Gorham Sand & Gravel v. Town of Sebago

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STATE OF MAINE SUPERIOR COURT
CUMBERLAND, ss CIVIL ACTION
DOCKET NO. CV-22-32

GORHAM SAND & GRAVEL,

Plaintiff,

v. COMBINED ORDER

TOWN OF SEBAGO,

Defendant,

Before the Comt are two pending motions by Petitioner Gorham Sand & Gravel ("GSG").

GSG has filed a Motion for Reconsideration of the Court's dismissal of Count I and a Motion for

Leave to Amend the Pleadings. For the following reasons, the Court denies both motions.

On March 2, 2023, the Court issued a Combined Order addressing three motions: a Motion

for Trial by GSG, a Motion to Dismiss by the Town of Sebago (''Town"), and a Motion to Dismiss

by nonpa1ties Marcella and Robert Lalibe1te. In response to the Town's motion, the Court

dismissed Plaintiff's Count I, a M.R. Civ. P. 80B Petition for Review of the decision of the Town

Zoning Board of Appeals ("Board") remanding an application to the Town Planning Board. This

Court dismissed Count I after determining there was no final judgment to review. Now, in its

Motion for Reconsideration, GSG argues that the Court should reconsider its dismissal ofthe Rule

80B petition because the Court committed error, new information is available, and GSG has

clarified when the Board was established such that 30-A M.R.S. § 2691 (3)(C) applies. In its

Motion for Leave, GSG seeks leave to add three declaratory judgment claims to its complaint.

I. Motion for Reconsideration

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Plaintiff-Bruce Hepler, Esq.I I
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Benjamin Hartwell, Esq. :f
Defendant-John Wall, Esq.
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"A motion for reconsideration of an order 'shall not be filed unless required to bring to the

court's attention an error, omission or new material that could not previously have been

presented."' U.S. Bank Na/'/ Ass'n. v. Mann;ng, 2020 ME 42,, 34,228 A.3d 726 (quoting M.R.

Civ. P. 7(b)(5)). A motion for reconsideration of the judgment is n·eated as a motion to alter or

amend the judgment. M.R. Civ. P. 59(e). Civil Rule 7(b)(5) is intended to deter litigants from

raising points that were or could have been presented to the court before the underlying decision

issued. Roa/svik v. Comack, 2019 ME 71, 13, 208 A.3d 367 (citing Shaw v. Shaw, 2003 ME 153,

,117-8, 12,839 A.2d 714).

GSG first argues that the Court erred by basing its conclusion about the standard of review

on GSG's failure to provide the date of fonnation of the ZBA. The Court concludes that GSG's

introduction of the date of formation of the ZBA does not warrant reconsideration. GSG is correct

that the rule applies to town boards of appeals regardless of formation date, see Lamarre v. Town

ofChina, 2021 ME 45,, 5,259 A.3d 764, but GSG assumes that the Court would have found the

judicial economy exception were met if GSG had shown the ZBA used the wrong standard of

review. The Court based its conclusion second prong of the judicial economy exception not only

on the lack of evidence that 30-A M.R.S. § 2691(3)(C) applied but also both on GSG's ability to

raise its grievances once there is a final decision and on its failure to show that immediate review

would serve the interests ofjustice. 1 Therefore, the Court is not persuaded by GSG's argument on

1 See Town ofOtis v. Derr, 200 I ME 151, ~ 7, 782 A.2d 788 (requiring injury caused by a delay). Allhough the Board
recommended that the Town hire at least four experts at GSG I s expense to review findings made by other experts and
opine on the B0ard 1 s questions, the Law Court has stated that "[p]articularly unique circumstances may justify
reaching the merits of an intel'locutory appeal pursuant to the judicial economy exception to the final judgment rule,1'
liberty v. Bennett, 2012 ME 81, ~ 22, 46 A.3d 1141, and the majority of the cases making the exception involve
sensitive family matte1·s. (citing Efstathiou v. The Aspinquic/, Inc., 2008 ME 145, 1[ 23,956 A.2d 110 (dissolulion of
marriage involving children in which the exception was justified by Hthe exceedingly long history of this litigation"
and the "unusual circumstance" of the case); Adoption of Michaela C., 2004 ME 153, ~ 14, 863 A.2d 270 (tlu·ee
proceedings pending in separate courts involving the same party and the proceedings had created a stalemate);
Williams v. Williams, 1998 ME 32, ~ 7, 706 A.2d I03 8 (child custody mailer where the litigalion had been subject to
uinordinate delayi. over two years and a remand wlth instruction for a new tl'ial was pending)); Dep '! of Hum. Servs.

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this point. The Court also declines 'to alter its decision based on the arguments that GSG presents

for a second time. It concludes dismissal of Count I was not errnr.

