DrummondWoodsum Ceara R.

Kazilionis
Legal Assistant
207.253.0507
[email protected]
A TTORNEYS AT LAW
84 Marginal Way,Suite 600
Portland, Maine 04101-2480
207.772.1941 Main
VIA HAND DELIVERY 207.772.3627 Fax

September 9.2022

Shelley Sawyer, Clerk

Cumberland County Superior Court
205 Newbury Street
Portland, ME 04101

RE: Management Controls, LLC,et al. vs. Town of Raymond

Rule 80B Complaint

Dear Ms. Sawyer:

In regards to the above-referenced matter, enclosed for filing please the Civil Summary
Sheet, Complaint for Review of Governmental Action Pursuant To M.R. Civ. P. 80b Joined with
Independent Claims, and $175.00 filing fee on behalf ofthe Plaintiff, Management Controls,
LLC.

Thank you for your attention to this matter.

800.727.1941 I dwmlaw.com
 DrummondWoodsum BANGOR SAVINGS BANK
BANGOR, MAINE 04401
52-7438/2112
136007
DRUMMOND WOODSUM & MacMAHON
OPERATING ACCOUNT
84 MARGINAL WAY,SUITE 600
PORTLAND, MAINE 04101-2480 2
(207) 772-1941 2
C
PAY: One Hundred Seventy Five and 00/100 Dol*A BER a
DATE AMOUNT

000136003 09/07/2022 ********175.00

TO THE
ORDER
Cumberland County Superior Court
205 Newbury Street VOID AFTER 120 DAYS
OF 2
P.O. Box 412 0,0 .4%
Portland, ME 04112-0412 -

AUTHORIZED SIGNATURE

1, 3600 311° 1: 2 1 2 : 40 2 1865 1.36e

3E1 2,

DrummondWoodsum Cumberland County Superior Court 136003

DATE INVOICE NUMBER MEMO BALANCE
09/07/2022 n/a Appeal Mgmt Controls 175.00

CHECK CHECK
DATE NUMBER
09/07/2022 000136003 TOTAL 175.00

WL85112M1 DALY PRINTING SERVICES LLC 508-815-7925 WZ596812-04-22 PRINTED IN U.S.A.

CONTAINS NONPUBLIC DIGITAL INFORMATION
MAINE JUDICIAL BRANCH

This summary sheet and the information it contains do not replace or supplement the filing and service of pleadings or other papers
as required by the Maine Rules or by law. This form is required for the Clerk of Court to initiate or update the civil docket. The
i nformation on this summary sheet is subject to the requirements of M. R. Civ. P. 11.

I. COUNTY OF FILING OR DISTRICT COURT JURISDICTION ("X" the appropriate box and enter the County or location)
X Superior Court County: Cumberland
0 District Court Location (city/town): Initial Complaint: A complaint filed as an original
proceeding. A filing fee is required.
II. NATURE OF THE FILING Third-Party Complaint: An original defendant's
El Initial Complaint action against a third party that was not part of
El Third-Party Complaint the original proceeding. A fi l ing fee is required.
0 Cross-Claim or Counterclaim Cross-Claim: An original defendant's claim
E Reinstated or Reopened case against another original defendant. No
Docket No.: additional fee is required.
Iffiling a second or subsequent Money Judgment Disclosure, give the Counterclaim: An original defendant's claim
docket number of the first disclosure.) against an opposing party. No additional fee is
required.
III. 111 REAL ESTATE OR TITLE TO REAL ESTATE IS INVOLVED Reinstated or Reopened Case: Money Judgment
Disclosures or post-judgment motions.
IV. MOST DEFINITIVE NATURE OF ACTION
("X" in ONE box. If the case fits more than one nature of action, select the one that best describes the cause of action.)

G ENERAL CIVIL Statutory Actions REAL ESTATE

Constitutional/Civil Rights Li Freedom of Access Foreclosures
0 Constitutional/Civil Rights O Other Statutory Action 0Foreclosure (ADR exempt)
Contract ri Unfair Trade Practice O Foreclosure (Diversion eligible)
O Debt Collection brought by a debt Miscellaneous Civil El Foreclosure (Other)
collector as defined by 32 M.R.S. § O Administrative Warrant Title Actions
11002 (Contract Case Cover Sheet O Appointment of Receiver n Boundary
(CV-261) must be attached) 0Arbitration Awards O Easement
0 Other Contract (Contract Case El Common Law Habeas Corpus E Eminent Domain
Cover Sheet(CV-261) must be E Drug Forfeiture O Quiet Title
attached) O Foreign Deposition Miscellaneous Real Estate
laratory/Equitable Relief O Foreign Judgments X Abandoned Road

Dge Declaratory Judgment

General Injunctive Relief
0Other Equitable Relief
O HIV Testing
7
7
Land Use Enforcement (80K)
Minor Settlements
0
E
Adverse Possession
El Equitable Remedy
Mechanics Lien
Non-Personal Injury Torts 0 Other Civil O Nuisance
0Auto Negligence El Other Forfeiture/Property Libel O Other Real Estate
O Libel/Defamation E Pre-Action Discovery 0Partition
O Other Negligence E Prisoners Transfers E Trespass
0 Other Non-Personal Injury Tort 0Shareholders' Derivative Action
Personal Injury Torts
El Assault/Battery
0 Auto Negligence APPEALS (ADR EXEMPT) CHILD PROTECTIVE CUSTODY
X Domestic Tort 0Administrative Agency (80C) X Non-DHHS Protective Custody
O Medical Malpractice E Governmental Body (80B)
0Other Negligence E Other Appeal SPECIAL ACTIONS
0 Other Personal Injury Tort El Money Judgment Disclosure
0 Product Liability
El Property Negligence

ADA Notice: The Maine Judicial Branch complies with the Americans with Disabilities Act (ADA). If you need a reasonable
accommodation contact the Court Access Coordinator, [email protected], or a court clerk.
Language Services: For language assistance and interpreters, contact a court clerk or [email protected].

CV-001, Rev. 12/21 Page 1 of 4 www.courts.maine.gov

Civil Summary Sheet
CONTAINS NONPUBLIC DIGITAL INFORMATION
MAINE JUDICIAL BRANCH

V. M.R. Civ. P. 16B ALTERNATIVE DISPUTE RESOLUTION (ADR)

111 I certify that pursuant to M.R. Civ. P. 16B(b), this case is exempt from a required ADR process because
("X"one box below):
111 It falls within an exemption listed above (it is an appeal or an action for non-payment of a note in a secured
transaction).
❑ The plaintiff or defendant is incarcerated in a local, state, or federal facility.
111 The parties have participated in a statutory pre-litigation screening panel process with (name ofpanel chair)
that concluded on (date of panelfinding - mm/dd/yyyy)
El The parties have participated in a formal ADR process with (name of neutral)
on (date — mm/dd/yyyy)
El The plaintiff's likely damages will not exceed $30,000, and the plaintiff requests an exemption.
❑ The action does not include ADR pursuant to M.R. Civ. P. 16(a)(1).
El There is other good cause for an exemption and the plaintiff has filed a motion for exemption.

