Strout v. Town of Casco

• Court: Superior Court of Maine
• Decided: November 1, 2006
• Docket: CUMap-05-084
• Status: Unpublished

Opinion

STATE OF MAINE SUPERIOR COURT CUMBERLAND, SS CIVIL ACTION ,-

f ... [, I . .. . .- -3!/ ALLEN E. STROUT and MARILYN STROUT, Appellants / Plaintiffs

DECISION AND JUDGMENT (M.R.Civ.P.80B) DONALO r. i3AHBKECHf TOWN OF CASCO, LAW l lRRARy Defendants JAN I. 7 2QQ7 I. NATURE OF ACTION

This is an appeal, pursuant to M.R. Civ. P. 80B, from the Town of Casco's Zoning

Board of Appeals granting a setback variance to neighbors of the appellants.

11. BACKGROUND

On May 26,2005, Edward and Dianne Brazier applied for a variance to the Town

of Casco Zoning Board of Appeals ("ZBA"), seeking relief from the shoreland setback

requirements to construct a home. Pursuant to the requirements of the application, the

Braziers notified all abutters, including the petitioners Allen and Marilyn Strout. On

June 20,2005, the ZBA convened to address the Braziers' variance request.

Marilyn Strout attended the June 20, 2005 meeting and verbally opposed the

variance request. Although the meeting minutes reflect that she stated that the Braziers

would create a hardship if the ZBA approved the variance, the minutes do not

demonstrate other statements purportedly made by her.' The ZBA ultimately

' As noted by the town's counsel, the petitioners must prepare the record and cannot refer to matters outside of the record to support their appeal. See M.R. Civ. P. 80B(e). determined to postpone consideration of the variance to allow the Braziers to work with

the CEO to resolve setback problems.

On September 26, 2005 the ZBA reconvened to deliberate the Braziers' variance.

Marilyn Strout did not attend this meeting. The ZBA voted 4-0 in favor of granting the

variance request as amended. Consequently, the petitioners appealed the ZBA's

decision, filing a makeshift and somewhat confusing complaint for 80B review. The

town asserts several procedural defenses including lack of standing by the Strouts,

failure to name a necessary party (the Braziers) and that the record is inadequate.

111. DISCUSSION

To have standing to appeal the ZBA's decision, the Strouts must demonstrate

that they are directly or indirectly affected by the decision. F yeburg Water Co. v. Town of

Fyeburg, 2006 ME 31, ¶ 10,893 A.2d 618,622. As abutters, the Strouts "need only allege

a potential for particularized injury to satisfy the standing requirement." Pearson v.

Town of Kennebunk, 590 A.2d 535, 537 (Me. 1991) (internal quotations omitted) (citation

omitted) (emphasis added). As a result, "an abutter need show only a relatively minor

adverse consequence to establish standing." Fyeburg Water Co., 2006 ME 31, ¶ 10, 893

A.2d at 622.

The petitioners' complaint does not allege any potential for particularized injury.

Furthermore, neither the record nor the Strouts' briefs state how the ZBA's decision

affects them.' Although the court could no doubt surmise on possible problems created

by the construction of a new home, this court's responsibility is to adjudicate, not

litigate. There is no reason why, at some point, the Strouts could not have articulated a

particularized injury. The petitioners, as pro se litigants, are not exempted from tlus

The Town points this out in their brief, but the Strouts failed to take the bait and actually state what harm they suffered or will suffer from the ZBA's decision. requirement. See Dep't of Envtl. Prot. v. Woodman, 1997 ME 164, ¶ 3 n.3, 697 A.2d 1295,

IV. DECISION AND JUDGMENT

The clerk will make the following entry as the Decision and Judgment of the court:

- The decision of the Zoning Board of Appeals for the Town of Casco is affirmed.

SO ORDERED

Dated: # h 6 Justice, Superior court Date Filed - 11-8-05 CUMBERLAND Docket No. AP05-84 County

Action ~-91

ALLEN E STROUT MARILYN M. STROUT TOWN OF CASCO

vS Plaintiff's Attorney Defendant's Attorney Pro Ses Pro Se 58 Bean Road Meadow Road O t i s f i e l d ME 04270 Casco ME 04015 NATALIE BURNS ESQ PO BOX 4510 PORTLAND ME 04112

Date of Entry 2005 Nov. 9 Received 11-8-05. 80B Appeal w i t h e x h i b i t s 1-5 f i l e d . 1111 On 11-9-05. B r i e f i n g schedule mailed. P l a i n t i f f ' s b r i e f and r e c o r d due 12-19-05.

Dec. 19 Received on 12/19/05: P l a i n t i f f ' s Brief with attachments f i l e d .

Dec. 20 Received 12-20-05. E n t r y o f appearance of ~ a t a l i eBurns Esq obo Town of Casco f i l e d .

2006 J a n . 20 Received 1-20-06. Defendant, Town of C a s c o ' s , Rule 80B B r i e f f i l e d .

Feb. 2 Received 2-2-06. E n t r y of Appearance of Marilyn M. S t r o u t , P r o Se, f i l e d . 1111 P l a i n t i f f , S t r o u t ' s , Rule 80B Reply B r i e f f i l e d .

J u n e 21 R ~ c e i v e d Q6-21-06: ( D ~ l a h a n t y ,2 . ) . " ~ r o t e c t i o n "of c o u n s e l w i l l e f f e c t i v e l y remove c z s e f;:an ?-Let t o ber h ~ z . r da t J u r e c o u r t s e s s i o n . T h r c o u r t t r e a t s it a:; c Kotion t o Continue. C o r t i n u a n c e i s grc?..ntsd - iif.cchedulc an n~:r"L dntca. On 0 6 - 2 3 - 0 6 C o p i e s m a i l e d t o Y a r i l y n K. S t a o u t a t 58 Razd, ~ t i ~ f i e l d Y a, i n e 0 4 2 7 0 and K a t a l i e B u r n s , E s q . Oct. 1 3 On 1 0 - 1 2 - 0 6 : ~ e a r i n gh e l d on 8 0 B A p p e a l C o u r t t a k e s m a t t e r u n d e r Advisement. A l l e n E . S t r o u t p r o se N a t a l i e B u r n s , E s q . p r e s e n t f o r Town of Casco. No R e c o r d Made. NLLLlV JL. b'l'KUU'1' VS 'I'UWN Uk' C H S C U

DocketNo. AP105-84

Received 10-30-06: The Clerk will make teh following entry as the Decision and Judgment of the court: The decision of the Zoning Board of Appeals for the Town of Casco is Affirmed. SO ORDERED. On 11-03-06 copies mailed to Natalie Burns, Esq. and Allen and Marilyn Strout at 58 Bean Road, Otisfield, Maine 04270 Ms. Deborah Firestone, Goss Mimeograph, The Donald Garbrecht Law Library and LoisLaw.com, Inc.