MAINE	SUPREME	JUDICIAL	COURT	                                    Reporter	of	Decisions	
Decision:	 2017	ME	234	
Docket:	   Lin-17-165	
Argued:	   October	13,	2017	
Decided:	  December	19,	2017	
	
Panel:	    ALEXANDER,	MEAD,	GORMAN,	JABAR,	HJELM,	and	HUMPHREY,	JJ.	
	
	
                             KATHLEEN	BRYANT	et	al.	
                                       	
                                      v.	
                                       	
                            TOWN	OF	WISCASSET	et	al.	
	
	
HUMPHREY,	J.	

      [¶1]	 	 Kathleen	 Bryant	 and	 Thomas	 Bryant	 appeal	 from	 a	 judgment	 of	

the	 Superior	 Court	 (Lincoln	 County,	 L.	 Walker,	 J.)	 affirming,	 pursuant	 to	 M.R.	

Civ.	 P.	 80B,	 the	 Town	 of	 Wiscasset	 Planning	 Board’s	 approval	 of	 Allen	 and	

Melissa	 Cohen’s	 application	 to	 expand	 a	 building	 used	 to	 store	 fireworks	 for	

the	Cohens’	business—Big	Al’s	Outlet,	Inc.	(Count	1).		The	Bryants	also	appeal	

from	the	judgments	entered	in	favor	of	the	Town	on	their	independent	claims	

asserting	violations	of	their	due	process	rights	pursuant	to	the	United	States	

and	Maine	Constitutions	(Counts	2	and	3)	and	the	judgment	dismissing	their	

claim	 seeking	 declaratory	 relief	 (Count	 4).	 	 We	 affirm	 the	 judgment	 on	 the	

Rule	 80B	 appeal	 and	 dismiss	 the	 appeal	 of	 the	 judgments	 entered	 on	 the	

independent	claims.	
2	 	

                                          I.		BACKGROUND	

        [¶2]		In	September	2014,	the	Cohens	applied	to	the	Town	of	Wiscasset	

Planning	Board	for	a	site	plan	review	approval	and	to	the	Code	Enforcement	

Officer	 for	 a	 permit	 for	 a	 proposed	 35-by-60-foot	 addition	 to	 their	 storage	

building.		The	Cohens’	site	plan	review	application	recited,	“Fireworks	storage	

approved	 and	 inspected	 by	 State	 Fire	 Marshal[’]s	 Office.”	 	 The	 Bryants	

objected	to	the	application.		After	an	administrative	process	that	involved	an	

initial	 appeal	 to	 and	 remand	 from	 the	 Board	 of	 Appeals,	 the	 Planning	 Board	

granted	 the	 Cohens’	 application.	 	 The	 Bryants	 appealed	 that	 decision	 to	 the	

Board	 of	 Appeals,	 and	 the	 Board	 of	 Appeals	 issued	 its	 final	 decision	 on	

March	24,	 2015,	 affirming	 the	 decision	 of	 the	 Planning	 Board.1	 	 The	 Bryants	

appealed	 to	 the	 Superior	 Court,	 which	 affirmed	 the	 Planning	 Board	 decision	

on	 September	 21,	 2016.	 	 Because	 the	 decision	 of	 the	 Planning	 Board	 is	 the	

operative	 one	 for	 purposes	 of	 this	 appeal,	 the	 facts	 recited	 below	 are	 taken	

from	 the	 record	 before	 the	 Planning	 Board	 and	 from	 the	 decisions	 the	

Planning	Board	issued	on	September	22,	2014,	and	January	12,	2015.2	



    1		Although	the	heading	of	that	decision	indicates	that	it	contains	“findings	of	fact,”	the	decision	

itself	references	Wiscasset,	Me.,	Site	Plan	Review	Ordinance	Art.	VIII	§	13	(Nov.	2012),	which	limits	
the	Board	of	Appeals’	actions	to	appellate	review.			
   2		Because	Wiscasset,	Me.,	Site	Plan	Review	Ordinance	Art.	VIII	§	13	limits	the	Board	of	Appeals	

to	 an	 appellate	 capacity	 when	 it	 reviews	 site	 plan	 review	 applications,	 we	 directly	 review	 and	
    	                                                                                                          3	

