Mark Tomasino v. Town of Casco

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2020 ME 96
Docket: Cum-19-348
Submitted
On Briefs: April 14, 2020
Decided: July 7, 2020
Panel: MEAD, GORMAN, JABAR, HUMPHREY, and CONNORS, JJ.
Majority: MEAD, GORMAN, JABAR, and HUMPHREY, JJ.
Dissent: CONNORS, J.
MARK TOMASINO et al.
v.
TOWN OF CASCO et al.
GORMAN, J.
[¶1] Mark and Valerie Tomasino appeal from a judgment of the Superior
Court (Cumberland County, Horton, J.) entered pursuant to M.R. Civ. P. 80B,
affirming the decision of the Town of Casco Zoning Board of Appeals in which
the Board denied the Tomasinos’ request for a shoreland zoning permit. The
Tomasinos challenge the Board’s determination that they demonstrated
insufficient right, title, or interest in the property at issue to obtain a permit to
remove three trees from property owned by the abutting property owner, the
Lake Shore Realty Trust, over which the Tomasinos claim a deeded easement.
We affirm the judgment.
2
I. BACKGROUND
[¶2] Mark and Valerie Tomasino own property on Sebago Lake in Casco.
The Trust owns abutting property. Both parcels are on a private road created
by deeds granting each owner “a right of way over a strip of [the other’s] land
six (6) feet in width” along a portion of their common boundary.
[¶3] In 2017, the Tomasinos obtained a building permit from the Town
of Casco to remove the existing home from their property and construct a new
home in its place. See Casco, Me., Code § 215-6.1(A) (June 14, 2017). In 2018,
the Tomasinos applied for and obtained from the Town’s Code Enforcement
Officer (CEO) a shoreland permit to remove three trees from Trust land that is
subject to the Tomasinos’ access easement in order to establish a gravel road
to their new home as required to obtain a certificate of occupancy.1 On the
Trust’s appeal to the Zoning Board of Appeals, the Board vacated the CEO’s
grant of the permit.2 See Casco, Me., Code §§ 215-6.3(A)(1)(a),
215-9.36(G)(1)(a), (8)(a)(1) (June 14, 2017).
1 The record does not establish what provision required the Tomasinos to obtain a permit to
remove the trees or what provision stated that removal of those three trees was necessary to obtain
a certificate of occupancy.
The Board initially determined that the Trust’s appeal was not timely. At the CEO’s behest, the
2
Board reconsidered its decision and agreed to review the appeal on the merits.
3
[¶4] On the Tomasinos’ appeal of the Board’s decision, the Superior
Court remanded the matter to the Town for further findings and conclusions
regarding the basis of the Board’s decision. See M.R. Civ. P. 80B(m). On remand,
the Board made findings about the sizes and locations of the three trees at issue,
as well as that “[t]he easement is unclear as to the rights of the parties to cut
trees without the other party’s permission. No evidence was presented to the
Board to definitively resolve this issue.” On this basis, the Board concluded,
“[T]he permit was not properly issued because two of the trees were located
partially outside the easement area and on property owned exclusively by [the
Trust] and it was unclear whether the Tomasinos had the right to remove the
third tree without the agreement of [the Trust].” With a supplemented record,
the court affirmed the Board’s decision, and it denied the Tomasinos’
post-judgment motion to amend the judgment and to reconsider.3 See M.R.
Civ. P. 59(e). The Tomasinos appeal.
