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STATE OF MAINE SUPERIOR COURT CUMBERLAND, ss. CIVIL ACTION DOCKET NO. AP-19-30
ROBERT PIAMPIANO, et al.,
Plaintiffs,
v. ORDER
TOWN OF CUMBERLAND, CLERKS Defendant
Before the court is an appeal by plaintiffs Robert and Brenda Piampiano from an
August 14, 2019 decision of the Town of Cumberland Board of Adjustment and Appeals
ruling that a building permit could not be issued for construction of a residence on property
owned by the Piampianos unless the existing access road was upgraded to current town
standards.
The focus of the appeal is whether the property in question qualifies as "a lot that was
in existence on August 10, 1998" within the meaning of section 315-61(H) of the Cumberland
Zoning Code and therefore would not require an upgraded access road. The Piampianos
contend that the Board incorrectly determined that their property was not a lot in existence
on August 10, 1998 and that a contrary interpretation would violate their constitutional;
rights.
After the record and the parties' initial briefs were filed, the Piampianos also filed a
motion requesting that the court take judicial notice of certain additional information.
Plaintiffs-Pro Se Defendant-Natalie Burns, Esq. ( (
1. Appellate Review
Factual determinations made by a local planning board or board of appeals will only
be overturned if they are not adequately supported by evidence in the record. Jordan v. City
of Ellsworth, 2003 ME 82 ,r 8, 828 A.2d 768. On factual issues the court may not substitute
its judgment for that of a local board. Just because a different conclusion could be drawn from
the record does not justify overturning the board's decision if there is evidence in the record
that could support the board's determination. Twigg v. Town of Kennebunk, 662 A.2d 914,
916 (Me. 1995).
The court reviews the decision of a municipal planning or appeals board for errors of
law, abuse of discretion, or findings not supported by substantial evidence in the record.
York v. Town ofOgunquit, 2001 ME 53 ,r 6, 769 A.2d 172,175. Interpretation of the language
of a local ordinance is a question of law that is reviewed de nova. Isis Development LLC v.
Town of Wells, 2003 ME 149 ,r 3,836 A.2d 1285, 1287.
A threshold issue in this case, not raised by the parties, is whether the court has
subject matter jurisdiction to hear an appeal from the decision of a municipal board affirming
an advisory opinion issued by the Town Code Enforcement Officer (CEO). The CE O's decision
on the Piampianos' request for an advisory opinion was appealable under sections 315
77(8)(1) and 315-77(D)(l) of the Cumberland Zoning Ordinance (R. 101, 104), 1 and the
Board's decision is appealable to the Superior Court under 30-A M.R.S. § 2691(3)(G). Because
1Citations to the administrative record ("R.") will be cited by the page numbers that appear in the bottom right hand corner. Citations to the transcript of the hearing before the Board will be cited as "Tr." followed by page number.
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the Board's decision affects the property interests of the Piampianos, the court concludes
that it may be appealed based on the Law Court's decision in Raposa v. Town of York, 2019
ME 29 ,r 11,204 A.3d 129.z
Finally, while the proceedings began as an appeal by the Piampianos from an advisory
opinion of the Town's Code Enforcement Officer, the Board of Adjustment and Appeals held
a de nova hearing on that appeal pursuant to section 315-77(C) (1) (R. 104). Accordingly, the
Board's decision is the operative decision for review. York v. Town ofSouthwest Harbor, 2001
ME 2 ,r 10, 763 A.2d 1168.
The facts in this case are not in dispute, but the Piampianos contend that the
Cumberland Board of Adjustment and Appeals misinterpreted the ordinance.
2. Facts of Record and Prior Proceedings
The property at issue ("the Subject Property") consists of 12.4 acres located on a
private access road known as the Blanchard Road extension and identified as Cumberland
Tax Lot R08-68 I. A map showing the property is contained in the record at R. 10.3
The history of the property is set forth in the record and in the testimony of Robert
Piampiano at the hearing before the Board. Three lots were originally created from a larger
parcel on February 20, 1998. Tr. 18. One is now the Yovino property located on the southeast
'Raposa involved the decision ofa CEO that a landowner's use of his property did not violate the zoning code, and the Law Court relied on a legislative amendment to 30-A M.R.S. § 2691(4) - not directly applicable in this case - in reaching its decision. However, the logic of Raposa would appear to extend to this appeal as well.
'The map incorrectly lists the tax lot number as R03-68 I, but the parties have agreed that the correct tax lot designation is ROB-68 I. See Appellant's brief dated November 14, 2019 ("Appellants' Br.") at 1 n.2.
