Marquis v. Town of Kennebunk
2011 ME 128
| Me. | 2011Background
- Scott Marquis appeals and the Berdeens cross-appeal from a Superior Court judgment affirming Planning Board and ZBA decisions denying subdivision status on the Berdeen property.
- Conrad Berdeen, as personal representative, transferred portions of the Berdeen property to Kent Berdeen, Cynthia Sirois, and himself in 2007; subsequent conveyances created parcels 2-A, 2-B, and 2-C.
- In 2008, Brent Sirois sought a dredge-and-fill permit for two culverts; the Planning Board conditionally approved the permit over Marquis’s objections.
- Marquis pursuedRule 80B appeals and an appeal to the ZBA, alleging subdivision violations and inadequate CEO investigations.
- The Superior Court remanded to the Planning Board and ZBA to address subdivision-violation findings, and later certified a partial final judgment under Rule 54(b).
- This Court vacates the remand on ripeness grounds and holds that the subdivision issue was not ripe for review, while affirming the dredge- and-fill permit decision.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the 54(b) certification was proper. | Marquis argues immediate appeal is warranted given involved claims. | Berdeens contend certification was within court discretion and not an abuse. | There is no abuse; exception to final judgment applies to reach merits. |
| Whether remand to consider subdivision compliance was proper. | Marquis contends subdivision issues were ripe for review. | Berdeens argue remand was appropriate for factual findings. | Remand was error; ripeness requires express or tacit approval of subdivision creation. |
| Whether Planning Board and ZBA decisions on subdivision were ripe for judicial review. | Marquis asserts the Boards should determine subdivision status. | Berdeens contend no subdivision creation action by Town existed to review. | Ripeness not satisfied; review of subdivision compliance premature. |
| Whether the dredge-and-fill permit decision can be sustained independent of subdivision issues. | Marquis seeks review of permit in light of subdivision status. | Berdeens argue permit decision stands apart from subdivision concerns. | Plan-ning Board’s permit decision affirmed; subdivision issue vacated and remanded. |
Key Cases Cited
- Guidi v. Town of Turner, 2004 ME 42 (Me. 2004) (requires a clear rationale for Rule 54(b) certification)
- Fleet Nat’l Bank v. Gardiner Hillside Estates, Inc., 2002 ME 120 (Me. 2002) (guides review of discretionary certification and factors)
- Dexter v. Town of Norway, 1998 ME 195 (Me. 1998) (gives deference to trial court’s broad discretion)
- Mills v. Town of Eliot, 2008 ME 134 (Me. 2008) (ripeness when town actions acknowledge subdivision creation)
- Johnson v. City of Augusta, 2006 ME 92 (Me. 2006) (ripeness requires concrete, immediate legal problem)
- Tinsman v. Town of Falmouth, 2004 ME 2 (Me. 2004) (distinguishes appropriate scope for subdivision review)
- State v. DiPietro, 2009 ME 12 (Me. 2009) (independent evaluation for report under appellate procedures)