        [¶3]	 	 On	 September	 8,	 2014,	 the	 Planning	 Board	 held	 its	 first	 public	

hearing	on	the	Cohens’	application.		Allen	Cohen	presented	the	application	to	

the	 Planning	 Board.3	 	 The	 Bryants	 opposed	 the	 application,	 expressing	

concerns	about	the	proximity	of	the	fireworks	storage	building	to	their	home.4		

The	 Planning	 Board	 approved	 the	 application	 in	 a	 written	 decision	 finding	

that	 the	 Cohens	 were	 already	 storing	 fireworks	 in	 the	 existing	 building	 on	

their	 property	 and	 “concluding”5	 that	 the	 “current	 building	 and	 proposed	

expansion	 have	 been	 previously	 approved	 and	 inspected	 by	 the	 State	 Fire	

Marshal[]’s	Office.”			

        [¶4]	 	 The	 Bryants	 appealed	 from	 the	 Planning	 Board’s	 decision	 to	 the	

Board	of	Appeals,	asserting,	in	relevant	part,	that	(1)	the	Planning	Board	failed	

to	 review	 the	 application	 against	 applicable	 legal	 standards,	 particularly	

National	 Fire	 Protection	 Association	 Code	 1124	 (NFPA	1124);	 (2)	 the	

Planning	Board’s	findings	were	not	supported	by	substantial	evidence	in	the	



derive	facts	from	the	Planning	Board	decisions	and	not	the	Board	of	Appeals	decisions.		See	Mills	v.	
Town	of	Eliot,	2008	ME	134,	¶¶	13-14,	955	A.2d	258;	see	also	supra	n.1.	
   3		Allen	Cohen	and	his	surveyor	were	members	of	the	Planning	Board	at	the	time,	and	they	both	

recused	themselves	from	the	Planning	Board’s	consideration	of	the	application.	
   4	 	 The	 Planning	 Board	 sent	 notice	 of	 the	 hearing	 to	 the	 Bryants	 because	 they	 lived	 within	 250	

feet	 of	 the	 Cohens’	 property.	 	 See	 Wiscasset,	 Me.,	 Site	 Plan	 Review	 Ordinance	 Art.	 VIII	 §	 6(A)(4)	
(Nov.	2012).	
   5		This	finding	was	listed	among	the	Planning	Board’s	conclusions	of	law.			
4	 	

record;	and	(3)	Allen	Cohen’s	presentation	of	his	application	to	the	Planning	

Board	violated	Maine’s	conflict-of-interest	law.		The	Board	of	Appeals	“denied”	

the	 appeal,	 but	 nonetheless	 remanded	 the	 application	 to	 the	 Planning	 Board	

to	 determine	 whether	 the	 Cohens	 had	 written	 approval	 from	 the	 State	 Fire	

Marshal’s	Office	for	the	proposed	expansion.			

       [¶5]	 	 On	 remand,	 the	 Planning	 Board	 held	 two	 hearings	 in	

November	2014	 and,	 at	 the	 conclusion	 of	 the	 second	 hearing,	 unanimously	

approved	 the	 Cohens’	 application.	 	 The	 Bryants	 were	 not	 given	 personal	

notice	of	the	hearings	and	did	not	appear	at	either	hearing.		On	December	22,	

2014,	the	Bryants	filed	a	second	appeal	to	the	Board	of	Appeals,	asserting	in	

relevant	part	that	the	Planning	Board’s	failure	to	give	them	personal	notice	of	

the	November	hearings	violated	their	right	to	due	process.	

       [¶6]	 	 Despite	 the	 pending	 appeal,	 the	 Planning	 Board	 met	 in	 January	

2015	to	“again	consider”	the	Cohens’	application	and	to	give	the	Bryants	“the	

opportunity	to	address	the	Board	on	the	application.”		The	Bryants	attended	

the	hearing	and	reiterated	their	objections	to	the	Cohens’	application.		At	the	

January	 hearing,	 Allen	 Cohen	 displayed	 for	 the	 Board	 his	 federal	 licenses	 to	

sell	fireworks;	the	State	Fire	Marshal’s	signed	approval	of	the	property	for	the	

storage	of	fireworks;	and	a	letter	from	the	Wiscasset	Fire	Department	stating	
    	                                                                                                 5	

that	it	had	“no	issues”	with	the	property.		The	Planning	Board	again	voted	on	

and	reapproved	the	application.		

