Mad Gold LLC v. School Administrative District # 51
| Decision Date | 02 February 2018 |
| Docket Number | Civil Action AP-17-34 |
| Parties | MAD GOLD LLC, Plaintiff v. SCHOOL ADMINISTRATIVE DISTRICT # 51, et al., Defendants |
| Court | Maine Superior Court |
Before the court are plaintiff Mad Gold LLC's motion for an extension in which to file Rule 80B complaint, Mad Gold's motion to specify the future course of proceedings, defendant Town of Cumberland's motion to dismiss, and defendant SAD 51's motion to dismiss.
The court will first address the motion for an extension and the motions to dismiss because, if no extension is granted or the complaint is otherwise dismissed, the motion to specify future proceedings will be moot.
Typically for purposes of a motion to dismiss, the material allegations of the complaint must be taken as admitted, and the complaint must be read in the light most favorable to the plaintiff to determine if it sets forth elements of a cause of action or alleges facts that would entitle plaintiff to relief pursuant to some legal theory. Ramsey v. Baxter Title Co., 2012 ME 113 ¶ 2, 54 A.3d 710; Bisson v. Hannaford Bros. Co., Inc., 2006 ME 131 ¶ 2, 909 A.2d 1010.
In this case, however, one of the issues raised by the Town and by SAD 51 goes to whether Mad Gold's action is an untimely attempt to appeal a decision by the Town Planning Board. Defendants argue that if so, the court would lack subject matter jurisdiction. E.g., Beckford v. Town of Clifton, 2014 ME 156 ¶ 8, 107 A.3d 1124; Davric Maine Corp. v. Bangor Historic Track, Inc., 2000 ME 102 ¶ 11, 751 A.2d 1024. On that issue, as opposed to a motion under Rule 12 (b) [6), the court does not draw any favorable inferences in favor of the complainant Davric Maine Corp v. Bangor Historic Track, Inc., 2000 ME 102 ¶ 6.
A second threshold issue is whether Mad Gold has standing to pursue an appeal of the Planning Board's June 20 approval if it was not a party at the proceeding before the Planning Board. See Norris Family Associates LLC v Phippsburg, 2005 ME 102 ¶ 11, 879 A.2d 1007. This issue does not depend on the allegations in the complaint but is reviewed de novo by the court. Id.
Where a motion to dismiss challenges subject matter jurisdiction or standing, the court may consider material outside of the pleadings that is submitted by the parties. Davric Maine Corp v. Bangor Historic Track, Inc., 2000 ME 102 ¶ 6; Norris Family Associates LLC v. Phippsburg, 2005 ME 102 ¶ 17 n.5. In this case the complaint refers to SAD 51's February 2017 application to the Cumberland Planning Board for an amendment to its 2007 site plan permit to the approval issued by the Planning Board on June 20 2017, and to a number of emails exchanged between representatives of SAD 51, Mad Gold, and Town officials. The Town's site plan ordinance, the relevant emails, and portions of the application and final approved plan are contained in submissions by the parties.[1]
The complaint alleges that SAD 51 received site plan approval in 2007 for an expansion of its educational facilities at the site, which includes Greeley High School. According to the complaint, the 2007 site plan approval included a fence constructed along an access driveway and placed 40 feet from plaintiffs property line.
In February 2017 SAD 51 filed an application to amend its site plan permit to incorporate a new Performing Arts Center. Under § 2 2 9-7[C](3] of the Cumberland Site Plan Ordinance, Mad Gold, as an abutting property owner, was required to receive written notice of the hearing at which the application was to be considered. Mad Gold does not contend that it did not receive such notice.
SAD 51's application included a traffic study which noted the existence of the fence, stating that it "interferes with the sight distance of vehicles leaving the high school." It added that SAD 51 "has requested that the fence be moved farther to the south" to improve sight lines. Gorrill Palmer Study annexed as Attachment A to SAD 51 Motion to Dismiss, at p. 5.
In addition, the preliminary site plan layout submitted with SAD 51's application contained a notation that "existing vinyl fence to be removed and relocated to property line, " with arrows designating the existing fence line and the proposed new fence line two feet from Mad Gold's property line. Attachment B to SAD 51 Motion to Dismiss. The final submitted plan showed the new fence line two feet from Mad Gold's property line, although it did not contain any notation identifying that the existing fence was being moved. Attachment C to SAD 51 Motion to Dismiss.[2]
Mad Gold does not dispute that it did not participate at the Planning Board hearing on June 20, 2017 at which the Planning Board approved SAD's application for amendments to its site plan. It did not file the complaint in this action within 30 days after the June 20 approval. However, in its motion for an extension of time, Mad Gold's is seeking an extension until August 18, 2017, based on certain email communications by Town officials.
