Marquis v. Town of Kennebunk

• Court: Superior Court of Maine
• Decided: September 30, 2010
• Docket: YORcv-08-226andap-09-013
• Status: Unpublished

Opinion

STATE OF MAINE SUPERIOR COURT CIVIL ACTIONS CONSOLIDATED YORK, ss. DOCKET NOS. CV-08-226 Ci AS-· '{oQ ~Pq~~-8Y)t1-iH0

SCOTT MARQUIS,

Plaintiff

v. ORDER

TOWN OF KENNEBUNK, et al.,

Defendants

Plaintiff Scott Marquis appeals from decisions of the Town of Kennebunk's

Planning Board and Zoning Board of Appeals pursuant to Rule 80B. 1

BACKGROUND Mr. Marquis owns real property on Truman's Field Road in Kennebunk, Maine.

This property abuts a large parcel of land that was once owned jointly by Kenneth and

Eleanor Berdeen. Kenneth predeceased Eleanor, leaving her sole owner of the property.

Eleanor passed away on March 15, 1994. In her will, Eleanor gave "all of the rest,

residue, and remainder of [her] estate" to her children, Conrad Berdeen, Cynthia Sirois,

and Kent Berdeen. She also empowered her personal representative "to retain and hold

any property which is part of my estate without obligation to dispose of it, and to make

distribution in cash or in kind or partly in each."

After Eleanor died, her estate drafted a "Plan Showing a Division of Land of the

Estate of Eleanor F. Berdeen" ("the Plan"). Under the Plan, the property was divided

1 There is an outstanding motion to join indispensable parties, which is not addressed herein. into three parcels. By Deeds of Distribution by Personal Representative dated February

24, 2007, Parcel 2-A was deeded to Kent Berdeen, Parcel 2-B was deeded to Cynthia

Sirois, and Parcel 2-C was deeded to Conrad Berdeen.

Following the distribution of the estate, Cynthia Sirois, by deed dated March 19,

2007, conveyed Parcel 2-B jointly to herself and her two children, Brent Sirois and

Lynette Mascioli. Subsequently, by deed dated June 6, 2007, Cynthia Sirois and Brent

Sirois deeded the northwesterly portion of Parcel 2-B to Cynthia and Lynette Mascioli

as joint tenants, and Cynthia and Lynette deeded the southeasterly portion of Parcel2-B

to Cynthia and Brent Sirois as joint tenants.

On July 8, 2008, defendant Brent Sirois submitted to the Town Code Enforcement

Officer ("CEO") an application for a permit to Fill, Grade, Lagoon, Dredge or Harvest in

Any Shoreland or Resource Protection Zoning District. The application proposed "the

installation of culverts for the crossing of a small stream." It contained a description of

the work proposed, and explained that the culvert was intended to provide an area

where the stream could cross the already existing wood road. Under the Town's Zoning

Ordinance the Planning Board ("PB") was required to ensure that the project met "all

applicable Federal and State permit requirements" before the CEO could approve the

application. Kennebunk, Me., Zoning Ordinance, Art. 10, §§ 3(C)(10), 3(P)(1)(b) (Feb. 21,

2008). The PB gave its approval at a special meeting on July 28, 2008, but did not make

written findings of fact or conclusions of law. Mr. Sirois constructed the culvert shortly

after this meeting.

On July 31, 2008, Mr. Marquis sent a letter to the CEO requesting that he

undertake an investigation into alleged violations of state and local law. 2 Specifically,

2 The Zoning Ordinance requires that "upon being informed in writing of a possible violation," the CEO "shall make or cause to be made an investigation of the facts and inspect the premises where such

2 Mr. Marquis alleged that (1) Brent Sirois started work on a stream crossing without the

necessary permit(s), (2) Brent Sirois, through his work on the road, was changing and

expanding the use of the pasture road and surrounding land, and (3) that Brent Sirois'

activity violated State and local subdivision requirements.

Mr. Marquis sent another letter to the CEO on August 8, 2008, asking for an

update on his investigation. The letter stated that "[i]f you do not intend to investigate

this matter, please inform me in writing of this decision as well." Mr. Marquis also

informed the CEO that if his attorney did not receive an update on the investigation by

August 15, 2008, that he would appeal his inactivity to the Town Zoning Board of

Appeals ("ZBA").3 On September 9, 2008, based on the "CEO's decision not to fulfill his

obligation under Article 4 of the Ordinance," Mr. Maquis filed an appeal with the ZBA

notifying them of his concerns and asking for appropriate relief. Mr. Marquis also

initiated a civil lawsuit against Mr. Sirois during this period.

