STATE OF MAINE YORK, SS. SUPERIOR COURT CIVIL ACTION DOCKET NO. a-14-34 AP SACO AVENUE RENTALS, LLC,
Plaintiff, ORDER V.
TOWN OF OLD ORCHARD BEACH et al.,
Defendants.
I. Background
A. Procedural Posture
This case concerns proposed construction at a condominium complex in Old
Orchard Beach. Plaintiffs bring this Rule 80B appeal together with several independent claims.
Plaintiff has moved for summary judgment on Count III, which requests a declaratory
judgment that the defendants' development rights have expired pursuant to the terms of the
condominium declaration.
B. Preliminary Findings
Before addressing the substance of the motion, the Court makes the following
preliminary findings:
1. Venue was properly laid in this matter;
2. The parties to the action, all of whom were g1ven notice of proceedings in
accordance with the applicable provisions of the Maine Rules of Civil Procedure,
entered in this matter, together with counsel, have appeared as follows: Plaintiff:
Saco Avenue Rentals, LLC Counsel: David C. Pierson 155 Saco Avenue Eaton Peabody Old Orchard Beach, ME P.O. Box 15235 One Portland Square, th Floor Portland, ME 04112
Defendants:
Town of Old Orchard Beach Counsel: Robert Crawford One Portland Street N. Joel Moser Old Orchard Beach, ME 04064 Bernstein Shur 164 Capitol Street Augusta, ME 04330-5057 and John J. Wall III Monaghan Leahy P.O. Box 7046 95 Exchange Street Portland, ME 04112-7046
King Weinstein d/b/a KRE Realty Counsel: David Hirshon and/or KRE Construction Hirshon Law Group, P.C. 198 Saco Avenue 208 Fore Street Old Orchard Beach, ME 04064 Portland, ME 04101
New Heritage Builders, Inc. Counsel: David Hirshon 198 Saco A venue Hirshon Law Group, P.C. Old Orchard Beach, ME 04064 208 Fore Street Portland, ME 041 0 1
Saco A venue Professional Counsel: David Hirshon Building, Inc. Hirshon Law Group, P.C. 198 Saco A venue 208 Fore Street Old Orchard Beach, ME 04064 Portland, ME 041 0 1
Saland Development, Inc. f/k/a Counsel: David Hirshon KRE Properties, Inc. Hirshon Law Group, P.C. P.O. Box 1179 208 Fore Street Saco, ME 04072 Portland, ME 04101
2 3. The Property at issue is a portion of the common elements of 155 Saco Avenue
Condominium in Old Orchard Beach, Maine more specifically described in the
Declaration of Condominium to be entitled "155 Saco A venue Condominium"
recorded in the York County Registry of Deeds in Book 483, Page 092 on
September 13, 1988.
4. That the Property is currently owned as follows:
a. New Heritage Builders, Inc. owns Units A-1, A-2 and B-1 of the 155 Saco
A venue Condominium and is a tenant in common with respect to the
common elements.
b. Saco Avenue Rentals, LLC owns Units B-2, C-1 and C-2 of the 155 Saco
A venue Condominium and is a tenant in common with respect to the
C. Facts
Plaintiff Saco Avenue Rentals, LLC ("Saco Avenue"), is a limited liability
company organized under the laws of Maine. Saco Avenue owns units B-2, C-1 and C-2 in the
155 Saco Avenue Condominium. Defendant King Weinstein is an officer, director, or
shareholder of Defendants Saco Avenue Professional Building, Inc., New Heritage Building,
Inc., and served as Vice President of Defendant KRE Properties, Inc.
The 155 Saco Avenue Condominium was created with the recording of a declaration
("the Declaration") on September 13, 1988, recorded in the York County Registry of Deeds at
Book 483, Page 92. The Declaration was amended and recorded on August 30, 1989. A relevant
3 provision of the Declaration states:
The Declarant hereby designates as Convertible Real Estate all of the property described in Schedule A, the Plats and Plans upon which Units have not yet been created. Declarant reserves the Development Right and option until the seventh (7th) anniversary date of the recording of this Declaration to create and con~truct from time to time additional Units, Common Elements, Limited Common Elements, or any two or more of the foregoing, and to create and construct any buildings and improvements to contain the additional Units, Common Elements, and Limited Common Elements, on any or all of the portions of the Convertible Real Estate described in Schedule A, the Plats and Plans, in compliance with Section 1602-110 of the ACT and this Declaration.