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border of the Subject Property. Tr. 18-19. One is a lot owned solely by plaintiff Brenda
Piampiano located on the northwest border of the Subject Property. Tr. 19. The remaining
lot created in February 1998 was owned by plaintiff Robert Piampiano and consisted of a
17.4 acre parcel that included the 12.4 acres that now constitute the Subject Property. Id. On
July 3, 2003 Robert Piampiano conveyed the 17.4 acre property to himself and his wife
Brenda as joint tenants by a deed recorded on July 9, 2003. R. 43-46. Later in 2003 the
Piampianos constructed an unpaved access road starting at the end of the paved portion of
the Blanchard Road extension.
In May 2012 the Piampianos conveyed approximately five acres of the 17.4 acre
property (hereafter "the Briggs Lot") to Richard Briggs and Mary Lowery and retained the
remaining 12.4 acres (the Subject Property). R. 78 ,r 34; Tr. 21, 40. The Briggs Lot included a
house that had been built on that portion of the property. R. 21.
All of the above lots and the unpaved access road that the Piampianos constructed in
2003 are shown on the map included in the administrative record at R. 10.
In March 2017 a prospective purchaser of the Subject Property, Michael Rosa, wrote
to the Town's Code Enforcement Officer to inquire if he would be able to build on the
property if he purchased it. R. 18. The CEO responded by email that, because the land
purchased by the Piampianos in 1998 had been divided when they sold the Briggs Lot in
2012, the private road on which the Subject Property was located would have to be upgraded
to meet the standards in section 315-61 of the Town Ordinance before a building permit
could be issued. Id.
4At the hearing before the Board Robert Piampiano stated that he agreed with 11if 1-3, 5-7, and 11 12 of the CEO's decision (R. 78-79) and that he did not disagree with ,r 9. Tr. 40-41.
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In January of 2019 the Piampianos wrote to the CEO, providing additional
information and argument and asking him to reconsider whether road improvements would
be required before a building permit could be issued for the Subject Property. R. 3-9. The
CEO responded on June 19, 2019, reiterating his earlier opinion and setting forth his basis
for that opinion. R. 78-79.
Pursuant to section 315-77(D)(l) of the Cumberland Zoning Ordinance, the
Piampianos appealed the CEO's decision to the Board of Adjustment and Appeals, which held
a hearing pursuant to§§ 315-77(B)(l) and 315-77(C) (1) on August 8, 2019.
At the conclusion of the hearing the Board members voted unanimously that they
agreed with the opinion of the CEO that the Piampianos' 12.4 acre property in its present
form was not in existence on August 10, 1998. Tr. 69-70. A written decision was issued on
August 14, 2019 with findings and conclusions that the Piampianos' lot "as it exists today"
was not in existence prior to August 10, 1998, that the sale of a portion of the lot in 2012
created two new lots, and that the current road standards are applicable. R. 11-12.
3. Current Provisions of the Cumberland Ordinance
The parties agree that the Subject Property constitutes a "backlot" within the meaning
of Ordinance§ 315-40. Appellants' Br. 1, 12; Town Brief dated December 16, 2019 ("Town
Br.") 1-2. Section 315-40 provides:
Single-family dwellings ... shall be permitted on backlots, provided that they are served by a private street meeting the standards of§ 315-61 of this chapter, subject to the following provisions .... Where a lot is in existence and is provided access by a private right-of-way recorded in the Cumberland County Registry of Deeds prior to the adoption of this chapter, these provisions do not apply ....
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R. 30.
The standards for private streets in§ 315-61 are contained in the record at R. 31-32.
These include a minimum width of 18 feet. Section 315-61 includes a notation that it was
amended on August 10, 1998, on March 24, 2003, on September 10, 2012, and finally on May
9, 2016. R. 31.
Central to this appeal is Subsection Hof§ 315-61, which states
This amendment applies to all private streets proposed to be created after the effective date of this amendment and to existing private streets upon which one or more dwelling units are proposed to be constructed after the effective date of this amendment, unless such dwelling is to be constructed on a lot that was in existence on August 10, 1998.
R. 32.
There are several other provisions of the zoning ordinance and several prior
provisions that the parties suggest are also relevant, and those will be discussed below.
4. Interpretation of Section 315-61
In interpreting a zoning ordinance, the court first evaluates the plain meaning of the
ordinance. If the meaning is clear, there is no need to look beyond the words of the ordinance.
