1983 claim. The Law Court further noted

that the Superior Court would have had to engage in the same analysis in addressing the

plaintiff's section 1983 claim as it engaged in when addressing the merits of the petitioner's

SOC arguments.

The Law Court addressed another Rule 80C(i) issue, this time in the context of an action for

declaratory judgment, in Cape Shore House Owners Ass'n v. Town ofCape Elizabeth, 2019 ME 86,

,r 6, 209 A.3d 102. In Cape Shore, a house owners association sought judicial review of a

zoning board's approval of a building application for a nonconforming structure and a

declaratory judgment that a height restriction in a town's zoning ordinance was preempted

by a state shoreland zoning statute. In its claim for declaratory judgment, the association also

sought action by the court to invalidate the zoning board's approval of the building permit on

the basis of state law - the same relief sought in the 80B appeal. The Law Court determined

that in these circumstances the association's claim for declaratory relief was not independent

from its Rule 80B appeal and thus the Superior Court's dismissal of the declaratory judgment

claim as duplicative was not an abuse of discretion. Id. ,r 9.

In count II of the complaint/petition in this case, the Stories seek a declaratory judgment

declaring that the Coxes and Gerard have violated Maine's land use planning statutes and

regulations, an injunction requiring the Coxes to remove the offending structure from their

property, and an injunction requiring the Coxes and Gerard to "remediate or correct" an

allegedly illegal subdivision that Gerard created in violation of Maine law. 8

The Stories rely on the same factual allegations to support their declaratory judgment claim

as they do their SOC appeal. Additionally, the Stories request largely the same relief against

the Coxes in the declaratory judgment claim as in their SOC appeal, namely a finding that the

Coxes have violated the pertinent land use laws and regulations and an order requiring the

Coxes to remove the offending structure. To resolve the Stories' claims in Count II regarding

the Coxes' house, the Court will need to engage in largely the same factual analysis that it

will use with respect to the Stories' SOC appeal. The only difference between Counts I and II

against the Coxes is that the relief in Count II adds a request that the Coxes along with Gerard

remediate the allegedly illegal subdivision. This additional request for relief does not save

Count II from being dismissed as to the Coxes as the Stories have no private right to enforce

the land use law and regulations governing Maine's disorganized and unorganized lands. (See

pages 13 to 15 of this Order for a complete analysis of this issue.)

Additionally and alternatively, the Stories have no private right to enforce the laws and

regulations at issue and this serves as an independent basis to dismiss Count II.

8Although, the Stor.ies do not expressly identify the particular statutes and regulations that the Coxes and Gerard

have violated, it is apparent that the Stories are referring to 12 M.R.S. § 681 through§ 685-h (Chapter 206-A,

subchapters 1-2), the statutes setting forth the authority of the LUPC and providing standards for the governing

of the usage ofland in Maine's organized and deorganized areas. The regulations the Stories refer to appear to

be the regulations that the LUPC has prescribed to implement these statutes governing the usage ofland in these

areas.

12

The direct review of agency action afforded by 5 M.R.S. §§ 11001-11008 is exclusive unless it

is inadequate. Cayer v. Town ofMadawaska, 2016 ME 143 ,r 16, 148 A.3d 707; Colby v. York

Cnty. Comm'rs, 442 A.2d 544, 547 (Me. 1982). The claims in Count II as they relate to the

Coxes are properly addressed in the SOC appeal, and not as an independent claim for

declaratory judgment. See Tremblay v. Land Use Regulation Comm 'n, 2005 ME 110 ,rl l & n.1,

883 A.2d 901 (dismissing Tremblay's request for declaratory judgment "because of the

exclusive nature of the administrative appeal process.")

For these reasons, the Court dismisses Count II as to the Coxes.

The Stories' Claims Against Gerard in Count II

The Stories' request for declaratory judgment against Gerard presents different issues. The

Stories' claims against Gerard in Count II rely on some of the same allegations that the Stories

rely on in their SOC appeal; however, Gerard is not a party to Count I and the SOC appeal

does not include any request for relief against Gerard. Therefore, the claims against Gerard

in Count II are not duplicative of the SOC appeal.

In Count II, the Stories ask that the Court determine that Gerard violated the applicable land

use planning statutes governing Maine's unorganized and unorganized areas and order him

to correct the allegedly illegal subdivision he created. However, for the Stories to have a basis

upon which to obtain this declaratory and injunctive relief, the state Legislature would have

had to have created a private cause of action giving members of the public the right to enforce

the land use laws and regulations which govern the usage ofland in these areas.

To determine whether the Legislature has provided the public with a private cause of action

to enforce these land use statutes and regulations administered by the LUPC, the Court must

interpret the text of the statutes and, if necessary, examine other materials to discern the

Legislature's intent.

