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MAINE SUPREME JUDICIAL COURT SITTING AS THE LAW COURT
LAW COURT DOCKET NO. LIN-17-165
KATHLEEN BRYANT and THOMAS BRYANT, Plai11tiffs/ Appe/la11ts
-v .. -
TO\VN OF WISCASSET, ALLEN COHEN, 1\-IELISSA COHEN, and BIG AL'S OUTLET, INC.,
Defe11da11ts/Appel/ees
On Appeal from the Lincoln County Superior Court
BRIEF OF APPELLANTS
Jonathan A. Pottle, Esq., l\llaine Bar No. 4330 Patrick \:V. Lyons, Esq., Maine Bar No. 5600
EATON PEABODY 80 Exchange Street
P.O. Box 1210 Bangor, Maine 04402"1210
(207) 947-0111
Attor11eys for Plaintiffs/ Appellants Katlileen Brya11t and Thomas Bryant
TABLE OF CONTENTS
TABLE OF AUTHORITIES .................................................................... iii
STATEMENT OF FACTS & PROCEDURAL HISTORY ........................ 1
I. lVIatters Before the Wiscasset Planning Board & \¥iscasset Boa1·d of Appeals .................................................... 2
IL Communication with the State Fire Marshal's Office ........... 7
III. Appeal to the Supel"ior Court ................................................. 7
STATEMENT OF ISSUES PRESENTED ON APPEAL ......................... 9
SUMMARY OF ARGUMENT & STANDARD OF REVIEW ................. 10
ARGUl\llENT ........................................................................................... 15
I. The Trial Cout-t Ert·ed in Dismissing Plaintiffs' Declaratot-y Judgment Action by Determining that a Letter from the State Fire Mat·shal's Office was a Final Agency Action \Vithin the Meaning of the Maine Administrative Procedures Act ............................................ 15
A. A Lette1· from Tim Fuller at the State Fire l\llarshal's Office was not properly before the Trial Cout-t, as Materials outside the Pleadings at·e not Permitted for a 12(b)(6) Motion to Dismiss ................ 15
B. Tim Fuller's Letter is not a "Final Agency Action" under the Maine Administrative Pt•ocedures Act ....... 17
1. No Administrative Adjudicative Process Exists Rega1·ding Storage of Consumer Fireworks to Invoke "Final Agency Action." ................................ 17
i
2. The Fuller Lettet· is Not Dispositive of any Legal or Factual Issue and Determined no Rights or Obligations of the Parties ....................... 20
3. Informal Agency Action, such as a Letter, is not "Final Agency Action." ...................................... 22
IL The Trial Court EtTed in Upholding the Wiscasset Planning Board's Approval of the Cohen's Fireworks Storage Building in the Town of Wiscasset ........................ 26
A. Storage of Haza1·dous Materials is a Use that Requires Planning Board Approval in Accordance with the Wiscasset Site Plan Review Standards ........ 26
B. The Wiscasset Site Plan Review Standards Requit·e Hazardous Materials to be Stored in Compliance with NFPA 1124 "Storage of Consumer Fu:eworks," which Prohibit Fireworks \iV are houses in Residential Areas ............................... 27
C. The Trial Court's Finding that the State Fire Marshal Office "Approved" and "Inspected" the Proposed W at·ehouse Expansion is not Supported by Substantial Evidence in the Record ....................... 34
D. The Trial Court E1·red in Holding the Bt-yants Did Not Suffer A Deprivation of Due Process Under the United States 01· Maine Constitution ........ 36
E. The Trial Court Erred in Determining that Allen Cohen did not Violate Maine's Conflicts of Inte1·est La\v ................................................................ 39
CONCLUSION ........................................................................................ 40
CERTIFICATE OF SERVICE ................................................................ 41
ii
TABLE OF AUTHORITIES
Cases
Alternative Energy, Inc. u. St. Paul Fire & Marine Ins. Co., 267 F.3d 30 (1st Cir. 2001) ..................................................................... 16
Annable u. Bd. of Enutl. Prot., 507 A.2d 592 (Me. 1986) ................................................................... 24, 25
Bailey u. Dep't of Maine Res., 2015 ME 128, 124 A.3d 1125 ................................................................. 20
Balian u. Bd. of Licensure in Medicine, 1999 l\ifE 9, 722 A.2d 364 ....................................................................... 36
Bard u. Lord, 2010 ME 48, 997 A.2d 101 ..................................................................... 32
Brul~ u. Town of Georgetown, 436 A.2d 894 (Me. 1981) ........................................................................ 13
Center for Auto Safety v. National Highway Traffic Safety Admin., 452 F.3d 798 (D.C. Ci1·. 2006) ................................................................ 24
Duffy u. Town of Berwick, 2013 ME 105, 82 A.3d 148 ...................................................................... 38
Fisher v. Dame, 433 A.2d 366 (Me. 1981) .................................................................... 18, 19
Gorharn u. Town of Cape Elizabeth, 625 A.2d 898 (Me. 1993) ......................................................................... 38
Hall v. Bd. of Enutl. Protection, 498 A.2d 260 (Me. 1985) ......................................................................... 12
Heber u. Lucerne-in-A1aine Vill Corp., 200 ME 137, 775 A.2d 1064 .................................................................... 12
Help-U-Sell, Inc. v. Maine Real Estate Conim'n, 611 A.2d 981 (l.Vle. 1992) ................................................................... 24, 25
In re Alexander D., 1998 ME 207, 716 A.2d 222 ................................................................... 36
In re Kristy Y., 2000 ME 98, 752 A.2d 166 ..................................................................... 37
In re Magro, 655 A.2d 341 (lVfe. 1995) ........................................................................ 15
Lane Constr. Corp., 2008 ME 45, 942 A.2d 1202 .................................................................... 38
Lyons v. Bd. of Directors of Sch. Adtnin. Dist. No. 43, 503 A. 2d 233 (Me. 1986) ........................................................................ 24
Martin v. Unemployment Ins. Com'n, 1998 l.VIE 271, 723 A.2d 412 ................................................................... 36
Mathews v. Eldridge, 424 U.S. 319 (1976) ................................................................................ 36
McAfee v. Cole, 637 A.2d 463 (Me. 1994) ........................................................................ 12
Moody v. State Liquor & Lottery Comm 'n, 2004 IvIE 20, 843 A.2d 43 .................................................................. 16, 17
National Min. Ass'n v. !YlcCarthy, 758 F.3d 243 (D.C. Cir. 2014) ........................................................... 24, 25
Nicholson v. Prudential Ins. Co. of Am., 235 F. Supp. 2d 22, (D. l.Vle. 2003) ......................................................... 16
Rockland Plaza Realty Corp. v. La Verdiere's Enters., Inc., 531 A.2d 1272 (l.\'Ie. 1987) ...................................................................... 31
iv
Secure Envt. u. Norridgewock, 544 A.2d 319 (l'Vle. 1988) ........................................................................ 36
State v. Moulton, 1997 ME 228, 704 A.2d 361 ................................................................... 32
Wyrnan u. Town of Phippsburg, 2009 ME 77, 976 A.2d 985 ..................................................................... 13
Public Laws, Statutes and Regulations
P.L. 2001, ch. 416 § 5 .............................................................................. 17
5 M.R.S. § 8002 ....................................................................................... 20
5 M.R.S. § 9001 ....................................................................................... 23
5 M.R.S. § 11001-11008 .......................................................................... 24
8 !vI.R.S. § 221-227 .................................................................................. 18
8 M.R.S. § 221A ....................................................................................... 27
8 M.R.S. § 223-A ............................................. 10, 11, 12, 18, 28, 31, 32, 33
8 Iv1.R.S. § 227-A ...................................................................................... 18
14 M.R.S. § 5953 ..................................................................................... 24
30-A M.R.S. § 2605 .................................................................................. 39
16-219 C.M.R. ch. 25 § 2 .................................................................... 28, 31
16-219 C.l\il.R. ch. 36 § 2 ......................................................................... 18
National Fire Protection Association (NFPA) 1124 (2006 ed.) .......... .4, 10, 12, 13, 18, 22, 28, 29, 30, 31, 33, 34, 35
v
27 CRF § 555.11 ...................................................................................... 27
49 CRF § 172.101 .................................................................................... 28
Rules
M.R.Civ.P. 12 .............................................................................. 15, 16, 17
M.R.Civ.P. SOB ......................................................... 7, 8, 10, 11, 12, 13, 16
M.R.Civ.P. SOC ............................................................................. 19, 24, 25
M.R. Evid. 20 I .......................................................................................... 32
Other Authorities and Treatises
lVIerti.am-Webster's Collegiate Dictionary (11th ed.) .............................. 29
vi
STATEMENT OF FACTS & PROCEDURAL HISTORY
This is an appeal from a Superior Court decision regarding
storage of consumer fireworks in a wa.i·ehouse on property that abuts
the residence of Kathleen and Thomas B1j'ant's ("the B1yants") at 2
JB's Way in the Town of Wiscasset.