An ordinance should be construed reasonably, considering its purpose and structure and
avoiding absurd or illogical results. Olsen v. Town a/Yarmouth, 2018 ME 27 ,r 11,179 A.3d
920.
The Board's conclusion was that because of the sale of a portion of the original 17.4
acre property to Briggs and Lowery in 2012, the remaining property owned by the
Piampianos, as it is currently configured, was not a lot that was in existence on August 10,
1998. This follows from the plain language of §315-61(H).
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This conclusion also is consistent with the Law Court's decision in Viles v. Town of
Embden, 2006 ME 107, 905 A.2d 298. Viles turned on whether a specific lot (Lot 7) had been
a "lot of record" in 1972, when the Embden Zoning Ordinance had been enacted. The Court
ruled that "[i]n 1972 Lot 7 did not exist as a separate lot It was only part of a larger tract of
land." 2006 ME 107 ,i 25.
The Piampianos, however, argue that this is an unreasonable interpretation because
the 17.4 acre lot existed on August 10, 1998 and the portion of that lot that they retained
remains largely unchanged. They argue that, under the Board's interpretation, if a small
parcel were severed from a longstanding family farm after August 10, 1998, the farm
property would be found not to have previously existed. The first answer is that, under the
Piampianos' hypothetical, the family farm property would still exist; it is only the lot which,
if reconfigured, would not exist in its current form.
The second and more definitive answer is that every new lot is created from an
existing lot If any lot created from an existing lot were deemed to constitute the continuation
of the existing lot, no reconfigured lot would ever be required to meet the upgraded road
standards - essentially negating§ 315-61.s
It is also logical, as new lots are created, that the Town would seek to impose its
updated private street standards. In this case the Piampianos sold the portion of their 17.4
5 The Piampianos argue that their position is supported by the Law Court's decisions in Baka/av. Town ofStonington, 547 A.2d 85 (Me. 1994) and Pitcher v. Town of Wayne, 599 A.2d 1155 (Me. 1991). The court disagrees. Baka/a supports the Board's interpretation in stating that when land is divided, it creates two lots. 542 A.2d at 87. It follows that neither of those two lots can be found to have previously existed. In Pitcher, the Law Court stated that "[c]ommon and general usage supports the determination that a lot is new when it comes into existence by conveyance or subdivision after the effective date of a zoning ordinance." 599 A.2d at 1157.
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acre property on which a residence had been built to Briggs and Lowery. They are now
seeking to be able to construct another residence on the remaining property. With additional
residences, adherence to the private street standards becomes more important.
5. Alleged Grandfather Status and Motion for Judicial Notice
Assuming that§ 315-61 would otherwise apply, the Piampianos argue that their
property is nevertheless grandfathered pursuant to two other provisions of the Cumberland
ordinance. The first is section 315-31, which provides in pertinent part that
"notwithstanding limitations imposed by other provisions of this chapter, a single lot of
record at the effective date of adoption of this chapter may be built upon subject to the
following conditions." (R. 28) (emphasis added). The essential condition is that the lot must
be in separate and distinct ownership from the adjacent lots, and the 12.4 acre Piampiano
lot meets that condition. Similarly, section 315-40(A) provides that the requirement that a
backlot must be served by a private street meeting the requirements of § 315-61 does not
apply "[w]here a lot is in existence and is provided access by a private right-of-way recorded
at the Cumberland County Registry of Deeds prior to the adoption of this chapter." (R. 30)
(emphasis added).
Both of those provisions turn on the date that the chapter was adopted, which is
disputed by the parties and, as far as the court can tell;is not set forth in the record. 6
'As noted above, the copy of§ 315-61 that is contained in the record bears the notation "amended 8-10-1998; 3-24-2003; 9-10-2012; 5-9-2016." (R. 31). This indicates that§ 315-61 had been adopted in some form at least by August 10, 1998 but does not finally resolve when the chapter containing that section was adopted.
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This dispute resulted in the Piampianos' motion, filed after appellants' initial brief
and the Town's brief, for the court to take judicial notice. In that motion the Piampianos
contend that the court should take judicial notice that the operative date of the adoption of
the chapter was September 10, 2012. This is based on an affidavit of Robert Piampiano that
he was informed by the clerk of the Board of Adjustment and Appeals that the Code was
adopted on September 10, 2012. Appended to his affidavit are uncertified copies of a Town
Council agenda and minutes reflecting adoption on that date. Also attached is a
memorandum from the Town Clerk stating that this was done pursuant to a provision in the
Town Charter requiring that a general codification of town ordinances be prepared every 10
years.
