Kathleen Bryant v. Town of Wiscasset

MAINE SUPREME JUDICIAL COURT Reporter of Decisions

Decision: 2017 ME 234

Docket: Lin-17-165

Argued: October 13, 2017

Decided: December 19, 2017

Panel: ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.

KATHLEEN BRYANT et al.

v.

TOWN OF WISCASSET et al.

HUMPHREY, J.

[¶1] Kathleen Bryant and Thomas Bryant appeal from a judgment of

the Superior Court (Lincoln County, L. Walker, J.) affirming, pursuant to M.R.

Civ. P. 80B, the Town of Wiscasset Planning Board’s approval of Allen and

Melissa Cohen’s application to expand a building used to store fireworks for

the Cohens’ business—Big Al’s Outlet, Inc. (Count 1). The Bryants also appeal

from the judgments entered in favor of the Town on their independent claims

asserting violations of their due process rights pursuant to the United States

and Maine Constitutions (Counts 2 and 3) and the judgment dismissing their

claim seeking declaratory relief (Count 4). We affirm the judgment on the

Rule 80B appeal and dismiss the appeal of the judgments entered on the

independent claims.

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I. BACKGROUND

[¶2] In September 2014, the Cohens applied to the Town of Wiscasset

Planning Board for a site plan review approval and to the Code Enforcement

Officer for a permit for a proposed 35-by-60-foot addition to their storage

building. The Cohens’ site plan review application recited, “Fireworks storage

approved and inspected by State Fire Marshal[’]s Office.” The Bryants

objected to the application. After an administrative process that involved an

initial appeal to and remand from the Board of Appeals, the Planning Board

granted the Cohens’ application. The Bryants appealed that decision to the

Board of Appeals, and the Board of Appeals issued its final decision on

March 24, 2015, affirming the decision of the Planning Board.1 The Bryants

appealed to the Superior Court, which affirmed the Planning Board decision

on September 21, 2016. Because the decision of the Planning Board is the

operative one for purposes of this appeal, the facts recited below are taken

from the record before the Planning Board and from the decisions the

Planning Board issued on September 22, 2014, and January 12, 2015.2

1 Although the heading of that decision indicates that it contains “findings of fact,” the decision

itself references Wiscasset, Me., Site Plan Review Ordinance Art. VIII § 13 (Nov. 2012), which limits

the Board of Appeals’ actions to appellate review.

2 Because Wiscasset, Me., Site Plan Review Ordinance Art. VIII § 13 limits the Board of Appeals

to an appellate capacity when it reviews site plan review applications, we directly review and

3

[¶3] On September 8, 2014, the Planning Board held its first public

hearing on the Cohens’ application. Allen Cohen presented the application to

the Planning Board.3 The Bryants opposed the application, expressing

concerns about the proximity of the fireworks storage building to their home.4

The Planning Board approved the application in a written decision finding

that the Cohens were already storing fireworks in the existing building on

their property and “concluding”5 that the “current building and proposed

expansion have been previously approved and inspected by the State Fire

Marshal[]’s Office.”

[¶4] The Bryants appealed from the Planning Board’s decision to the

Board of Appeals, asserting, in relevant part, that (1) the Planning Board failed

to review the application against applicable legal standards, particularly

National Fire Protection Association Code 1124 (NFPA 1124); (2) the

Planning Board’s findings were not supported by substantial evidence in the

derive facts from the Planning Board decisions and not the Board of Appeals decisions. See Mills v.

Town of Eliot, 2008 ME 134, ¶¶ 13-14, 955 A.2d 258; see also supra n.1.

3 Allen Cohen and his surveyor were members of the Planning Board at the time, and they both

recused themselves from the Planning Board’s consideration of the application.

4 The Planning Board sent notice of the hearing to the Bryants because they lived within 250

feet of the Cohens’ property. See Wiscasset, Me., Site Plan Review Ordinance Art. VIII § 6(A)(4)

(Nov. 2012).