On the day of the ZBA hearing, the CEO sent Mr. Marquis an electronic

correspondence summarizing the actions he took in regard to Mr. Marquis's complaint. 4

The letter focuses on three distinct issues: (1) alleged illegal tree cutting in 2007, (2)

permitting for the stream crossing, and (3) alleged subdivision violations. The letter

contained the CEO's conclusion that the there had been no tree cutting or subdivision

violations. The CEO did, however, find Mr. Sirois had violated the permitting

violation is alleged to exist." Kennebunk, Me., Zoning Ordinance, Art. 4, § 4(A) (Feb. 21, 2008). If a violation if found, the CEO "shall give written notice ... to the owner and/or to the occupant of such premises and ... demand in such notice that such violation be abated ... ."!d. at Art. 4, § 4(B).

3 The ZBA has the power to hear "appeals where it is alleged there is an error in any order, decision or ruling made by the [CEO] .... "Kennebunk, Me., Zoning Ordinance, Art. 6, § 2(A) (Feb. 21, 2008). "In all cases a person aggrieved by a decision of the [CEO] ... shall commence his appeal within thit1y (30) days after the issuance of a written decision from the [CEO] ... ."!d. at Art. 6, § 3(A).

4 The letter is dated February 12, 2009. Copies of the letter were also sent to the Town's attorney, Brent Sirois, and the ZBA members.

3 requirements for the stream crossing because he had started work on the culvert prior

to the issuance of a written permit by the CEO. The CEO charged Brent Sirois a

"'double fee' as is customary for the violation of starting work without the proper

permit."

At the hearing, the ZBA heard from Mr. Marquis's counsel concerning the CEO's

alleged errors. These included, but were not limited to, the CEO's failure to completely

and appropriately investigate and respond to Mr. Marquis's concerns, the CEO's

ir;_adequate and incomplete findings, the illegal subdivision, and the absence of a

building permit required for "uses projecting into water bodies." Kennebunk, Me.,

Zoning Ordinance, Art. 4, § 1(D) (Feb. 21, 2008). The CEO acknowledged the difference

between a stream crossing permit and a building permit and, along with the Town

Attorney, admitted that no building permits had been applied for or granted to Brent

Sirois and/ or the Berdeen family. After hearing the CEO's testimony, the ZBA voted to

affirm the actions of the CEO and adopt findings in support of its decision. The ZBA

issued a Notice of Administrative Appeal Decision on February 19,2009.

Mr. Marquis separately appealed both the PB's July 28, 2008 decision to approve

Mr. Sirois's Application for a dredge and fill permit, and the ZBA's February 19, 2009

decision to affirm the CEO's response to Mr. Marquis's letter. This court addressed the

PB appeal in an order dated August 20, 2009, in which it found that Mr. Marquis did

have standing, that the PB's approval was the first legally cognizable act subject to

appeal, and that the PB was required to ensure that the subdivision plan included with

the Application met State and local subdivision standards. The court also determined

that the PB' s failure to adopt written findings precluded judicial review. The court thus

remanded the matter to the PB "for a full evidentiary hearing and for entry of findings

of fact with respect to the application for a wetlands fililng permit, which will include

4 findings determining whether there has been or will be a violation of State law or local

ordinance with respect to subdivision of land."

The court reached the appeal from the ZBA in its order dated November 18,

2009. First the court consolidated the civil action and the two appeals, staying deadlines

relating to the private causes action pending resolution of the appeals. Over the

defendants' objections regarding "jurisdiction and the sufficiency of the findings," the

court remanded the ZBA's decision "for the limited purpose of making specific written

findings on whether the [CEO] properly investigated and determined that the division

of the [defendants'] land does not constitute a subdivision."

The PB held its remand hearing on October 19, 2009. After taking substantial

amounts of evidence, the PB determined that there had been no violation of State or

local subdivision law. The PB then held a site visit on October 24, 2009, and resumed the

hearing on November 9, 2009. There the PB found that the Application met the

ordinance's requirements and affirmed the grant of the wetland fill permit. The ZBA

addressed the question remanded to it on December 21, 2009. Based on the record from

its original hearing of February 17, 2009, the ZBA found that there had been no illegal

subdivision, that the CEO and PB had properly approved Brent Sirois's Application for

a wetlands fill permit, and that the CEO had appropriately responded to Mr. Marquis's

written allegations of violations.

