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