5 This finding was listed among the Planning Board’s conclusions of law.

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record; and (3) Allen Cohen’s presentation of his application to the Planning

Board violated Maine’s conflict-of-interest law. The Board of Appeals “denied”

the appeal, but nonetheless remanded the application to the Planning Board

to determine whether the Cohens had written approval from the State Fire

Marshal’s Office for the proposed expansion.

[¶5] On remand, the Planning Board held two hearings in

November 2014 and, at the conclusion of the second hearing, unanimously

approved the Cohens’ application. The Bryants were not given personal

notice of the hearings and did not appear at either hearing. On December 22,

2014, the Bryants filed a second appeal to the Board of Appeals, asserting in

relevant part that the Planning Board’s failure to give them personal notice of

the November hearings violated their right to due process.

[¶6] Despite the pending appeal, the Planning Board met in January

2015 to “again consider” the Cohens’ application and to give the Bryants “the

opportunity to address the Board on the application.” The Bryants attended

the hearing and reiterated their objections to the Cohens’ application. At the

January hearing, Allen Cohen displayed for the Board his federal licenses to

sell fireworks; the State Fire Marshal’s signed approval of the property for the

storage of fireworks; and a letter from the Wiscasset Fire Department stating

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that it had “no issues” with the property. The Planning Board again voted on

and reapproved the application.

[¶7] In March 2015, the Board of Appeals “denied” the Bryants’ second

appeal and affirmed the Planning Board’s approval of the Cohens’ application.

[¶8] The Bryants appealed the Planning Board’s decision to the

Superior Court pursuant to M.R. Civ. P. 80B. In addition to their Rule 80B

appeal, they brought three independent claims: two separate counts

realleging that the Town had violated their due process rights by denying

them “notice and an opportunity to be heard in a meaningful manner” (Counts

2 and 3); and a third count seeking declaratory relief and realleging the

Bryants’ claims regarding conflict of interest, procedural due process, and the

storage of fireworks on the Cohens’ property (Count 4).

[¶9] On September 21, 2016, the Superior Court affirmed the decision6

of the Planning Board on the Bryants’ Rule 80B appeal and entered judgments

in favor of the Town on the independent claims for violation of due process.

In a separate judgment entered on March 31, 2017, the court dismissed the

remaining count seeking declaratory relief for lack of subject matter

6 The court noted that the September 22, 2014, decision was the Planning Board’s “operative”

decision, and that the January 12, 2015, decision “effectively reaffirmed its earlier decision.”

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jurisdiction.7 The Bryants filed a timely appeal. See 14 M.R.S. § 5959 (2016);

M.R. Civ. P. 80B(n); M.R. App. P. 2(b)(3) (Tower 2016).8

II. DISCUSSION

A. Site Plan Review

[¶10] In their Rule 80B appeal, the Bryants first challenge the Planning

Board’s approval of the Cohens’ site plan review application.

[¶11] “Our review of administrative decision-making is deferential and

limited.” Wolfram v. Town of N. Haven, 2017 ME 114, ¶ 7, 163 A.3d 835

(quotation marks omitted). “In a Rule 80B appeal, the Superior Court acts in

an appellate capacity, and, therefore, we review the [Planning Board’s]

decision directly,” 21 Seabran, LLC v. Town of Naples, 2017 ME 3, ¶ 9, 153 A.3d

113 (quotation marks omitted); see also supra n.2, for errors of law, abuses of

discretion, or findings not supported by substantial evidence in the

administrative record. Osprey Family Tr. v. Town of Owls Head, 2016 ME 89,

¶ 9, 141 A.3d 1114. The Bryants bear the burden of persuasion because they

7 The trial court dismissed Count 4 for lack of subject matter jurisdiction, concluding that a

letter from the State Fire Marshal’s Office constituted final agency action and that the Bryants failed

to pursue an available administrative appeal. See M.R. Civ. P. 80C.