VI. PARTY AND ATTORNEY CONTACT INFORMATION

If you need additional space, list additional parties on an attachment and note "see attachment" in the appropriate section.

Please note: If a party is a government agency, use the full agency name or the standard abbreviation. If the party
is an official within a government agency, identify the agency first and then the official, giving both name and title.

(a)PLAINTIFF(S)
("X"the box below to indicate the party type associated with thefiling)
•Plaintiff(s)
❑ Third-Party Plaintiff(s)
❑ Counterclaim Plaintiff(s)
❑ Cross-Claim Plaintiff(s)
Is the plaintiff a prisoner in a local, state, or federal facility? El Yes Fj No
Name (first, middle initial, last): Management Controls, LLC
Mailing address (include county): P.O. Box 2058
Auburn, ME 04211
Telephone: 207-753-6844
Email: [email protected]

Name (first, middle initial, last):

Mailing address (include county):

Telephone:
Email:

(b) ATTORNEY(S) FOR PLAINTIFF(S)

If there are multiple attorneys, indicate the lead attorney. If all counsel do not represent ALL plaintiffs, specify which
plaintiff(s) the listed attorney(s) represents.
Name and bar number: Leah B. Rachin, Bar No. 9363
Firm name: Drummond Woodsum & MacMahon
Mailing Address: 84 Marginal Way, Suite 600
Portland, Maine, 04101
Telephone: 207-772-1941
Email: [email protected]

ADA Notice: The Maine Judicial Branch complies with the Americans with Disabilities Act(ADA). If you need a reasonable
accommodation contact the Court Access Coordinator, [email protected], or a court clerk.
Language Services: For language assistance and interpreters, contact a court clerk or [email protected].

CV-001, Rev. 12/21 Page 2 of 4 www.courts.maine.gov

Civil Summary Sheet
CONTAINS NONPUBLIC DIGITAL INFORMATION
MAINE JUDICIAL BRANCH

Name and bar number:

Firm name:
Mailing Address:

Telephone:
Email:

(c) DEFENDANT(S)
("X"the box below to indicate the party type associated with the filing)
•Defendant(s)
❑ Third-Party Defendant(s)
111 Counterclaim Defendant(s)
❑ Cross-Claim Defendant(s)
Is the defendant a prisoner in a local, state, or federal facility? 111 Yes gl No
Name (first, middle initial, last): Town of Raymond
Mailing address (include county): 401 Webbs Mills Rd,
Raymond, ME 04071
Telephone: 207-655-4742
Email:

Name (first, middle initial, last):

M ailing address (include county):

Telephone:
Email:

(d)ATTORNEY(S) FOR DEFENDANT(S)

If there are multiple attorneys, indicate the lead attorney. If all counsel do not represent ALL defendants, specify which
defendant(s) the listed attorney(s) represents.

Name and bar number: Eric J. Wycoff, Bar No. 9571

Firm name: Pierce Atwood, LLP
Mailing Address: 254 Commercial Street
Portland, Maine_,04101
Telephone: 207-791-1221
Email: [email protected]

Name and bar number:

Firm name:
Mailing Address:

Telephone:
Email:

ADA Notice: The Maine Judicial Branch complies with the Americans with Disabilities Act(ADA). If you need a reasonable
accommodation contact the Court Access Coordinator, [email protected], or a court clerk.
Language Services: For language assistance and interpreters, contact a court clerk or interpreLars courts.maine.gov.

CV-001, Rev. 12/21 Page 3 of 4 www.courts.maine.gov

Civil Summary Sheet
CONTAINS NONPUBLIC DIGITAL INFORMATION
MAINE JUDICIAL BRANCH

(e)PARTIES IN INTEREST
Name (first, middle initial, last):
Mailing address (include county):

Telephone:
Email:

Name (first, middle initial, last):

Mailing address (include county):

Telephone:
Email:

(f) ATTORNEY(S)
If there are multiple attorneys, indicate the lead attorney. If all counsel do not represent ALL parties in interest, specify
which parties in interest the listed attorney(s) represents.
Name and bar number:
Firm name:
Mailing Address:

Telephone:
Email:

Name and bar number:

Firm name:
Mailing Address:

Telephone:
Email:

VII. RELATED CASE(S) IF ANY

Case name:
Docket Number:
Assigned Judge/Justice:

Date (mm/dd/yyyy): 09/09/2022

ignature of Plaintiff or ea

Leah B. Rachin, Bar No. 9363

Printed Name of Plaintiff or Attorney

ADA Notice: The Maine Judicial Branch complies with the Americans with Disabilities Act (ADA). If you need a reasonable
accommodation contact the Court Access Coordinator, [email protected], or a court clerk.
Language Services: For language assistance and interpreters, contact a court clerk or [email protected].

CV-001, Rev. 12/21 Page 4 of 4 www.courts.maine.gov

Civil Summary Sheet
STATE OF MAINE SUPERIOR COURT
CUMBERLAND,ss. CIVIL ACTION
DOCKET NO.

MANAGEMENT CONTROLS,LLC

Plaintiff/Petitioner,
v.
COMPLAINT FOR REVIEW OF
GOVERNMENTAL ACTION
TOWN OF RAYMOND,
PURSUANT TO M.R.CIV.P.80B
JOINED WITH
INDEPENDENT CLAIMS
Defendant/Respondent,

Pursuant to M.R. Civ. P 80B,Plaintiff/Petitioner, Management Controls, LLC by and

through its undersigned counsel, Drummond Woodsum,seeks this Court's review and reversal of

a July 26,2022 decision of the Town of Raymond Zoning Board of Appeals(the "ZBA")and

joins independent claims pursuant to M.R. Civ. P. 80B(i) as follows:

THE PARTIES

1. Plaintiff/Petitioner Management Controls, LLC ("Plaintiff' or "Management

Controls") is a limited liability company incorporated and existing under the laws ofthe State of

Florida, which owns two adjoining properties located at 18 Fernwood Road and 28 Whitetail

Lane in Raymond, Maine (the "Fernwood Road Property").

1
 2. Defendant Town of Raymond ("Defendant" or "Town")is a municipality

organized under the laws of Maine with a principal place of business at 401 Webbs Mills Road,

Raymond, Maine.

JURISDICTION AND VENUE

3. The Cumberland County Superior Court has jurisdiction over this action pursuant

to M.R. Civ. P. 80B.

4. Venue is proper in the Cumberland County Superior Court because the Town of

Raymond is located in Cumberland County, and the actions from which relief is sought occurred

in Cumberland County.

FACTS

Background

5. Plaintiff Management Controls owns two adjacent waterfront properties on

Sebago Lake in Raymond Maine, i.e., 18 Fernwood Road (the "Fernwood Property") and 28

Whitetail Lane (the "Whitetail Property").