In the summer of 2013, the Defendant-Appellees Allen and
Melissa Cohen ("the Cohens") began to sto1•e consumer fireworks in an
existing warehouse at 2 JB's Way in Wiscasset, Maine, which abuts the
Bryants' residence. App. at 95, 112-113. Historically, the warehouse
was used to store general merchandise for the Cohen's retail business -
Big Al's - which the Bryants did not object to. App. at 112-117. The
storage of fireworks, however, a hazardous material with highly
flammable and explosive characteristics, presents significant safety and
property value conce1·ns that compelled the B1-yants to oppose the
storage of these materials. (Id.)
Indeed, there is only one access point to the B1yants' residence,
which requires the Bryants to travel within 16 feet of the ffreworks
warehouse. App. at 156. Additionally, there is a high density of
i·esidential use in and around the area su1·rounding JB's \¥ay, with over
Page 1of41
a dozen homes abutting and across the street from the fireworks
warehouse, and over 50 homes up and down Birch Point Road in close
p1·oximity to the warehouse. Id.
I. Matters Before the Wiscasset Planning Board & Wiscasset Board of Appeals
The Cohens began storing fireworks in the warehouse in the
summer of 2013 without any prior approvals from the Town of
Wiscasset. App. at 112-113. At that time, the Bryants inqull:ed of the
Town as to the legality and absence of approvals for the storage of
consumer fu·eworks, but were informed that there was nothing they
could do, notwithstanding the Wiscasset Code requirements that
mandate a site plan review and approval permit from the Planning
Board for such a conversion of use of property. App. at 112-113, 56.
(Wiscasset, Me., Ordinances, Art. VI, § 3 "Matrix of Perniitted Uses",
listing Hazardous matet-:ials manufactu1-:i.ng/storage/distribution as a
use that requires Planning Board app1·oval.)
Approximately one year later, on 01· about August 28, 2014, the
Cohens submitted a Site Plan Review Application to the Wiscasset
Planning Board to (1) expand the size of the fireworks warehouse
(aln1ost doubling its footpt-:i.nt); and (2) utilize the warehouse as
Page 2 of 41
expanded for the storage of consumet· fireworks for the benefit of Big
Al's Outlet, Inc. App. at 81, pp. 1-10.
The Planning Board scheduled a public hearing on the Cohen
application on September 8, 2014, which the Bryants received written
notice of, though no mention of fit·eworks was in the notice. App. at
106. At that hearing, Allen Cohen advocated for approval of the
application to the Planning Board, arguing that it met all Site Plan
Review and othel· applicable standards of the Wiscasset ot·dinances.
App. at 109-126. Prior to doing so, Allen Cohen, who is also a member
of the Planning Boat·d, recused himself, but then proceeded to pt·osecute
his application through direct advocacy to the Planning Board. App. at
107-108. Karl Olson, the Cohen's surveyor for the proposed fireworks
wat·ehouse expansion, recused himself from the Planning Board during
the Cohen's application. (Id.). The Bryants opposed the Cohen
application, expressing their considerable concerns of having consumer
fireworks stored right next to their home and the numet•ous other
homes in the area. App. at 109-126.
Page 3 of 41
The Planning Board ultimately voted to approve the Cohen
application at the September 8 meeting, and issued its written decision
on September 22, 2014. App. at 34-36, 107-108.
On October 1, 2014, the B1yants, as petitionet·s, filed an
administrative appeal of the Planning Board's decision with the
Wiscasset Board of Appeals, arguing: (1) that the Planning Board erred
by failing to review the Cohen's application against all applicable legal
standards, including National Fire Protection Association Standard
1124 ("NFPA 1124"); (2) that the Planning Board's determination that
the State Fire Marshal had "approved" and "inspected" the building and
expansion was based on findings that are not supported by substantial
evidence in the record; and (3) that Mr. Cohen, a member of the
Planning Board, violated lVIaine's conflicts of interest law by personally
advocating for approval of his application. App. at 129-135. At a purely
appellate hearing held on October 23, 2014, the Board of Appeals,
finding there was no record evidence to support positive findings to
store consume1· ffreworks in the warehouse, remanded the matter to the
Planning Boat·d with instructions to perform a reconsideration. App. at
136-138.
Page 4 of 41
On November 10, 2014, the Planning Board held a hearing to
reconsidet· the Cohens' application for site plan review. App. at 153.
The Bryan ts were not sent notice of the meeting and did not appear, but
because a quorum was not present, no vote was taken by the Planning
Boa1•d. (Id.) Subsequently, on November 24, 2014, again without notice
to the Bryants, the Planning Board took up the Cohen fll-eworks
wa1·ehouse as a business item and voted to re-affirm its decision of
September 22, 2014. App. at 154. The Bryants did not attend this
meeting when the Planning Board decided to re-affirm its prior decision
because they had not been provided with notice. App. at 155. No
written decision was issued. App. at 26.
After discovering the Planning Boa1·d had re-affirmed its prior
decision at the November 24 hearing, the Bryants (1) wrote a letter to
the Planning Board on December 10, 2014, asset·ting that the matter
should be fully reconsidered for lack of notice to them; and (2) filed a
second administrative appeal application with the Board of Appeals on
Decembet· 22, 2014, incorporating their prior appeal claims and
asserting a due process claim for lack of notice and opportunity to be
Page 5of 41
heard at the November 10 and 24 Planning Board meetings. App. at
157-161.
During the pendency of the Bryants' second administrative appeal
application, the Planning Boru·d scheduled a meeting on January 12,
2015 to take up the Cohen fireworks warehouse as a business item.
App. at 162. In a letter to the Bryants dated December 23, 2014, the
Chair of the Planning Boat·d stated the Town was not required to
provide them with notice of the Planning Boat·d's November 10 and 24
remand hearings, but informed them the Planning Boa1•d would again
take up the Cohen Application at the January 12 meeting. (/d.) The
Chair of the Planning Board also stated it had accepted new
information from Allen Cohen, a "Valuation Repot1." that contained
notations made back in the summer of 2013 regru·ding the original
warehouse (not the proposed expansion filed in August, 2014). (Id.)
