Hartwell V. Town of Ogunquit
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SUPERIOR COURT
DOCKET NO. AP-12-:023
STATE OF MAINE
YORK, SS.
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JAMES and PATRICIA HARTWELL, )
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Plaintiffs,
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v.
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TOWN OF OGUNQUIT and
WAYNE C. PERKINS,
ORDER
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Defendants.
BACKGROUND
Plaintiff appeals Defendant, Town of Ogunquit's, grant of site plan and design review for
the redevelopment ofMr. Wayne C. Perkin's, Plaintiffs neighbor's, garage into "Perkins
Cove Lobster Pound," a lobster pound. Plaintiff alleges that because the lobster pound
was misclassified as a retail establishment rather than as a restaurant, the initial
application was never completed and the site plan and design review should not have
been granted. Plaintiff Moves for a Trial on the Facts in order to introduce evidence of
the Perkins Cove Lobster Pound website and Facebook page, which list a menu and
classify the lobster pound as a restaurant.
DISCUSSION
Plaintiff moves for a Trial on the Facts pursuant to the Maine Rules of Civil Procedure
80B( d), which states in part:
"If the court finds on the motion that a party to a review of a government action is
entitled to a trial of the facts, the court shall order a trial to permit the introduction
of evidence that does not appear in the record of governmental action and that is
not stipulated. Such a motion shall be filed within 30 days after the complaint is
filed. The failure of a party to file said motion shall constitute a waiver of any
right to a trial of the facts." Me. R. Civ. P. 80B(d)(2012).
0/ . :,_
1. Timing
Rule 80B(d) allows 30 days from the date of the filing of the complaint for the filing of a
motion for trial of the facts. Plaintiff filed the Complaint on May 9, 2012. Plaintiff filed
the Motion for Trial on the Facts on June 22, 2012. Thirty days from the filing of the
Complaint was June 8, 2012. Plaintiffs filing of the Motion for Trial on the Facts was
not timely. Plaintiffs motion is denied on this basis and on the basis that follow.
2. Introduction of Evidence not on the Record
In the review of governmental action pursuant to Maine Rule of Civil Procedure 80B,
parties are generally constrained to the record as it was developed before the
governmental agency. 5 M.R.S.A. § 11006(1)(2011). The exceptions to the general rule
are§ 11006(1)(A), allowing the Superior Court itself to take additional evidence in
certain circumstances, and§ 11006(1)(B), allowing remand to the agency to take
additional evidence.
Section 11006(1)(A) states that the reviewing court itself may take additional evidence
"[i]n the case of the failure or refusal of an agency to act or of alleged irregularities in
procedure before the agency which are not adequately revealed in the record." To
establish "irregularities in procedure," the moving party must present at least prima facie
evidence of some impropriety on the agency's part, such as bad faith or improper
behavior." CarlL. Cutler Co., Inc. v. State Purchasing Agent, 472 A.2d 913, 918 (Me.
1984). See also Strong Green Energy, LLC v. Geneva Wood Fuels, LLC, 2009 Me.
Super. LEXIS 156, *5 (July 17, 2009) ("Procedural irregularity of the type contemplated
by section 11006(1)(A) clearly encompasses some form of bad faith, bias, improper
behavior, or other misconduct.") (citations omitted).
Plaintiff essentially argues that the new evidence found on the website and on the lobster
pound's Facebook page is evidence that the Mr. Perkins misclassified the use of the
space, therefor the initial application was never completed and the site plan and design
review should not have been granted. Plaintiff does not claim that the Planning Board
made its decision in bad faith nor does Plaintiff allege any type of misconduct. Thus,
Plaintiffs allegations do not meet the test for the taking of additional evidence by the
Superior Court under§ 11006(1)(A). Because Plaintiffs allegations do not meet the test
for the taking of additional evidence by the Superior Court under§ 11006(1)(A), Plaintiff
is not entitled to a Trial ofthe Facts under 80B(d).
Further it was apparent at oral argument that regardless of how this use was described on
Facebook, the use itself was the same as considered by the Planning Board.
For these reasons, the Court finds that the Plaintiff is not entitled to a Trial on the Facts
under Rule 80B( d). Plaintiffs motion is denied.
The clerk may incorporate on the docket by reference.
DATE
SUPERIOR COURT nJSTICE
Is/ John H. O'Neil
ATTORNEYS FOR PLAINTIFF:
JOHN C BANNON ESQ
JOHN SHUMADINE ESQ
MURRAY PLUMB & MURRAY
PO BOX 9785
PORTLAND ME 04104-5085
ATTORNEY FOR DEFENDANT TOWN OF OGUNQUIT:
NATALIE BURNS ESQ
JENSEN BAIRD ET AL
PO BOX4510
PORTLAND ME 04112
ATTORNEY FOR DEFENDANT WAYNE C. PERKINS:
DURWARD PARKINSON ESQ
BERGEN & PARKINSON, LLC
62 PORTLAND RD, SUITE 25
KENNEBUNK ME 04043
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