Saco Avenue acquired title to units B-2, C-1, and C-2 by a deed from Richard and Joanne
Cotois dated June 14, 2013. Units A-1, A-2, and B-1 passed from a number of entities. After
foreclosing units A-1, A-2, and B-1, Maine National Bank transferred the units to Richmond
Holdings, Corp. by deed on May 21, 1991. Richmond Holdings, Corp. transferred the units to
KRE Properties, Inc. by a deed dated May 27, 1993. Both the deed to Richmond and to KRE
included "development rights and special declarant rights" in the conveyance. KRE Realty, Inc.
transferred the units to Saco Avenue Professional Building, Inc. by deed dated July 15, 1997.
Saco Avenue Professional Building, Inc. transferred the units to New Heritage Builders, Inc.
by deed dated August 14, 1997. Neither the deed to Saco Avenue nor to New Heritage
specifically mentioned "development rights" or "special declarant rights." Corrective
deeds later granted to Saco Avenue in December 2014 and New Heritage in January 2015
purported to transfer "the special declarant rights and the development rights." 1
On January 2, 2014, the Town of Old Orchard Beach issued a building permit to KRE
Realty for the construction of an approximately 10,000 square foot building on the
condominium's common elements. (Def.'s Ex. B-1.)
1 While the Plaintiff's motion for summary judgment initially asserted the corrective deeds were ineffective for failure to accept the rights, Plaintiff now concedes in reply that the second corrective deeds remedied the defect. As a result, the only issue raised by the Plaintiffs motion is whether the development rights expired.
4 II. Discussion
A. Summary Judgment Standard
"Summary judgment is appropriate if the record reflects that there is no genuine issue of
material fact and the movant is entitled to judgment as a matter of law." Dussault v. RRE Coach
Lantern Holdings, LLC, 2014 ME 8, ~ 12, 86 A.3d 52 (citation omitted). "A material fact is one
that can affect the outcome." Mcilroy v. Gibson's Apple Orchard, 2012 ME 59, 7, 43 A.3d 948
(citation omitted).
A condominium declaration is construed like a contract; as in contract law, interpreting
the declaration presents a question of law. Farrington's Owners' Ass 'n v. Conway Lake Resorts,
Inc., 2005 ME 93, ~ 10, 878 A.2d 504 (citations omitted). An ambiguous declaration,
however, presents a question of fact. !d. A declaration is ambiguous if "reasonably
susceptible to different interpretations," but in order to give force and effect to all provisions,
the court avoids interpretations that would render any provision in the contract meaningless. !d.
B. The Declaration Unambiguously Limits Development Rights to a
Period of Seven Years After Recording.
As set forth above in the facts, the relevant provision relied on by the Plaintiffs in Count
HI states in relevant part "Declarant reserves the Development Right and option until the seventh
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STATE OF MAINE YORK, SS. SUPERIOR COURT CIVIL ACTION DOCKET NO. a-14-34 AP SACO AVENUE RENTALS, LLC,
Plaintiff, ORDER V.
TOWN OF OLD ORCHARD BEACH et al.,
Defendants.
I. Background
A. Procedural Posture
This case concerns proposed construction at a condominium complex in Old
Orchard Beach. Plaintiffs bring this Rule 80B appeal together with several independent claims.
Plaintiff has moved for summary judgment on Count III, which requests a declaratory
judgment that the defendants' development rights have expired pursuant to the terms of the
condominium declaration.
B. Preliminary Findings
Before addressing the substance of the motion, the Court makes the following
preliminary findings:
1. Venue was properly laid in this matter;
2. The parties to the action, all of whom were g1ven notice of proceedings in
accordance with the applicable provisions of the Maine Rules of Civil Procedure,
entered in this matter, together with counsel, have appeared as follows: Plaintiff:
Saco Avenue Rentals, LLC Counsel: David C. Pierson 155 Saco Avenue Eaton Peabody Old Orchard Beach, ME P.O. Box 15235 One Portland Square, th Floor Portland, ME 04112
Defendants:
Town of Old Orchard Beach Counsel: Robert Crawford One Portland Street N. Joel Moser Old Orchard Beach, ME 04064 Bernstein Shur 164 Capitol Street Augusta, ME 04330-5057 and John J. Wall III Monaghan Leahy P.O. Box 7046 95 Exchange Street Portland, ME 04112-7046
King Weinstein d/b/a KRE Realty Counsel: David Hirshon and/or KRE Construction Hirshon Law Group, P.C. 198 Saco Avenue 208 Fore Street Old Orchard Beach, ME 04064 Portland, ME 04101
New Heritage Builders, Inc. Counsel: David Hirshon 198 Saco A venue Hirshon Law Group, P.C. Old Orchard Beach, ME 04064 208 Fore Street Portland, ME 041 0 1
Saco A venue Professional Counsel: David Hirshon Building, Inc. Hirshon Law Group, P.C. 198 Saco A venue 208 Fore Street Old Orchard Beach, ME 04064 Portland, ME 041 0 1
Saland Development, Inc. f/k/a Counsel: David Hirshon KRE Properties, Inc. Hirshon Law Group, P.C. P.O. Box 1179 208 Fore Street Saco, ME 04072 Portland, ME 04101
2 3. The Property at issue is a portion of the common elements of 155 Saco Avenue
Condominium in Old Orchard Beach, Maine more specifically described in the
Declaration of Condominium to be entitled "155 Saco A venue Condominium"
recorded in the York County Registry of Deeds in Book 483, Page 092 on
September 13, 1988.
