Britton v. Maine Dept. of Conservation
| Decision Date | 15 January 2010 |
| Docket Number | Civil Action AP-05-041 |
| Parties | ROBERT BRITTON, et al, Appellant v. MAINE DEPT. OF CONSERVATION Appellee |
| Court | Maine Superior Court |
Dated August 27, 2008.
PLAINTIFFS: GERALD F. PETRUCCELLI, ESQ. PETRUCCELLI MARTIN & HADDOW.
DEFENDANTS: MARK FUREY, ESQ. THOMPSON BULL FUREY BASS & McCOLL.
DEFENDANT: MAINE DEPARTMENT OF CONSERVATION MARGARET A. BENSINGER, AAG.
This case comes before the Court on the Maine Department of Conservation's Motion to Dismiss Robert and Eleanor Britton's 80C appeal, Appellant's Motion to Determine Future Course of Proceedings, and Appellant's Motion for Enlargement of Time to File 80C appeal. Following hearing, the Motion to Dismiss is Granted.
On January 31, 2005, and March 22, 2005, the Maine Department of Conservation (MDC) issued final findings and decisions approving two submerged land lease applications for the Donnell Realty Trust. This administrative proceeding began on November 19, 2003, when the Donnell Realty Trust applied for the leases in connection with their long-existing wharfs in York Harbor. On December 19, 2003, an attorney informed the MDC that he would be representing the Brittons, abutting property owners, with regard to the lease applications. On April 15, 2004, the attorney prepared and submitted comments opposing the lease on behalf of the Brittons. On August 5, 2004, the attorney submitted additional information to the MDC on behalf of the Brittons. On March 22, 2005, the MDC mailed copies of both decisions to the attorney's office with a notice setting forth the rights of appeal to the Superior Court and the deadline for appeal pursuant to 5 M.R.S.A. § 11002(3). Although the Britton's attorney retired in December 2004, his office remained open and the decisions were received by his staff in March 2005. However, it wasn't until early June 2005 that the attorney learned about the decisions.[1] On June 16, 2005, the Brittons sent a letter, dated June 9, 2005, to the MDC asking for an extension of the appeal process because they had not yet received the decisions from their attorney. Mr. Britton did not personally receive notice of the decisions until they arrived in a letter from Dan Pritchard, supervisor of the submerged lands program at the MDC, on June 21, 2005. Mr. Britton filed an 80C appeal on July 20, 2005.
The central issue in this case is whether the appeal should be dismissed as untimely.
The Brittons assert that they did not have actual notice of the final decisions of the MDC on and around March 2005, because, although the decisions were sent to the office of their attorney, he had retired at that time and did not forward the decisions to them. They contend that once they received notice of the decisions from Dan Pritchard of the MDC, they filed an 80C appeal within 30 days pursuant to 5 M.R.S.A. § 11002(3). In response, the State argues that the appeal is time barred because the MDC sent copies of the decisions to counsel of record for the Brittons.
Under Maine's Administrative Procedure Act (APA), a petition for review of final agency action "shall be filed within 30 days after receipt of notice if taken by a party to the proceeding of which review is sought." 5 M.R.S.A. § 11002(3) (emphasis added). To effectuate a proper receipt, the APA further requires that a copy of the decision be delivered or promptly mailed to each party to the proceeding or his representative of record. 5 M.R.S.A. § 9061 (emphasis added).
Unlike Rule 6(b) of the Maine Rules of Civil Procedure, which allows the court to extend the time for taking action due to a party's excusable neglect, statutory periods of appeal are not subject to a court-ordered enlargement of time. City of Leiviston v. Maine State Employees Association, 638 A.2d 739, 741 (Me. 1994); Reed v. Halperin, 393 A.2d 160, 162 (Me. 1978) (). Rather, "specific periods of appeal statutorily affixed to the several steps in the chain of administrative review are jurisdictional and mandatory/' McKenzie v. Maine Employment Security Commission, 453 A.2d 505, 509 (Me. 1982).
In McKenzie, the Law Court hinted at the possibility of applying the principles of equitable estoppel to enlarge the time of a statutory appeal deadline. 453 A.2d at 513.[2]However, the Court noted that this doctrine is limited to situations involving more than "mere hardship." Id.