        [¶7]		In	March	2015,	the	Board	of	Appeals	“denied”	the	Bryants’	second	

appeal	and	affirmed	the	Planning	Board’s	approval	of	the	Cohens’	application.			

        [¶8]	 	 The	 Bryants	 appealed	 the	 Planning	 Board’s	 decision	 to	 the	

Superior	 Court	 pursuant	 to	 M.R.	 Civ.	 P.	 80B.	 	 In	 addition	 to	 their	 Rule	 80B	

appeal,	 they	 brought	 three	 independent	 claims:	 two	 separate	 counts	

realleging	 that	 the	 Town	 had	 violated	 their	 due	 process	 rights	 by	 denying	

them	“notice	and	an	opportunity	to	be	heard	in	a	meaningful	manner”	(Counts	

2	 and	 3);	 and	 a	 third	 count	 seeking	 declaratory	 relief	 and	 realleging	 the	

Bryants’	claims	regarding	conflict	of	interest,	procedural	due	process,	and	the	

storage	of	fireworks	on	the	Cohens’	property	(Count	4).			

        [¶9]		On	September	21,	2016,	the	Superior	Court	affirmed	the	decision6	

of	the	Planning	Board	on	the	Bryants’	Rule	80B	appeal	and	entered	judgments	

in	favor	of	the	Town	on	the	independent	claims	for	violation	of	due	process.		

In	 a	 separate	 judgment	 entered	 on	 March	 31,	 2017,	 the	 court	 dismissed	 the	

remaining	 count	 seeking	 declaratory	 relief	 for	 lack	 of	 subject	 matter	



   6		The	court	noted	that	the	September	22,	2014,	decision	was	the	Planning	Board’s	“operative”	

decision,	and	that	the	January	12,	2015,	decision	“effectively	reaffirmed	its	earlier	decision.”			
6	 	

jurisdiction.7		The	Bryants	filed	a	timely	appeal.		See	14	M.R.S.	§	5959	(2016);	

M.R.	Civ.	P.	80B(n);	M.R.	App.	P.	2(b)(3)	(Tower	2016).8	

                                             II.		DISCUSSION	

A.	     Site	Plan	Review	

        [¶10]		In	their	Rule	80B	appeal,	the	Bryants	first	challenge	the	Planning	

Board’s	approval	of	the	Cohens’	site	plan	review	application.		

        [¶11]		“Our	review	of	administrative	decision-making	is	deferential	and	

limited.”	 	 Wolfram	 v.	 Town	 of	 N.	 Haven,	 2017	 ME	 114,	 ¶	 7,	 163	 A.3d	 835	

(quotation	marks	omitted).		“In	a	Rule	80B	appeal,	the	Superior	Court	acts	in	

an	 appellate	 capacity,	 and,	 therefore,	 we	 review	 the	 [Planning	 Board’s]	

decision	directly,”	21	Seabran,	LLC	v.	Town	of	Naples,	2017	ME	3,	¶	9,	153	A.3d	

113	(quotation	marks	omitted);	see	also	supra	n.2,	for	errors	of	law,	abuses	of	

discretion,	 or	 findings	 not	 supported	 by	 substantial	 evidence	 in	 the	

administrative	 record.	 	 Osprey	 Family	 Tr.	 v.	 Town	 of	 Owls	 Head,	 2016	 ME	89,	

¶	9,	141	A.3d	1114.		The	Bryants	bear	the	burden	of	persuasion	because	they	




   7	 	 The	 trial	 court	 dismissed	 Count	 4	 for	 lack	 of	 subject	 matter	 jurisdiction,	 concluding	 that	 a	

letter	from	the	State	Fire	Marshal’s	Office	constituted	final	agency	action	and	that	the	Bryants	failed	
to	pursue	an	available	administrative	appeal.		See	M.R.	Civ.	P.	80C.	

