Brand v. Town of Brunswick Town of Brunswick

STATE OF MAINE EES SUPERIOR COURT CUMBERLAND, ss. IE CIVIL ACTION sf) DOCKET NO. AP-99-69 JANET D. BRAND and PETER B. BRAND, Plaintiffs / Appellants » BONALDL Gre cre g VS. ORDER : LAW Lfoey. TOWN OF BRUNSWICK, FEB 29 2000 Defendant/ Appellee We ae ey Before the court are the plaintiffs’ motion to extend time for “appeal, plaintiffs’ motion to specify course of proceedings, and defendant's motion to dismiss. As stated on the record at argument, the plaintiffs have not shown excusable neglect to justify filing their complaint. beyond the statutory period. See 30-A 2691(3)(G) (1996); M.R. Civ. P. 6(b); Caror’ v. City of Auburn, 567 A.2d 66, 67 (Me. 1989) (showing of excusable neglect required when motion for enlargement filed after expiration of time for filing appeal). With regard to the defendant's motion to dismiss, the court agrees that counts I and II of the complaint must be dismissed as filed in an untimely fashion. The court further agrees that count IX, in which the plaintiffs seek declaratory and injunctive relief with regard to the same issues raised in counts I and II, does not state an independent claim for relief. See Fitanides v. Perry, 537 A.2d 1139, 1141 (Me. 1988) (declaratory and injunctive relief available in 80B proceeding). MM-QumM- Q)as, , Ol’ In counts IIJ-VIU, the plaintiffs allege that the defendant’s zoning ordinance > does not comply with the Town Charter, the Shoreland Zoning Act, and other statutes and regulations; and that the zoning ordinance and the Shoreland Zoning Act are unconstitutional. The factual allegations appear to be the same for all counts. The relief sought is a declaration that the notice and order issued to plaintiff Janet Brand, the zoning ordinance, and the Shoreland Zoning Act are void together with damages. Plaintiffs’ entire request for relief could have been reviewed and remedied through the process of direct review pursuant to M.R. Civ. P. 80B. See Colby v. York County Commissioners, 442 A.2d 544, 547-48 (Me. 1982). The entry is The Plaintiffs’ Motion to Extend Time for Appeal is DENIED. The Plaintiffs’ Motion to Specify Course of Proceedings is > MOOT. The Defendant's Motion to Dismiss the Plaintiffs’ Complaint is GRANTED. The Plaintiffs’ Complaint i is DISMISSED with - prejudice. nt “a The clerk is directed to incorporate this order into the docket by reference. Dated: February 24, 2000 Lewes Vo Nancy Mills Justice, Superior cole County Action 80B APPEAL oo TOWN OF BRUNSWICK BONALDL.GARBRECHT = STATE OF MAINE JANET D. BRAND LAW Lary THOMAS J. WAKEFIELD PETER B. BRAND VLA JAMES CONNCELLAN JOHN RICHARDSON FEB 29 2000 KENDALL AMES NORMAN RATTEY Vs. JOHN POUTREE Plaintiff’s Attorney Defendant’s Attorney DOUGLAS HENDRICK, ESQ 625-4531 PATRICK SCULLY ESQ (Rep. ALl-butiStdte ‘of M PO BOX 571, CORNISH ME 04020 i PO BOX 9729, PORTLAND MAINE 04104 774-1200