6. As a result of concerns regarding erosion at said properties, Management Controls

sought to improve and stabilize the shoreline at both properties.

7. On July 1, 2021,Plaintiff Management Controls entered into a contract with Big

Lake Marine, a contractor well-known for conducting shoreline stabilization projects on Sebago

Lake, to improve the shoreline at the Fernwood Property (the "Fernwood Contract").

8. The Fernwood Contract obligated Big Lake Marine to:(1)employ "erosion

control measures as required by the DEP";(2)cut up and remove dead wood and trees from the

shoreline "as DEP allows";(3)slope the banks ofthe Fernwood Road Property's shoreline at 45

degrees;(4)install rip-rap and other erosion control measures along the Fernwood Road

2
Property's frontage on Sebago Lake;(5)loam, seed and hay all disturbed areas; and(6) specified

that "all work to be completed by land and by barge as necessary to complete project."

9. On October 13, 2021, Management Controls entered into another contract with

Big Lake Marine to do similar erosion control and shoreline stabilization work at the Whitetail

Property, which included virtually identical terms as the Fernwood Contract(the "Whitetail

Contract") referenced in the preceding paragraph.

10. Indicative of Management Control's sensitivity to the need to obtain all requisite

state and local permits for the above-referenced erosion control and stabilization work from the

Town and the Maine Department of Environmental Protection("DEP")prior to commencing

work, both the Fernwood Contract and the Whitetail Contract required Big Lake Marine to

"obtain all necessary permitting from the town and DEP."

1 1. Both the Fernwood Contact and the Whitetail Contract each required

Management Controls to pay a $6,000 "Permit fee"(for an aggregate of $12,000)in order for

Big Lake Marine to procure all necessary approvals for the respective properties.

12. Management Controls reasonably believed that Big Lake Marine would obtain the

necessary permits from both the Town and the DEP prior to commencing any ofthe above-

described work and reasonably relied upon Big Lake Marine to do so.

13. In late September through early to mid-October 2021, without the knowledge or

consent of Management Controls, Big Lake Marine undertook improvements at both the

Fernwood and Whitetail Properties without ever applying for or obtaining any permits from the

Town, and while also failing to obtain the proper permits from the DEP.

14. Big Lake Marine applied for permits by rule("PBR")under Maine's Natural

Resources Protection Act, 38 M.R.S. § 408-A et seq in conjunction with the project but DEP

3
subsequently determined that, in its view, this was not the proper permitting process given that

the work contemplated exceeded the scope of what is allowed under a PBR.

15. Big Lake Marine utilized Durant Excavating to grade, and conduct much of the

site work on the shore of the Fernwood and Whitetail Properties.

16. Q-Team,Inc.("Q-Team") was hired to clear and remove selected trees from said

properties, which work was conducted between mid-September and early October 2021.

17. Upon information and belief, on or about October 14, 2021, the DEP notified the

Town that the shoreline stabilization work that Big Lake Marine and Durant Excavating

conducted at the Fernwood Road and Whitetail Lane Properties was not properly permitted by

the DEP.

18. On or about October 14, 2021,the Town issued a stop work order and all work

ceased at both the Fernwood and Whitetail Properties.

19. Upon information and belief, on October 26,2021, the Town's Code Enforcement

Officer("CEO")and representatives from the DEP met with Rob Durant(principal of both Big

Lake Marine Construction and Durant Excavating), and together inspected the shoreline ofthe

Fernwood and Whitetail Properties.

20. On November 17, 2021, DEP issued a notices of violation("NOV")to both Mr.

Buteau—the principal owner of Management Controls —and Mr. Durant—as the principal of

Big Lake Marine—for the shoreline work Big Lake Marine conducted at the Fernwood Road

Property (the "DEP NOV")outlining various alleged violations of DEP's rules.

21. Almost immediately after becoming aware that DEP and the Town were

concerned about unpermitted activity, Management Controls and Big Lake Marine sought to

retain an expert to assist in correcting the alleged violations and bringing the Properties back in

4
 to compliance, while at the same time trying to address the Town's duplicative NOV's which

sought duplicative penalties for the same conduct as multiple independent alleged violations, as

well as duplicative penalties for the same alleged violations from multiple parties.

The Town's Duplicative NOV's

22. On December 16, 2021, the Town's CEO issued its first NOV to Management

Controls for the shoreline improvements on the Femwood Road Property, which improvements

Big Lake Marine constructed without having obtained the necessary approvals from the Town

("Town's Femwood NOV")in accordance with the Fernwood Contract.

23. The Town's Femwood NOV alleges that Big Lake Marine's unpermitted work on

the Fernwood Property's shoreline resulted in at least fifteen purportedly separate and distinct

violations ofthe Town's Shoreland Zoning Ordinance (the "SZO").

24. Many ofthe alleged violations in the Town's Fernwood NOV were not separate

and distinct, but were instead clear attempts to penalize Management Controls multiple times(by

seeking fines) for the same activity, i.e.:

(a) Violation #1 alleges "Filling and Earthmoving of More Than 10 Cubic Yards," while

Violation #2 alleges "Filling and Earthmoving of More Than 10 Cubic Yards without a

Permit";

(b) Citing section 14(17)(B) ofthe SZO, Violation # 4 alleges "Piers, docks, wharves,

bridges, boat launches, and other structures and uses extending over or below the normal

high water line or within a wetland without a permit from the Planning Board — Jetty,"

while Violation #5 cites the exact same provision ofthe SZO and alleges "Piers, docks,

wharves, bridges, boat launches, and other structures and uses extending over or below

5
 the normal high water line or within a wetland without a permit from the Planning Board

— Shoreline";

(c) Violation #7 alleges,"Removal of Vegetation of Less Than 3' in Height, while

Violation #8 alleges,"Removal of Vegetation of Less Than 3' in Height Without a

Permit";

(d) Citing section 15(C)(12) of the SZO, Violation #11 alleges,"Unpermitted Shoreline

Stabilization — No Permit," while Violation #12 cites the identical section ofthe SZO,

alleges,"Unpermitted Shoreland Stabilization — No Barge."

(e) Citing section 15(Q) ofthe SZO, Violation #13 alleges,"Unpermitted Tree Removal

Within 100' of Sebago Lake, while Violation #14 cites the identical section ofthe SZO

and alleges,"Vegetation Removal in Excess of What is Allowed by the Point System."

(f) Violation #14 alleges,"Vegetation Removal in Excess of What is Allowed by the

Point System," while Violation #15 alleges,"Removal of Vegetation Without a Permit."

25. In addition to the repetitive and duplicative violations outlined in the preceding

paragraph, the Town's Fernwood NOV also alleges the following additional violations: Violation

#3, alleging "Illegal Shoreline Access" based on a set of stairs installed by a prior owner;

Violation #6, alleging "Construction of a Beach Without a Permit"; Violation #9 alleging

"Structure Built Without a Permit" based on a long-existing hot tub that was installed by a prior

owner; and Violation #10, alleging "Violation of Required Setbacks" in relation to the same hot

tub.