3 In doing so, the Superior Court appears to have made its own findings of fact as to the location
of the three trees based on an exhibit never submitted to the Board—the “TREE TRUNK PLAN.” In
so doing, the court acted beyond its authority, which was limited to reviewing the Board’s decision
in an appellate capacity. See 30-A M.R.S. § 2691(3)(G), (4) (2020); M.R. Civ. P. 80B(f) (“Except where
otherwise provided by statute or by order of court . . . , review shall be based upon the record of the
proceedings before the governmental agency.”); Norris Family Assocs., LLC v. Town of Phippsburg,
2005 ME 102, ¶ 9, 879 A.2d 1007 (“[T]he Superior Court’s subject matter jurisdiction to conduct
appellate review pursuant to Rule 80B is firmly established in statute.”). The Superior Court’s errors
are harmless, however, given that we directly review the decision of the Board. See M.R. Civ. P. 61;
Lakeside at Pleasant Mountain Condo. Ass’n v. Town of Bridgton, 2009 ME 64, ¶ 11, 974 A.2d 893;
Nergaard v. Town of Westport Island, 2009 ME 56, ¶ 9 n.3, 973 A.2d 735 (noting that the court’s
4
II. DISCUSSION
[¶5] Because the Superior Court acted in its intermediate appellate
capacity, we review directly the operative decision of the municipality.
See Lakeside at Pleasant Mountain Condo. Ass’n v. Town of Bridgton, 2009 ME 64,
¶ 11, 974 A.2d 893. Here, the operative decisions were those issued by the
Board, which acted de novo in considering the Trust’s appeal of the CEO’s grant
of the shoreland permit. See 30-A M.R.S. § 2691(3)(C) (2020); Casco, Me., Code
§§ 215-6.3(A)(1)(a), 215-9.36(G)(1)(a); Gensheimer v. Town of Phippsburg,
2005 ME 22, ¶ 8, 868 A.2d 161. We therefore review the Board’s decisions for
errors of law, findings not supported by substantial evidence in the record, or
an abuse of discretion, and we review the Board’s interpretation of municipal
ordinances de novo as a matter of law. See Fryeburg Tr. v. Town of Fryeburg,
2016 ME 174, ¶ 5, 151 A.3d 933. Further, “[a]s the party seeking to overturn
the [Board’s] decision, [the Tomasinos have] the burden of establishing that the
evidence compels a contrary conclusion.” Leake v. Town of Kittery, 2005 ME 65,
¶ 7, 874 A.2d 394 (quotation marks omitted).
misstatement in a Rule 80B decision was harmless error because the municipal board’s decision was
reviewed directly).
5
[¶6] The Town’s ordinance requires that “[a]ll applications [for permits]
. . . be signed by an owner or individual who can show evidence of right, title or
interest in the property or by an agent, representative, tenant, or contractor of
the owner with authorization from the owner to apply for a permit.” Casco, Me.,
Code § 215-9.36(C)(2) (June 14, 2017). The crux of this appeal is the
Tomasinos’ argument that the Board erred by concluding that they failed to
demonstrate that minimum right, title, or interest in the property on which the
three trees are located. They argue that, as a matter of law, the only facts
necessary to establish sufficient right, title, or interest to remove the three trees
are that the trees are located on property on which they claim some easement
rights.
[¶7] We disagree. As the Board found, the scope of the Tomasinos’
deeded easement over the Trust’s property is not established in this record; as
an evidentiary matter, the language of the deeds does not disclose whether and
to what extent the easement includes the right to remove trees, and, as a
procedural matter in this municipal zoning case, the Trust has challenged the
Tomasinos’ right to remove the trees. Determining the scope of an easement
requires an interpretation of the parties’ respective deeds in light of relevant
statutory provisions and case law. See Flaherty v. Muther, 2011 ME 32, ¶ 55,
6
17 A.3d 640 (stating that the terms of an easement are determined as a matter
of law based on deed construction or, if the deed language is ambiguous, as a
matter of fact based on extrinsic evidence of the parties’ intent in the creation
of the easement); Stickney v. City of Saco, 2001 ME 69, ¶ 33, 770 A.2d 592
(providing that deeds are construed based on the “law existing at the time [the
deed] was made”). These are matters that are well outside the Board’s
jurisdiction, authority, or expertise, which is instead limited to the
interpretation and application of ordinance provisions. See 30-A M.R.S.
