Keeley v. Town of Windham

• Court: Superior Court of Maine
• Decided: November 21, 2022
• Docket: CUMap-21-39
• Status: Unpublished

Opinion

STATE OF MAINE SUPERIOR COURT CUMBERLAND, ss. CIVIL ACTION DOCKET NO. AP-21-39

) ANDREW KEELEY, C+C LAKESIDE, ) LLC, and PINEVIEW PROPERTY ) MANAGEMENT, LLC, d/b/a ) ALTERNATIVE ESSENCE, ) ) ORDER ON RESPONDENT'S Petitioners ) MOTION FOR TRIAL OF THE ) FACTS V. ) ) TOWN OF WINDHAM, PAUL'S ) BOUTIQUE NURSERY, LLC, and JAR ) CO. WINDHAM, LLC ) ) Respondents ) ) )

Before the Court is Respondent Paul's Boutique Nursery, LLC's Motion for Trial of the

Facts brought pursuant to Maine Rules of Civil Procedure SOB(d). For the reasons set forth herein,

Respondent's Motion is GRANTED.

BACKGROUND

Petitioners Andrew Keeley, C+C Lakeside, LLC, and Pineview Property Management,

LLC, d/b/a Alternative Essence ("Petitioners") filed a complaint against Respondents Town of

Windham ("the Town"), Paul's Boutique Nursery, LLC ("Paul's"), and Jar Co. Windham, LLC

("Jar Co.," and collectively, "Respondents") on December 9, 2021. Petitioners claim that the Town

of Windham extended Adult Use Marijuana Store licenses to Paul's and Jar Co. in violation of the

Town's Marijuana Business Licensing Ordinance ("the Ordinance"), thereby depriving Petitioners

1 of such a license. On March 17, 2022, Respondent Paul's moved for a trial of the facts. 1 Neither

Petitioners nor Jar Co. have opposed the Motion, and the Town takes no position thereon. All

parties agree that the Motion may be decided without oral argument.

STANDARD OF REVIEW

Any party to the review of governmental action under Rule SOB may move for a trial of

the facts. M.R. Civ. P. SOB(d). The purpose ofa trial of the facts is "to permit the court to obtain

facts that are not present in the record." Silsby v. Belch, 2008 ME 104, ,r 6, 952 A.2d 218. The

Superior Court, serving in its appellate capacity in regard to the appeal itself, may then review

evidence beyond the municipal record that is "necessary to the appeal before the court." Id.;

Baker's Table, Inc. v. City ofPortland, 2000 ME 7, ,r 9, 743 A.2d 237. "[A] detailed statement, in

the nature of an offer of proof, of the evidence the moving party intends to introduce at trial" must

accompany the motion. M.R. Civ. P. SOB(d). The court must then detennine what evidence, if any,

is appropriate to be heard in a trial of the facts. Palesky v. Sec'y ofState, 1998 ME 103, ,r 7, 711

A.2d 129.

DISCUSSION

Petitioners allege that the Adult Use Marijuana Store licenses issued to Paul's and Jar Co.

were automatically forfeited because Paul's and Jar Co. failed to make "active use" of the licenses

within the six-month timeframe set forth in the Ordinance or submit a written request for a

suspension of the "active use" requirement to Windham's Town Council. Petitioners further allege

that because the licenses issued to Paul's and Jar Co. were forfeited, the Town erred in rejecting

Petitioners' application for an Adult Use Marijuana Store license on the basis that none were

available. Respondent Paul's has moved for a trial of the facts for the purposes of providing

1 Although motions brought pursuant to Rule SOB(d) must be filed within 30 days of the complaint, this Motion was

timely filed due to an earlier stay that was granted by the court.

2 evidence that ( 1) it made "active use" of its license, (2) it requested a suspension of forfeiture, and

(3) a suspension of forfeiture was warranted under the circumstances.

The Court agrees that the factual record ofthis case is underdeveloped. It is not clear from

the record the extent to which Paul's or Jar Co. utilized their licenses or whether they submitted

requests for suspensions of forfeiture as required. Further, the Ordinance at issue does not define

the term "active use," nor does it specify what constitutes a "written request" for the purposes of

obtaining a suspension of the "active use" requirement. A trial of the facts is therefore appropriate

on the limited issue of the circumstances surrounding the renewal of the licenses.

Finally, the Comi requests a telephonic conference with the parties, to take place within

thirty days, to specify the course of future proceedings.

Entry is:

Respondent Paul's Boutique Nursery, LLC's Motion for Trial of the Facts is GRANTED. The

clerk is directed to incorporate this order into the docket by reference pursuant to M.R. Civ. P.

79(a).

Dated:

Justice, Maine Superior Court

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