Mr. Marquis now appeals from the post-remand decisions. He claims that he

"has elected to narrow the scope of his SOB appeals upon remand to the subdivision

issue," though he uses this issue to make expansive attacks on the validity of the

boards' actions. (Pl.'s Brief at 1 n.1, 17-18.) The Town defends the ZBA's decision on the

law and facts, and alternatively argues that Mr. Marquis lacks standing to challenge the

CEO's decision to undertake an enforcement action or not. Mr. Sirois and his relatives

5 defend the PB's decision on its merits, and also argue that the PB did not have to

address the subdivision question.

DISCUSSION

"When the Superior Court acts as an appellate court," it directly reviews "the

operative decision of the municipality." Mills v. Town of Elliot, 2008 ME 134,

A.2d 258, 263 (quoting Yates v. Town of Southwest Harbor, 2001 ME 2,

1171) (quotations omitted). The operative decision is the one made by the officer or

entity with "original jurisdiction, that is, [the] factfinder and decision maker .... " Id.

(quoting Yates, 2001 ME 2,

court reviews the record and findings for errors of law or findings not supported by

substantial evidence. Your Home, Inc. v. Windham, 528 A.2d 468, 470 (Me. 1987).

The chief legal question in the present case concerns subdivision. Maine statute

defines "subdivision" as "the division of a tract or parcel of land into 3 or more lots

within any 5-year period .... " 30-A M.R.S. § 4401(4) (2009). "A division accomplished

by devise does not create a lot or lots for the purposes of this definition, unless the

intent of the transferor is to avoid the objectives of" the laws regulating subdivision.

Id. § 4401(D-1). The Town of Kennebunk's zoning ordinance adopts the State's

definition of "subdivision" by reference. Kennebunk, Me., Zoning Ordinance, Art. 2, § 2

at 19 (Feb. 21, 2008).

As a preliminary matter, there appears to be some confusion regarding the effect

of Mills v. Town of Elliot on this appeal. Like the present case, Mills concerned a so-called

"family subdivision" exempt from regulation. 2008 ME 134,

Mills, questions regarding which municipal decision was the operative decision and

whether it had been appealed in a timely manner were raised before the Law Court.

Id.

6 ordinance, its Board of Appeals was a purely appellate body. Id.

That made the Town's CEO the operative decision maker. Id.

The record showed that the subdivision plan at issue had been presented to the

CEO in 2001, and the CEO had approved it. Id.

the subdivision had been formed under an exception to 30-A M.R.S. § 4401(4), the CEO

was not required to take action on it and his approval was without legal significance. Id.

only implicitly recognized the creation of two lots. Id.

and Town did not effectively recognize the creation of three lots, and thus a

subdivision, until the CEO issued a third building permit. Id.

decision became the operative one, because it was the first action by which the

municipality had to officially address the subdivision question. Id. The fact that the

action was prompted by an application for a building permit was irrelevant. 5

In the peculiar circumstances of this case, Kennebunk's ordinance makes both

the PB and the ZBA operative decision makers on the subdivision question. Both boards

had to conduct independent inquiries and make findings of fact and law. Kennebunk,

Me., Zoning Ordinance, Art. 6, §§ 2(A), 3(A)-(J); Art. 10, § 3(C)(10) (Feb. 21, 2008).

Appeals from each board go directly to this court. See id. at Art. 6, §§ 2, 2(A), 2(D). The

PB had to address the question because Mr. Sirois's Application called for the "grading

or construction of roads" within an unapproved subdivision, which would be illegal if

the subdivision was not otherwise exempt from regulation. Kennebunk, Me., Planning

5 The court also notes that the ordinance clearly does not require an applicant for a permit to create a culver in an existing way to also apply for a building permit, despite Mr. Marquis's repeated assertions to the contrary. A building permit is only required for "piers, docks, wharves, and uses projecting into water bodies," which uses are treated separately from "roads, driveways, parking areas and drainage systems, culverts and other related features." Kennebunk, Me., Zoning Ordinance, Art. 4, § 1(D), Art. 10 §§ 3(E), 3(G) (Feb. 21, 2008).