§ 2691(4) (2020) (“No board may assert jurisdiction over any matter unless the
municipality has by charter or ordinance specified the precise subject matter
that may be appealed to the board and the official or officials whose action or
nonaction may be appealed to the board.”); Casco, Me., Code § 215-9.36(G)(1)
(stating that the Board has the power to decide only “[a]dministrative appeals”
and “[v]ariance appeals”); Cope v. Town of Brunswick, 464 A.2d 223, 225 (Me.
1983) (stating that “local zoning boards, like municipalities, have no inherent
authority to regulate the use of private property” and are instead limited to
those powers conferred upon the town by the State); Inhabitants of the Town of
Boothbay Harbor v. Russell, 410 A.2d 554, 560 (Me. 1980) (noting that Boards
of Appeals perform an adjudicatory function “within [a] limited jurisdiction”).
7
[¶8] Indeed, as the Town reminded the Tomasinos throughout this
litigation, a municipal zoning case is not the proper forum for a private property
dispute between neighbors, and a private property dispute between neighbors
is precisely what was before the Board here. E.g., Rockland Plaza Realty Corp.
v. La Verdiere’s Enters., Inc., 531 A.2d 1272, 1273-74 (Me. 1987) (“[T]he
Planning Commission was not the proper forum to determine existing property
rights in the narrow strip of land and consequently the Superior Court was not
in a position to entertain the issue on a Rule 80B appeal.”); Cunningham v.
Kittery Planning Bd., 400 A.2d 1070, 1078-79 (Me. 1979) (stating that the
purpose of a municipal board hearing was “to give the public an opportunity to
present facts . . . for its consideration in reviewing the subdivision application
and not for the purpose of adjudicating private rights” (quotation marks
omitted)); Whiting v. Seavey, 159 Me. 61, 67, 188 A.2d 276 (1963) (“The rights
and obligations of parties to private covenants are to be determined in
appropriate actions to enforce or to be relieved of the burden of, such
covenants; they are not to be determined by reference to the zoning restrictions
applicable to the land . . . .” (quotation marks omitted)).
8
[¶9] Moreover, the Tomasinos’ reliance on authorities4 to argue that, as
a matter of law, they are entitled to remove trees from the Trust land over
which they hold a deeded easement are precisely the arguments they could
have made in a declaratory judgment action against the Trust. It is not clear,
given the guidance from the Town, why the Tomasinos have filed no such
action, either on its own or as an independent claim in conjunction with their
appeal to the Superior Court. See M.R. Civ. P. 80B(i).
[¶10] Although the dissent relies on certain sources to support the
proposition that the Tomasinos’ deeded easement was sufficient as a matter of
law to establish the requisite right, title, or interest, those authorities are easily
distinguished. Dissenting Opinion ¶¶ 19-23. In Walsh v. City of Brewer, the
plaintiff sought municipal approval as to a parcel of property that he claimed
no title to nor any easement over. 315 A.2d 200, 205 (Me. 1974). The crux of
our holding was that, in the absence of any evidence of any legally cognizable
4Notably, the authorities on which the Tomasinos rely also involved private litigations between
property owners rather than appeals of municipal zoning decisions. E.g., Love v. Klosky, 417 P.3d 862,
863 (Colo. App. 2016) (involving a matter in which one set of landowners sued their adjoining
neighbors regarding their competing rights to the common boundary); Sleeper v. Loring, 2013 ME
112, ¶ 9, 83 A.3d 769 (consisting of a Rule 80B appeal and an independent declaratory judgment
claim); Stanton v. Strong, 2012 ME 48, ¶ 7, 40 A.3d 1013 (involving a nuisance and trespass complaint
requesting injunctive relief, a declaratory judgment, and punitive damages, as well as a counterclaim
alleging trespass and seeking a declaratory judgment); DeHaven v. Hall, 753 N.W.2d 429, 434 (S.D.
2008) (involving a complaint seeking declaratory relief and damages).