4. That the Property is currently owned as follows:
a. New Heritage Builders, Inc. owns Units A-1, A-2 and B-1 of the 155 Saco
A venue Condominium and is a tenant in common with respect to the
common elements.
b. Saco Avenue Rentals, LLC owns Units B-2, C-1 and C-2 of the 155 Saco
A venue Condominium and is a tenant in common with respect to the
C. Facts
Plaintiff Saco Avenue Rentals, LLC ("Saco Avenue"), is a limited liability
company organized under the laws of Maine. Saco Avenue owns units B-2, C-1 and C-2 in the
155 Saco Avenue Condominium. Defendant King Weinstein is an officer, director, or
shareholder of Defendants Saco Avenue Professional Building, Inc., New Heritage Building,
Inc., and served as Vice President of Defendant KRE Properties, Inc.
The 155 Saco Avenue Condominium was created with the recording of a declaration
("the Declaration") on September 13, 1988, recorded in the York County Registry of Deeds at
Book 483, Page 92. The Declaration was amended and recorded on August 30, 1989. A relevant
3 provision of the Declaration states:
The Declarant hereby designates as Convertible Real Estate all of the property described in Schedule A, the Plats and Plans upon which Units have not yet been created. Declarant reserves the Development Right and option until the seventh (7th) anniversary date of the recording of this Declaration to create and con~truct from time to time additional Units, Common Elements, Limited Common Elements, or any two or more of the foregoing, and to create and construct any buildings and improvements to contain the additional Units, Common Elements, and Limited Common Elements, on any or all of the portions of the Convertible Real Estate described in Schedule A, the Plats and Plans, in compliance with Section 1602-110 of the ACT and this Declaration.
Saco Avenue acquired title to units B-2, C-1, and C-2 by a deed from Richard and Joanne
Cotois dated June 14, 2013. Units A-1, A-2, and B-1 passed from a number of entities. After
foreclosing units A-1, A-2, and B-1, Maine National Bank transferred the units to Richmond
Holdings, Corp. by deed on May 21, 1991. Richmond Holdings, Corp. transferred the units to
KRE Properties, Inc. by a deed dated May 27, 1993. Both the deed to Richmond and to KRE
included "development rights and special declarant rights" in the conveyance. KRE Realty, Inc.
transferred the units to Saco Avenue Professional Building, Inc. by deed dated July 15, 1997.
Saco Avenue Professional Building, Inc. transferred the units to New Heritage Builders, Inc.
by deed dated August 14, 1997. Neither the deed to Saco Avenue nor to New Heritage
specifically mentioned "development rights" or "special declarant rights." Corrective
deeds later granted to Saco Avenue in December 2014 and New Heritage in January 2015
purported to transfer "the special declarant rights and the development rights." 1
On January 2, 2014, the Town of Old Orchard Beach issued a building permit to KRE
Realty for the construction of an approximately 10,000 square foot building on the
condominium's common elements. (Def.'s Ex. B-1.)
1 While the Plaintiff's motion for summary judgment initially asserted the corrective deeds were ineffective for failure to accept the rights, Plaintiff now concedes in reply that the second corrective deeds remedied the defect. As a result, the only issue raised by the Plaintiffs motion is whether the development rights expired.
4 II. Discussion
A. Summary Judgment Standard
"Summary judgment is appropriate if the record reflects that there is no genuine issue of
material fact and the movant is entitled to judgment as a matter of law." Dussault v. RRE Coach
Lantern Holdings, LLC, 2014 ME 8, ~ 12, 86 A.3d 52 (citation omitted). "A material fact is one
that can affect the outcome." Mcilroy v. Gibson's Apple Orchard, 2012 ME 59, 7, 43 A.3d 948
(citation omitted).
A condominium declaration is construed like a contract; as in contract law, interpreting
the declaration presents a question of law. Farrington's Owners' Ass 'n v. Conway Lake Resorts,
Inc., 2005 ME 93, ~ 10, 878 A.2d 504 (citations omitted). An ambiguous declaration,
however, presents a question of fact. !d. A declaration is ambiguous if "reasonably
susceptible to different interpretations," but in order to give force and effect to all provisions,
the court avoids interpretations that would render any provision in the contract meaningless. !d.