26. The Town's Fernwood NOV demanded that all alleged violations be corrected

within thirty days of the date of the notice, including a restoration plan compliant with 30-A

M.R.S. § 4452(3)(C-2),(which would have required replanting trees in the dead of winter) and

6
 that failure to do so would result in the referral ofthe matter to the Town's Selectboard for

possible commencement of legal action as provided for in Article 16(H)ofthe SZO and 30-A

M.R.S. § 4452.

27. On January 18, 2022, Management Control filed an administrative appeal of the

Town's Fernwood NOV,arguing, in part, that the NOV did not meet the requirement under

16(H)(2)(a) ofthe SZO that NOV's must provide alleged violators with a clear outline of

necessary corrective action.

28. On February 22, 2022,in apparent recognition that the original Town Fernwood

NOV did not meet the requirement under 16(H)(2)(a) of the SZO that NOV's must provide

alleged violators with a clear outline of necessary corrective action, the CEO issued a

supplemental NOV that provided more detail about the expected corrective action, which

included obtaining after-the-fact permits for the following activities/uses: earthmoving and

filling of more than 10 cubic yards(or restoration to original condition); the second set of stairs

(or removal); the alleged expanded jetty (or restoration to original condition); the alleged

expanded shoreline (or restoration to original condition); the alleged construction of a beach (or

restoration to original condition); the removal of shrubs and ground cover(or restoration to

original condition); the hot tub (or removal); the shoreland stabilization project(or restoration to

original condition); the tree removal(or restoration to original condition); and removal of

vegetation between the house and the water (or restoration to original condition).

29. On December 21,2021, the Town's CEO issued a second NOV to Durant

Excavating, LLC for the work it conducted at the Fernwood Property (the "Durant Fernwood

NOV").

7
 30. As with the Town's Fernwood NOV,the Durant Fernwood NOV alleges that

Durant Excavating's unpermitted work at the Fernwood Property resulted in eleven purportedly

separate and distinct violations of the SZO,and all of which were identical to those already

asserted against Management Control in the Town's Fernwood NOV.

31. Many ofthe alleged violations in the Durant Fernwood NOV were not separate

and distinct, but were instead clear attempts to penalize the various parties to whom NOV's were

issued multiple times(by seeking fines) for the same activity, i.e.:

(a) Violation #1 ofthe Durant Fernwood NOV alleges,"Filling and Earthmoving of

More Than 10 Cubic Yards," while Violation #2 alleges "Filling and Earthmoving of

More Than 10 Cubic Yards without a Permit,"(which duplicative violations are verbatim

to those already asserted as Violations #1 and #2 in the Town's Fernwood NOV).

(b) Violation #3 alleges,"Illegal Shoreline Access," involving a second set of stairs,

which purported violation is verbatim to Violation #3 in the Town's Fernwood NOV.

(c) Citing section 14(17)(B) ofthe SZO, Violation # 4 ofthe Durant Fernwood NOV

alleges "Piers, docks, wharves, bridges, boat launches, and other structures and uses

extending over or below the normal high water line or within a wetland without a permit

from the Planning Board — Jetty," while Violation #5 cites the exact same provision of

the SZO and alleges "Piers, docks, wharves, bridges, boat launches, and other structures

and uses extending over or below the normal high water line or within a wetland without

a permit from the Planning Board — Shoreline,"(which duplicative violations are

verbatim to those already asserted as Violations # 4 and 5 in the Town's Fernwood

NOV).

8
 (d) Violation #6 ofthe Durant Fernwood NOV alleges,"Construction of a Beach Without

a Permit,"(which is verbatim to Violation #6 asserted in the Town's Fernwood NOV).

(e) Violation #7 ofthe Durant Fernwood NOV alleges,"Removal of Vegetation of Less

Than 3' in Height, while Violation #8 alleges,"Removal of Vegetation of Less Than 3'

in Height Without a Permit";(which duplicative violations are verbatim to those already

asserted as Violations # 7 and 8 in the Town's Fernwood NOV).

(f) Citing section 15(C)(12)ofthe SZO, Violation #9 ofthe Durant Fernwood NOV

alleges,"Unpermitted Shoreline Stabilization — No Permit," while Violation #10, citing

the identical section ofthe SZO, alleges,"Unpermitted Shoreland Stabilization — No

Barge,"(which duplicative violations are verbatim to those already asserted as Violations

# 11 and 12 in the Town's Fernwood NOV).

(g) Violation #13 of the Durant Fernwood NOV alleges,"Unpermitted Tree Removal

Within 100' of Sebago Lake," which is verbatim to Violation #13 ofthe Town's

Fernwood NOV.

32. The Durant Fernwood NOV demanded that all alleged violations be corrected

within thirty days ofthe date ofthe notice, including a restoration plan compliant with 30-A

M.R.S. § 4452(3)(C-2), and that failure to do so would result in the referral ofthe matter to the

Town's Selectboard for possible commencement oflegal action as provided for in Article 16(H)

ofthe SZO and 30-A M.R.S. § 4452.

33. On January 4, 2022, the Town's CEO issued a third NOV to Q-Team (the "Q-

Team NOV")for alleged unlawful vegetation and tree removal at the Fernwood Property, which

resulted in purportedly five separate and distinct violations ofthe Town's SZO, all of which were

9
 identical to those already asserted against Management Control in the Town's Fernwood NOV,

i.e.:

(a) Violation #1 ofthe Q-Team NOV alleges,"Removal of Vegetation of Less Than 3' in

Height, while Violation #2 alleges,"Removal of Vegetation of Less Than 3' in Height

Without a Permit,"(which duplicative violations are verbatim to those already asserted as

Violations #7 and #8 in the Town's Femwood Violation and Violations # 1 and #2 in the

Durant Fernwood NOV).

(b) Citing section 15(Q) ofthe SZO, Violation # 3 ofthe Q-Team NOV alleges,

"Unpermitted Tree Removal Within 100' of Sebago Lake," while Violation #4 citing the

identical section of the SZO alleges,"Vegetation Removal in Excess of What is Allowed

by the Point System,"(which duplicative violations are verbatim to those already asserted

as Violations #13 and #14 in the Town's Fernwood Violation and Violation #11 in the

Durant Fernwood NOV).

(c) Violation #4 ofthe Q-Team NOV alleges, "Vegetation Removal in Excess of What is

Allowed by the Point System," while Violation #5 alleges,"Removal of Vegetation

Without a Permit,"(which duplicative violations are verbatim to those already asserted as

Violations #14 and #15 in the Town's Fernwood Violation).

