Jimino v. Town of Yarmouth

• Court: Superior Court of Maine
• Decided: March 12, 2001
• Docket: CUMcv-00-085
• Status: Unpublished

Opinion

STATE OF MAINE Syagcnd . | £%'SUPERIOR COURT

CUMBERLAND, ss OLER red» oe 88 CIVIL ACTION , * “" DOGKET NO. CV-00-085 lie 1212 37 py ye" -CuM- 3 ia/) ALPHONSO JIMINO and : PHYLLIS JIMINO, Plaintiffs

vs. ORDER ON DEFENDANT'S MOTION : FOR SUMMARY JUDGMENT

TOWN OF YARMOUTH,

Defendant

In their complaint, the plaintiffs seek damages from the defendant based on a

theory of promissory estoppel. See Def.’s SUMF, J 16; Cottle Enterprises, Inc. v.

Town of Farmington, 1997 ME 78, J 17 n.6, 693 A.2d 330, 335 n.6. The plaintiffs’

claims are not governed by the Maine Tort Claims Act. See Heber v. Lucerne-in-

Maine Village Corp., 2000 ME 137, { 15, 755 A.2d 1064, 1068; Mueller_v. Penobscot

Valley Hosp., 538 A.2d 294, 297-98 (Me. 1988); see also Det.'s Mem. at 7 n.3. The issuance of a building permit by a code enforcement officer does not

constitute a promise by the Town. See Sirois v. Town of Frenchville, 441 A.2d 291,

295 (Me. 1982); see also Tarbuck v. Jaeckel, 2000 ME 105, ¥ 18, 752 A.2d 176, 181

(absence of promise forecloses argument of promissory estoppel). Finally, based on the factual determination of the Town’s Planning Board, the plaintiffs’ construction was located within 75 feet of the upland edge of a wetland.

See Town of North Berwick v. Jones, 534 A.2d 667, 669-70 (Me. 1987); Def.’s SUMF, J

9, Attachment E; but cf. Pls.’ SDMF, 77 11-15, 17. The code enforcement officer did

not have the authority to issue a building permit for construction within 75 feet of the upland edge of a wetland. See Cottle, 693 A.2d at 331; Shackford & Gooch, Inc. v.

Town of Kennebunk, 486 A.2d 102, 106 (Me. 1984); Def.’s SUMF, 7 8, 10-11.

The entry is

The Defendant's Motion for Summary Judgment is GRANTED. Judgment is entered in favor of the

Defendant and against the Plaintiffs on the Plaintiffs’ Complaint.

Dated: March 10, 2001 [

ancy Mills Justice, Superior (/ourt

Date Filed* 02-04-00

CUMBERLAND

Docket No, __CV_00-085

Action CONTRACT

County

ALPHONSO JIMINO and PHYLLIS JIMINO

VS.

TOWN OF YARMOUTH

Plaintiff's Attorney

JOHN P. BAUSE ESQ 784-3576 PO BOX 961, LEWISTON ME 044243

Date of Entry

Defendant’s Attorney

DAVID HERZER, JR., ESQ. 775-0808 P. 0. BOX 4600 PORTLAND, MAINE 04112-4600