8 This appeal was commenced before September 1, 2017, and therefore the restyled Maine

Rules of Appellate Procedure do not apply. See M.R. App. P. 1.

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seek to vacate the Planning Board’s decision. Wolfram, 2017 ME 114, ¶ 7, 163

A.3d 835.

[¶12] The Bryants contend that the Planning Board erred when it

approved the site plan review application because the Planning Board failed

to ensure that the Cohens’ fireworks storage building complied with NFPA

1124.9 Although interpretation of an ordinance is a question of law, and

therefore reviewed de novo, see Wolfram, 2017 ME 114, ¶ 7, 163 A.3d 835,

“we accord ‘substantial deference’ to the Planning Board’s characterizations

and fact-findings as to what meets ordinance standards.” Bizier v. Town of

Turner, 2011 ME 116, ¶ 8, 32 A.3d 1048.

[¶13] The Wiscasset site plan review ordinance requires that

hazardous materials, including fireworks, be stored in accordance with the

standards of the federal or state agency that deems them hazardous.

Wiscasset, Me., Site Plan Review Ordinance Art. VIII § 9(L) (Nov. 2012). The

Office of the State Fire Marshal is the state agency that regulates fireworks.

See 8 M.R.S. § 236 (2016); 25 M.R.S. § 2396 (2016). The Planning Board found

that the Cohens had sufficient approval from the State Fire Marshal’s Office to

store fireworks and to expand their storage facility.

9 In relevant part, NFPA 1124 section 6.2.4 states: “Consumer fireworks storage

buildings . . . shall not be located in residential areas.”

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[¶14] According deference to the Planning Board’s findings, we

conclude that there was substantial evidence before the Planning Board to

support its conclusion that the Cohens’ fireworks storage building and the

proposed extension complied with NFPA 1124: Allen Cohen asserted multiple

times that he had State Fire Marshal approval, there is documentation that the

property was approved for the storage of fireworks in 2013 prior to the

Cohens’ site plan review application for the proposed expansion of the storage

building, and the Town’s attorney advised the Planning Board that the

Inspection Supervisor of the State Fire Marshal’s Office informed her that no

additional approval was necessary for the proposed expansion. See Osprey

Family Tr., 2016 ME 89, ¶ 9, 141 A.3d 1114 (“Substantial evidence exists when

a reasonable mind would rely on that evidence as sufficient support for a

conclusion.”) (quotation marks omitted)).

B. Procedural Due Process Violations

[¶15] The Bryants next allege in their Rule 80B appeal that their

procedural due process rights were violated when the Planning Board failed

to provide them with personal notice of its November meetings. “We will

vacate a planning board’s decision if, as a result of [ex parte] communications,

the decision results in procedural unfairness,” see Duffy v. Town of Berwick,

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2013 ME 105, ¶ 18, 82 A.3d 148 (quotation marks omitted), but an

adjudicative body “may disregard nonprejudicial failure to comply strictly

with notice requirements.” Town of Ogunquit v. Dep’t of Pub. Safety, 2001 ME

47, ¶ 11, 767 A.2d 291. Whether the effect of procedural unfairness denies a

party due process is a question of law that we review de novo. See Wolfram,

2017 ME 114, ¶ 20, 163 A.3d 835.

[¶16] The Planning Board held a fourth meeting in January 2015 to

consider the Cohens’ application after the Bryants informed the Planning

Board that they had not received notice of the November meetings. The

Planning Board voted to reaffirm its approval only after hearing the Bryants’

objections for the second time. In view of the Planning Board’s remedial

action, including notice to the Bryants of the January meeting and providing

them an opportunity to be heard, and the resulting lack of prejudice to the

Bryants, we conclude that the Planning Board did not violate the Bryants’ due

process rights. See Town of Ogunquit, 2001 ME 47, ¶¶ 13-14, 767 A.2d 291

(holding that the court erred when it dismissed the action for procedural

defects because the Town took adequate remedial measures and no prejudice

resulted to the petitioners).