Specifically, in response to a July 10 email from SAD 51 relating to the relocation of the fence and a reply from Mad Gold objecting to that relocation, the Town Planner initially emailed back to Mad Gold on July 11 at 9:19 am that MSAD had received site plan approval on June 20, and "the relocation of the fence to 2' from your shared property line is part of that approval." Email attachment D to SAD 51's Reply memo.
However, the record also includes an email sent at 12:15 pm on July 11 from the Town Planner to SAD 51, with a copy to Mad Gold, stating that the relocation of the fence could not be approved as a de minimis change as it was not shown on the recently approved site plan and instructing SAD 51 not to remove the fence until the issue had been heard by the Planning Board. Exhibit A to December 21, 2017 letter from counsel for Mad Gold. There is no explanation in the record for this change in position.
SAD responded late on July 11 that it had taken down the fence before the 12:15pm July 11 email had been received and expressed its confusion over the unexplained change in the Town Manager's position. See SAD 51 email sent July 11 at 5:47pm included in Exhibit D to December 21, 2017 letter from counsel for Mad Gold. In a subsequent email to Mad Gold on July 12 the Town Planner stated that the fence should be reinstalled. Email attached as Exhibit B to December 21, 2017 letter from counsel for Mad Gold. Eight days later in an email to SAD 51 and Mad Gold on July 20, the Town Planner expressed the opinion that the 2007 site plan approval had called for the fence as a buffer and that the final site plan map for the June 20 amendment did not "clearly" note the relocation of the fence. Email attached as Exhibit C to December 21, 2017 letter from counsel for Mad Gold.
Finally on July 20, 2017 the Town Manager emailed both parties and the Town Planner that he believed that the Planning Board had approved the project with the new fence line location, that he agreed with SAD 51's engineer that the original fence created a problem with the sight line at the entrance to the street, and that he was not aware of any provision that would allow the Town to require an applicant to return to the Planning Board for a "do over." Email attachment B to SAD 51's Reply memo.
Mad Gold acknowledges that its appeal from the Planning Board's June 20 approval would ordinarily be subject to the 30-day deadline set forth in Rule 80B(b).[3] Although it did not file this action until August 18, it argues that the "flagrant miscarriage of justice" or "good cause" exception set forth in Viles v. Town of Embden, 2006 ME 107 ¶¶ 7-18, 905 A.2d 298, and Brackett v. Town of Rangeley, 2003 ME 109 ¶ 14 831 A.2d 422, are applicable in this case. See Plaintiffs Motion for Extension to File Rule 80B Complaint, dated August 18, 2017, at 2-4. Defendants disagree.
If the "flagrant miscarriage/good cause" standard were applicable here, the court might have difficulty in finding that this appeal meets that standard. Lack of notice is a "key factor" in meeting that standard. Viles, 2006 ME 107 ¶ 13. Mad Gold does not dispute that it received notice of the hearing on SAD 51's application, although it argues that it was thereafter entitled to rely on the Town Planner's emails (after she changed her initial position) until receiving the Town Manager's July 20 email. The other factors to be considered under the "flagrant miscarriage/good cause" exception are how long the appellant waited after it had actual knowledge of the decision it seeks to appeal, whether the Town violated its own ordinance and whether the applicant or permit holder violated the terms of the approval or permit. See Viles, 2006 ME 107 ¶ 13. In this case Mad Gold did not appeal as soon as it received the Town Manager's email but it did not wait an inordinate time. There is no colorable argument in this case that the Town violated its own ordinance. Finally, unlike the clear permit violation in Brackett, the issue in this case is whether the administrative record was clear as to whether or not a relocation of the fence for public safety reasons had been approved.
However the parties' arguments relating to the "flagrant miscarriage/good cause" appear to miss the point. The "flagrant miscarriage/good cause" cases all involve whether parties should be allowed to take belated appeals to a municipal board of zoning appeals. This case involves the 30-day deadline set by Rule 80B(b) for appeals to the Superior Court, and that rule expressly contemplates that the deadline can be extended for excusable neglect pursuant to Rule 6(b). Under the circumstances of this case, the differing positions taken by town officials constitute...
To continue reading
Request your trial