34. The Q-Team NOV demanded that all alleged violations be corrected within thirty

days of the date ofthe notice, including a restoration plan, and that failure to do so would result

in the referral ofthe matter to the Town's Selectboard for possible commencement oflegal

action as provided for in Article 16(H)ofthe SZO and 30-A M.R.S. § 4452.

35. On February 22, 2022, in apparent recognition that the original Q-Team NOV

(like the original Town Femwood NOV as referenced in paragraph 28) did not meet the

10
requirement under 16(H)(2)(a)of the SZO that NOV's must provide alleged violators with a

clear outline of necessary corrective action, the CEO issued a supplemental NOV that provided

more detail about the expected corrective action, which included obtaining after-the-fact permits

for the following: the removal of vegetation of less than three feet in height in within 100 feet of

the normal highwater line("NHWL")(or restoration to original condition); the removal oftrees

within 100 feet ofthe NHWL(or restoration to original condition); and the removal of

vegetation between the house and the water(or restoration to original condition).

36. On January 28, 2022, the Town's CEO issued a fourth NOV to Management

Controls for the improvements on the Whitetail Road Property("Town's Whitetail NOV"),

which improvements Big Lake Marine constructed without having obtained the necessary

approvals from the Town in accordance with the Whitetail Contract.

37. The Town's Whitetail NOV alleges that Big Lake Marine's and/or Durant

Excavating's unpermitted work on the Whitetail Property's shoreline resulted in at least twelve

purportedly separate and distinct violations ofthe SZO.

38. As with the first three NOVs,many ofthe alleged violations in the Town's

Whitetail NOV were not separate and distinct, but were instead clear attempts to penalize

Management Controls and other parties to the Town's many NOV's multiple times(by seeking

fines)for the same activity, i.e.:

(a) Violation #1 ofthe Town's Whitetail NOV alleges "Filling and Earthmoving of More

Than 10 Cubic Yards," while Violation #2 alleges "Filling and Earthmoving of More

Than 10 Cubic Yards without a Permit";

(b) Citing section 14(17)(B) ofthe SZO Violation # 3 alleges,"Piers, docks, wharves,

bridges, boat launches, and other structures and uses extending over or below the normal

11
 high water line or within a wetland without a permit from the Planning Board — Boat

Launch," while Violation #4 cites the exact same provision ofthe SZO and alleges

"Piers, docks, wharves, bridges, boat launches, and other structures and uses extending

over or below the normal high water line or within a wetland without a permit from the

Planning Board — Shoreline";

(c) Violation #6 alleges,"Removal of Vegetation of Less Than 3' in Height, while

Violation #7 alleges,"Removal of Vegetation of Less Than 3' in Height Without a

Permit";

(d) Citing section 15(C)(12) ofthe SZO, Violation #8 alleges,"Unpermitted Shoreline

Stabilization — No Permit," while Violation #9, citing the identical section ofthe SZO,

alleges,"Unpermitted Shoreland Stabilization — No Barge."

(e) Citing section 15(Q) ofthe SZO, Violation #10 alleges,"Unpermitted Tree Removal

Within 100' of Sebago Lake, while Violation #11, citing the same section ofthe SZO

alleges,"Vegetation Removal in Excess of What is Allowed by the Point System."

(0 Violation #11 alleges, "Vegetation Removal in Excess of What is Allowed by the

Point System," while Violation #12 alleges,"Removal of Vegetation Without a Permit."

39. In addition to repetitive and duplicative violations outlined in the preceding

paragraph, the Town's Whitetail NOV also alleged the following additional violation:(Violation

#5, alleging "Construction of a Beach Without a Permit").

40. The Town's Whitetail NOV demanded that Management Controls correct all

alleged violations within thirty days of the date of the notice, advised that failure to do so would

result in the referral ofthe matter to the Town's Selectboard for possible commencement oflegal

action as provided for in Article 16(H) ofthe SZO and 30-A M.R.S. § 4452, and required

12
Management Controls to submit a global resolution plan compliant with the requirements of 30-

A M.R.S. § 4452(3)(C-2), including after-the-fact permits for: filling and earthmoving of more

than 10 cubic yards (or restoration to original condition); the alleged enlarged/expanded boat

launch (or restoration to original condition); and the alleged enlarged/expanded beach (or

restoration to original condition).

41. On January 28, 2022,(the same day that he issued the Town's Whitetail NOV to

Management Controls), the CEO issued a fifth NOV to Durant Excavating for the improvements

on the Whitetail Road Property ("Durant Whitetail NOV"). Aside from names and addresses, it

was verbatim to the Town's Whitetail NOV ofthe same date.

42. As did the Town's Whitetail NOV,the Durant Whitetail NOV alleges that Durant

Excavating's unpermitted work on the Whitetail Property's shoreline resulted in at least twelve

purportedly separate and distinct violations of the SZO.

43. Like all of the four NOV's that preceded it, many ofthe alleged violations in the

Durant Whitetail NOV were not separate and distinct, but were instead clear attempts to penalize

multiple parties numerous times(by seeking fines) for the same activity, i.e.:

(a) Violation #1 ofthe Durant Whitetail NOV alleges "Filling and Earthmoving of More

Than 10 Cubic Yards," while Violation #2 alleges "Filling and Earthmoving of More

Than 10 Cubic Yards without a Permit,"(which duplicative violations are verbatim to

those already asserted as Violations #1 and #2 ofthe Town Whitetail NOV);

(b)Citing section 14(17)(B)ofthe SZO, Violation # 3 ofthe Durant Whitetail NOV

alleges "Piers, docks, wharves, bridges, boat launches, and other structures and uses

extending over or below the normal high water line or within a wetland without a permit

from the Planning Board — Boat Launch," while Violation #4 cites the exact same

13
 provision ofthe SZO and alleges "Piers, docks, wharves, bridges, boat launches, and

other structures and uses extending over or below the normal high water line or within a

wetland without a permit from the Planning Board — Shoreline,"(which duplicative

violations are verbatim to those already asserted as Violations #3 and #4 of the Town

Whitetail NOV);

(c) Violation #5 ofthe Durant Whitetail NOV alleges, "Construction of a Beach Without

a Permit," which is verbatim to Violation #4 ofthe Town's Whitetail NOV.

(d) Violation #6 ofthe Durant Whitetail NOV alleges,"Removal of Vegetation of Less

Than 3' in Height, while Violation #7 alleges,"Removal of Vegetation of Less Than 3'

in Height Without a Permit,"(which duplicative violations are verbatim to those already

asserted as Violations #6 and #7 ofthe Town Whitetail NOV);

(e) Citing section 15(C)(12) ofthe SZO, Violation #8 ofthe Durant Whitetail NOV

alleges,"Unpermitted Shoreline Stabilization — No Permit," while Violation #9, citing the

identical section of the SZO alleges,"Unpermitted Shoreland Stabilization — No Barge,"

(which duplicative violations are verbatim to those already asserted as Violations #8 and

#9 of the Town Whitetail NOV);

(0 Citing section 15(Q)of the SZO, Violation #10 ofthe Durant Fernwood NOV

alleges,"Unpermitted Tree Removal Within 100' of Sebago Lake, while Violation #11,

citing the same section of the SZO alleges,"Vegetation Removal in Excess of What is

Allowed by the Point System,"(which duplicative violations are verbatim to those

already asserted as Violations #10 and #11 ofthe Town Whitetail NOV); and

(0 Violation #11 ofthe Durant Whitetail NOV alleges,"Vegetation Removal in Excess

of What is Allowed by the Point System," while Violation #12 alleges,"Removal of

14
 Vegetation Without a Permit,"(which duplicative violations are verbatim to those already

asserted as Violations #11 and #12 ofthe Town Whitetail NOV).