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C. Conflict-of-Interest Violation

[¶17] The Bryants also allege in their Rule 80B appeal that the Planning

Board’s decision is void pursuant to Maine’s conflict-of-interest law, 30-A

M.R.S. § 2605 (2016). This is an issue of law that we review de novo. See

Wolfram, 2017 ME 114, ¶ 20, 163 A.3d 835. Section 2605 makes a vote of a

municipal body voidable when an official votes on a question in which he has

a pecuniary interest. See 30-A M.R.S. § 2605(1). Section 2605(4) provides

that votes on questions at municipal proceedings are “not voidable and

actionable if the official makes full disclosure of [the] interest before any

action is taken and if the official abstains from voting . . . and from otherwise

attempting to influence a decision in which the official has an interest.”

Because Allen Cohen disclosed his interest and recused himself from voting on

his application, and because there was no evidence of improper influence, the

Planning Board’s vote to approve the Cohens’ site plan review application was

not voidable. A contrary application of section 2605 would deprive Planning

Board members of the right to present their own applications for site plan

review and would discourage capable people from serving as members of

municipal boards. See generally Anderson v. Zoning Comm’n of Norwalk,

253 A.2d 16, 20 (Conn. 1968); Szoke v. Zoning Bd. of Adjustment of Monmouth

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Beach, 616 A.2d 942, 945 (N.J. Super. Ct. App. Div. 1992) (“[P]ublic confidence

in a board’s proceedings will not be impaired, when a board member publicly

and openly steps down from the official position to assert legal rights as an

active party participant.”).

D. Independent Claims

[¶18] The Bryants’ independent claims (Counts 2, 3, and 4) collectively

rely on the same factual allegations and issues—conflict-of-interest and

procedural due process violations, and violations of the laws, regulations, and

ordinances regarding the storage of fireworks—and seek the same ultimate

relief as their Rule 80B appeal. Those issues were thoroughly discussed and

properly addressed by the court in its judgment on the Rule 80B appeal, and

any further discussion of those claims would be duplicative. See Kane v.

Comm’r of the Dep’t of Health and Human Servs., 2008 ME 185, ¶ 32, 960 A.2d

1196; Adelman v. Town of Baldwin, 2000 ME 91, ¶ 7, 750 A.2d 577.

Accordingly, the Bryants’ appeal of the judgments on their independent claims

are dismissed as moot because the issues have “lost [their] controversial

vitality,” and any further “decision by this [C]ourt would not provide [the

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Bryants] any real or effective relief.”10 See Sparks v. Sparks, 2013 ME 41, ¶ 9,

65 A.3d 1223 (quotation marks omitted).

The entry is:

Judgment of Superior Court affirmed with

respect to the Rule 80B appeal. Appeals

dismissed with respect to the judgments on the

independent claims.

Jonathan A. Pottle, Esq. (orally), and Patrick W. Lyons, Esq., Eaton Peabody,

Bangor, for appellants Kathleen Bryant and Thomas Bryant

Mary E. Costigan, Esq. (orally), Bernstein Shur, Portland, for appellee Town of

Wiscasset

Chris Neagle, Esq. (orally), Troubh Heisler, PA, Portland, for appellees Allen

Cohen, Melissa Cohen, and Big Al’s Outlet, Inc.

Lincoln County Superior Court docket number AP-2015-1

FOR CLERK REFERENCE ONLY

10 Although the Bryants separately challenge the trial court’s judgment dismissing their claim

for declaratory relief (Count 4) for lack of subject matter jurisdiction, M.R. Civ. P. 12(b)(1), based on

the court’s conclusion that the Bryants failed to pursue a Rule 80C appeal of final agency action by

the State Fire Marshal’s Office, the allegations and claims in Count 4 were duplicative of and

properly addressed in the Rule 80B appeal, and warrant dismissal on that basis alone. See Cent. Me.

Power Co. v. Me. Pub. Util. Comm’n, 395 A.2d 414, 434 (Me. 1978).