This document is the asset1.ed "approval" and "inspection" of the State
Fire Marshal's Office l'egarding the proposed expansion to the fireworks
warehouse. App. at 34-36. The Bij'ants, fully reserving their rights,
attended the January 12, 2015 meeting and, inter alia, reiterated their
objections to the unlawful storage of fireworks in a residential area of
Page 6of 41
the Town. App. at 167-179. Ai> before, the Planning Board re-affirmed
its prior written decision of September 22, 2014. App. at 167-168.
The Board of Appeals held another pw·ely appellate hearing on
the Bryants' second administrative appeal application on lVIarch 19,
2015, and ultimately decided to uphold the Planning Board's written
decision, notwithstanding the Planning Boat·d's failure to reconsider the
application as previously instructed. App. at 25-33. On March 24,
2015, the Board of Appeals issued its Notice of Decision, denying the
Bryants' appeal.
II. Communication with the State Fire Marshal's Office
On November 10, 2014, Jon Pottle, counsel for the Bryants, wrote
a letter to Timothy Fuller at the Office of State Fire Marshal, apprizing
Mr. Fuller of the Bryants' concerns t•egarding the fireworks warehouse
on JB's Way and seeking a dialog with the State Fire Marshal. App. at
141-152. Mr. Fuller responded with a letter to Mt·. Pottle dated
February 24, 2015 ("Fuller Letter"). App. at 181-182.
III. Appeal to the Superior Court
On December 23, 2014, the Bryants filed a complaint with the
Superior Court pursuant to l\!Iaine Rule of Civil Pt·ocedure 80B. On
Page 7 of 41
January 22, 2015, the Bt'Yants filed a motion with the Superior Court
for a trial of facts on their Rule 80B appeal, but after learning that the
Wiscasset Board of Appeals would hold a heal'ing on their second
administrative appeal, the B1-yants moved to stay the SOB appeal on
January 29, 2015. Following the IVIarch 24, 2015 Board of Appeals
Notice of Decision, the Bryants field an amended 80B appeal complaint
on April 17, 2015.
On June 3, 2015, the Superior Court issued an order denying the
B1'Yants' motion for a trial of facts, but granting in part their motion to
specify the future course of proceeds, ordering that the B1-yants' Rule
SOB appeal and claims for violations of due process under the United
States and Maine Constitutions would be considered together, while
staying the Bryants' Declaratory Judgment action.
Following briefing by the parties, on September 21, 2016, the
Superior Court issued an 01·der denying the B1-yant's SOB appeal. App.
at 8, pp. 16-17. Following that orde1-, the B1-yants filed a Motion to
Specify Fu1-ther P1·oceedings requesting a scheduling order with respect
to theil' Declaratory Judgn1ent action. In response, the Cohens moved
to dismiss Plaintiffs' Declaratory Judgment action arguing, inter alia, a
Page 8 of 41
letter w1·itten by Timothy Fuller of the State Fire I\i'.fat·shal's Office is a
"final agency action'' that was not appealed, preventing the Court from
exercising its authority under the Maine Uniform Declaratory
Judgments Act. The Superior Court ultimately granted the motion to
dismiss. Cohens' Mot. to Disrniss at 3. The Bryants appealed then to
this Court on April 19, 2017.
STATEMENT OF ISSUES PRESENTED ON APPEAL
1. Whether the trial court en·ed in dismissing Plaintiffs' declaratory
judgment action by determining that a letter from the State Ffre
Marshal's Office was a final agency action within the meaning of the
Maine Administrative Pt·ocedures Act.
2. Whether the trial court en·ed in upholding the vViscasset Planning
Board's approval of Defendants Allen Cohen, Melissa Cohen, and Big
Al's Outlet, Inc.'s fireworks storage building in the Town of
Wiscasset.
3. \iVhether the trial court erred in holding the Bryants did not suffet· a
deprivation of due process under the United States or lVlaine
Constitution.
Page 9 of 41
4. Whether the trial court erred in determining that Allen Cohen did
not violate lVIaine's conflicts of interest law.
SUMMARY OF ARGUMENT & STANDARD OF REVIEW
Storage of consumer firewot·ks in residential at·eas is p1·ohibited
under NFPA 1124, which is a statutory requirement pursuant to 8
M.R.S. § 223-A(4){A). This statute specifically states that a building
"must be consti·ucted, maintained and operated, and all consumer
fireworks must be stored, in compliance with the requi1·ements of
National Ffre Protection Association Standa1·d 1124, as adopted by the
Office of the State Ffre l\tlarshal, i·elevant building codes, zoning
ordinances and othet• municipal ordinances." 8 M.R.S. § 223-A(4){A)(l).
The State Fire lVIarshal has adopted NFPA 1124 (2006 edition) as a
regulation, and the Town of \IViscasset has chosen to regulate consumer
fu·eworks in accordance with 8 M.R.S. § 223-A(2)(D), (4).
In this case, no authority has yet to address whether storage of
consumer fireworks in the warehouse at JB's Way is in compliance with
NFPA 1124 - specifically the prohibition against storing consumer
fireworks in residential areas. The Town of Wiscasset claims it is
purely a State mattet·, notwithstanding its election to regulate
Page 10 of 41
consumer fireworks in accordance with 8 ~1.R.S. § 223-A(2)(D), (4) and
its Site Plan review standards that cover hazat·dous materials (which
include consume1· firewot·ks). The State Fire Ma1·shal's Office appears
to believe the issue of storing consumer fireworks in residential areas is
a local matter. With no State statutory permitting process concerning
the storage of consumet· fi1·eworks, and the Town's view that it is purely
a State matter, the B1·yants have been left with no recourse but the
judiciary through a Rule SOB Appeal (Town Decision) and a Declaratory
Judgment Action (seeking a decla1·ation under Maine's Uniform
Declaratory Judgments Act since no state administrative process exists
for addressing storage of consumer fireworks).
In this respect, the trial court erred by dismissing the Bryants'
Declaratory Judgment action. It erred procedurally by considering
matters outside the pleadings when no exception applied; and it erred
substantively by determining a con•espondence letter from the State
Fire Marshal's Office was "final agency action," when (1) no
administrative process existed in the first instance, (2) the letter was
not dispositive of any legal or factual issue and did not determine the
Page 11of41
rights or obligations of any of the parties involved, and (3) such
documents a1·e, at most, advisory rulings.
"In reviewing a dismissal, we [the Law Cou1·t] examine the
complaint in the light most favorable to the plaintiff to determine
whether it sets forth elements of a cause of action or alleges facts that
would entitle the plaintiff to i·elief pursuant to some legal theory."
fleber v. Lucerne-in-Maine Vill. Col'p., 2000 ME 137, ii 7, 755 A.2d 1064
(quoting McAfee v. Cole, 637 A.2d 463, 465 (Nie. 1994)). "A dismissal
should only occu1· when it appears 'beyond doubt that a plaintiff is
entitled to no relief undei.· any set of facts that he might prove in
support of his claim."' McA{ee, 637 A.2d at 465 (q1toting Hall v. Bd. of
Envtl. Pl'otection, 498 A.2d 260, 266 (Me.1985)).
