Boisvert v. Reed
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MAINE SUPREME JUDICIAL COURT				Reporter of Decisions
Decision: 1997 ME 72
Docket: HAN-95-321
Submitted on briefs November 22, 1996
Decided April 7, 1997

Panel:  WATHEN, C.J.,  ROBERTS, GLASSMAN, CLIFFORD,  DANA, and LIPEZ, JJ.

PETER BOISVERT, et al.

v.

RAYMOND REED, Jr., et al.{1}

LIPEZ, J.

	[¶1]  Peter Boisvert, Claude Boisvert, William Thurston, and Richard
Daugherty, d/b/a The Moorings Restaurant (Boisvert) appeal from the
judgment entered in the Superior Court (Hancock County, Marsano, J.)
dismissing this action.  Boisvert contends that the court erred in finding
that his offer of proof was insufficiently specific to establish triable issues of
fact pursuant to Maine Rule of Civil Procedure 80B(d) and Boisvert v. King,
618 A.2d 211 (Me. 1992) (vacating an earlier judgment entered in the
Superior Court on the ground that timeliness could not be determined given
the state of the record and remanding for further proceedings), and that
equity demands an extension of the appeal period because of the allegedly
wrongful conduct of the Town.  We disagree and affirm the judgment. 

Background{2}

	[¶2]  Boisvert and Stanwood Les King (King) own adjacent businesses,
The Moorings Restaurant and The Moorings Inn, respectively, in Southwest
Harbor.  In March 1988 King applied for a permit to construct an accessory
building on his property for utility, rental, and storage purposes.  Although
Boisvert was notified of the Planning Board hearing at which King's
application was approved, he did not attend because at the time King
proposed only a one-story shed to which Boisvert did not object.  King
neither requested a construction permit nor began construction at that
time.  
	[¶3]  Shortly thereafter, the Town repealed the existing Shoreland
Control Ordinance and King's son-in-law Charles Watson, who owns the
proposed structure, requested that the Planning Board approve
modifications to the previously approved plan.  The Planning Board initially
denied the request, noting that the proposed modifications had to conform
to the new Development Control Ordinance.  On July 27, however, the Board
reconsidered its position and issued a building permit for a three-story
structure to house boat storage and rental units.  Construction began that
September.  
	[¶4]  Boisvert claims that the plaintiffs first became aware of the size
of the structure when construction of the second-story began in mid-
November.  The plaintiffs confronted King immediately about the structure
and, by Boisvert's account, failed to receive a satisfactory response.  Boisvert
proceeded to investigate the nature of the permit issued to King by
questioning Town officials, submitting a "written request to the town for a
response dated March 2, 1989, and not on May 18 as reflected [originally] in
the Offer of Proof."  Boisvert filed an administrative appeal with the Zoning
Board in April, twelve months after the original building permit issued, nine
months after the modified permit was approved, six months after
construction began, and five months after the appellants claim they became
concerned about the construction--all well outside the presumptive 60-day
time period for such an appeal.  See 618 A.2d at 213; Keating v. Zoning
Board of Appeals of Saco, 325 A.2d 521, 525 (Me. 1974).{3}  After hearings
held in June 1989, the Zoning Board denied Boisvert's appeal both on the
merits and as time-barred.  
	[¶5]  Boisvert filed a complaint in the Superior Court seeking review of
the Zoning Board's decision as well as a declaratory judgment that the
plaintiffs' appeal had been timely.  The court dismissed Boisvert's request
for a trial on the facts on the ground of mootness given the declaratory
judgment action.  It subsequently found, without an evidentiary hearing, that
there had been no formal approval of King's modified construction plan by
the Planning Board that would trigger the appeal period, and that the later
Development Control Ordinance (rather than the repealed Shoreland Use
Ordinance) controlled the project.   Thus, the court vacated the decision of
the Zoning Board and remanded for further proceedings under the operative
ordinance.  	
	[¶6]  In December 1992 we vacated the court's judgment in Boisvert v.
King, finding that the timeliness of Boisvert's appeal could not be
determined from the available record, and that the timeliness issue had to
be resolved before the court addressed any substantive issues.  618 A.2d at
214.  Specifically, we decided the plaintiffs "should have the opportunity to
renew [their] motion pursuant to Rule 80B(d) to allege the evidence [they]
could present [themselves] within the narrow exceptions to the Keating 60-
day rule."  We also reminded them that this showing would require a
"'detailed statement, in the nature of an offer of proof, of the evidence that
the party intends to introduce at trial . . . sufficient to permit the court to
make a proper determination as to whether any trial of the facts is
appropriate under this rule . . . .'"  Id. at 214 n.6 (quoting M.R. Civ. P.
80B(d)).  
	[¶7]  Our remand resulted in ten months of inactivity, after which
Boisvert's attorney filed a motion to withdraw.  New counsel did not enter
an appearance until more than a year after remand.  With counsel's
assistance Boisvert entered into a stipulated order in February 1994 that
allowed him 45 days to move for a testimonial hearing to address the
timeliness issues.  Within a month of the stipulation Boisvert's new counsel
withdrew, prompting the four plaintiffs to enter pro se appearances.    Reed
filed a motion to dismiss given Boisvert's failure to make a timely request for
a hearing pursuant to the stipulated order.  At a subsequent testimonial
hearing scheduled at the plaintiffs' behest, the court had to continue the
matter due to the failure of two of them to appear.  By the end of 1994
Boisvert still had not filed anything of substance.  Boisvert's third counsel
entered an appearance and filed a motion for a trial on the facts, the offer of
proof, and yet another motion for an enlargement of time on April 13, 1995-
-the day scheduled for a hearing on Reed's motion to dismiss, two years and
three months after our remand, and 14 months after the entry of the
stipulated order.    
	[¶8]  After the hearing on April 13 the court granted the motion to
dismiss.  The court's order focused on the deficiencies in the offer of proof
and reviewed the long history of delay on the part of the plaintiff, including
the dilatory response to our remand.