Next, GSG argues that the Court erred by stating that it was lllldisputed that GSG's

application had not been finally decided by the Planning Board. It argues that because the ZBA's

review and remand were improper, the first Planning Board decision is a final decision. As the

Town points out, the Court's statement refened to the undisputed fact that the application was

remanded and is pending. The ZBA was authorized to remand under ordinance. The Court

concludes that it did not err in stating there was no dispute that the application had not been finally

decided.

Finally, GSG argues that the passage of a new ordinance prohibiting quarries in the area

shows that the interests of justice require immediate review because the Planning Board will

ce1iainly deny the application. The Court concludes that despite the new ordinance, no exception

to the final judgment rnle applies. See Passalaqua v. Passalaqua, 2006 ME 123, ~[ 13 n.3, 908

A.2d 1214 (appellate coutt's hearing matters that may be mooted does not

serve judicial economy). The Court declines to alter its prior decision on this basis and denies the

Motion for Reconsideration.

The Cou1t will however amend its judgment to remove its finding that GSG had not shown

the ZBA was subject to the requirements of§ 2691(3)(C). See Avaunt v. Town ofGray, 634 A.2d

1258, 1260 (Me. 1993) (quoting Mostv. Most, 477 A.2d 250,258 (Me. 1984) (holding a motion

for reconsideration allows a coutt to make amendments to its judgment that are not requested in

the motion)). The caselaw indicates that the rule governing standard of review applies regardless

v. Lowatchie, 569 A.2d t97, 199 (Me. 1990) (applyu1g exception to prevent harassment through duplicative paternity
action),

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of a municipal board's formation date. See Lamarre, 2021 ME 45, ~ 5, 259 A.3d 764; Gensheimer

v. Town ofPhippsburg, 2005 ME 22, f 11,868 A.2d 161.

2. Motion for Leave

GSG seeks leave to add three declaratory judgment claims, addressing the ZBA's review

authority, the rights of GSG with respect to the permit application fee, GSG's vested rights, the

March ordinance change, and procedural due process.

When a party moves for leave to amend its pleading, "leave shall be freely given when

justice so requires." M.R. Civ. P. 15(a). Courts may deny leave to amend based on undue delay,

bad faith, undue prejudice, or futility of amendment. Paul v. Town ofLiberty, 2016 ME 173, ~ 9,

151 A.3d 924 (citing Montgomery v. Eaton Peabody, LLP, 2016 ME 44, ~ 13, 135 A.3d 106).

The exclusivity principle holds that if the Legislature has provided for direct judicial review

of an agency's decision and that remedy is adequate, then direct judicial review of the agency action

is intended to be exclusive. Fisher v. Deane, 433 A.2d 366,372 (Me. 1981). An additional claim

outside of a Rule 80B petition that "relies on the same factual al!egationsO and seeks the same

relief' as the requested review of agency action is duplicative and barred by the exclusivity

principle. Kane v. Comm 'r ofDep 't ofHealth & Hum. Servs., 2008 ME 185, ~ 32, 960 A.2d l 196;

see also Antler's Inn & Rest., LLC v. Dep 't ofPub. Sclfe/y, 2012 ME 143, ~ 14, 60 A.3d 1248 (citing

Gorham 11. Androscoggin Cnty., 2011 ME 63, 1 22, 21 A.3d 115) (affirming dismissal of

independent claims that were within the scope of review under the Maine AP A and Rule 80C).

111e Court concludes at this point that GSG's amendments would be futile because they

can be raised in the context of a timely 80B appeal, and therefore the exclusivity principle bars

them. The Court denies this motion without prejudice to raising it again if circumstances change.

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The entry is

I. Plaintiffs Motion for Reconsideration is DENIED. The Court's 3/2/23 Combined
Order is AMENDED at page 5, to remove the following language, beginning in the
second paragraph and continuing to the first word of the third paragraph:

GSG has not shown that the de nova review was improper. See 30-A
M.R.S. § 269l(C)(3) (stating that when a board of appeals established
after September 23, 1971 is directed to conduct an appellate review rather
than de nova, the board may not accept new evidence). If the Court were
to apply the cited statute, it is unclear whether it would govern the ZBA
because it is not clear from the current record when the ZBA was
established.
Moreover,

2. Plaintiffs Motion for Leave is DENIED without prejudice.

The clerk is directed to incorporate this order onto the docket by reference. M.R. Civ. P. 79(a).

Date:_ _ ~:r~I_,_}~;,-_?~
M. Michaela Murphy
Justice, Maine Superio1· Court

C STATEOFM
umber/and AINE
. ss, Clerk's Offlce

JUL o
6 2023 q'. 35/l fr\
RECEIVED

Entered on the Docket:. D1 fo1{i3
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