Faulkingham v. Oceans East, LLC

• Court: Superior Court of Maine
• Decided: April 22, 2003
• Docket: WALap-03-01
• Status: Unpublished

Opinion

STATE OF MAINE SUPERIOR COURT

CIVIL ACTION WALDO, ss. DOCKET NO. AP-03-04 Sc veo AL fom ha AE “002 JOHN FAULKINGHAM and PAMELA FAULKINGHAM,

Plaintiffs DONALD L. Gaeanscut

W LIB [AINE wie ec BARR OEM APR 29 2003 SUPERIOR COURT OCEANS EAST, LLC, et al., APR 22 2003 “ee RECEIVED AND FILED

Joyce M. Page, Clerk

This matter comes before the court on defendants’ motion to dismiss this M.R. Civ. P. 80B appeal and the plaintiffs’ reciprocal motion for extension of time within which to file an appeal. The motions concern the timing of the plaintiffs’ notice of appeal following a decision by the Belfast Zoning Board of Appeals (”“ZBA”).

Background

The corporate defendants in this matter are attempting to develop a 38-unit development on property adjacent to the Faulkinghams. The developers had been successful at the Planning Board and on appeal to the ZBA. The ZBA conducted its deliberations and voted on its decision on December 19, 2002. However, the detailed written “Finding of Fact and Decision of Belfast Zoning Board of Appeals” was not signed and distributed until January 15, 2003. Counsel for the plaintiffs representsthat this written decision was received in his office on January 23, 2003. The plaintiffs’ Rule 80B appeal was filed with the court February 24, 2003, or 67 days after the initial ZBA

decision on December 19". Discussion

The parties agree that the controlling authority on the length of time to appeal in this case is found in 30-A M.R.S.A. § 2691. That statute provides, in pertinent parts:

(E) ... all decisions become a part of the record and must include a

statement of findings and conclusions, as well as the reasons for the basis

for the findings and conclusions, upon all the material issues of fact, law

or discretion presented and the appropriate order, relief or denial of relief.

Notice of any decision must be mailed or hand delivered to the petitioner,

the petitioner’s representative or agent, the planning board, agency or

office and the municipal officers within 7 days of the board’s decision.

(G) Any party may take an appeal, within 45 days of the date of the

vote on the original decision, to the Superior Court from any order, relief

or denial in accordance with the Maine Rules of Civil Procedure, Rule 80B.

This time period may be extended by the court upon motion for good

cause shown.

Since the “date of the vote on the original decision” was December 19, 2002, the plaintiffs clearly missed the 45-day appeal period unless the court grants their motion to extend the time period for good cause. Unlike the statutes considered by the Law Court in Vachon v. Town of Kennebunk, 499 A.2d 140 (Me. 1995) and Lewiston v. Maine State Employees Ass'n, 636 A.2d 739 (Me. 1994), section 2691 specifically authorizes the court to extend the appeal period depending upon the circumstances. Also, unlike M.R. Civ. P. 6(b), the statute does not require that the motion for extension must be filed within the period originally prescribed. The remaining question is whether the plaintiffs have demonstrated “good cause for their request.”

“Good cause” proves to be a somewhat flexible and illusive concept. In the present case the court finds “good cause” in the failure of the ZBA to issue its written notice of decision with findings and conclusions within the 7-day period required by the statute. Although the plaintiffs knew on December 19, 2002, that they had lost their appeal to the ZBA, the notice of decision of January 16, 2003, set forth in black and

white the specific findings and rationale of the ZBA on each of the nine issues presented

2 by the plaintiffs. The failure by the ZBA to timely produce its written decision does not invalidate that decision or automatically extend the appeal period. However, in the limited facts of this case the court finds that the failure does constitute good cause and will grant the plaintiffs’ motion to extend the time. The entry will be: Defendants’ motion to dismiss is DENIED; the plaintiffs’ motion to

extend the time within which to file an appeal is GRANTED and it is ORDERED that the plaintiffs have filed a timely appeal.

Dated: April IB 2003 —Thibtouge

S. Kirk Studstrup Justice, Superior Court

Date Filed Feb. 24, 2003

Waldo

AP-03-001 Docket No.

Action _80(B) Appeal

County

JOHN FAULKINGHAM and PAMELA FAULKINGHAM

vs.

OCEAN EAST, L.L.C., REALTY RESOURCES, L.L.C. and CITY OF BELFAST

Plaintiff’s Attorney

Kevin M. Cuddy, Esq. 470 Evergreen Woods Bangor, Maine 04401

Defendant’s Attorney

William S. Kelly, Esq. for City 96 High St.

Belfast, ME 04915

942-2898

Tel: 338-2702

Paul L. Gibbons, Esq. for Ocean East & P.O. Box 616 Realty Resources Camden, Maine 04843-0616

236-3325 Date of Entry

02/24/03 Complaint under rule 80 B (a) dtd. Feb. 21, 2003, filed. Summary Sheet, filed.

02/24/03 | Notice and Briefing Schedule to atty. Cuddy.

03/03/03 Answer of City of Belfast to Complaint dtd. Feb. 27, 2003, filed.

03/03/03 Copy of Briefing schedule to atty. Kelly.

03/07/03 Answer to Complaint and Objection to Order of Stay by Defts. Ocean East, L.L.C. and Realty Resources, L.L.C., filed.

03/07/03 Motion to Dismiss by Defts. Ocean East L.L.C. and Realty Resources, L.L.C. dtd. March 7, 2003, filed. Memorandum of Law in Support of Motion to Dismiss, filed. Proposed Order, filed.

03/07/03 Copy Briefing Schedule to atty. Gibbons.

03/11/03 Summons dtd. Feb. 24, 2003 showing service on Ocean East, LLC on March 5, 2003, filed. Summons dtd. Feb. 24, 2003 showing service on Realty Resources, LLL on Feb. 27, 2003, filed. Summons dtd. Feb. 24, 2003 showing service on City of Belfast on Feb. 28, 2003, filed.

03/18/03 | Motion to Stay 80B Time Requirements and Incorporated Memo of Law dtd. March 17, 2003, filed. Request for Hearing, filed.

03/19/03 Objection to Request for Stay and Concurrence with Motion to Dismiss of Defendants Ocean East, LLC and Realty Resources, LLC, filed by Defendant, City of Belfast.

03/31/03 Defts., Ocean East, LLC and Realty Resources, LLC , Response to Motion to Stay dtd. March 28, 2003, filed.

03/31/03 Plffs' Memo in Opposition to Motion to Dismiss, filed. Plffs' Motion for Extension of Time within which to File an Appeal, filed. Memorandum in Support of Motion for Extension of Time, filed.