When the Court interprets a statute, it seeks "to give effect to the legislative intent by

examining the plain meaning of the statutory language." Charlton, 2001 ME 104, ,r 10, 774

A.2d 366. In doing so, the Court interprets the relevant sections of the statute at issue "in the

context of the statutory scheme in which it is found." Id. "When the plain meaning of the text

does not resolve an interpretative issue, [the court] then consider[s] the statute's history,

underlying policy, and other extrinsic factors." Id. When determining whether the Legislature

has created a private cause of action in a statute, the Court first determines whether the

Legislature has expressly created the cause of action through the statutory language. Id. ,r 15.

If the plain meaning of the text indicates that the legislature has not expressly created a private

right of action, the Court will then determine "if such a right of action can be implied." Id.

Implied private rights of action are disfavored. See id. ,r,r 15-19. (commenting that if the

Legislature intends that a private party have a right of action it would clearly express its intent

in the statutory language).

13

The portion of12 M.R.S. §§ 681-685-H most relevant to this inquiry are subsections 685-C(S)

and 685-C(9), which provide specific provisions governing the enforcement of violations of

the land use planning rules governing the usage of the land at issue. Section 685-C(S) is

quoted in full below:

Enforcement, inspection, and penalties for violations. Standards, rules and

orders issued by the commission pursuant to this chapter have the force and

effect oflaw. No development may be undertaken, except in conformance with

this chapter, the standards, rules and orders enacted or issued pursuant to this

chapter, and any real estate or personal property existing in violation of such is

a nuisance. For the purposes of inspection and to ensure compliance with

standards, orders and permits issued or adopted by the commission, authorized

commission staff, forest rangers and the state supervisor or consultant

personnel may conduct investigations, examinations, tests and site evaluations

necessary to verify information presented to it and may obtain access to any

lands and structures regulated pursuant to this chapter.

Any person who violates any provision of this chapter, or the terms or

conditions of any standards, rules, permits or orders adopted or issued pursuant

to this chapter, is subject to a civil penalty, payable to the State, of not more

than $10,000 for each day of the violation.

In addition to the other penalties provided, the commission may, in the name

of the State of Maine, institute any appropriate action, injunction or other

proceeding to prevent, restrain, correct or abate any violation hereof or of the

orders or standards or rules promulgated hereunder. This action may include,

but is not limited to, proceedings to revoke or suspend any commission permit

or approval, taken either before the commission itself in accordance with Title

5, section 10004, before the District Court in accordance with Title 4, chapter

5 or, notwithstanding the provisions ofTitle 4, section 152, subsection 9 or Title

5, section 10051, before the Superior Court as part of an enforcement action

brought by the commission.

In addition to any such penalties or remedies provided in this subsection, the

court may order restoration of any area affected by any action or inaction found

to be in violation of any of the provisions of this chapter or of any order,

standard, rule or permit of the commission, or any decree of the court, to the

condition of such area prior to the violation. When such restoration is not

practicable, the court may order other actions to be taken by the person charged

with the violation which are in mitigation of the damage caused by the

violation.

A person who willfully or knowingly falsifies any statement contained in a

permit application or other information required to be submitted to the

commission is in violation of this chapter and subject to the penalties of this

chapter.

14

12 M.R.S. § 685-C(S).

The following subsection, entitled "representation in court," provides that "[t]he

commission may authorize certified employees of the commission to serve civil

process and represent the commission in District Court in the prosecution of violations

of those laws enforced by the commission ... " 12 M.R.S. § 685-C(9).

It is clear from the plain meaning of the language in 12 M.R.S. § 685-C(8)-(9) and the other

statutes in the Chapter 206-A, subchapters 1-2, that the Legislature did not expressly create

any private cause of action to enforce the laws pertaining to land use in Maine's unorganized

or deorganized areas, or create a private right to enforce the land use regulations created by

the LUPC to implement those laws.

Nor can a private cause of action be reasonably implied from the statutory language or

legislative history. 9 See generally Charlton, 2001 ME 104, ~~ 15-18, 774 A.2d 366; Herrle v. Town

of Waterboro, 2001 ME 1, ~ 11, 763 A.2d 1159.

Accordingly, the Court concludes that in enacting in 12 M.R.S. §§ 681-685-H the Legislature

did not provide the public with a private right of action to enforce the land use laws and

regulations governing Maine's disorganized and unorganized areas. Only the LUPC may

bring enforcement actions against violators of those land use rules and regulations.

Moreover, the issue ofhow to resolve alleged violations of the statutes and rules administered

by the LUPC is in the first instance a matter for the Commission. 12 M.R.S. § 685-C(8); see

generally Raposa v. Town ofYork, 2019 ME 29, ~ 11 n.4, 204 A.3d 129; Herrle, 2001 ME 1, ~ 10,

764 A.2d 1159. In this case, the LUPC has not yet decided how (or if) to resolve Gerard's

alleged violations; thus, the alleged violation is not ripe for judicial review. See Maine AFL­

CIO v. Superintendent ofIns., 1998 ME 257 ~ 7, 721 A.2d 633.