44. The Durant Whitetail NOV demanded that all alleged violations be corrected

within thirty days of the date ofthe notice, advised that failure to do so would result in the

referral ofthe matter to the Town's Selectboard for possible commencement of legal action as

provided for in Article 16(H)ofthe SZO and 30-A M.R.S. § 4452, and required Durant to

submit a global resolution plan compliant with the requirements of 30-A M.R.S. § 4452(3)(C-2),

including after-the-fact permits for: filling and earthmoving of more than 10 cubic yards (or

restoration to original condition); the alleged enlarged/expanded boat launch (or restoration to

original condition); and the alleged enlarged/expanded beach (or restoration to original

condition).

45. On March 10, 2022, the Town's CEO issued a sixth NOV to Big Lake Marine,

LLC for the work it conducted at the Fernwood Property (the "Big Lake Fernwood NOV").

46. The Big Lake Fernwood NOV is verbatim to both the Durant Fernwood NOV and

the Town's Fernwood NOV,except it contains additional information regarding corrective action

given that the Durant Fernwood NOV and the Town's Fernwood NOV were both deficient in

that regard.

47. As with all ofthe five NOV's that preceded it, many of the alleged violations in

the Big Lake Fernwood NOV were not separate and distinct, but were instead clear attempts to

penalize the various parties to whom NOV's were issued multiple times(by seeking fines)for

the same activity. Because the alleged violations (and their duplicative nature) are identical to

those contained in the Town's Fernwood NOV and the Durant's Fernwood NOV,reference is

made to paragraphs 24 and 31 herein.

15
 48. On March 10, 2022, the Town's CEO issued a seventh NOV to Big Lake Marine,

LLC for the work it conducted at the Whitetail Property (the "Big Lake Whitetail NOV").

49. The Big Lake Whitetail NOV is verbatim to both the Durant Whitetail NOV and

the Town's Whitetail NOV.

50. As with all ofthe six NOV's that preceded it, many ofthe alleged violations in

the Big Lake Whitetail NOV were not separate and distinct, but were instead clear attempts to

penalize the various parties to whom NOV's were issued multiple times(by seeking fines) for

the same activity. Because the alleged violations(and their duplicative nature) are identical to

those contained in the Town's Whitetail NOV and the Durant's Whitetail NOV,reference is

made to paragraphs 38 and 43 herein.

Management Controls' Repeated Efforts to Comply With the NOV's and the Town's
Refusal to Find Compliance Without Payment of Fines

51. Almost immediately after becoming aware that DEP and the Town were

concerned about unpermitted activity, Management Controls and Big Lake Marine retained

Michael Morse, an environmental and land use consultant expert based on his credentials, in

particular, given that he had worked for the better part oftwo decades with DEP and had

extensive experience with shoreland issues.

52. On or about March 25, 2022, on behalf of Management Controls and Big Lake

Marine, Morse submitted to the Planning Board a 63-page application for after-the-fact site plan

approval for the stabilization project at both the Fernwood and Whitetail Properties. The

application itemized how the project met all governing criteria under the SZO,included an

extensive restoration plan (complete with a detailed replanting and revegetation plan), and

described how the second set of stairs and hot tub at the Fernwood property would be removed,

and how the boat ramp at the Whitetail property would be reduced to its original size.

16
 53. On or about March 25, 2022, on behalf of Management Controls and Big Lake

Marine, Morse also submitted to the CEO a 39-page application for after-the-fact permits for

earthmoving and filling and vegetation removal.

54. On or about March 25,2022 on behalf of Management Controls and Big Lake

Marine, Morse also submitted to the CEO a 36-page application for after-the-fact tree removal.

55. Although these plans were designed by a professional to meet the requirements

under the SZO and the DEP rules, the Town indicated its dissatisfaction with these materials, and

insisted, in that context, on accommodations, such as (for example)the use oftrees for

restoration with diameters larger than those required by applicable law or ordinance.

56. Instead of working with Management Controls to move the restoration process

forward, the Town took a different approach: It tied—and has consistently tied—its approval of

a restoration plan on Management Control's assent to a consent agreement that both (i) grossly

overstates Management Control's role in causing work to be done in the shoreland zone without

first obtaining all applicable state and local permits, and (ii) includes extraordinary fines (in the

millions of dollars) payable by Management Controls that are, from any perspective,

extraordinarily and grossly punitive, particularly given that it did not conduct the work and it

reasonably believed that all required permits had been secured.

57. The Town has articulated that concept in multiple contexts. In statements made

on local media, for example, Town Manager Donald Willard and Assistant Code Enforcement

Officer Chris Hanson have said, variously, that the Town's objective relative to Management

Controls was "to send the strongest message possible that this won't be tolerated," and that

"fines should be substantial enough that this guy [referring to Don Buteau, individually] can't

buy a violation."

17
 58. Such views were espoused in recent communications with the Town's Attorney

wherein he explained that the Town is insisting on the exorbitant fines in order to "punish the

offenders," stating that "what happened cannot go unpunished" and that the Town "needs to send

a message."

59. The Town's attorney has been explicit that the Town's plan has always been to

condition the issuance of a permit for restoration—regardless ofthe bona fides of Management

Controls' restoration plan—on capitulation to an enormous fine. By letter dated May 31,2022,

the Town's attorney wrote, that the "restoration plan and penalties are intimately connected and

cannot be viewed in isolation."

60. The import ofthat statement became obvious in August 2022 when, after

Management Controls hired another environmental professional, Ransom Environmental, to

develop a new restoration plan to the Town's liking, and submitted that plan—at enormous

expense—to the Town on an expedited basis so it could be heard at the Planning Board's

September meeting, the Town responded by saying that the only path forward that it would

support or even entertain was through a consent degree.

61. Indeed, in his August 18, 2002 email to counsel for Management Controls,

counsel for the Town stated that any restoration plan "can be approved as part of[a] consent

decree," that it would not consider the Ransom Plan before the Planning Board, and "won't

include the August 10 restoration plan on any upcoming PB [Planning Board] agenda.

62. That position is unlawful, in excess of the Selectmen's Authority, in excess ofthe

Planning Board's authority, and in violation of Management Control's due-process rights to have

its application processed.