B. The Declaration Unambiguously Limits Development Rights to a
Period of Seven Years After Recording.
As set forth above in the facts, the relevant provision relied on by the Plaintiffs in Count
HI states in relevant part "Declarant reserves the Development Right and option until the seventh
(7th) anniversary date of the recording of this Declaration to create and construct from time to
time additional Units, Common Elements, Limited Common Elements." The Declaration was
recorded in 1988 and amended in 1989. There have been no other amendments that purported
to extend the seven-year period to exercise development rights. The Plaintiffs argue
development rights expired in 1995-the seven year anniversary set forth in the Declaration.
5 Defendants try to place the seven-year anniversary provision in context by emphasizing
the last part of the Section 5.1 of the Declaration, which states development rights may be
exercised "without the consent of any Unit Owner or Mortgagee and to create and construct
from time to time additional Units ... " and the following:
The Declarant reserves the right to create and construct Units on any or all portions of the Convertible Real Estate any time, at different times, in any order, without limitation and without any requirement that any other Development Right reserved by the Declarant be exercised at any time.
According to the Defendants, interpreting the declaration to terminate
development rights after seven years would contradict the "sweeping language" above that
reserved development rights "without limitation ... at any time." (Defs.' Opp. Summ. J.
5.) Defendants argue that there is no such limitation, or at a minimum, the declaration is
ambiguous and cannot be construed against them on summary judgment.
A time limit on exercising development rights is expressly contemplated by the Maine
Condominium Act. The Act states that a declaration of condominium may contain "[a]
description of any development rights and other special declarant rights, section 1601-103,
paragraph (25), reserved by the declarant, together with a legally sufficient description of the real
estate to which each of those rights applies, and a time limit within which each of those rights
must be exercised." 33 M.R.S. § 1602-1 05(A)(8). This court has held that a declaration that
omitted an expiration date for development rights was not void. See Seagull Condo. Ass'n v.
First Coast Realty & Dev., 2011 Me. Super. LEXIS 117, *11 (Me. Super. Ct. July 19, 2011)
(Brennan, J.) (noting omission of "must" from Condominium Act to mean the Legislature did not
intend to require time limit to exercise development rights in a declaration).
Defendants rely on Seagull Condominium Association for the proposition that the
6 development rights in the Declaration could be· exercised at any time. In the absence of an express
time limit, this interpretation would have merit. But Seagull Condominium Association is not
helpful for the Defendants because unlike in that case, the Declaration here has an express time
limit. The Declaration clearly states that the declarant has the right to construct additional
units "until the seventh (7th) anniversary date of the recording of this Declaration." To
follow Defendants' interpretation would effectively read this provision out of the Declaration.
If development rights could be exercised at any time into the future indefinitely, a seven-
year time limit would be meaningless. Farrington's Owners' Ass 'n, 2005 ME 93, ~ 10,
878 A.2d 504 ("Generally, though, canons of construction require that a contract be construed
to give force and effect to all of its provisions, and we will avoid an interpretation that
renders meaningless any particular provision in the contract."). There is no ambiguity
because the "without limitation" language can be reconciled with the seven-year
provision-development rights may be exercised without limitation at any time within
seven years after the Declaration is recorded.
III. Conclusion The unambiguous language of the Declaration states that development rights expired
seven years after the Declaration was recorded. Because there is no material factual dispute
and no ambiguity in the Declaration, the Plaintiff is entitled to summary judgment on Count
The entry shall be: The Plaintiffs motion for summary judgment as to Count III is hereby GRANTED. The development rights automatically expired pursuant to the clear terms of the Declaration.
SO ORDERED
1j~~~ ~ DATE:
Jo~ Justice, Superior Court
7 AP-14-034
ATTORNEY FOR PLAINTIFF: DAVID PIERSON EATON PEABODY POBOX 15235 PORTLAND ME 04112
ATTORNEYS FOR DEFENDANT TOWN OF OLD ORCHARD BEACH: ROBERTJCRAWFORD BERNSTEIN SHUR 164 CAPITOL STREET AUGUSTA ME 04330
JOHN J WALL ill MONAGHAN LEAHY POBOX7046 95 EXCHANGE STREET PORTLAND ME 04112
ATTORNEYS FOR DEFENDANTS KING WEINSTEIN D/B/A KRE REALTY AND/OR KRE CONSTRUCTION, NEW HERITAGE BUILDERS, INC, SACO AVENUE PROFESSIONAL BUILDING, INC. AND SALAND DEVELOPMENT, INC. F/K/A KRE PROPERTIES, INC: DAVID HIRSHON MARSHALL J TINKLE HIRSHON LAW GROUP PC 208 FORE STREET PORTLAND ME 04101