For all of the above reasons, the Court grants the motion to dismiss count II as to Gerard.

9 In particular, § 685-C(8) gives authority to conduct inspections and investigations of violations only to the

LUFC and its staff. Further, the subsection states that if an individual violates a provision of Chapter 206-A or

the LUFC's regulations the person is subjected to a "civil penalty,payable to the State ... "but does not mention

any damages payable to individuals harmed by such a violation. 12 M.R.S. § 685(C)(8). In regard to actions

for injunctive relief specifically, the subsection provides that "the commission may, in the name ofthe State of

Maine, institute any appropriate action, injunction or other proceeding to prevent, restrain, correct or abate any

violation hereof ..." Id. The fact that this paragraph explicitly states that such actions for injunctive relief are

taken by the 11 the commission, in the name of the State of Maine,, and contains no reference at all to actions

taken by private citizens shows clearly that the Legislature intended such enforcement actions to be taken only

by the LUFC for the interest of the State and did not intend to create a basis for private plaintiffs to undertake

enforcement actions to vindicate some personal right. Lastly, the Court has found nothing in the legislative

history of§ 685-C(8) that suggests the Legislature intended to create a private cause of action.

15

C. CountVI

Count VI of the Stories' complaint alleges fraud against the Coxes and Gerard. The LUPC,

Coxes, and Gerard have moved to dismiss count VI under M.R. Civ. P. 12(b)(6) on the

grounds that the Stories have failed to plead the essential elements of fraud. 10

For the Stories' fraud claims to survive this motion to dismiss, the Court must determine that

the Stories have pled sufficient facts to support all of the essential elements of a claim for fraud

against the defendants. These elements are:

1. A party made a false representation,

2. The representation was of a material fact,

3. The representation was made with knowledge of its falsity or in reckless disregard

of whether it was true or false,

4. The representation was made for the purpose of inducing another party to act in

reliance upon it, and

5. The other party justifiably relied upon the representation as true and acted upon it

to the party's damage.

Barrv. Dyke, 2012 ME 108, ~ 16, 49 A.3d 1280; Flaherty v. Muther, 2011 ME 32, ~ 45, 17 A.3d

640. The Maine Rules of Civil Procedure provide more rigorous pleading requirements for

all fraud claims. Rule 9(b) states that "in all averments of fraud or mistake, the circumstances

constituting fraud or mistake shall be stated with particularity." M.R. Civ. P. 9(b). However,

"[m]alice, intent, knowledge, and other condition of mind of a person may be averred

generally." Id. In determining whether a plaintiff has pled fraud with the particularity required

by Rule 9(b), "the test ... is not whether the complaint sets out a textbook definition of fraud,

but whether defendant is fairly apprised of the elements of the claim." TD Banknorth, NA. v.

Hawkins, 2010 ME 104, ~ 24, 5 A.3d 1042.

Count VI ofthe complaint repeats the allegations in the other sections of the complaint, which

were previously discussed in this order, and adds the following allegations:

• Gerard and the Coxes "intentionally and fraudulently structured their land transaction

in such a manner to mislead the LUPC and to obtain a building permit from the LUPC

despite the fact that the Cox property is not eligible for a building permit under Maine's

land use planning statutes and regulations." (Pl.'s Compl. ~ 38.)

• The Coxes "intentionally and fraudulently submitted an application to the LUPC for

a building permit that omitted significant information and/or contained false

information." (Id.~ 39.)

10 The Stories' have argued that the Court should not consider these motions because the Stories' did not raise

their fraud claim against the LUPC. Setting aside the matter of whether the LUPC may move to dismiss claims

that are not brought against it, the Coxes (in writing) and Gerard (orally) joined in the LUPC's motion to dismiss

and therefore there is no reason for the Court not to address the arguments raised with respect to Count IV in

the LUPC's motion to dismiss.

16

• As a result of the defendants' fraudulent conduct, the LUPC issued the Coxes a

building permit despite the fact that the Coxes were not eligible for the permit. (Id. ~

40.)

• "The Coxes then constructed a structure on their property, in violation of the law."

(Id. ~ 41.)

• The Stories suffered damages because of the defendants' conduct. (Id.~ 42.)

Defendants contend that Plaintiffs' fraud claim is "fatally flawed because it does not aver that

the Stories relied upon any false representation or material omission to their detriment." (Mot.

Dismiss 13.) The defendants argue that instead of alleging that the Stories relied upon the

Coxes misrepresentations, the complaint alleges only that the LUPC relied on the alleged

misrepresentations. The Court agrees.