With t•espect to the Rule 80B Appeal, the trial court erred by
determining the Wiscasset Planning Boa1•d was not obligated to
consider NFPA 1124 in siting the Cohens' consumer fireworks
warehouse. The Town has expressly elected to regulate consumer
fu·eworks, and is thus requi.J:ed under 8 M.R.S. § 223-A(2)(D), (4) to
ensure that all firewo1·k storage buildings comply with NFPA 1124.
Page 12 of 41
This is in addition to specific Site Plan review standards that address
hazardous materials such as consumer fireworks.
Further, no competent evidence existed to demonstrate
compliance with NFPA 1124. A tax "Valuation Report" with
handwriting on it indicating "pt·eliminary review," which pre-dated and
thus did not addt·ess the proposed application at issue, is not t•easonable
evidence to demonstrate compliance with NFPA 1124 and its
prohibitions on consumer firewo1·ks storage in residential areas.
Indeed, the only competent record evidence is the lai·ge number of
homes that surround and a1•e in close proximity to the Cohens'
fireworks warehouse. This evidence shows the surrounding area is
residential and therefore storage of consumer fireworks is pt·ohibited.
When reviewing a Rule SOB appeal, the Law Court directly
reviews the operative decision of the municipality below for an abuse of
discretion, errors of law, or findings of fact not supported by substantial
evidence in the record, since the Superior Court is an intermediate
appellate court. See, e.g., Wyman v. Town of Phippsburg, 2009 IVIE 77, iJ
8, 976 A.2d 985, 987; see also Bruk v. Town of Georgetown, 436 A.2d
894, 897 (Me. 1981).
Page 13 of 41
Last, the tt·ial court erred in determining the Bryants did not
suffer a deprivation of due process and that Allen Cohen did not violate
Maine's conflict of interest laws. The B1-yants were not provided notice
of two Planning Board meetings regarding Cohen's application in which
the Wiscasset Board of Appeals directed a reconsidet·ation, and a
putative "make up" meeting did not afford the Bryants any meaningful
oppot·tunity to be heard, introduce evidence, 01· respond to claims and
evidence regarding the matters under review by the Planning Board, as
the Board had ah-eady made its determination. l\/Ioreover, though Mr.
Cohen - a member of the Planning Boa1·d - i·ecused himself from voting
on his application, he did not refrain from atte1npting to influence the
Planning Board's decision and directly advocated in a matter which he
had a statutory economic interest.
For each of these reasons and those stated below, the trial court
erred in (1) dismissing the Bryants' Declaratory Judgment action; and
(2) upholding the Wiscasset Planning Board's approval of the Cohen
fireworks warehouse.
Page 14 of 41
ARGUMENT
I. THE TRIAL COURT ERRED IN DISMlSSING PLAINTIFFS' DECLARATORY JUDGMENT ACTION BY DETERMINING THAT A LETTER FROM THE STATE FIRE MARSHAL'S OFFICE WAS A FINAL AGENCY ACTION WITHIN THE MEANING OF THE MAINE ADMINISTRATIVE PROCEDURES ACT.
A. A Letter from Tim Fuller at the State Fire Ma1·shal's Office was not properly before the Trial Court, as Materials Outside the Pleadings a1·e not Permitted for a 12(b)(6) Motion to Dismiss.
No standa1·d supporting dismissal was referenced in the Cohens'
November 17, 2016 motion to dismiss, and the trial court erred in
treating the motion as invoking subject matter jurisdiction. The nature
of the Defendants' argument invoked Maine Rule of Civil Procedui·e
12(b)(6) ("failure to state a claim upon which relief can be granted"),
and as such the standard applies that matters outside the pleadings are
improper for 12(b)(6) motions to dismiss. See, e.g., In re Magro, 655
A.2d 341, 342 (Me. 1995); M.R. Civ. P. 12(b) ("If, on a motion asse1·ting
the defense numbered (6) to dismiss for failure of the pleading to state a
claim upon which relief can be granted, matters outside the pleading
are p1·esented to and not excluded by the court, the motion shall be
tt·eated as one for summary judgment ... ").
Page 15 of 41
The Cohen's attached a letter from Timothy Fuller of the State
Fire lVIarshal's Office ("the Fuller Letter") to their motion to dismiss
that was (1) not part of the administrative record pertaining to
Plaintiffs' Rule SOB Appeal, as confirmed by the trial court's prior order;
and (2) not part of Plaintiffs' complaint. See App. at 8, pp. 5-6 n. 1-2. It
was therefore clearly outside the pleadings. As a consequence, the
Cohen's motion to dismiss, which solely relied on this letter, failed on
this basis alone.
lVIoreover, the Fulle1· Lette1· is just that: a lette1·, which does not
properly fall within any limited exception for Rule 12(b)(6) motions.
See, e.g., Moody v. State Liquor & Lottery Comm'n, 2004 ME 20, ,10,
843 A.2d 43 (limiting documents outside the pleadings to include
"official public documents, documents that are central to the plaintiffs
claim, and documents refetTed to in the complaint, without converting a
motion to dismiss into a motion for a summary judgment when the
authenticity of such documents is not challenged") (citing Nicholson v.
Prudential Ins. Co. of Am., 235 F. Supp. 2d 22, 26 n. 2 (D. Me. 2003);
Alternative Energy, Inc. v. St. Paul Fire & Marine Ins. Co., 267 F.3d 30,
33-34 (1st Cir. 2001)).
Page 16 of 41
Acco1·dingly, since con:espondence from an administt·ative agency
l'epresentative is outside the pleadings and does not fall within any of
the limited exceptions outlined in Moody, the Cohen's arguments
i·egarding the Fuller Letter were not properly before the trial court in a
Rule 12(b)(6) motion to dismiss.
B. Tim Fuller's Letter is not a "Final Agency Action" under the Maine Administrative Procedure Act.
In addition to the above procedural deficiencies, the tl"ial court
erred in approving the Cohen's motion to dismiss, as it fails on the
merits.
1. No Administrative Adjudicative Process Exists Regarding Storage of Consumer Fireworks to Invoke "Final Agency Action!'
Ffrst, the trial court erred in determining the Fuller Letter
constitutes final agency action, as no State administrative process
exists in the fu·st instance to administratively adjudicate the Cohen's
and Bryants' rights concerning storage of consumer fireworks at JB's
Way.
The storage of consumet· fireworks in Maine was previously illegal
until January 1, 2012. P.L. 2011, ch. 416 § 5. As part of authorizing
legislation in 2012, the Maine Legislature allowed storage of consumer
Page 17 of 41
fireworks provided certain statutory requirements were met. See 8
l\II.R.S. § 223-A(4)(A) th.t·ough (E).
The Legislature, however, did not establish any permitting or
licensing process for storage of consumer fireworks in its authorizing
legislation - especially under the circumstances here in which sto1·age
of consumer fireworks is on a wholly separate property from where they
are sold. See 8 M.R.S. §§ 221-227; cf. 8 M.R.S. § 227-A (specifically
providing a permit process for fireworks displays, demonstrating the
Legislatut·e undet·stands when and how to provide for an administrative
process). Likewise, no permitting or licensing process exists for storage
of consumer fireworks by regulation under these circumstances.I See
16-219 C.M.R. ch. 36, § 2 (omitting any permit process for storage of
consumer fireworks and instead simply incorporating NFPA 1124, the
same consumer fu·ewo1·ks sto1·age standards incorporated by refe1·ence
by the Legislature in 8 lVI.R.S. § 223-A(4)(A)).
