# Berube v. Town of Sanford

> Supreme Judicial Court of Maine · July 27, 1989 · 561 A.2d 1031

URL: https://www.frixlaw.com/law-library/cases/4948367

## Case

- **Full name:** Roger J. BERUBE v. TOWN OF SANFORD
- **Court:** Supreme Judicial Court of Maine
- **Decided:** July 27, 1989
- **Citations:** 561 A.2d 1031; 1989 Me. LEXIS 348
- **Precedential status:** Published
- **Opinion:** Concurrence by Hornby
- **Judges:** Clifford, Collins, Glassman, Hornby, Roberts
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

HORNBY, Justice,
with whom CLIFFORD, Justice joins, concurring.
The Court declines to review the Superi- or Court’s dismissal of the Berubes’ complaint for lack of an adequate record. I find no such deficiencies in the record. Instead, I would affirm on the merits.
Although we do not have a transcript of the hearing at which the Superior Court dismissed the Berubes’ complaint, the Town of Sanford has agreed in both its brief and oral argument that the basis of the Superior Court’s action is clear. Specifically, the Superior Court concluded that the complaint failed as a matter of law. We do not need a transcript of the Superior Court’s hearing in order to determine whether that conclusion was correct.
The Berubes also cannot be faulted for failing to provide the Superior Court or this Court with a transcript of the meeting of the Board of Selectmen. They are in full compliance with the rules. M.R.Civ.P. 80B(e), (g) establishes the date the Be-rubes’ brief was due in the Superior Court as the deadline for filing the record. The Berubes’ motion for a trial of the facts in the Superior Court automatically stayed that deadline until the Superior Court ruled. M.R.Civ.P. 80B(d). Thus, the date never arrived when the transcript of the Selectmen’s meeting was due. Moreover, the Town of Sanford had not filed a motion to dismiss. At the hearing on the Berubes’ motion for a trial, the Superior Court simply took it upon itself, because of certain concessions the Berubes made, to dismiss their complaint. There is thus no basis for us to criticize the Berubes for having failed to provide a transcript at that time. Accordingly, I reach the merits.
In their complaint, the Berubes challenge the Town’s taking of part of their real property to rebuild a bridge. The complaint states that no public exigency exists that requires the taking. But the Berubes conceded before the Superior Court and now in their brief before this Court that “the Board of Selectmen, in condemning Appellants’ property, had not acted with malice toward Appellants or with any intent to injure them.” Their argument is simply that the Board of Selectmen “had reached its decision to condemn Appellants’ property without possession of any of the facts necessary to actually address the issue of whether or not the taking of Appellants’ property was necessary to the purpose for which the taking was sought.” The Berubes’ specific criticism is that “the only facts upon which the Board acted were that a determination had been made that the existing bridge was unsafe and should be rebuilt and widened and that the State of Maine would not undertake the project unless the property of Appellants and abutting landowners was condemned to the extent specified in the State’s construction plans.” Since the Berubes do not challenge the need to rebuild the bridge, the whole basis of their complaint is that *1033 the Board of Selectmen relied upon the State Department of Transportation to determine what land had to be taken to rebuild the bridge rather than make its own investigation. On its face this assertion is inadequate. There is no legal principle that prevents a lay Board of Selectmen from relying upon the opinion of a state agency like the State Department of Transportation in concluding what is necessary to rebuild a bridge. Consequently, I conclude that the Superior Court was entirely correct in deciding that, with the Berubes’ concessions, the case failed as a matter of law and must be dismissed. I would not reach the issue whether the Superior Court correctly denied the Berubes’ motion for a trial of the facts under M.R.CÍV.P. 80B(d) because that decision was not appealed by the Berubes and has not been briefed or argued by the parties.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4948367. Public record. Not legal advice.