The Town opposes plaintiffs' motion and argues that plaintiffs neglected to attach
provisions in the September 2012 codification that undercut their argument. Specifically,
the Town cites a provision from the 2012 codification stating that the provisions of the Code
are intended as a continuation of prior ordinances, "not as new enactments, and the date of
the effectiveness of such provisions shall date from the adoption of the prior ordinances." 7
Whether or not the provision cited by the Town would resolve the issue, the court
cannot take judicial notice of municipal ordinances. Mills v. Town ofEliot, 2008 ME 134 ,r 23,
955 A.2d 258. It follows that the court cannot consider either the information contained in
plaintiffs' motion or in the Town's response to that motion. The Piampianos argue that the
court is required to take judicial notice pursuant to 16 M.R.S. § 402, which relates to judicial
notice of the common law and statutes of"every state, territory, and other jurisdiction of the
7 See Town's Opposition to Plaintiffs' Motion Requesting Judicial Notice, dated January 28, 2020, at 4, citing and appending Code§ 1-2.
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United States." However, town ordinances are not statutes, and the Town of Cumberland is
a jurisdiction of the State of Maine, not of the United States. The court is bound by the Law
Court's decision in Mills, and plaintiffs' motion for judicial notice is denied. 8
That leaves hanging the issue of determining the correct interpretation of "the
effective date of adoption of this chapter" in§ 315-31 and "the adoption of this chapter" in§
315-40(A). The Town argues that the Piampianos did not raise the issue of when the chapter
was adopted in the proceedings before the Board. However, while the Piampianos do not
appear to have made any argument below based on§ 315-40(A), they did raise an argument
that their property was grandfathered based on§ 315-31. (R. 8). In addition, the effective
date of adoption was raised and disputed in both parties' briefs. 9
Accordingly, on this issue the court will allow the parties to supplement the record
with certified copies of all provisions of any Cumberland enactments or ordinances that
either party contends are pertinent to the effective date of what is now chapter 315 of the
Cumberland Code and certified copies of any official Town documents that either party
contends are pertinent to the effective date of what is now chapter 315 of the Cumberland
Code. 10
' Plaintiffs' motion is deficient in other respects in that it relies on hearsay statements by the Board Clerk and uncertified copies of Town Council documents. See 30-A M.R.S. § 3006 (requiring certification by Town Clerk).
'The Piampianos originally argued that that the adoption date was the date of the 2016 amendment to§ 315-61. Appellants' Br. 12-13. The Town responded that the code had been adopted before the Piampianos' 12.4 acre property came into existence. Town Br. 6-8. 10 The court does not agree with plaintiffs' suggestion that they should be allowed to take discovery or file a belated motion for a trial pursuant to M.R.Civ.P. BOB(d). Plaintiffs waived any right to seek a trial when they did not file a motion for a trial within 30 days after filing their complaint. In addition, with the appropriate record the effective date of adoption can be resolved as a matter of law.
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The supplemental record shall be filed on or before June 18, 2020, and 10 days after
the supplemental record is filed, the parties may file memoranda of no more than 5 double
spaced pages addressing the effective date issue. The above deadlines incorporate the
existing extension of deadlines ordered because of the pandemic emergency.
The court is aware that that under Rule 80B(e)(l) it is the responsibility of plaintiffs
to prepare the record and that where the record is inadequate to support an appeal, the
ordinary rule is that the appeal must fail. Where an issue of law is involved, however, the
court does not think that the above principle applies. In Mills v. Town ofElio~ the Law Court
remanded a matter to determine, among other things, how the term "subdivision" had been
defined in a town ordinance in effect in 2001 - an issue not included in the record but that
was an issue of law subject to de nova review. 2008 ME 134 ,r 23; id. ,r 21 n.7. On that basis
the court concludes that supplementation of the record is appropriate here.
Supplementation of the record is not required, however, to address the other
arguments raised by the Piampianos.
6. Retroactivity
The Piampianos assert that the private road they constructed in 2003 met the Town
standards for private streets at the time that they conveyed a portion of their 17.4 acre lot to
Briggs and Lowery in 2012 and that section 315-61(H) should not be interpreted to apply
retroactively. Section 315-61 was enacted in 2016 and requires an 18 foot minimum width.
§ 315-61(D)(l) (R. 31). That was a change from former section 421(4), which required a 16
foot minimum width. (R. 24).