7 Board Standards, Art. 9.5 (Feb. 25, 2008). The ZBA had to address the question because

it had to review the CEO's determination that there was no illegal subdivision in

violation of the ordinance. Hence, the issue of whether Mr. Sirois and his siblings

accomplished an illegal subdivision was property before both the PB and the ZBA, and

is now properly before this court.

Whether there was an illegal subdivision is primarily a question of fact. In this

case, the question is whether a "division [is] accomplished by devise" when a decedent

leaves the residue of her estate to her three children in equal shares, and the decedent's

personal representative then divides a plot of land in the residuary into three separate

parcels to distribute the land to the children in kind. See 30-A M.R.S. § 2691(4)(D-1)

(2009). This is a close question. No case in Maine was found to have addressed this

matter, and research could not uncover any analogous law in other jurisdictions.

A restrictive reading of the statute would require a decedent to expressly state in

her will that she wishes to divide land into separate parcels for distribution upon her

death in order to accomplish a division by devise. This would comport with the general

rule that real property left "in equal shares" to two or more individuals is presumed to

create a tenancy-in-common. 33 M.R.S. § 159 (2009). Here, Eleanor Berdeen did not

expressly call for the division of the subject property in her will, so any subsequent

division would not be by devise.

A more expansive reading of the statute might begin with the definition of the

word "devise," which can mean "a testamentary disposition of real or personal

property" or "to dispose of real or personal property by will." 18-A M.R.S. § 1-201(7)

(2009). Eleanor Berdeen's will directs that her three children are to take equal shares of

her residuary, part of which is the parcel at issue in this case. Her will also allows her

personal representative to distribute her estate in cash or in kind. The law makes

8 allowances for this by expressly empowering personal representatives to distribute

residuary estates in cash or in kind "in accordance with the best interests of the

residuary devisees." Id. § 3-906(a)(4). Distributions in kind are to be made through a

special deed of distribution. Id. § 3-907.

In this case, Eleanor Berdeen' s personal representative determined that the best

way to dispose of the land in the residuary was to divide it into three parcels and

distribute them in kind to the three devisees. He worked with the Town's CEO to

accomplish an equitable apportionment of real property among the three parcels, and

then conveyed the parcels from the estate to the devisees through a deed of distribution.

This division, accomplished by the personal representative to distribute the residuary

property in kind from the estate to the three devisees, can fairly be seen as a "division

accomplished by devise" that is excluded from the legal definition of a subdivision. 30-

A M.R.S. § 4401(4)(D-1) (2009).

This is essentially what the boards concluded below. The PB determined that

"[t]he transfers made by the personal representative do not constitute a subdivision.

They are exempt ... as a devise, the will did not prohibit the division of the land and

the personal representative had the legal authority under the probate code to divide the

land." (R. at 538.) The ZBA similarly concluded that "[b ]ecause the personal

representative was acting within his legal authority as the representative of the [e]state

and within the terms of the will of Eleanor Berdeen, his three deeds to the three

beneficiaries fall within the exemption to the Subdivision Law for transfers by devise

.... " (R. at 412.) These conclusions are supported by substantial evidence in the record,

and are not legally erroneous.

The PB also concluded that the transfer was not undertaken to avoid subdivision

review because it had "seen no evidence of intent on Eleanor Berdeen's part to avoid

9 subdivision through the terms of the will." 6 (R. at 538.) Mr. Marquis contends that this

was legal error because the relevant transferor was the personal representative. While

the actual transfer from Eleanor Berdeen to her devisees was effected by her personal

representative, the property was transferred directly from her estate to her children

pursuant to her will. Eleanor Berdeen was the one who transferred the land to her

children through the vehicle of her will, and her state of mind is the appropriate object

of inquiry.

"The determination of an individual's state of mind is a question of fact" that the

court will not overturn unless the record compels a contrary conclusion. Tinsman v.

Town of Falmouth, 2004 ME 2,

that Eleanor Berdeen intended to circumvent subdivision review when she left her

property to her children. To the contrary, her will indicates that she devised the land to

her children in equal shares out of a normal desire to keep her property in the family

and treat her children equally. The PB did not err in finding that there was no intent to

circumvent the subdivision statute.