In finding the Fuller Letter to be final agency action, the trial
court cited Fisher u. Dame for the proposition that the "Superior Court
Underscoring that no administrative process exists is the fact that the Cohens did not submit any application to the State Fire Marshal's Office to store consumer fireworks at JB's Way. Further, no administrative process was cited in the Fuller Letrer - further demonstrating that neither the Legislature nor the Fire Marshal's Office established an administrative permitting or licensing process for such circumstances.
Page 18of 41
does not have jurisdiction over claims fot• declaratory judgment where
the legislature has provided an alternative remedy to the conflict
th1·ough appeal of an administrative decision." (Order on Defs.' Mot. to
Dismiss at 2, quoting 433 A.2d 366, 372 (Me. 1981) ("[W]hen a
legislative body has made provision, by the terms of a statute or an
ordinance, for a direct means by which the decision of an administrative
body can be reviewed in a manner to afford adequate remedy, such
direct avenue is intended to be exclusive.")} But as discussed, neither
through statute nor regulation have provisions been made for direct
means by which a lettet· such as the Fuller Letter can be reviewed in a
manner to afford adequate t•emedy. The principle set forth in Fisher is
inapplicable here.
Accordingly, because there is no administrative process to
adjudicate whether the Cohen Defendants' storage of consumer
firewot·ks is indeed prope1-, the1·e can be no "final agency action" or
"decision" to trigget· judicial review in the first instance pursuant to the
Maine Administ1·ative Procedures Act (the "Maine APA") and Rule 80C.
Page 19 of 41
2. The Fuller Letter is not Dispositive of any Legal or Factual Issue and Determined no Rights or Obligations of the Parties.
The trial court also en:ed in finding that the Fuller Letter is
dispositive of all issues and that there is no further recourse within the
Office of the State Fire JY!arshal. The Maine APA defines "final agency
action" as a decision by an agency that (1) "affects the legal rights,
duties or privileges of specific persons," (2) "is dispositive of all issues,
legal and factual," and (3) "fot· which no fw·thet· recout·se, appeal or
review is provided within the agency." 5 M.R.S. § 8002(4); Bailey v.
Dep't of Marine Res., 2015 J\1E 128, ii 5, 124 A.3d 1125. The Fuller
Lettet· is not dispositive of any legal or factual issue, determined no
rights or obligations of the Bryants or the Cohen Defendants, and, as
discussed above, was not the end of recourse with the State Fire
Marshal (because there is no procedural recourse provided by statute or
regulation).
As to its dispositive nature, the Fuller Letter is replete with non-
dispositive language, assumptions, and acknowledgements of a lack of
evidence. App. at 181-182. ("Assuming this provision applies ... "; "I an1
not awai·e of other facilities or structures ... "; "I have not seen any
Page 20 of 41
evidence that ... "; "Assuming 6.2.4 applies in the State of Maine ... "))
IVIoreover, the first and last sentences of the Fuller Letter are telling
regarding its nature; Inspection Superviso1· Fuller starts out by stating
"Thank you fo1· you1· lette1· of Novembe1· 10, 2015," and concludes with
"Please contact me if you have further questions." Mr. Fuller frames
his communication as an ongoing, written conversation, just as the
Bryants' legal counsel did in his proceeding letter to the State Fil:e
l\!Iarshal. App. at 141-146. ("On behalf of the Bryants, we app1·eciate
the State Ffre Marshal's Office review and consideration of this letter.
Rather than pursuing recourse in the courts, I would be happy to
engage in further discussions with your office on this impo1·tant legal
matter that dll:ectly affects the B1·yants and thell: surrounding
neighbo1·s, which also has state-wide implications. Please feel f1·ee to
contact me ... to schedule a time for us to discuss."))
Additionally, in describing the facts surrounding the Bryants'
opposition to the Cohen's application, and the Planning Board's
subsequent reliance on the State Fll:e Marshal's Office "approval" of the
storage of fireworks, the Bryants' legal counsel noted in his letter to Mr.
Fuller that "[i]t is anticipated that Mr. Cohen and/01· the Town will
Page 21of41
solicit your office for a wl"itten approval" of the Cohen's fu·eworks
storage. (Id. at 2.) This statement illustrates the Bryants' intent for
and anticipation of further communications with the State Fil'e lVIarshal
Office. So too does the statement that "[w]e therefore request that the
State Fire Marshal's Office confirm the maximum amount of gross
weight storage [of fireworks) to detet·mine compliance with {the] setback
requirements [ofNFPA 1124]." (Id. at 5)
Finally, it bears emphasis that IVIr. Fuller did not actually send a
letter to either the Bryants or Mr. Pottle,2 and, fundamentally, the
Fuller Letter did not state that it constitutes "final agency action" or a
"decision," nor did it provide the Bryants with any notice of their right
to appeal.
3. Informal Agency Action, such as a Letter, is Not "Final Agency Action."
The final fundamental error 1n the trial court's order is that
lettet·s from administ1·ative agencies such as the Fulle1· Letter are
informal agency action - a completely separate and distinct concept
ft·om final agency action.
? S<:<: Exhibit A to Pl. 's Opp. tu Def. 's Mot. Dismiss, in which Mr. Poule requested Mr. Fuller to actually send the Fuller Letter, which has never occurred.
Page 22 of 41
Administrative agencies frequently provide informal and
nonbinding opinions and advice, including advisory rulings and
opinions, interpretive rulings, and general statements of policy. For
example, the Maine APA specifically i·ecognizes that agencies can
provide "advisory rulings" upon written request ft·om interested persons
"with t·espect to the applicability of any statute ot· rule administered by
that agency" - a common and regular practice employed by l\!Iaine
administrative agencies. 5 IVLR.S. § 9001. With i·espect to the
nonbinding effect of advisory rulings, the Maine APA cannot be clea1•er:
An advisory ruling shall not be binding upon an agency, provided that in any subsequent enforcement action initiated by the agency which inade the i·uling, any person's justifiable reliance upon the ruling shall be considet·ecl in mitigation of any penalty sought to be assessed.
5 f\1.R.S. § 9001 (emphasis supplied).
With no binding effect, the essential quasi-judicial elements of a
"final agency action" do not exist fo1· advisory rulings and opinions.
Such are the circumstances here with the Fuller Letter.
Indeed, this Court has consistently held that agency advisory
rulings and opinions and other info1·mal agency actions are not the
p1·oper subject of judicial review through the Maine AP A or Maine Rule
Page 23 of 41
of Civil Procedure SOC. See, e.g., Annable u. Bd. of Enutl. Prot., 507
A.2d 592, 594-96 (Me. 1986) (rejecting an SOC petition and concluding
the case was not ripe under Maine's Uniform Declaratory Judgments
Act since "there has been no fot·mal invocation of the licensing process,
no enforcement action, and no appeal from an adverse agency
decision .... "); Help-U-Sell, Inc. u. Maine Real Estate Conim'n, 611
A.2d 981, 983 (lVIe. 1992) ("Although the plaintiffs' complaint recites it
is pursuant to 5 M.R.S.A. §§ 11001-11008 (1989) (allowing an appeal to
the Superior Court from an agency decision) and IvI.R.Civ.P. BOC
(providing the procedure for such review), the plaintiffs ag1•ee the action
is one seeking declaratot·y relief pursuant to 14 M.R.S.A. § 5953 (1980)
and properly should be so designated.") (internal citations omitted); cf
Lyons u. Bd. of Directors of Sch. Adniin. Dist. No. 43, 503 A.2d 233, 236·
37 (Me. 1986) (describing the difference between quasi-judicial actions
and those that are not); see also Center for Auto Safety u. National
Highway Traffic Safety Adtnin., 452 F.3d 798, 807-11 (D.C. Cir. 2006)
(stating nonlegislative rules, such as interpretive t•ules and general
statements of policy, lack the "force of law" and therefot·e fail to create
legal consequences), and National Min. Ass'n u. McCarthy, 758 F.3d
Page 24 of 41
243, 251 (D.C. Cir. 2014) (finding policy statements categorically
unreviewable because they lack legal fot·ce).
