Storie v. Land Use Planning Comm'n

• Decision Date: 14 September 2021
• Docket Number: Civil Action AP-20-0006
• Parties: Michael E. Storie, David B. Storie, and Jay T. Storie, Petitioners/Plaintiffs, v. Land Use Planning Commission, Respondent, David Cox, Ashley Cox, and Ronald Gerard, Defendants.
• Court: Maine Superior Court

Michael E. Storie, David B. Storie, and Jay T. Storie, Petitioners/Plaintiffs,
v.
Land Use Planning Commission, Respondent,

David Cox, Ashley Cox, and Ronald Gerard, Defendants.

Civil Action No. AP-20-0006

Superior Court of Maine, Penobscot

September 14, 2021

Plaintiff's Attorney Patrick Hunt

Defendant's Attorney Caleb Elwell AAG for Land Use Planning Commission

Daniel Nelson Esq. Atty for David Cox and Ashley Cox

Charles W. Cox Esq. Atty for Ronald Gerard

ORDER ON MOTIONS TO DISMISS COUNTS I, II AND VI, MOTION TO SPECIFY THE FUTURE COURSE OF PROCEEDINGS, MOTION TO SEVER, MOTION TO AMEND, AND SCHEDULING ORDER

Ann M. Murray, Justice

After many false starts, this matter came before the Court on July 26, 2021 for a remote hearing on the pending motions. Patrick Hunt, Esq. appeared for the Plaintiffs. AAG Elwell appeared for the Land Use Planning Commission (LUPC); Daniel Nelson, Esq. appeared for the Coxes; and Charles Cox, Esq. appeared for Ronald Gerard.

This case involves real estate located in Mt. Chase Township, Maine. Before the Court are four motions:

1. The LUPC's motion to dismiss Counts I, II, and VI of the Stories' 80C petition and complaint, joined by the Coxes, and joined by Gerard as to Counts II and VI

2. The Stories' motion to specify the future course of proceedings pursuant to M.R. Civ. P. 80C(i), resulting in a Scheduling Order

3. LUPC's motion to sever; and 4. The Stories' unspecified motion to amend their complaint

1

I. Background

The LUPC is a state government agency within the Department of Agriculture, Conservation and Forestry. It is charged with implementing certain land use statutes and effectively acts as a zoning and planning board for the unorganized and deorganized areas in the State. See 12 M.R.S. §§ 683-A to 685-B (2020). To implement Maine's land use statutes regarding these areas, the LUPC prescribes various land use regulations and rules to govern the public's usage of the land the LUPC administers. 12 M.R.S. § 685-B. One of the conservation statutes the LUPC implements provides that no person may erect or alter structures in the areas under the LUPC's administration without a permit from the LUPC. 12 M.R.S. § 683-B.

The Stories' complaint/petition^[1] makes the following allegations:

• Michael Storie, David Storie, and Jay Storie are brothers who own a parcel of land in Mt. Chase Township. (Pl.'s Compl. ¶ 1.) David Cox and Ashley Cox own property that abuts the Stories property, (id. ¶ 2.) The Coxes acquired the abutting property from Ronald Gerard. (Id.) The Stories allege that the land Gerard sold to the Coxes is part of a larger parcel that Gerard had wrongfully organized into an illegal subdivision. (Id. ¶ 4.)

• Sometime in August 2015, the LUPC issued a building permit to the Coxes to construct a building on their property that abuts the Stories. (Id. ¶ 5.) The Stories allege that this permit should not have been issued because the Coxes' property is part of an illegal subdivision and because the Coxes had not met the minimum shoreline frontage requirement to construct the building. (Id. ¶ 6.) The Stories assert that, as abutting property owners, they were entitled to notice of the building permit but were not provided such notice. (Id. ¶¶ 5, 15.)

• The Coxes began construction sometime after receiving the permit. (Id. ¶ 7.) When the Stories noticed the construction, they complained to the LUPC that the Coxes' property was not eligible for a construction permit. (Id.) After making their complaints, the Stories remained in contact with the LUPC about their concerns and requested to be notified of any developments. (Id. ¶ 8.) The Stories believed that the LUPC was investigating the Stories' concerns and that the LUPC would enforce Maine's land use planning laws by revoking the permit and stopping the construction; however, the LUPC never revoked the Coxes' building permit and construction continued. (Id. ¶¶ 8-9.)

• After the Coxes finished construction, they applied for a certificate of compliance for their building, but the LUPC declined to issue the certificate. (Id. ¶ 11.) On January 6, 2020, the LUPC issued a notice of violation to the Coxes. (Id. ¶ 6.) The LUPC began settlement negotiations with the Coxes regarding their land use violation and reached a proposed settlement agreement. (Id. ¶ 12.) The Stories did

2

not learn about these settlement negotiations until January 7, 2020 when the Stories were informed that the proposed settlement agreement would be ratified at the LUPC's meeting in February. (Id. ¶ 13.) The Stories attempted to intervene in the LUPC's settlement negotiations with the Coxes and requested that the LUPC postpone the settlement ratification until after its February 12, 2020 meeting to allow them time to prepare and present their objections; however, the LUPC declined to postpone its proceedings. (Id. ¶ 16.) On February 10, 2020, Plaintiffs submitted a legal memo to the LUPC in opposition to the LUPC's settlement agreement with the Coxes. (Id. ¶ 17.) The LUPC ratified the settlement agreement at its February 12, 2020 meeting, "effectively resolving the Notice of Violation and providing the Coxes with a Certificate of Compliance." (Id. ¶ 18.)