9
ownership interest in the property and without sufficient evidence that he had
any fiduciary relationship with the property owners to allow him to seek a
municipal permit on their behalf, the plaintiff lacked any right, title, or interest
in the property to seek such municipal approval. Id. at 206-08. This holding is
in no way inconsistent with our conclusion in the present matter.
[¶11] Notably, in Walsh, we stated that the requisite right, title, or
interest in property to confer administrative standing before a municipal board
was the “lawful power to use [the property], or control its use” in the manner
sought through the municipal action. Id. at 207 (“More concretely, the question
is whether plaintiff had the kind of relationship to the [property] which the . . .
ordinances recognized as sufficiently germane to the scope of their regulation
. . . .” (emphasis added)). We reached the same conclusion in Murray v.
Inhabitants of the Town of Lincolnville, in which we held that a person who has
executed a contract for the purchase of property has a sufficient right, title, or
interest in that property to seek municipal approval for the development of the
property. 462 A.2d 40, 41, 43 (Me. 1983). We stated, “An applicant for a license
or permit to use property in certain ways must have the kind of relationship to
the site that gives him a legally cognizable expectation of having the power to
use that site in the ways that would be authorized by the permit or license he
10
seeks.” Id. at 43 (emphasis added) (citation omitted) (quotation marks
omitted). In Murray, there was no issue regarding whether the plaintiff, after
obtaining the requisite approvals, would have the ability to subdivide property
to which he would hold title ownership; the issue was instead whether his
interest obtained through the purchase and sale agreement was sufficiently
concrete given that he and the seller had not yet executed the agreement. See
id. at 43-44.
[¶12] In Rancourt v. Town of Glenburn, we again focused the inquiry on
whether the applicant demonstrated a right, title, or interest to do the
particular acts on the property for which she sought municipal approval.
635 A.2d 964, 965-66 (Me. 1993). In that matter, the applicant sought a permit
to place a dock on property over which she claimed a right of way. Id. at 965.
We concluded that the applicant did not establish that the scope of her right of
way included the ability to construct a dock on the property and that the
municipal board therefore correctly determined that she had not satisfied the
right, title, or interest requirement to allow her permit application to proceed.
Id. at 966. Our conclusion—that the applicant must demonstrate not just any
right, title, or interest in the property but a right, title, or interest in the property
11
that allows the property to be used in the manner for which the permit is
sought—is consistent with these three decisions.
[¶13] Finally, title ownership was again at issue in Southridge Corp. v.
Board of Environmental Protection, in which we concluded that a pending action
claiming ownership by adverse possession was sufficient to confer standing to
seek state regulatory permits for the property at issue. 655 A.2d 345, 347-48
(Me. 1995); see Fissmer v. Smith, 2019 ME 130, ¶¶ 1, 28, 214 A.3d 1054
(discussing adverse possession as a means of obtaining ownership).
[¶14] In sum, our decisions in Walsh, Murray, and Southridge Corp.
involved the question of whether the applicants had sufficient connections to
the title to the properties to seek municipal or agency permits on those
properties, and in each case, there was no question but that the title owner of
the property, once its identity was established, would be able to make use of
the property as permitted according to applicable ordinances and statutes.
Southridge Corp., 655 A.2d at 348; Murray, 462 A.2d at 43; Walsh, 315 A.2d at
205, 207-08. In Rancourt, the matter that did not involve title, we held that the
claimed right of way was insufficient to establish a right, title, or interest to
construct the dock on the property for which the applicant sought approval.