   8	 	 This	 appeal	 was	 commenced	 before	 September	 1,	 2017,	 and	 therefore	 the	 restyled	 Maine	

Rules	of	Appellate	Procedure	do	not	apply.		See	M.R.	App.	P.	1.	
     	                                                                                        7	

seek	to	vacate	the	Planning	Board’s	decision.		Wolfram,	2017	ME	114,	¶	7,	163	

A.3d	835.	

	        [¶12]	 	 The	 Bryants	 contend	 that	 the	 Planning	 Board	 erred	 when	 it	

approved	 the	 site	 plan	 review	 application	 because	 the	 Planning	 Board	 failed	

to	 ensure	 that	 the	 Cohens’	 fireworks	 storage	 building	 complied	 with	 NFPA	

1124.9	 	 Although	 interpretation	 of	 an	 ordinance	 is	 a	 question	 of	 law,	 and	

therefore	 reviewed	 de	 novo,	 see	 Wolfram,	 2017	 ME	 114,	 ¶	 7,	 163	 A.3d	 835,	

“we	 accord	 ‘substantial	 deference’	 to	 the	 Planning	 Board’s	 characterizations	

and	 fact-findings	 as	 to	 what	 meets	 ordinance	 standards.”	 	 Bizier	 v.	 Town	 of	

Turner,	2011	ME	116,	¶	8,	32	A.3d	1048.	

	        [¶13]	 	 The	 Wiscasset	 site	 plan	 review	 ordinance	 requires	 that	

hazardous	 materials,	 including	 fireworks,	 be	 stored	 in	 accordance	 with	 the	

standards	 of	 the	 federal	 or	 state	 agency	 that	 deems	 them	 hazardous.		

Wiscasset,	Me.,	Site	Plan	Review	Ordinance	Art.	VIII	§	9(L)	(Nov.	2012).		The	

Office	 of	 the	 State	 Fire	 Marshal	 is	 the	 state	 agency	 that	 regulates	 fireworks.		

See	8	M.R.S.	§	236	(2016);	25	M.R.S.	§	2396	(2016).		The	Planning	Board	found	

that	the	Cohens	had	sufficient	approval	from	the	State	Fire	Marshal’s	Office	to	

store	fireworks	and	to	expand	their	storage	facility.			

    9		 In	 relevant	 part,	 NFPA	 1124	 section	 6.2.4	 states:	 “Consumer	 fireworks	 storage	
buildings	.	.	.	shall	not	be	located	in	residential	areas.”			
8	 	

	      [¶14]	 	 According	 deference	 to	 the	 Planning	 Board’s	 findings,	 we	

conclude	 that	 there	 was	 substantial	 evidence	 before	 the	 Planning	 Board	 to	

support	 its	 conclusion	 that	 the	 Cohens’	 fireworks	 storage	 building	 and	 the	

proposed	extension	complied	with	NFPA	1124:	Allen	Cohen	asserted	multiple	

times	that	he	had	State	Fire	Marshal	approval,	there	is	documentation	that	the	

property	 was	 approved	 for	 the	 storage	 of	 fireworks	 in	 2013	 prior	 to	 the	

Cohens’	site	plan	review	application	for	the	proposed	expansion	of	the	storage	

building,	 and	 the	 Town’s	 attorney	 advised	 the	 Planning	 Board	 that	 the	

Inspection	Supervisor	of	the	State	Fire	Marshal’s	Office	informed	her	that	no	

additional	 approval	 was	 necessary	 for	 the	 proposed	 expansion.	 	 See	 Osprey	

Family	Tr.,	2016	ME	89,	¶	9,	141	A.3d	1114	(“Substantial	evidence	exists	when	

a	 reasonable	 mind	 would	 rely	 on	 that	 evidence	 as	 sufficient	 support	 for	 a	

conclusion.”)	(quotation	marks	omitted)).	