Finally, there is a question of whether Mr. Marquis has standing to appeal the

ZBA's decision finding that the CEO appropriately found no violations and/ or declined

to initiate an enforcement action. The Town cites Adams v. Town of Brunswick, 2010 ME

7, 987 A.2d 502, and Herrle v. Town of Waterboro, 2001 ME 1, 763 A.2d 1159, for the

proposition that this in an instance of prosecutorial discretion not subject to judicial

review. Both of these cases were decided on the specific language of those towns'

ordinances, which differ from Kennebunk's.

6 The ZBA did not address the issue of intent, but Mr. Marquis does not raise this issue on appeal. In fact, he appears to assume that the ZBA did address the issue by treating the ZBA's findings and the PB's findings as one. (See Marquis Brief at 22.)

10 Under Kennebunk's zoning ordinance, the CEO must investigate written

allegations of violations and must initiate an enforcement action if violations are found.

Kennebunk, Me., Zoning Ordinance, Art. 4, § 4 (Feb. 21, 2008). There is no prosecutorial

discretion. The ZBA has the authority to hear an appeal "where it is alleged there is an

error in any order, decision or ruling made by the [CEO] in the enforcement of this

Ordinance." Id. at Art. 6, § 2(A). Any aggrieved person can bring such an appeal. Id. at

Art. 6, § 3(A). As an abutting landowner asserting the existence of an illegal

subdivision, Mr. Marquis clearly qualifies as an aggrieved person and had standing to

appeal from both the CEO and the ZBA' s decisions.

CONCLUSIONS

While this is a close case with an odd procedural history and a lack of clear

precedent to guide the court, the court finds no errors of law or fact regarding the PB or

ZBA's determination that there is no subdivision. Therefore, Mr. Marquis' appeals are

Denied and the PB and ZBA decisions are Affirmed.

The clerk may incorporate this order in the docket by reference.

Dated: September &, , 2010

(JG~-> rJustice, Superior Court

11 STATE OF MAINE SUPERIOR COURT York, ss CONSOLIDATED CIVIL ACTION DOCKET NO. CV-08-226 DOCKET NO. AP-09-013 .. .. C\. \.. d ' ,." , 011'1') - i v IL ' : } : J 0 II

SCOTT MARQUIS, ) ORDER GRANTING PLAINTIFF'S Plaintiff ) MOTION FOR ENTRY OF FINAL ) JUDGMENT ON CONSOLIDATED 80B v. ) CLAIMS PURSUANT TO M.R. CIV. P ) 54(b)(1) OR, IN THE ALTERNATIVE, TOWN OF KENNEBUNK, BRENT D. ) FOR REPORT OF INTERLOCUTORY SIROIS, KENT C. BERDEEN, AND ) RULINGS TO THE LAW COURT CLAUDIA S. BERDEEN, ) PURSUANT TO M. R. APP. P. 24(c), AS Defendants ) WELL AS MOTION TO MAINTAIN 2009 ) STAYORDERRELATINGTO ) INDEPENDENT CAUSES OF ACTION

1. Motions Granted

The Court GRANTS Plaintiffs motions for final judgment on his 80B claims, for report of

interlocutory rulings on the 80B claims to the Law Court and to maintain the 2009 stay order relating

to Plaintiffs independent causes of action in place during the pendency of the Law Court's review and

determination of Plaintiffs 80B claims.

II. Entry of Partial Final Judgment

The Court finds no just reason for delay and ENTERS a final judgment on the claims

indicated in this Judgment in accordance with M.R.Civ.P. 54(b)(l), and following the Law Court

directive in Guidi v. Town of Turner, 845 A.2d 1189, 1193 (Me. 2004). More specifically, upon

review of the Guidi factors, the Court finds as follows:

A. Relationship of the Adjudicated and Unadjudicated Claims

A final determination on the 80B claims is appropriate because a resolution of the subdivision

issue will allow for a final determination on all claims against the Town of Kennebunk, as opposed to

requiring the Town to participate in litigation for another several years. A final adjudication on the

- 1­ subdivision issue, which is contained within the 80B claims will also inform the proper adjudication

of Plaintiffs independent causes of action, as well as inform which federal, state and local laws and

regulations govern the type of development that may occur on the subdivided land and the road

leading to the subdivided land.