635 A.2d at 965-66.
12
[¶15] Thus, none of these decisions supports the proposition that
administrative standing may be conferred merely by possessing any kind of
easement on the property at issue. Unlike title owners, easement owners are
subject to a second layer of necessary authority—what the easement itself
allows—in addition to what the applicable ordinances and statutes allow. In
this matter, even assuming that the Tomasinos demonstrated that they had
some interest in the particular portion of property at issue, they failed to
demonstrate that they have the kind of interest that would allow them to cut
the trees if they were granted a permit to do so. Whatever minimum “right, title
or interest” is required by ordinance, Casco, Me., Code, § 215-9.36(C)(2), we
conclude that, in the face of a dispute between private property owners, that
requirement is not met by an easement whose parameters have not been
factually determined by a court with jurisdiction to do so. We therefore discern
no error in the Board’s refusal to grant the Tomasinos a shoreland zoning
permit to cut trees located wholly or partially on the disputed property.5
We are not persuaded by the Tomasinos’ additional arguments—that the Board lacked
5
jurisdiction or authority to consider the Trust’s initial appeal or to reconsider its initial decision at
the CEO’s suggestion; that the Board committed multiple violations of the Freedom of Access Act,
1 M.R.S. §§ 400-414 (2020); that the Board should have considered whether the Tomasinos’ request
to remove the trees was reasonable; and that the Board’s findings on remand are not supported by
substantial evidence in the record—and we decline to address those arguments further. See
30-A M.R.S. § 2691(3)(C), (F) (2020); Dubois v. Town of Arundel, 2019 ME 21, ¶ 4, 202 A.3d 524;
13
The entry is:
Judgment affirmed.
CONNORS, J., dissenting.
[¶16] I agree with the Court’s well-supported statement in this case that
“a municipal zoning case is not the proper forum for a private property dispute
between neighbors.” Court’s Opinion ¶ 8. I also agree with the Court that
resolving complicated questions of property law—such as the proper
interpretation of deed language—is outside of “the Board’s jurisdiction,
authority, or expertise.” Court’s Opinion ¶ 7. I dissent because the logical
conclusion from this reasoning is not affirmance of the legal conclusion of the
Board of Appeals that the Tomasinos lack standing to seek a permit, but the
contrary.
[¶17] The Tomasinos, without dispute, hold a property interest in the
form of an easement. That interest arguably gives them the right to cut down
the trees in question under Maine property law. To probe beyond the face of
the easement, and rule it insufficient for standing purposes, requires an
Fryeburg Tr. v. Town of Fryeburg, 2016 ME 174, ¶ 5, 151 A.3d 933; Homeward Residential, Inc. v.
Gregor, 2015 ME 108, ¶ 17, 122 A.3d 947.
14
analysis of Maine property law by the Board of Appeals properly deemed by the
majority as beyond the scope of the administrative body’s standing review.
[¶18] We should start, as always, with the relevant legislative language.
See MSR Recycling, LLC v. Weeks & Hutchins, LLC, 2019 ME 125, ¶ 8, 214 A.3d 1.
This ordinance requires a permit application to “be signed by an owner or
individual who can show evidence of right, title or interest in the property.”
Casco, Me., Code § 215-9.36(C)(2) (June 14, 2017). Notably absent from this
language is any requirement that this evidence be irrefutable or unchallenged.
Such language is omitted for good reason. Because of its underlying purpose,
administrative standing requires less evidence of “right, title or interest” than
might be required to establish such property rights definitively in a court of law.
[¶19] The ordinance codifies our holding in several cases that, for
standing purposes, an applicant must show that he or she “has an
independently existing relationship to [the] regulated land in the nature of a
‘title, right or interest’ in it which confers lawful power to use it, or control its
use.” Walsh v. City of Brewer, 315 A.2d 200, 207 (Me. 1974). Put another way,
the applicant must “have the kind of relationship to the site that gives him [or
her] a legally cognizable expectation of having the power to use that site in the
ways that would be authorized by the permit or license he [or she] seeks.”
15
Murray v. Inhabitants of the Town of Lincolnville, 462 A.2d 40, 43 (Me. 1983)
(alteration omitted) (citation omitted) (quotation marks omitted).