The Stories filed a six-count complaint based on the above allegations.

• Count I alleges that the Stories were aggrieved by the LUPC's February 12, 2020 decision to ratify the settlement agreement with the Coxes and requests review of the LUPC's decision under M.R. Civ. P. 80C. The Stories seek an order remanding the matter to the LUPC for entry of an order finding that the Coxes violated land use planning law and requiring the Coxes to remove the offending building. Count I is brought against the LUPC and the Coxes, but not against Gerard.

• Count II seeks a declaratory judgment that the Coxes and Gerard violated Maine's land use planning laws, an injunction requiring the Coxes to remove the structure, and an injunction requiring the Coxes and Gerard to correct the illegal subdivision.

• Count III alleges a common law nuisance claim against the Coxes and Gerard.

• Count IV alleges a statutory nuisance claim against the Coxes and Gerard.

• Count V alleges negligence against the Coxes and. Gerard..

• Count VI alleges fraudulent misrepresentation against Coxes and Gerard.

II. Standard of Review

A motion to dismiss tests the legal sufficiency of the complaint. McAfee v. Cole, 637 A.2d 463, 465 (Me. 1994). On a motion to dismiss for failure to state a claim upon which relief may be granted, the Court does not adjudicate the facts; instead, the Court treats the factual allegations in the complaint as true and evaluates those allegations in the light most favorable to the plaintiff to determine if the complaint sets forth the "elements of a cause of action or alleges facts that would entitle the plaintiff to relief pursuant to some legal theory." Argereow v. Weisberg, 2018 ME 140, ¶ 12, 195 A.3d 1210; Marshall v. Town of Dexter, 2015 ME 135, ¶ 2, 125 A.3d 1141. The complaint does not need to "identify the particular legal theories that will be relied upon, but it must describe the essence of the claim and allege facts sufficient to demonstrate that the complaining party has been injured in a way that entitles him or her to relief." Burns v. Architectural Doors & Windows, 2011 ME 61, ¶ 17, 19 A.3d 823. Thus, a plaintiff may not proceed to litigate a cause of action if the plaintiff's complaint "has failed to allege facts with sufficient particularity so that if true, the facts would satisfy the elements of a cause of action." America v. Sunspray Condo. Ass'n, 2013 ME 19, ¶ 13, 61 A.3d 1249; Burns, 2011 ME 61, ¶ 17, 19 A.3d 823. In examining the complaint, the Court is not bound to accept the

3

complaint's legal conclusions as true; merely reciting the legal elements of a claim is insufficient. Sunspray Condo. Ass'n, 2013 ME 19, ¶ 13, 61 A.3d 1249; Carey v. Bd. of Overseers of the Bar, 2018 ME 119, ¶ 23, 192 A.3d 589; Seacoast Hangar Condo. II Assoc, v. Martel, 2001 ME 112, ¶ 16, 775 A.2d 1166. Dismissal will not be granted unless "it appears beyond doubt that [the] plaintiff is entitled to no relief under any set of facts that he might prove in support of his claim." Argereow, 2018 ME 140, ¶ 12, 195 A.3d 1210; Barnes v. McGough, 623 A.2d 144, 145 (Me. 1993) (a motion to dismiss tests the legal sufficiency of the plaintiffs allegations "not the sufficiency of the evidence the plaintiffs are able to present").

III. Defendants' Motion to Dismiss

A. Count I - Petition for Review of Government Action Pursuant to M.R. Civ. P. 80C

In count I of their petition, Petitioners/Plaintiffs ask for judicial review of the LUPC's decision to enter into a particular settlement agreement with the Coxes. Petitioners/Plaintiffs assert count I against LUPC and the Coxes only. The LUPC and Coxes move to dismiss count I on two separate grounds: 1) the appeal is not timely because the Stories, in essence, are asking for review of the LUPC's decision to issue the Coxes a building permit in 2015, and 2) the Stories lack standing to appeal the ratification of the February 12, 2020 settlement agreement between the LUPC and the Coxes.

Timeliness of the Appeal

The LUPC and Coxes' first argument is based upon the filing deadline set forth in the Administrative Procedure Act (APA), 5 M.R.S. §§ 11001-11008 (2020). They argue that the petition is untimely under § 11002(3) and that therefore the Court lacks subject matter jurisdiction over the petition and must dismiss it pursuant to M.R. Civ. P. 12(b)(1).

The time limits set forth in the APA are jurisdictional. Mutty v. Dep't of Corr., 2017 ME 7, ¶ 8, 153 A.3d 775. Pursuant to § 11002(3) of the APA, a person who is aggrieved by the agency action but is not a party to the...