Opinion
AP-18-053
08-12-2019
ELVIN COPP, et al., Petitioners v. WILLIAM LONGLEY, et al., Respondents
DECISION AND ORDER
Nancy Mills Justice.
Before the court is petitioners Elvin Copp and Randall Copp's Rule 80B appeal of the respondent Town of Cumberland's October 11, 2018 decision. Respondent Town Board of Adjustment and Appeals upheld the Code Enforcement Officer's determination that petitioners were in violation of local ordinances. For the following reasons, respondent Town's decision is affirmed.
Background
On November 8, 2018, petitioners filed a Rule 80B complaint against respondent William Longley, the Town of Cumberland's Code Enforcement Officer. Petitioners alleged that the decision of the Town's Board of Adjustment and Appeals to uphold respondent Town's Code Enforcement Officer's Notice of Violation was arbitrary and capricious, constituted an abuse of discretion, error of law, and/or findings not supported by substantial evidence. On November 26, 2018, petitioners amended their complaint to add respondent Town of Cumberland. On December 21, 2018, respondent Town filed a counterclaim against petitioners seeking a land use enforcement pursuant to 30-A M.R.S. § 4452.
On November 26, 2018, petitioners filed a motion for a trial of the facts by jury. On December 21, 2018, respondent Town filed an opposition to petitioners' motion for trial of facts. On January 4, 2019, petitioners filed a motion to dismiss respondent Town's counterclaim. On January 15, 2019, respondent Town filed an opposition to petitioners' motion to dismiss its counterclaim. On January 22, 2019, petitioners filed a reply to respondent Town's opposition to dismiss its counterclaim.
On January 22, 2019, petitioners filed their Rule 80B brief and a transcript of the October 11, 2018 Board hearing. On February 8, 2019, Petitioners moved to supplement the record. On February 20, 2019, respondent Town filed a combined Rule 80B brief and opposition to petitioners' motion to supplement the record. On March 6, 2019, petitioners filed a reply Rule 80B brief and a reply to respondent Town's opposition to supplement the record. On March 12, 2019, petitioners filed an opposition to a nonexistent respondent Town's motion to dismiss for want of prosecution. By order dated April 5, 2019, the court denied petitioners' motion for a trial of facts and petitioners' motion to dismiss respondent Town's counterclaim.
On April 5, 2019, petitioners filed a motion for leave to file a second amended complaint, a motion for leave to file an amended motion for trial of facts or supplement the record, and filed an amended motion for trial of facts. On April 12, 2019, the court denied petitioners' motion to supplement the record. On April 16, 2019, petitioners filed a reply to respondent Town's counterclaim. On April 26, 2019, respondent Town filed oppositions to petitioners' motion for leave to file an amended motion for trial of the facts and motion to file a second amended complaint. On May 6, 2019, petitioners filed a motion for recusal of the presiding justice and a motion for clarification and to consolidate hearings on the complaint with the counterclaim. On May 8, 2019, petitioner filed a reply to respondent Town's opposition to the motion to amend the motion for a trial of facts and respondent Town's opposition to the motion for leave to file a second amended complaint. By order dated July 26, 2019, the court denied petitioners' motion to file a second amended complaint, petitioners' motion to amend their motion for a trial of facts or to supplement the record, petitioners' motion for recusal, and petitioners' motion to consolidate hearing on the Rule 80B complaint and respondent Town's counterclaim.
Rule 80B Motion
In a Rule 80B proceeding, the court reviews the "local agency's decision for abuse of discretion, errors of law, and findings not supported by the evidence." Beal v. Town of Stockton Springs, 2017 ME 6 ¶ 13, 153 A.3d 768 (quotation marks omitted). "The party seeking to overturn the decision bears the burden of persuasion." Aydelott v. City of Portland, 2010 ME 25. ¶ 10, 990 A.2d 1024.
Rule 80B(e) states:
(e) Record.
(1) Preparation and Filing Responsibility. Except where otherwise provided by statute or this Rule, (i) it shall be the plaintiffs responsibility to ensure the preparation and filing with the Superior Court of the record of the proceedings of the governmental agency being reviewed, and (ii) the record for review shall be filed at the same time as or prior to the plaintiffs brief. Where a motion is made for a trial of the facts pursuant to subdivision (d) of this Rule, the moving party shall be responsible to ensure the preparation and filing of the record and such record shall be filed with the motion.
(2) Record Contents. The parties shall meet in advance of the time for filing the plaintiffs brief or motion for trial of the facts to agree on the record to be filed. Where agreement cannot be reached, any dispute as to the record shall be submitted to the court. The record shall include the application or other documents that initiated the agency proceedings and the decision and findings of fact that are appealed from, and the record may include any other documents or evidence before the governmental agency and a transcript or other record of any hearings. If the agency decision was based on a municipal ordinance, a state or local regulation, or a private and special law, a copy of the relevant section or sections from that ordinance, regulation, or private and special law, shall be included in the record. For appeals from decisions of a municipal agency, a copy of the section or sections of the municipal ordinance that establish the authority of the agency to act on the matter subject to the appeal shall also be included in the record. Copies of sections of the Maine Revised Statutes shall not be included in the record.
In lieu of an actual record, the parties may submit stipulations as to the record; however, the full decision and findings of fact appealed from, and the applicable ordinances, regulations, or private and special laws as detailed above shall be included.M.R. Civ. P. 80B(e). The only record included with petitioners 8OB brief was a transcript of the October 8, 2018 hearing where the Board upheld the CEO's NOV. See Ram's Head Partners. LLC v. Town of Cape Elizabeth, 2003 ME 131, ¶ 18, 834 A.2d 916 ("[I]t is generally the responsibility of the appellant to see that a proper record is preserved for appeal."). Petitioners failed to submit as part of the record "the application or other documents that initiated the agency proceedings and the decision and findings of fact that are appealed from" as required by Rule 80B(e). M.R. Civ, P. 80B(e). Petitioners failed to include any exhibits relied upon by the Board or exhibits presented to the Board during the hearing or any local ordinances that were at issue in this appeal. Without the inclusion of these documents in the record, the court cannot conduct any meaningful review of the Board's decision to uphold the CEO's NOV. See Penkul v. Town of Lebanon, 2016 ME 16, ¶ 18, 136 A.3d 88. Additionally, petitioners' brief contains no citations to the limited record they did provide to support their claims.
Because petitioners have failed to comply with the requirements of Rule 80B(e), this court cannot determine that the Board's decision to uphold respondent CEO's NOV was arbitrary and capricious, or constituted an abuse of discretion, error of law, and/or findings not supported by substantial evidence as petitioners allege in their Rule 80B complaint. M.R. Civ. P. 80B(e); see Penkui, 2016 ME 16 ¶ 18, 136 A.3d 88. Petitioners failed to meet their burden. See Aydelott, 2010 ME 25, ¶ 17, 990 A.2d 1024.
The entry is
The Decision of Respondent Town of Cumberland's Board of Adjustments and Appeals is AFFIRMED.