11 Whether the 2003 road would meet the private street standards contained in former
section 421 has not been conceded by the Town. The Town points out that under former
section 421, whether a private street met the necessary standards was to be "determined by
the Code Enforcement Officer" (R.23) and the Piampianos had never sought Town approval
of the 2003 road. (Tr. 50). This issue does not affect the outcome of this appeal, however,
because it is undisputed that that Piampianos' 2003 road does not meet the 18 foot width
requirement in§ 315-61.11
In support of their retroactivity argument, the Piampianos contend that the
retroactive effect of§ 315-61 is not stated in "strong, clear, and imperative language," citing
Terry v. St. Regis Paper Co., 459 A.2d 1106, 1109 (Me. 1983). However,§ 315-61(H) clearly
states that it applies to "existing private streets upon which one or more new dwellings are
proposed to be constructed after the effective date of this amendment, unless such dwelling
is to be constructed on a lot that was in existence on August 10, 1998." This language has
the requisite clarity. See Coates v. Employment Security Commission, 406 A.2d 94, 97 (Me.
1979) (enactments are considered to have prospective application unless legislative intent
to the contrary "is clearly expressed").
In addition, the Piampianos did not have any application or proceeding pending as of
the May 2016 amendmentto § 316-61 so they cannot take advantage of 1 M.R.S. § 302.
11 If the Piampianos were to prevail on their claim that§ 315-61 does not apply, they would then have the opportunity to demonstrate that the road constructed in 2003 meets the standards in former section 421.
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7. Change in Nature or Status
The Piampianos argue that after they sold a portion of their lot to Briggs and Lowery,
the nature of the remaining 12.4 acres remained unchanged. They cite cases holding that
grandfathered uses do not lose their status unless there has been an extension, expansion,
or enlargement of a nonconforming use. Appellants' Br. 14-16, relying particularly on Keith
v. Saco River Corridor Commission, 464 A.2d 150, 154-55 (Me. 1983).
The problem with this argument is that it is premised on the assumption that the 12.4
acre property is currently grandfathered. The issue in this case, however, is not whether the
12.4 lot has somehow lost its grandfathered status. Instead the issue is whether the property
is grandfathered in the first place, specifically (1) whether under§ 315-61(H) the 12.4 acre
lot is grandfathered because it was in existence on August 10, 1998 and (2) whether under
§§ 315-31 and 315-40(A) the 12.4 acre lot is grandfathered because it was in existence on
the effective date of the adoption of the Town of Cumberland's zoning chapter. The first of
these issues has been addressed in section 4 above. The second requires supplementation of
the record as discussed in section 5.
To the extent that the Piampianos are arguing that the zoning regulations in effect
when they sold the Briggs lot are grandfathered, this is not the law. See, e.g., City of Portland
v. Fisherman's Wharf Associates II, 541 A.2d 160, 164 (Me. 1988). The Keith decision holds
that a change in the ownership of a nonconforming property does not deprive the property
of grandfathered status. 464 A.2d at 154-55. Keith has no relevance to the question of
whether, if a lot was not in existence on August 10, 1998 and was not grandfathered, its
access road would need to be upgraded if a new residence were to be constructed.
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8. Alleged Unfairness and Arbitrariness
The Piampianos raise various contentions that§ 315-61 - if applied to their 12.4 acre
lot-will have arbitrary and unfair results. They argue that of the three lots on the same spur
of the existing private road, only the 12.4 acre lot will require the private road to be upgraded
before a building permit will issue. The Yovino and Brenda Piampiano lots, created in
February 1998, will not require any upgrading of the road because they will remain
grandfathered. This, however, follows from the fact that the Yovino and Brenda Piampiano
lots, in their current form, remain grandfathered because they were in existence on August
10, 1998. The 12.4 acre parcel was not. It is not the law that all of the parcels on a private
road must remain grandfathered so long as some of the parcels retain that status.
They have also offered evidence that the 12.4 acre lot has been assessed as a buildable
lot and that they have been paying taxes on that basis. There are three answers to that
argument. The first is that the lot remains a buildable lot although, if§ 351-61 applies,
anyone seeking to build will have to invest in upgrading the road. The second is that the tax
status of property is not relevant to zoning issues. See F. S. Plummer v. Town ofCape Elizabeth,
612 A.2d 856, 861 (Me. 1992) (remedy if improperly assessed is to seek abatement). The
third is that the Piampianos expressly state that they are not raising an equitable estoppel
claim. See Appellants' Br. 6-7 n.6.