This Court's prior opinions are consistent with the well-reasoned
policy that informal agency actions are not subject to judicial review
through the Maine AP A or Rule 80C, as otherwise would open the tl"ial
courts to a large volume of administt·ative appeals that have no binding
effect in the first instance.
Accordingly, the Fuller Letter correspondence is, at most, a
nonbinding advisory ruling/opinion that may present relevant evidence
for the tdal court's i·eview of the Appellants' Declaratory Judgment
action. It is not, however, the proper subject of an appeal th.rough the
Maine APA and Rule SOC, as this Court has previously concluded in
Annable and Help U-Sell, Inc., but instead is pt·operly presented to the
trial court pursuant to l\tlaine's Declaratory Judgments Act.
Page 25 of 41
II. THE TRIAL COURT ERRED IN UPHOLDING THE WISCASSET PLANNING BOARD'S APPROVAL OF THE COHEN'S FIREWORKS STORAGE BUILDING IN THE TOWN OF WISCASSET.
A. Storage of Hazardous Mate1·ials is a Use that Requires Planning Board Approval in Accordance with the Wiscasset Site Plan Review Standards.
The Wiscasset Zoning Ordinance divides the Town into specific
zoning districts and sets forth which activities are permitted uses in the
Town (either with or without a permit from the Code Enforcement
Officer (CEO)), and which activities are uses that require approval from
the Planning Board in accordance with the Wiscasset Site Plan Review
standards. App. at 51-52. Here, the Cohen Propet·ty is located in the
Rural Zoning District, and as such requires approval fron1 the Planning
Board in accordance with the Site Plan Review Standards for storage of
hazat·dous mate1-ials - an activity classified as an "Industrial" use. App.
at 8, 55-57. There at·e 22 categorical Site Plan Review standards that
must be satisfied in order to obtain a lawful Planning Board approval
for the storage of hazardous materials as an industrial use. App. at 58-
67. The specific Site Plan Review standard at issue in this appeal is the
"hazardous material" standard.
Page 26 of 41
B. The Wiscasset Site Plan Review Standards Require Hazardous Materials to he Stored in Compliance with NFPA 1124 "Storage of Consun1er Fireworks,', which Prohibit Fh·eworks Warehouses in Residential Areas.
The hazat·dous material Site Plan Review standard requires the
following:
The handling, storage and use of all materials identified by the standat·ds of a federal ot· state agency as hazardous, special or radioactive shall be done in accordance with the standards of these agencies.
~Viscasset, Me., Ordinances, Art. VIII, § 9.L.1. This is an express site
plan review standard, contained in the vViscasset ordinances, that must
be satisfied to obtain Site Plan approval from the Planning Board,
which in tw·n t•equi1·es findings supported by substantial evidence that
storage of hazat·dous materials will be "done in accot·dance with the
standat·ds of these agencies [i.e., that are applicable to storing
hazardous materials]."
Consumer fll:eworks are specifically identified as being "hazardous
mateli.als" pw·suant to both state and federal law due to their
flammability and explosivity. See, e.g., 8 M.R.S. § 221-A(l-A)
('"Consumer fireworks' has the same meaning as in 27 Code of Federal
Regulations, Section 555.11 . . . ."); 27 CFR § 555.11 ("Consumer
Page 27 of 41
fireworks are classified as fireworks UN0336, and UN0337 by the U.S.
Dep31·tment of Transportation at 49 CFR 172.101."); 49 CFR §
172.lOl(a) ("The Hazardous Materials Table (Table) in this section
designates the materials listed therein as hazardous materials .... "); 49
CFR § 172.101 "Hazat·dous Ivfateri.als Table" (listing UN0336 and
UN0337 ffreworks as "hazardous materials"). The haz31·dous material
Site Plan review standard has therefore been triggered requiring
compliance with hazardous mate1·ial standa1·ds that apply to the storage
of consumer firewo1·ks. App. at 8.
Standards that apply to storing consumer fireworks include those
set forth in NFPA 1124, including an entire chapter devoted to storage
of consumer fll:eworks.3 (See Chapter 6 of NFPA 1124 "Storage of
Consunier Fireworks," App. at 73-87; see also 8 M.R.S. § 223-A {"The
building must be constructed, maintained and operated, and all
3 Rule 8 of the Maine Rules of Appellate pmcedure requires the inclusion of any relevant municipal ordinance or State or local regulation. M.R. App. P. 8(h).
In this respect, Title 8 esplicitly requires that storage of all fireworks in Maine must be in compliance with NFPA 1124. 8 M.R.S. § 223-A ("The building must be constructed. maintained and operated, and all consumer fireworks must be stored, in compliance with the requirements of National Fire Protection Association Standard 1124.''). The Office of the State Ffre Marshal expressly "adopted ... NFPA #1124, Code for the Ma1mfactul'e, Transportation, and Storage of Fireworks and Pyrotechnic Articles, 2006 Edition." Rules of the State Fire Marshal, OFFICE OF' ST.l\TE FIRE MARSHAL. http://www.maine.gov/dps/fmonawslrules.html Oast visited June 27, 2017); see also 16·219 C.M.R. ch 25, § 2 ("This rule incorporates by reference the National Fire Protection Association Code # 1124, Code for the Manufacture, Tra11sportation, and Storage of Fireworf1s and Pyrotechnic Articles, 2006 edition.).
Page 28 of 41
consume1· fit•ewot·ks must be sto1•ed, in compliance with the
requirements of National Fire Protection Association Standard 1124 ...
. "))
Section 6.2.4 of NFPA 1124 specifically states that, "Consumer
fireworks storage buildings shall not be used for residential
occupancies and shall not be located in residential areas." See
NFPA 1124, § 6.2.4 (emphasis supplied). The plain language of this
prohibition is unambiguous: consumer fireworks cannot be sto1·ed in
residential areas, where people live/dwell.
This plain language interpretation is easily demonstrated by
applying the dictionary definitions of "residential," "residence," and
"area." See Merriani-lVebster~ Collegiate Dictionary (1 lth ed.), whose
definitions are incorporated by reference per NFPA 1124, § 3.1,
(defining residential as "used as a residence or by residents," "providing
living,'' "occupied by 1·esidences," and "of or 1·elating to residences or
residences"; defining residence as "the act or fact of dwelling in a place
for son1e time"; and defining area as "a geog1·aphic region."). Utilizing
these definitions, the plain language construction of the phrase
"residential area" can be distilled to the following:
Page 29of 41
"A geographic region occupied by . . . building[s) used as home[s]."
Here, it is clear that the Cohen fireworks wat•ehouse is in a
i·esidential area. There is a high density of residential use in and
around the at•ea sut·rounding JB's Way, as evidenced by the map in the
record identifying all the residences surrounding the wai·ehouse. App.
at 156. Indeed, there are over a dozen homes abutting and across the
street from the fireworks wai·ehouse, and over 50 homes up and down
Birch Point Road in close p1·oximity to the warehouse. (Id., showing 54
homes within approximately a half mile of the fu·ewot·ks warehouse.)