B. Possibility That Need For Review May Be Mooted By Future Developments

In this case there is absolutely no possibility that the need for review of the subdivision

question may be mooted by future developments. Not only does the Plaintiff have a property interest

that is directly impacted by the final adjudication of the subdivision question, but the subdivision

question is significant enough that it will not lose its "controversial vitality" with the passage of time.

See Price v. State, 20 lOME 66, ,-r 6. Even if something were to occur to render the subdivision

question technically moot, all three exceptions to technical mootness would apply, thereby making

the subdivision question one that should still be heard and ultimately decided by the Court. See id.

For example, municipal agencies across the state have an interest in having this matter heard and

decided by the Law Court, as it will impact subdivision review within their districts. Similarly, if the

decision of the Superior Court is allowed to stand, personal representatives throughout the State of

Maine will have new and unfettered powers to divide real property as they see fit and without having

to abide by environmental standards and the principles of smart growth embodied within subdivision

laws and regulations.

C. Chance of Same Issues Being Presenting to Law Court More Than Once

If the consolidated action is brought to its conclusion and then appealed, there is a possibility

of the same issues being presented to the Law Court more than once. This is so because if the Law

Court decides the subdivision question in Plaintiffs favor after the independent causes of action are

litigated in the Superior Court, some of the independent causes of action, which involve questions

surrounding whether the property is treated as a subdivision or not, may need to be remanded and re­

-2­ decided by the Superior Court. If either or both of the parties disagree with the decisions of the

Superior Court on remand, the Law Court may see the same issues again on a second appeal. In

contrast, severing the 80B claims from the independent causes of action and entering final judgment

on the 80B claims as Plaintiff has suggested allows the Law Court to address the subdivision question

once and eliminates the possibility that the Superior Court will improperly rely on its own

determination that the property at issue forms part of a subdivision in its review of the independent

causes of action, thereby requiring it to go back and reconsider these causes of action after a later

inconsistent decision by the Law Court. Further, as is also noted above, presenting the subdivision

question to the Law Court for final determination at this time will create greater certainty and clarity

on this area of the law for municipalities and members of the public, thereby decreasing the chances

of the Law Court being presented with the subdivision question in the future.

D. Impact ofImmediate Appeal on Trial Court's Work

As discussed above, an immediate appeal affords this Court greater certainty in this area of

law for the purposes of this case and other similar cases, as well as eliminates the possibility that this

Court will need to decide some of the independent causes of actions twice (before and after the

subdivision question is decided by the Law Court). Further, there is always a possibility that a final

determination on the subdivision issue will foster settlement discussions between the parties and/or

change the course of, or result in a termination of the proceedings.

E. Nature of the Legal Questions

The subdivision question is a novel question of sufficient legal importance for the Law Court

to decide the 80B claims without further delay. The manner in which the judiciary interprets the

"division accomplished by devise exception" to Maine subdivision will have a direct impact on the

environment, the preservation of natural resources and the manner and quality of development in the

communities where questions surrounding the applicability of the exception arise. Further, if the

-3­ judiciary interprets the exception in a manner that was not intended by the legislature, the court's

interpretation may inform future courses of legislative action and guide appropriate policy

development.

F. Economic Impacts of Appeal and Delay on All Parties

Allowing for an immediate appeal of the 80B claims to the Law Court will have a positive

economic impact on all parties and the Court. The costs associated with the uncertainty over whether

the land at issue actually forms part of a subdivision are tremendous. A delay in the final

determination on this question not only increases the costs of litigation for the parties and the courts

as described above, but the uncertainty surrounding the subdivision question impacts the values of the

parties' properties, as well as the marketability and transferability of their properties. Further, delay

in the final determination on the subdivision question may mean that Plaintiff Marquis is subjected to

further harm associated with unregulated subdivision growth and/or that Defendants invest

substantial time and money into development under one set of standards only to find out after-the-fact

that they are required to go back and comply with subdivision laws.

As is also discussed above, severing the 80B claims from the independent causes of action

will save the Town of Kennebunk the costs associated with remaining in this consolidated litigation

for several more years. In addition, determination of the subdivision question before the independent

causes of action makes economic sense for the parties and the courts, as it decreases the chances of

certain causes of action being litigated more than once. In fact, this case is much like Boothby v.