9. Constitutional Issues
The Piampianos finally claim that the application of§ 315-61 to their 12.4 acre lot
would violate substantive due process and equal protection and would constitute a taking
without just compensation.
14 Their argument that they have been deprived of property in violation of due process
fails because it depends on the assertion that they have vested right to develop the 12.4 acre
lot without upgrading the road. As discussed above, property owners are not entitled to rely
on the concept that they have a vested right to the continuation of existing zoning
regulations. See, e.g., City of Portland v. Fisherman's Wharf Associates II, 541 A.2d 160, 164
(Me. 1988). Rights only vest once a property owner has applied for or obtained a permit.
Kittery Retail Ventures LLC v. Town ofKittery, 2004 ME 65 ,r 32, 856 A.2d 1183; Sahl v. Town
of York, 2000 ME 180 ,r 13, 760 A.2d 266. Because the Piampianos had not applied for or
obtained a building permit when § 315-61 was amended in 2016, they had no protectible
property interest, which is fatal to their due process claim. Kittery Retail Ventures LLCv. Town
ofKittery, 2004 ME 65 ,r 32.
The equal protection claim is equally unavailing. At the outset, the Piampianos are not
raising a claim involving fundamental rights or suspect classifications within the meaning of
the equal protection clause. They must therefore show (1) that similarly situated persons
are not treated equally under the ordinance and (2) that the ordinance is not rationally
related to a legitimate state interest. Doe v. Williams, 2013 ME 34 ,r 56, 61 A.3d 718.
Here the Piampianos fall at the first hurdle. They contend that similarly situated lots
are not being treated equally because the 12.4 acre lot, the Brenda Piampiano lot, and the
Yovino lot were all created in 1998 and only the 12.4 acre lot needs the access road to be
upgraded before a building permit will issue. The problem with this argument is that it
ignores the Piampianos' 2012 sale of a portion of their original 17.4 acre lot, including the
residence constructed on that portion of the property, to Briggs and Lowery. Because of the
severance of the Briggs lot, the 12.4 acre lot was not in existence on August 10, 1998 and is
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not similarly situated to the two neighboring lots for purposes of§ 315-61. Moreover,§ 315
61 is rationally related to a legitimate governmental interest because, as properties are
divided and developed, there is a greater need to apply road standards.
Finally, the Piampianos' taking claim fails because regulatory takings only may be
found when the governmental restrictions are "so substantial as to strip the property of all
practical value." Seven Islands Land Co. v. Maine Land Use Regulation Commission, 450 A.2d
475, 482 (Me. 1982). In this case the Piampianos offered evidence that it would be expensive
for them to upgrade the road to meet the standards in § 315-61. However, they have not
demonstrated that the cost would be so expensive that they could not recoup that cost plus
additional value on a sale of the land once the road had been improved. Nor have they
demonstrated that, if the road is not upgraded, the property does not retain some value. See
MC Associates v. Town of Cape Elizabeth, 2001 ME 89 ,r 16, 773 A.2d 439; Wyer v. Board of
Environmental Protection, 2000 ME 45 ,r 1,747 A.2d 192. Indeed, they offered evidence that
the property in its current state retains value as a woodlot, with a$ 14,400 estimate of the
value of the timber, not including the value of the land. (R. 49).
In a footnote, the Piampianos argue that the court should hold a trial on the taking
issue. Appellants' Br. 24 n.20. However, the Piampianos did not include an independent
taking claim in their complaint pursuant to Rule 80(i) and they did not move for a trial on
any factual issues within 30 days of filing their complaint pursuant to Rule 80(d).
The entry shall be:
1. With the exception of one issue on which a supplemental record is required, the court concludes that the arguments made by plaintiffs Robert and Brenda Piampiano to overturn the August 14, 2019 decision of the Cumberland Board of Adjustment and Appeals are unavailing.
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2. Plaintiffs motion for the court to take judicial notice is denied.
3. On or before June 18, 2020 the parties shall supplement the record with certified copies of all provisions of any Cumberland enactments or ordinances that either party contends are pertinent to the effective date of what is now chapter 315 of the Cumberland Code and certified copies of any official Town documents that either party contends are pertinent to the effective date of what is now chapter 315 of the Cumberland Code.
4. The clerk shall incorporate this order in the docket by reference pursuant to Rule 79(a).
Dated: April .l:j_, 2020
-~ Thomas D. Warren Justice, Superior Court