The Stories' complaint lacks any allegation that the Stories relied on the misrepresentations

that the Coxes and Gerard allegedly made. To sufficiently allege a claim for fraud, a

complaint must allege with particularity that the plaintiff justifiably relied on a

misrepresentation of a defendant and that the plaintiff acted upon the misrepresentation to

the plaintiff's detriment. Barr, 2012 ME 108, ~ 16, 49 A.3d 1280. Because the Stories have

not alleged with particularity that they relied to their detriment on any misrepresentation by

any defendant, their complaint does not state a claim for fraud. Count VI is dismissed.

D. The Stories' Motion to Amend

The Stories have moved that, in the event that the Court finds any of the allegations in their

complaint insufficient to support their claims, they be granted leave to amend their complaint.

The Court denies this broad motion. In re Sen, 1999 ME 83, ~~ 10-11, 730 A.2d 680 (affirming

a trial court's denial ofleave to amend where the moving party "failed to explain" how the

amendment would cure their pleading and failed to attach a copy of the proposed

amendment.)

E. Motion to Specify the Future Course of Proceedings/Scheduling Order

The Stories filed a motion to specify the future course of proceedings pursuant to Rule 80C(i)

at the same time they filed their complaint. The Stories have joined with their SOC petition,

a request for a declaratory judgment and injunction, and various common-law and statutory

tort claims against the Coxes and Gerard. M.R. Civ. P. 80C(i). In this situation, the Court is

being called upon to act both in its appellate capacity reviewing the agency record with respect

to the SOC petition and as a court of original jurisdiction over the common law and statutory

claims. See generally, M.R. Civ. P. 80B(i) advisory committee's note to 1983 amend., Feb.

1983, 3A Harvey & Merritt, Maine Civil Practice 579 (3d 2018-2019 ed.).

The LUPC has requested that the court sever the SOC petition from the Stories other claims

because the claims are private tort claims and do not seek relief from governmental action.

The Stories argue that the Court should not sever the claims because their claims arise out of

17

a common factual background and all of the claims including the 80C appeal relate to the

Stories' property claims.

Clearly, the claims all arise out of a common factual background and all claims relate to a

specific building on one parcel of real estate. The parties are not seeking a jury trial on any of

the claims. The Court is satisfied that proper procedure can be followed and the role of the

Court as an appellate body as to the 80C claim and as a court of general jurisdiction regarding

the independent claims can be respected while trying all counts of the complaint together.

The Motion to Sever is denied.

The future course of proceedings shall be as follows:

1. LUPC shall have 60 days from the date this Order is docketed to prepare and file the

administrative record;

2. Plaintiffs shall have 30 days after the filing of the record to designate expert witnesses

and provide Rule 26(b )(4) information;

3. Defendants shall have 60 days after the filing of the record to designate expert

witnesses and provide Rule 26(b)(4) information;

4. The discovery deadline is 90 days after the filing of the record;

5. This matter will thereafter have a pretrial conference and be set for a non-jury trial. All

parties informed the Court on July 26, 2021 that they were seeking a non-jury trial.

Entry:

1. The Motions to Dismiss regarding Count I are DENIED;

2. The Motions to Dismiss regarding Count II are GRANTED;

3. The Motions to Dismiss regarding Count VI are GRANTED;

4. The Motion to Amend the Complaint is DENIED;

5. The Motion to Sever is DENIED; and

6. The Scheduling Order is as follows:

a. LUPC shall have 60 days from the date this Order is docketed to prepare and

file the administrative record;

b. Plaintiffs shall have 30 days after the filing of the record to designate expert

witnesses and provide Rule 26(b)(4) information;

c. Defendants shall have 60 days after the filing of the record to designate expert

witnesses and provide Rule 26(b)(4) information;

d. The discovery deadline is 90 days after the filing of the record;

e. This matter will thereafter have a pretrial conference and be set for a non-jury

trial.

I

Date ~urra

Superior Court

ORDEWJUDOMENT ENTERED IN THE

eoURr nocia.r oN: o..r;;.:;;.ta\

18

Date Filed 3/20/20 Penobscot County Docket No. AP-2020-6

Assigned to Justice Ann M. Murray

IAction:

MICHAELE. STORIE, DAVID B. V. LAND USE PLANNING COMMISSION

STORIE, AND JAY T. STORIE DAVID COX, ASHLEY COZX, amd RONALD GERARD

STATE OF MAINE DEPARTMENT OF AGRICULTURE

Plaintiffs Attorney Defendant's Attorney

IPatrick Hunt Caleb Elwell MG for Land Use Planning Commission

POBox130 6 State House Station, Augusta, ME 04333-0006

7 Shennan Street

Island Falls, ME 04747 Daniel Nelson Esq. Atty for David Cox and Ashley Cox

PO Box 804

I Date of Houlton, ME 04370

Charles W. Cox Esq. Atty for Ronald Gerard

Entry

,,

'