Notwithstanding the foregoing authority, the Brittons argue that Landmark Realty v. Leasure, 2004 ME 85, ¶ 7, 853 A.2d 749, 750, provides this Court with the authority to set aside time requirements for appeals because they are claim-processing requirements, not "jurisdictional" requirements.
The Landmark decision sheds light on the confusion surrounding "jurisdictional" issues.[3] The Court clarified that "claim-processing rules"[4] are not jurisdictional, despite past decisions using that language. Landmark, 2004 ME 85, ¶ 7, 853 A.2d 749, 750. Rather, claim-processing rules are the procedural mechanisms necessary to invoke jurisdiction. Id. at n. 1 (). It follows then that claim-processing rules do not delineate what cases Maine courts are competent to adjudicate. Only the Maine Legislature may determine the subject-matter jurisdiction of the courts of Maine. See Landmark, 2004 ME 85, ¶ 8, 853 A.2d at 751 (); See Kontrick v. Ryan, 157 L.Ed.2d 867, 540 U.S. 443, 124 S.Ct. 906, 915 (2004).
Although Landmark has provided much needed guidance in this area, it is not applicable to this case. The Brittons have framed the issue as being equivalent to failing to file a notice of appeal pursuant to court-made claim processing rules. However, the issue before the Court does not involve only a claim-processing rule. Rather, this case involves the timeliness of an administrative appeal, a time limit set by the Legislature. 5 M.R.S.A. §11002(3).[5]
In this case, it is clear that on March 22, 2005, the Britton's attorney was the appropriate representative to accept receipt of the final agency decisions of the MDC. See Bergeron v. Brunswick School Department, 2003 U.S. Dist. T.RXIS 6124 (D. Me. Mar. 24, 2003) (). The MDC did not become aware of the attorney's retirement until sometime in June 2005, two months after the deadline for appeal. While this is an unfortunate situation, the Court cannot impute fault to the MDC or relieve the Britten's of their obligation to file a timely appeal.
The entry will be as follows:
v.
DANIEL P. DONNELL, Trustee of the Donnell Realty Trust, et al., Defendants
In this case the Brittons seek injunctive relief and monetary damages, claiming that the Donnells have infringed on their riparian rights and are in violation of the Wharves and Fish Weirs Act. 38 M.R.S.A. §1026.[1] Following trial, judgment will be entered in favor of the Donnells.
The dispute in this case arises from Defendants Daniel P. Donnell and Trustees of the Donnell Realty Trust's (Donnells) maintenance and use of wharfs, located on the York River York Harbor Maine. Plaintiffs Robert W. Britton and Eleanor F. Britton (Brittons) own property located at 15 Simpson's Lane, York Harbor Maine. The Brittons purchased the property in 1975, and occupy the property seasonally. The breadth of the Brittons waterfront boundary is approximately 105 feet. The land abutting the river is a mud flat that limits the size of boats that can be brought close to shore.
The Donnells own and operate two wharves extending perpendicularly just beyond the boundary of the Brittons' property. The first wharf, Varrell Wharf, lies northwesterly of the Brittons' property and has been maintained and operated in its current configuration since 1955. Varrell Wharf contains two primary sections, one running perpendicular to the Brittons' property, and a forty-eight foot section running parallel to the Brittons' York River boundary (Varrell Extension).[2] The second wharf is called Simpson's Wharf and was purchased by the Donnells in 1962 from Edward Kennedy. There is a forty-one foot gap between the Varrell Extension and Simpson's Wharf. The deed to Simpson's Wharf included the right to dock boats on the northwesterly side of the Wharf near the Brittons' property. When boats are so docked, the gap between the Varrell Extension and Simpson's Wharf is reduced.
From 1975 through the mid-1980's, the Brittons docked two boats at Varrell Wharf. The parties had a disagreement and the Brittons made other docking arrangements. They also sought permission from the Town of York to build a pier from their property. Permission was denied because the current Town of York zoning ordinance forbids the construction of a wharf at the Britton property. However, since 1987, the Brittons have objected to the presence of the forty-eight foot section of wharf running parallel to their property line. They assert that the presence of the forty-eight foot section interferes with their...
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