B.	    Procedural	Due	Process	Violations	

       [¶15]	 	 The	 Bryants	 next	 allege	 in	 their	 Rule	 80B	 appeal	 that	 their	

procedural	 due	 process	 rights	 were	 violated	 when	 the	 Planning	 Board	 failed	

to	 provide	 them	 with	 personal	 notice	 of	 its	 November	 meetings.	 	 “We	 will	

vacate	a	planning	board’s	decision	if,	as	a	result	of	[ex	parte]	communications,	

the	 decision	 results	 in	 procedural	 unfairness,”	 see	 Duffy	 v.	 Town	 of	 Berwick,	
   	                                                                                   9	

2013	ME	 105,	 ¶	18,	 82	 A.3d	 148	 (quotation	 marks	 omitted),	 but	 an	

adjudicative	 body	 “may	 disregard	 nonprejudicial	 failure	 to	 comply	 strictly	

with	notice	requirements.”		Town	of	Ogunquit	v.	Dep’t	of	Pub.	Safety,	2001	ME	

47,	¶	11,	767	A.2d	291.		Whether	the	effect	of	procedural	unfairness	denies	a	

party	due	process	is	a	question	of	law	that	we	review	de	novo.		See	Wolfram,	

2017	ME	114,	¶	20,	163	A.3d	835.			

       [¶16]	 	 The	 Planning	 Board	 held	 a	 fourth	 meeting	 in	 January	2015	 to	

consider	 the	 Cohens’	 application	 after	 the	 Bryants	 informed	 the	 Planning	

Board	 that	 they	 had	 not	 received	 notice	 of	 the	 November	 meetings.	 	 The	

Planning	Board	voted	to	reaffirm	its	approval	only	after	hearing	the	Bryants’	

objections	 for	 the	 second	 time.	 	 In	 view	 of	 the	 Planning	 Board’s	 remedial	

action,	 including	 notice	 to	 the	 Bryants	 of	 the	 January	 meeting	 and	 providing	

them	 an	 opportunity	 to	 be	 heard,	 and	 the	 resulting	 lack	 of	 prejudice	 to	 the	

Bryants,	we	conclude	that	the	Planning	Board	did	not	violate	the	Bryants’	due	

process	 rights.	 	 See	 Town	 of	 Ogunquit,	 2001	 ME	 47,	 ¶¶	13-14,	 767	 A.2d	 291	

(holding	 that	 the	 court	 erred	 when	 it	 dismissed	 the	 action	 for	 procedural	

defects	because	the	Town	took	adequate	remedial	measures	and	no	prejudice	

resulted	to	the	petitioners).	
10	 	

C.	     Conflict-of-Interest	Violation	

        [¶17]		The	Bryants	also	allege	in	their	Rule	80B	appeal	that	the	Planning	

Board’s	 decision	 is	 void	 pursuant	 to	 Maine’s	 conflict-of-interest	 law,	 30-A	

M.R.S.	 §	 2605	 (2016).	 	 This	 is	 an	 issue	 of	 law	 that	 we	 review	 de	 novo.	 	 See	

Wolfram,	2017	ME	114,	¶	20,	163	A.3d	835.		Section	2605	makes	a	vote	of	a	

municipal	body	voidable	when	an	official	votes	on	a	question	in	which	he	has	

a	 pecuniary	 interest.	 	 See	 30-A	 M.R.S.	 §	 2605(1).	 	 Section	 2605(4)	 provides	

that	 votes	 on	 questions	 at	 municipal	 proceedings	 are	 “not	 voidable	 and	

actionable	 if	 the	 official	 makes	 full	 disclosure	 of	 [the]	 interest	 before	 any	

action	is	taken	and	if	the	official	abstains	from	voting	.	.	.	and	from	otherwise	

attempting	 to	 influence	 a	 decision	 in	 which	 the	 official	 has	 an	 interest.”		

Because	Allen	Cohen	disclosed	his	interest	and	recused	himself	from	voting	on	

his	application,	and	because	there	was	no	evidence	of	improper	influence,	the	

Planning	Board’s	vote	to	approve	the	Cohens’	site	plan	review	application	was	

not	voidable.		A	contrary	application	of	section	2605	would	deprive	Planning	

Board	 members	 of	 the	 right	 to	 present	 their	 own	 applications	 for	 site	 plan	

review	 and	 would	 discourage	 capable	 people	 from	 serving	 as	 members	 of	

municipal	 boards.	 	 See	 generally	 Anderson	 v.	 Zoning	 Comm’n	 of	 Norwalk,	

253	A.2d	16,	20	(Conn.	1968);	Szoke	v.	Zoning	Bd.	of	Adjustment	of	Monmouth	
      	                                                                                11	

Beach,	616	A.2d	942,	945	(N.J.	Super.	Ct.	App.	Div.	1992)	(“[P]ublic	confidence	

in	a	board’s	proceedings	will	not	be	impaired,	when	a	board	member	publicly	

and	 openly	 steps	 down	 from	 the	 official	 position	 to	 assert	 legal	 rights	 as	 an	

active	party	participant.”).	