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 63. The fact that a restoration plan can be part of a consent agreement, cannot serve as

a basis to consider whether an application(which might include a restoration plan) meets the

requirements ofthe ordinance to receive a permit.

64. Here, the Town's position of refusing to consider the permit application and

proposed restoration plan without first receiving a substantial monetary payment has prevented

restoration of any protected resource.

65. Indeed, while the Ransom Plan included numerous concessions that went far

beyond the requirements of State or local law for restoration plans—circumstances that, in the

ordinary context, should weigh in favor of diminished fines on the premise that the property

owner is going above and beyond to address a problem that was never intended—the Town

followed its insistence on addressing fines in the consent decree context with a proposed consent

decree that dramatically increased fines over prior discussion amounts, and which totaled

millions of dollars in the aggregate, and were far in excess oflevels that would ordinarily be

expected in these circumstances.

66. Management Controls is in active discussions with Big Lake Marine Construction

(the company that did the work in the first instance) and understands that it is willing and able to

proceed with implementing a full restoration plan this fall, at its expense.

67. Management Controls also expects that, based on the strength ofthe Ransom

Plan, it can obtain a State permit from DEP to do the restoration work this fall.

68. The only substantial impediment to proceeding with a restoration plan that more

than complies applicable State and local law is the Town's tying the issuance of a permit to do

that work on Management Control's assent to an extortionist, multi-million dollar fine that

Management Controls cannot accept.

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 69. In other words, the Town—far from using Management Control's desire to

promptly effect a mitigation plan as a means of mitigating this situation (both in terms of

shoreland damage and the accrual of fines) is instead using its insistence on extraordinary,

punitive fines as a means of holding Management Controls and, ultimately, the restoration plan

for the benefit of Sebago Lake, hostage.

Appeals to the ZBA

70. Pursuant to their rights under 16(G)(1)(a)of the SZO, Management Controls, Q-

Team, Durant Excavating, and Big Lake Marine all appealed the above-referenced NOV's to the

ZBA — a total ofseven administrative appeals,four of which have been decided (relating to

appeals by Management Controls, Q-Team, and Durant Excavating of NOV's relating to the

Fernwood Property, and Durant Excavating's appeal of the Whitetail NOV),and three of which

are still pending,(Big Lake Marine's appeal relating to the Fernwood Property, and Management

Controls and Big Lake Marine's appeals relating to the Whitetail Property).

71. On January 25, 2021, Management Controls filed its administrative appeal ofthe

Town's Fernwood NOV.

72. The ZBA held a de novo hearing of Management Control's administrative appeal

on March 29,2022, and conducted deliberations, which were continued to the board's next

scheduled meeting on April 26, 2022.

73. At its April 26,2022 meeting, by agreement of all parties, the ZBA tabled further

deliberations not only Management Controls' appeal of the Town's Fernwood NOV,but also of

all other pending appeals relating to both the Fernwood and Whitetail Properties, in order to

allow the parties to pursue a negotiated resolution at mediation, which was scheduled for May 4,

2022.

20
 74. Despite Management Controls'(and indeed all of the alleged violators')

willingness to take all steps required under the SZO to come in to compliance, the parties did not

reach settlement at the mediation(nor have they to date) given the Town's insistence on

obtaining exorbitant fines (which, as ofthe date ofthis pleading, exceed, per the Town's

demand,two million dollars) before it will issue the permits to which they are nevertheless

entitled under the SZO and the terms ofthe various NOV's outlining the required corrective

action.

75. The hearing resumed on July 26, 2022, and while the ZBA granted one ground of

Management Control's appeal (finding that the jetty had not been unlawfully expanded as

alleged in Violation #4 ofthe Town's Femwood NOV),the ZBA voted unanimously to deny the

remainder of Management Control's administrative appeal based, in part, on the following

erroneous conclusions:

(a) The CEO did not err in holding Management Controls liable for Big Lake Marine's

unpermitted work, despite that Management Control had contracts with Big Lake Marine

that required it to obtain all necessary permits prior to commencing the work, based on

the language of 30-A M.R.S § 4452(2), 38 M.R.S. § 444, and section 16(C)ofthe SZO;

(b) The shoreline was expanded without a permit as required by section 14(17)(B) ofthe

SZO;

(c) A beach was constructed without a permit contrary to section 15(0)of SZO;

(d) Use of a barge to conduct the shoreland stabilization was feasible, and therefore, one

should have been used under section 15(C)12 ofthe SZO for the stabilization work;

(e) Management Controls was liable for the prior owner's alleged violations relating to

the hot tub and second set of stairs;

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 (f) The various alleged violations were not duplicative; and

(g) The fact that had the applicant obtained a permit for shoreland stabilization under

section 15(C)this would have subsumed many ofthe other alleged violations was not

persuasive.

76. After vacating Violation #4 relating to the alleged unlawful expansion ofthe jetty,

the ZBA upheld all remaining violations asserted in the Town's Fernwood NOV and denied

Management Controls' administrative appeal accordingly.

77. On July 26, 2022,the ZBA held a de novo hearing of Q-Team's administrative

appeal, and conducted deliberations, which were continued to the board's next scheduled

meeting on August 30, 2022.

78. At the August 30,2022 hearing, the ZBA vacated Violations #1 and #2 ofthe Q-

Team NOV (given the Town's agreement to abandon them based on evidence that Big Lake

Marine (not Q-Team)removed the vegetation without a permit) but denied the remainder of Q-

Team's administrative appeal, on the following bases:'

(a) The CEO did not err in holding Q-Team liable despite Big Lake Marine's failure to

obtain proper permits, based on the language of30-A M.R.S § 4452(2), 38 M.R.S. § 444,

and section 16(C) ofthe SZO; and

(b) The various alleged violations were not duplicative.

79. On July 26, 2022,the ZBA held a de novo hearing of Durant Excavating's

administrative appeal ofthe Durant Fernwood NOV,which was continued to the board's next

scheduled meeting on August 30, 2022.

The deadline to appeal the ZBA's denial of Q-Team's appeal does not fall until October, but on information and
belief, Q-Team will appeal and will move to consolidate its appeals with the instant appeal.

22
 80. On August 30, 2022, the ZBA dismissed Durant's administrative appeal of the

Durant Fernwood NOV as untimely, concluding it was filed beyond the 30-day specified under

the SZO and there was no good cause to enlarge the deadline.

81. On August 30, 2022, the ZBA held a de novo hearing of Durant Excavating's

administrative appeal ofthe Durant Whitetail NOV,which the ZBA also dismissed as untimely,

similarly concluding that it was filed beyond the 30-day specified under the SZO and there was

no good cause to enlarge the deadline.

82. There are still three administrative appeals currently pending before the ZBA,i.e.,

Management Control's appeal ofthe Town Whitetail NOV,and both of Big Lake Marine's

appeal ofthe Big Lake Fernwood NOV and the Big Lake Whitetail NOV,all of which are

scheduled to be heard by the ZBA in late September 2022.