Discussion            

	[¶9]  Although the parties focus their argument on the adequacy of
Boisvert's offer of proof to establish a triable issue on the timeliness of the
appeal to the Zoning Board, we conclude that Boisvert's dilatory response to
our remand fully justified the court's denial of the motion for a trial on the
facts and dismissal of the action.  When the relevant ordinance is silent on
the length of the period for appeal to a zoning board, we may make
exceptions to the 60-day rule established by Keating in those "special
circumstances which would result in a flagrant miscarriage of justice unless,
within a narrowly extended range, a time longer than the general norm is
held 'reasonable.'"  325 A.2d at 524-25.  
	[¶10]  Boisvert's pattern of delay in this case renders the entire
proceeding untimely pursuant to Keating and its descendants, which exhort
us to grant only "infrequent and narrow" exceptions to the presumptive 60-
day period.  325 A.2d at 524.  The plaintiffs' conduct since the remand
belies the sense of urgency they claim to have brought to the proceedings
before the Zoning Board.  The plaintiffs' failure to proceed promptly after
remand and, in particular, to comply with the stipulated order allowing 45
days to move for a testimonial hearing, precluded the possibility of any
findings by the court that there were special circumstances in this case
requiring an extension of the appeal period to prevent a flagrant miscarriage
of justice.  Cf. Gagne v. Cianbro, 431 A.2d 1313, 1317 (Me. 1981) (affirming
reinstatement of a zoning board appeal pursuant to Keating when plaintiffs
immediately instituted suit on discovery of construction activity indicating
the existence of a modified building permit eight months after it had been
issued).  The court did not err in dismissing the action.   
	The entry is:
		Judgment affirmed.

Attorney for plaintiffs: 
Kyle W. Jones, Esq.
P O Box 79
Ellsworth, ME 04605-0079

Attorneys for defendants:

William B. Entwisle, Esq.
Law Offices of Michael L. Ross
P O Box 1123
Ellsworth, ME 04605-1123
(for Stanwood L. King)

Chadbourn H. Smith, Esq.
Fenton, Chapman, Fenton, Smith & Kane, P.A.
P O Box B
Bar Harbor, ME 04609
(for Town of Southwest Harbor)

FOOTNOTES******************************** {1} The other defendants are Stanwood Les King, d/b/a The Moorings Inn, and the Town of Southwest Harbor. {2} This detailed account, required for an understanding of the issue before us, includes a condensed version of the background we provided in Boisvert v. King, 618 A.2d 211, 212-23 (Me. 1992). {3} As we decided in Keating, An adequate (if not full) amelioration of the potential infirmities is accomplished, we believe, if we: . . . fix the longer (even if commonly less utilized) period of 60 days as the length of time which shall be the generally governing norm of the 'reasonable' period 'implied' (when statute, ordinance or rule having the effect of law fails to designate a time) within which appeal must be taken to a Zoning Board of Appeals (or be held barred). 325 A.2d at 525.