This t·ecord evidence plainly shows the geographic area sun·ounding
JB's Way where the Cohen fireworks wat·ehouse is proposed is clearly
dominated by residences - thus constituting a residential area:1
• Although it has been suggested "residential area" determinations depend upon local zoning, that interpretation is not supported by the actual language in NFPA 1124.
NFPA 1124 does not include any reference to local zoning as a permissible factor to consider in applying this prohibition. See NFPA 1124, § 6.2.4. The absence of this language demonst.rates the NFPA expressly declined to impose such a limita.tion when using the term "residential areas." Indeed, if the NFPA wished to narrow "residential areas" to "residential zoning," it could have easily done so by using the term "residential zoning" instead of "residential areas" under section 6.2.4. This section of the NFPA, however, does not contain such language referencing local zoning.
This makes practical sense, since zoning does not always accurately reflect existing conditions that pertain to safety concerns the NFPA is designed to address. Indeed, there are many instances when areas are zoned for commercial activities but, in fact, contain residential areas (and vice versa). Moreover, some communities do not have zoning, and it would be illogical to interpret NFPA 1124 to only apply to those communities that have adopted town·wide zoning (consequently allowing storage of consumer fireworks in any
Page 30 of 41
\IVithin this residential area is the B1·yants' t·esidence (Lot 8),
which is directly behind the ffrew01·ks wa1·ehouse. App. at 156. As the
map depicts, the Bryants' only egress is JB's Way where they must
travel within 16 feet of the fireworks warehouse, which presents safety
concerns that highlight why fireworks storage facilities should not be
located in residential at·eas. Id.
However, neither the Wiscasset Planning Board nor the trial court
reviewed or applied the hazardous material standards governing the
storage of consumer fit·eworks as directed by the Wiscasset Site Plan
Review 01·dinance, 8 lVI.R.S. § 223-A, and 16-219 C.lVI.R. ch 25, § 2.
Indeed, the trial court found that the vViscasset Planning Board
did not have the power 01· authority to interpret and apply NFPA 1124,
as "[t]he Bryants have not cited, and the cow·t is not awa:re of, any
statute or ordinance" that confet·s such power. (Order on Rule 80B at 10
(citing Rochland Plaza Realty Corp. v. La Verdiere$ Enters., Inc., 531
A.2d 1272, 1274 (l\'Ie. 1987))) The trial court erred in this
determination, however, as 8 IvI.R.S. § 223-A exp1·essly 1·equires that a
municipality apply NFPA 1124 to a fu·eworks storage building.
locations in communities where no zoning exists, regardless of the existence of residences in close proximity to consumer fireworks storage facilities).
Safety of people in their residences should not hinge on local zoning designations.
Page 31of41
Section 223-A(2) of Title 8 of the Maine Revised Statutes allows
municipalities to "adopt an ordinance to prohibit or restrict the sale or
use of consumer fireworks within the municipality." If a municipality
chooses to prohibit or restrict the sale or use of consumer fireworks, "it
shall provide to the Office of the State Fire Marshal a copy of the
relevant restriction or prohibition within 60 days of adoption." Id. The
Town of \Viscasset did just that, providing the Office of State Ffre
Marshal on April 17, 2012, with a copy of Wiscasset's Municipal
Firewo1·ks Ordinance that became effective on January 1, 2012.s App.
at 68-72, 88-93.
Section 223-A(2) further states that a municipality "may require
that a person obtain a municipal permit for selling consume1· fireworks,"
as the Town of Wiscasset elected to do (see Wiscasset, Me., Ordinances,
Art. X, § 12.3.2.3), but a permit may be issued only if:
A. The applicant is 21 years of age or older;
~ Apl'il 17, 2012 Letter fro1n Town of Wiscasset to the Office of the State Fire Marshal, OFFICE OF STATE FIRE :MARSHAL, https://www l.maine.gov/dps/fmolfireworks/documents/wiscasset.pdf (last visited June 27, 2017).
The appellant requests this Court take judicial notice of the April 17, 2012 letter from the Town of Wiscasset to the Office of the State Fire Marshal. See State u. Moulton, 1997 ME 228, 17, 704 A.2d 361; Bard u. Lord, 2010 ME 48, ii 7, 997 A.2d 101; M.R. Evid. 20l(b).
Page 32of 41
B. The applicant applies fot· a permit under this subsection on a form prescl'ibed by the commissioner;
C. The applicant possesses the federal permit requll:ed under subsection l, paragraph A;
D. The applicant complies with the provisions of subsection 1;and
E. The application is approved by the municipality's police chief, fire chief and code enforcement officer if those positions exist.
8 M.R.S. § 223-A (emphasis added). Subsection 4 of section 223-A
states that "[a] person autho1·ized to sell consumer fireworks ... may
store and sell the firewo1·ks only in a permanent, fixed, stand-alone
building dedicated solely to the storage and sale of consumer fireworks
in accordance with this subsection . . . in compliance with the
requit-ements of National Fi1·e Protection Association Standard 1124." 8
M.R.S. § 233-A(4)(A) (emphasis added).
By enacting a municipal fireworks ordinance and requll:ing
municipal permits to sell fireworks, the Town of Wiscasset is expressly
required under 8 M.R.S. § 223·A(2) and (4) to ensure that all firework
storage buildings comply with NFPA 1124 before issuing any permits.
The tl"ial coul"t erred in finding the Planning Boa1·d was not required to
apply NFPA 1124 as part of its review standards in appt•oving the
Page 33of 41
Cohen's application. Both the trial court and Planning Board decisions,
as they pertain to approving storage of fireworks, should be t•eversed.
Additionally, for the reasons stated above, the Court should find that
because the Cohen fireworks warehouse is located in a residential area,
the building is in violation of NFPA 1124.
C. The Trial Court's Finding that the State Fire Marshal Office .. Approved" and .. Inspected" the Pt·oposed Warehouse Expansion is not Supported by Substantial Evidence in the Record.
In addition to failing to properly apply the Wiscasset Site Plan
Review Hazardous Materials standard and NFPA 1124, the t1·ial court's
decision to uphold the Planning Boai·d's finding that "(t]he current
building and proposed expansion have been previously approved and
inspected by the State Fire Marshal's Office" is unsupported by
substantial record evidence. App. at 8, pp. 10-11.
Indeed, the only evidence in the t•ecord regat·ding the State Fire
Marshal's approval and inspection of storing fiJ:eworks is a "Valuation
Report" with notations from October 17, 2013 on the original 42 x 60
warehouse. This "Valuation Repot·t" plainly states it is a "PLRM
REVIE\iV" (i.e., pt·eliruinary review), and only references no smoking
signs, exits, and distance between the warehouse and an onsite tt·ailer.
Page 34 of 41
App. at 94. This does not constitute record evidence that a 1·easonable
mind would accept as sufficient to support the finding that the State
Fire lVIat·shal's Office had "approved and inspected" the Cohen fireworks
wat·ehouse and expansion of this warehouse. Indeed, this ''Valuation
Report" was done prior to the proposed expansion of the warehouse as
requested in the Cohen's Site Plan Application of August, 2014;
nowhere in the record is there evidence that Mr. Fuller inspected the
property or the fi1·eworks warehouse after the Cohen's expansion was
proposed to the Planning Board. App. at 8 pp. 11-13.