[¶20] We have explained that administrative standing “is intended to
prevent an applicant from wasting an administrative agency’s time by applying
for a permit or license that he [or she] would have no legally protected right to
use.” Id.; see also Walsh, 315 A.2d at 207 n.4 (“[G]overnmental officials and
agencies should not be required to dissipate their time and energies in dealing
with persons who are ‘strangers’ to the particular governmental regulation and
control being undertaken.”). Accordingly, “whatever the applicant relies on for
his [or her] authority to use the land in the ways permitted by the permit he [or
she] seeks must be legally enforceable and not revocable ‘at any moment, at the
will of the owners.’” Murray, 462 A.2d at 43 (quotation marks omitted).
[¶21] That is not to say, however, that administrative standing
represents a particularly high bar for applicants. In Murray, for example, we
held that a purchase and sale agreement conditioned upon the seller’s
acquisition of any necessary subdivision approval conferred upon the
purchasers sufficient interest to petition a local planning board and the Board
of Environmental Protection for approval of their proposed condominium
development. Id. at 41. We said that the fact that the purchasers “could opt out
16
of the purchase under certain circumstances does not deprive them of standing,
any more than the owner of property in fee simple could be said to lack standing
because he has the right to sell his land at any time.” Id. at 43.
[¶22] Extending this reasoning even further, we held in Southridge Corp.
v. Board of Environmental Protection that an applicant with a pending adverse
possession suit had “sufficient title, right or interest” to seek a permit for a
septic system that had “existed on the disputed parcel for a long period of time.”
655 A.2d 345, 346-348 (Me. 1995). We explained,
We fully acknowledge that it is possible that [the applicant]
may not prevail in his adverse possession claim to the [disputed]
property. Should this happen, his permit might be revoked. This
possibility, however, neither deprives [the applicant] and those he
represents of their current interest in the land nor their
administrative standing.
Id. at 348.
[¶23] What our holding in Southridge makes clear, then, is that
unresolved property law disputes have no bearing on the administrative
standing analysis—i.e., that an applicant can have sufficient right, title, or
interest to seek a permit even if there is a possibility that a court might
determine otherwise in a different context. This is consistent with the purpose
of administrative standing, which is not to ensure that an applicant has an
unassailable right to engage in the permit-requiring activity, but rather to
17
ensure that they have a “legally cognizable expectation” of being able to do so,
such that the permitting process is not a waste of time. Murray, 462 A.2d at 43;
Walsh, 315 A.2d at 207 & n.4; see also Cognizable, Black’s Law Dictionary
(11th ed. 2019) (defining cognizable to mean “[c]apable of being known or
recognized”).
[¶24] The Court attempts to distinguish Murray and Southridge from the
present case by suggesting that the holdings from those cases only apply to
applicants with sufficient connections to the title of the property at issue.
Court’s Opinion ¶¶ 11, 13-14. Such a narrow reading of those two cases,
however, is inconsistent with our case law as well as the language of the
ordinance in this case, both of which allow administrative standing to be shown
through evidence of right, title, or interest. By elevating title ownership above
other property rights or interests, the Court creates an unwarranted
distinction; just like the easement at issue here, a person’s title can, and often
does, stem from less-than-clear deed language that may require legal parsing.
Similarly, a title-holding applicant may nevertheless be “subject to a second
layer of necessary authority,” Court’s Opinion ¶ 15, if the land for which he or
she seeks a permit is subject to an easement or restrictive covenant. Cf. Whiting
v. Seavey, 159 Me. 61, 62-69, 188 A.2d 276 (1963) (affirming the decision of a
18
local board permitting an applicant to operate a boat yard despite the assertion
of neighboring property owners that his doing so violated restrictive covenants
in their deeds).
[¶25] If title is subject to all the same pitfalls as other property rights or
interests, why should it be the litmus test of administrative standing? And if
disputed title is sufficient to establish standing, see Southridge Corp., 655 A.2d
at 348, why is a disputed easement insufficient? The Court does not point to
anything in the ordinance language or the underlying purpose of administrative
standing to support its position.