D.	       Independent	Claims	

          [¶18]		The	Bryants’	independent	claims	(Counts	2,	3,	and	4)	collectively	

rely	 on	 the	 same	 factual	 allegations	 and	 issues—conflict-of-interest	 and	

procedural	due	process	violations,	and	violations	of	the	laws,	regulations,	and	

ordinances	 regarding	 the	 storage	 of	 fireworks—and	 seek	 the	 same	 ultimate	

relief	as	their	Rule	80B	appeal.		Those	issues	were	thoroughly	discussed	and	

properly	addressed	by	the	court	in	its	judgment	on	the	Rule	80B	appeal,	and	

any	 further	 discussion	 of	 those	 claims	 would	 be	 duplicative.	 	 See	 Kane	 v.	

Comm’r	of	the	Dep’t	of	Health	and	Human	Servs.,	2008	ME	185,	¶	32,	960	A.2d	

1196;	 Adelman	 v.	 Town	 of	 Baldwin,	 2000	 ME	 91,	 ¶	 7,	 750	 A.2d	 577.		

Accordingly,	the	Bryants’	appeal	of	the	judgments	on	their	independent	claims	

are	 dismissed	 as	 moot	 because	 the	 issues	 have	 “lost	 [their]	 controversial	

vitality,”	 and	 any	 further	 “decision	 by	 this	 [C]ourt	 would	 not	 provide	 [the	
12	 	

Bryants]	any	real	or	effective	relief.”10		See	Sparks	v.	Sparks,	2013	ME	41,	¶	9,	

65	A.3d	1223	(quotation	marks	omitted).	

         The	entry	is:	

                            Judgment	 of	 Superior	 Court	 affirmed	 with	
                            respect	 to	 the	 Rule	 80B	 appeal.	 	 Appeals	
                            dismissed	with	respect	to	the	judgments	on	the	
                            independent	claims.			
	
	      	     	      	      	       	
	
Jonathan	 A.	 Pottle,	 Esq.	 (orally),	 and	 Patrick	 W.	 Lyons,	 Esq.,	 Eaton	 Peabody,	
Bangor,	for	appellants	Kathleen	Bryant	and	Thomas	Bryant	
	
Mary	E.	Costigan,	Esq.	(orally),	Bernstein	Shur,	Portland,	for	appellee	Town	of	
Wiscasset	
	
Chris	 Neagle,	 Esq.	 (orally),	 Troubh	 Heisler,	 PA,	 Portland,	 for	 appellees	 Allen	
Cohen,	Melissa	Cohen,	and	Big	Al’s	Outlet,	Inc.	
	
	
Lincoln	County	Superior	Court	docket	number	AP-2015-1	
FOR	CLERK	REFERENCE	ONLY	




   10	 	 Although	 the	 Bryants	 separately	 challenge	 the	 trial	 court’s	 judgment	 dismissing	 their	 claim	

for	declaratory	relief	(Count	4)	for	lack	of	subject	matter	jurisdiction,	M.R.	Civ.	P.	12(b)(1),	based	on	
the	court’s	conclusion	that	the	Bryants	failed	to	pursue	a	Rule	80C	appeal	of	final	agency	action	by	
the	 State	 Fire	 Marshal’s	 Office,	 the	 allegations	 and	 claims	 in	 Count	 4	 were	 duplicative	 of	 and	
properly	addressed	in	the	Rule	80B	appeal,	and	warrant	dismissal	on	that	basis	alone.		See	Cent.	Me.	
Power	Co.	v.	Me.	Pub.	Util.	Comm’n,	395	A.2d	414,	434	(Me.	1978).			