The trial court also relied on the Janua1·y 12, 2015 Planning Board
meeting record and the Planning Board attorney's statement and
memorandum in order to conclude that there is no license needed for a
fireworks storage facility. App. at 8 pp. 11-12. However, as is discussed
above, by enacting a municipal fireworks ordinance and requiring
municipal pe1·mits to sell fireworks, the vViscasset Planning Board is
exp1·essly 1·equired to ensu1·e that all firework storage buildings comply
with NFPA 1124 before issuing any building permits.
Page 35of 41
D. THE TRIAL COURT ERRED IN HOLDING THE BRYANTS DID NOT SUFFER A DEPRIVATION OF DUE PROCESS UNDER THE UNITED STATES OR MAINE CONSTITUTION.
The essential requirement of procedural due process is notice and
a meaningful oppot-tunity to be heard in a manner that is adequate to
safeguat·d a protected interest. See e.g., flllartin v. Unemployment Ins.
Coni'n, 1998 ME 271 ii 14, 723 A.2d 412 (citing Secure Envt. v.
Norridgewock, 544 A.2d 319, 325 (Me. 1988)); see also In re Alexander
D., 1998 IVIE 207, 41! 13, 716 A.2d 222. When assessing whether an
individual's procedural due p1•oceaa rights have been violated, courts
examine three factors: (1) the private interest affected by the official
action; (2) the risk of et·roneous deprivation of such interest through the
pt·ocedures used and the value, if any, of additional or substitute
safeguards; and (3) the Govet•nment's interest, including the function
involved and any adn1inistrative burden that additional or substitute
procedure would entail. Balian v. Bd. of Licensure in Medicine, 1999
ME 9, 1111 10, 722 A.2d 364 (citing ./Jllathews u. Eldridge, 424 U.S. 319,
335 (1976)).
The Bryants were not provided with any notice of the Wiscasset
Planning Board's remand hearings of November 10, 2014, and
Page 36 of 41
November 24, 2014, of which they were the petitioners.6 App. at 8, pp.
3, 8. Although a putative "make-up" meeting was held on January 12,
2015, after the Bryants had already appealed the Planning Board's
actions, they were not afforded any meaningful opportunity to be heard,
intt·oduce evidence, or respond to claims and evidence reganling the
matters undet• review by the Planning Board because the Board had
already made its determination on the Board of Appeals' remand back
on November 24, 2014. See In re Kristy Y., 2000 ME 98, if 7, 752 A.2d
166 ("Applied to heal"ing processes where significant rights a.re at stake,
due pt•ocess requires: notice of the issues, an opportunity to be heard,
the right to introduce evidence and present witnesses, the right to
respond to claims and evidence, and an impartial factfinder.") (internal
footnotes omitted).
Failing to provide notice and allow the Bryants to meaningfully
participate in that meeting plainly carries a high risk of erroneous
deprivation of the Bryants' interests as abutters and opponents to a
G In fact, th<! Bryants went to the Town Office of Wiscasset on October 30, 2014, and and asked specifically if the November 10, 2014 meeting would address the issue of fireworks storage on JB's Way. App. at 155. Th<! Bryants WC!re told that it was not likely that the fireworks issue would be taken up because there was not sufficient time to provide proper notification and that the Bryants would be noticed before any meeting took place to cover th<! fireworks storage issue. Id. How<!ver, as discuss<!d, th<! Bryants were not provided notice of the November 10, 2014 meeting or the November 24, 2014 meeting, further impinging their due process rights.
Page 37 of 41
firewot·ks warehouse project that are protected by the Maine and U.S.
Constitutions. See, e.g., Duffy u. Town of Berwick, 2013 l\/IE 105, 'II 15,
82 A.3d 148 ("Both an applicant and members of the public who oppose
a project are 'entitled under the [D]ue [PJrocess [C)lause of the United
States and Maine (C]onstitutions to a fail- and unbiased hearing."')
(quoting Gorham u. Town of Cape Elizabeth, 625 A.2d 898, 902 (Ivie.
1993)); see also Lane Constr. Corp., 2008 ME 45, '\I'll 28-29, 942 A.2d
1202 (1·ecognizing the procedw·al due process rights of a project's
opponents before a municipal planning board).
With respect to the third procedural due process factor, clearly the
burden is minimal on the Planning Boa.rd to pt•ovide the Bryants with
notice. Indeed, the Record plainly shows the Planning Board already
had the Bryants information and was able to provide them with notice
of the September 8, 2014 hearing, App. 8, p. 2, and that, moreover, the
Town was able to p1·ovide notice of the remand hearing to other
neighbors of the project, but nonetheless omitted any notice to the
Bryants. App. 8, pp. 3, 8.
The Planning Board's failure to properly notify the Bryants of the
November 24 remand hearing, when it ultimately decided to re-affirm
Page 38 of 41
its prior written decision, compounded the eri·ors of law committed by
the Board (i.e., failure to pt·opedy apply the Hazardous Ivfate1·ials
Standard and failure to provide procedural due process), further
wan·anting a reversal of that decision by this Court.
E. THE TRIAL COURT ERRED IN DETERMINING THAT ALLEN COHEN DID NOT VIOLATE MAINE'S CONFLICTS OF INTEREST LAW.
Maine law prohibits any public official from attempting to
influence any decision in which a public official has an economic
interest. See 30·A M.R.S. § 2605.
Here, Mr. Cohen is a member of the Planning Board and has an
economic interest in ga1n1ng approval of his application for a
comn1ercial fireworks storage building that directly benefits his
business, Big Al's Outlet, Inc. V\lbile I\IIr. Cohen recused himself from
voting, he did not refrain from attempting to influence the Planning
Board's decision and directly advocated fo1· its approval. App. at 107-
125. As an applicant p1•osecuting an application to benefit his business,
Mr. Cohen should have refrained from directly advocating for its
approval, and instead allowed the non-public official co·applicant or an
agentlrept·esentative to prosecute his application. Directly advocating
Page 39 of 41
to the tribunal whose app1·oval would provide economic benefits is
plainly an attempt to "influence a decision" of the Planning Board.
Such action is prohibited by Maine law and, as a consequence,
provides another independent basis to reverse the trial court's decision.
CONCLUSION
Fo1· each of the 1•easons discussed, the court below erred in
upholding the decision of the Wiscasset Planning Board and should be
reversed and the case remanded.
Dated at Bangor, Maine, this day of July 5, 2017.
By
KATHLEEN BRYANT and THOMAS BRYANT
nathan A. Pottle, Esq. Bar Registration No. 4330
By Lh c.~ ~rick W. Lyons, Esq. (" '- Bar Regist1·ation No. 5600
EATON PEABODY 80 Exchange Street P.O. Box 1210 Bangor, l.VIaine 04402-1210
Attorneys for Plaintiffs I Appellants
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CERTIFICATE OF SERVICE
I, Jonathan A. Pottle, Esq., attorney for Appellants-Plaintiffs Kathleen Bryant and Thomas Bryant, hereby certify that I have this day made due service of this Brief of Appellant upon the AppelleesDefendants Allen Cohen, Melissa Cohen, and Big Al's Outlet, Inc., by mailing two confo1·med copies the1•eof to their attorney Chris Neagle, Esq., of the fu·m Troubh Heisler, 511 Congress Street, P.O. Box 9711, Portland, Maine 04104-5011, and to Appellee-Defendant Town of Wiscasset by mailing two conformed copies thereof to its attorney Mary Costigan, Esq., of the firm Bernstein Shw-, 100 Middle Street, P.O. Box 9729, Po1·tland, Maine 04104-5029, by regular course of the U.S. mail, postage prepaid.
Dated: July 5, 2017 Jo athan A. Pottle, Esq.
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