[¶26] To the extent the Court relies on Rancourt v. Town of Glenburn,
635 A.2d 964 (Me. 1993), to reach its decision, it should not. In Rancourt, we
affirmed a decision of a local board determining that an applicant failed to meet
her burden of establishing sufficient legal interest in a right-of-way to entitle
her to apply for a permit to place a dock thereon. Id. at 965-66. We noted that
the deed language describing the applicant’s right-of-way did not indicate
whether it included “the right to place a dock at the end of” it and held that the
applicant lacked administrative standing because she had failed to resolve this
ambiguity by presenting any evidence to the board that the right-of-way was
originally intended to allow such placement. Id. In so holding, we implicitly
19
suggested that the issue of the right-of-way’s scope was properly before
the board, contravening our previous holding—which the Court reiterates
here—that a municipal board is “not the proper forum to determine existing
property rights” and that courts are not in a position to entertain such issues in
M.R. Civ. P. 80B appeals. Rockland Plaza Realty Corp. v. LaVerdiere’s Enters.,
531 A.2d 1272, 1273-74 (Me. 1987).
[¶27] Similar to our decision in Rancourt, I worry that the Court’s holding
today invites, rather than discourages, municipal boards to wade into private
property disputes and will result in needlessly protracted proceedings
involving squabbling neighbors. I am also concerned that the holding will
create unnecessary conflict by forcing easement holders to actively litigate the
scope of their easements before seeking what might have otherwise been
unchallenged permits.
[¶28] To avoid these problems, and to be more consistent with the
language of the ordinance and the purpose of administrative standing, I would
hold that some evidence of a legally cognizable—i.e., colorable; not plainly
inadequate—expectation is enough to show “right, title or interest” for the
purpose of seeking a permit.6 Doing so would (1) keep the administrative
6 Contrary to the Court’s characterization of my position, I do not suggest that any legally
cognizable interest is sufficient to establish administrative standing. Court’s Opinion ¶ 12. Clearly,
20
standing analysis relatively simple for lay boards, and (2) make it clear that a
dispute over property rights should be brought before a court with the actual
authority and expertise to resolve the dispute.
[¶29] Applying that framework, the Tomasinos’ easement gave them
sufficient interest to petition the Board for permission to cut down trees
interfering with their use of that easement, and the Board therefore erred in
refusing to grant their permit on that basis. See Murray, 462 A.2d at 43; Walsh,
315 A.2d at 207 & n.4. The Trust’s remedy lies in a separate action to construe
the easement.7 See Rockland Plaza Realty Corp., 531 A.2d at 1273-74; Whiting,
159 Me. at 67-68, 188 A.2d 276. And the fact that a court, when squarely
presented with the issue, might determine that the Tomasinos’ easement does
not permit them to remove the trees at issue does not alter the Tomasinos’
administrative standing—they are not strangers to the land or activity at issue
and their permit application is not a waste of time any more than the
application at issue in Southridge was. See Southridge Corp., 655 A.2d at 348.
the Tomasinos would not have a legally cognizable expectation of being able to cut down the trees if,
for example, the language of their easement expressly prohibited them from doing so.
The grant of the permit in this case would not give the Tomasinos the absolute right to cut down
7
the trees, and the Trust could still seek damages if they did so or request an injunction to prevent
them from doing so while the scope of the easement is litigated.
21
Chris Neagle, Esq., Troubh Heisler LLC, Portland, for appellants Mark and
Valerie Tomasino
Natalie L. Burns, Esq., Jensen Baird Gardner & Henry, Portland, for appellee
Town of Casco
David A. Goldman, Esq., Norman, Hanson & DeTroy, LLC, Portland, for appellee
Colleen E. Demirs, trustee, Lake Shore Realty Trust
Cumberland County Superior Court docket number AP-2018-60
FOR CLERK REFERENCE ONLY