Grindle, 2009 ME 132, ~ 9, 985 A.2d 1147, 1150, where the Law Court affirmed the decision of the

Superior Court to enter a partial final judgment. In that case, just as in this case, the plaintiff argued

that because the claims that survived dismissal involved only some of the original parties in interest,

any judgment resulting from a trial of those claims would bind only the remaining parties and would

mean that if he successfully appealed the dismissal of his complaint, all of the original parties would

-4­ have to relitigate almost the entire case. Here, the same logic applies and dictates in favor of the

Court entering final judgment on Plaintiffs 80B claims.

G. Miscellaneous Factors

In this case, the Court takes note of and gives weight to the fact that the parties have agreed

all along to leave a stay in place during the pendency of the 80B claims. The stay has remained in

place for all of this time because it is logical and in the interests of judicial economy and efficiency

for the courts to decide the subdivision issue before proceeding with a determination on the

independent causes of action.

HI. Rule 24(c) Report of 80B Claims to the Law Court

The Court also finds that Plaintiffs 80B claims are appropriate for report to the Law Court

and ORDERS that the claims be certified for review by the Law Court. This case is much like

Despres v. Moyer, which was successfully reported to the Law Court, because it met all the

M.R.App. R. 24(c) requirements for a Law Court report and meets all of the other legal mandates.

See Despres v. Moyer, 2003 ME 41, ~ 15, 827 A.2d 61,65.

First, resolution of the subdivision question is sufficiently important to justify an immediate

report of the question to the Law Court. The Law Court has previously determined that "questions

involving novel issues of law may meet the requirements for importance and doubt." Liberty Ins.

Underwriters, Inc. v. Estate of Faulkner 98 2008 ME 149, ~ 7, 957 A.2d 94, (citing Butler v.

Mooers, 2001 ME 56, ~ 7,771 A.2d 1034, 1037; Thermos Co. v. Spence, 1999 ME 129, ~ 5, 735

A.2d 484, 486). As this Court pointed out in its September 30, 2010 Order, this case raises an issue

of first impression in Maine and the Court's decision amounts to a "close call." Moreover, the issue is

one capable of frequent repetition. See Despres, 2003 ME 41, ~ 15, 827 A.2d 61,65. Other courts,

municipalities and members of the public are likely to be faced with similar questions regarding the

-5­ applicability of the subdivision exception in the future. Further, as noted above, review by the Law

Court at this time prevents, rather than encourages, piecemeal litigation.

Second, as discussed above in the Court's review of the Rule 54(b)( 1) factors, supra, there is

no possibility that the question raised on report is an issue that "might not have to be decided at all

because of other possible dispositions." Plaintiff has indicated that the subdivision question is central

to his case, and the question will not disappear with the passage of time or as a result of the

determination of the remaining issues left for adjudication.

Third, a decision on the subdivision issue will dispose of the 80B claims in their entirety, as

well as result in a final determination of the 2009 case that now forms part of the consolidated action.

Fourth, involvement of the Law Court prior to the entry of final judgment on all claims will

not encourage piecemeal litigation in cases involving similar circumstances. To the contrary,

deciding the subdivision question now will create more certainty for future litigants in this area of

law and prevent the need for similar reports to the Law Court.

IV. Stay

The Court ORDERS that the 2009 stay order relating to Plaintiff's independent causes of

action remain in place during the pendency of the Law Court's review and determination of Plaintiff's

80B claims.

~ ~/»h ~ W-f/V--, ~ ~ ~ ~6~ -1 ~ Yn.D-rY> ~ f~ 6-v--J, ~, "'< ~ L.. A.t.--~4 The Clerk is directed to incorporate this Judgment by reference in the docket in accordance

with M. R. Civ. P. 79(a).

-6­ ATTORNEYS FOR PLAINTIFF: TIMOTHY NORTON LAURI BOXER-MACOMBER KELLY REMMEL & ZIMMERMAN PO BOX 597 PORTLAND ME 04112-0597

ATTORNEYS FOR DEFENDANT TOWN OF KENNEBUNK: NATALIE BURNS WILLIAM H DALE JENSEN BAIRD ET AL PO BOX 4510 PORTLAND ME 04112

ATTORNEY FOR DEFENDANTS KENT C BERDEEN, CLAUDIA S BERDEEN AND BRENT D SIROIS: THOMAS DANYLIK WOODMAN EDMANDS DANYLIK & AUSTIN PO BOX 468 BIDDEFORD ME 04005