CLAIMS FOR RELIEF

COUNT I
(Review of Governmental Action Pursuant to M.R. Civ.P. 80B)

83. Plaintiff Management Controls repeats and incorporates by reference each ofthe

allegations set forth in paragraphs 1 through 82 as if fully set forth herein.

84. This Count is brought pursuant to section 16(G)(4)of the Town Code,30-A

M.R.S. § 2691(3)(G), and M.R. Civ. P. 80B.

85. Maine law provides for judicial review of any actions or failure to act by a

governmental agency for abuse of discretion, errors oflaw, or findings not supported by

substantial evidence pursuant to M.R. Civ. P. 80B.

86. The findings and conclusions of the ZBA are the result of error oflaw; directly

conflict with the plain and unambiguous language ofthe Town Code; are not supported by

23
substantial evidence in the record; and are, therefore, arbitrary, capricious, and represent an

abuse of discretion on the part ofthe ZBA.

WHEREFORE,Management Controls requests that this Court grant its Rule 80B appeal,

reverse the decision ofthe ZBA,and grant its administrative appeal ofthe Town's December 16,

2022 notice of violation, together with such other or further relief as the Court deemsjust and

equitable.

COUNT II:
(Request for Declaratory Judgment — 30-A M.R.S.§ 4452)

87. Plaintiff Management Controls repeats and incorporates by reference each ofthe

allegations set forth in paragraphs 1 through 86 as if fully set forth herein.

88. This count is brought pursuant to the Maine Uniform Declaratory Judgments Act,

14 M.R.S. § 5951, et seq.

89. The Court has jurisdiction over this count pursuant to 14 M.R.S. § 5953.

90. Pursuant to 14 M.R.S. § 5954,this Court has the power to issue a declaration in

this case in order to determine the parties' rights as it pertains to the proper application of various

provisions of 30-A M.R.S. § 4452, as there is a present dispute between the parties in this regard.

91. As a creature of ordinance and statute, the Town's ZBA does not have authority

to assess the fines contemplated by 30-A M.R.S. § 4452, either under the SZO or 30-A M.R.S. §

2691. Accordingly, M.R. Civ. P. 80B does not afford Management Controls and the other

alleged violators an adequate remedy relating to a determination offines, therefore, independent

relief is therefore warranted.

92. The informing purpose of civil penalty provisions, such as 30-A M.R.S. § 4452,is

to be "corrective, not punitive, in nature," and to "compel compliance with the law prospectively,

not to punish past behavior." See City ofLewiston v. Verrinder, 2022 ME 29, ¶ 19, 275 A.3d

24
327, 330; Dep't ofEnv't Prot. v. Emerson,616 A.2d 1268, 1270(Me. 1992); State v. Anton,463

A.2d 703, 706(Me. 1983).

93. While in the usual course, an individual or entity subject to civil penalties for

violations ofland use ordinances has the prerogative to prevent the accumulation of penalties by

simply complying,through its actions, the Town has systematically prevented Management

Controls' and the other alleged violators' ability to do so.

94. The Town has consistently inhibited Management Control's and the other alleged

violator's ability to comply with the corrective measures outlined in the various NOV's by

refusing to approve their restoration plans and after-the-fact permit applications unless

Management Controls and the other alleged violators first pay exorbitant fines.

95. Despite the fact that Management Controls and the other alleged violators

retained an expert(who previously worked with DEP)to provide a mitigation and restoration

plan and to submit after-the-fact permit requests as required under the various NOV's; proposed

enhancements to the original restoration plan during and after mediation; and then hired still

another expert (after the Town expressed dissatisfaction with the prior expert's proposals) who

met on-site with both the Town's and DEP's representatives to hear and incorporate their

respective feedback, the Town continues to unreasonably refuse to allow corrective action to

move forward unless and until Management Controls and the other alleged violators all pay

exorbitant fines for duplicative violations relating to the same conduct.

96. Throughout these proceedings, the Town has insisted that Management Controls

and the other alleged violators are each individually liable for daily fines for various activities

conducted without a permit and that said daily fines are still mounting, which position is contrary

25
to the plain language of30-A M.R.S. § 4452(3)(A) that provides, "[t]he minimum penalty for

starting construction without a required permit is $100, and the maximum penalty is $2,500."

97. By its terms, § 4452(3)(A),imposes temporal limits on the fines that can be

awarded such that the Town is only entitled to daily fines for the number of days between when

the allegedly unpermitted activity started, and when it stopped.

98. Here, the alleged unpermitted activity associated with the shoreline stabilization

project commenced in mid to late September 2021, and immediately ceased in or about mid to

late October 2021, as soon as the Town issued a stop work order.

99. Since the issuance ofthe stop work order, Management Controls and the other

alleged violators have engaged in consistent good faith efforts to come in to compliance, and

have done no further work on the property.

100. Title 30-A M.R.S. § 4452(2), outlines liability for violations and provides that

"[a]ny person, including, but not limited to, a landowner,the landowner's agent, or a contractor,

who violates any of the laws or ordinances set forth in [30-A M.R.S. §§ 4452(5) or(6)] are liable

for the penalties set forth in [30-A M.R.S. § 4452(3)]."

101. Subsection 4452(2)contemplates that only parties who are responsible for

violating said laws or ordinances can be liable. Management Controls was not responsible

because it specifically contracted with, and reasonably relied upon, Big Lake Marine to secure all

required permits before commencing work, which it failed to do unbeknownst to Management

Controls. In any event, proper practice is to serve one NOV,naming all ofthe various violators

in the same NOV,because while multiple parties could be (depending on the facts)jointly and

severally liable for a violation involving the same activity, that activity cannot give rise to

26
multiple violations. Rather, it is a single violation, the responsibility for fines for which must be

apportioned as between the alleged violators.

102. Subsection 4452(3)(E)(1) provides that "[i]n setting a penalty, the court shall

consider, but is not limited to:(1)prior violations by the same party."(emphasis added)

103. The Town's repeated statements that Mr. Buteau's alleged violations in Harrison,

Maine are in any way relevant to another party's (i.e., Management Controls') alleged violations

in another municipality are legally erroneous.

104. The Town has asserted that it is entitled to its legal fees under 30-A M.R.S. §

4452(3)(D)in conjunction with defending the instant Rule 80B appeal, which statement is

legally erroneous. See Baker v. Town of Woolwich, 517 A.2d 64(Me. 1987).

105. To the extent that the foregoing claims are cognizable as through review pursuant

to M.R. Civ. P. 80B,they are incorporated by reference as iffully set forth within Plaintiff's

counts seeking relief under M.R. Civ. P. 80B.

WHEREFORE,the Plaintiff respectfully requests that this Court enter a Judgment in its

favor against the Defendant Town, declaring as follows:

(a) Because Big Lake Marine (not Management Controls) conducted the shoreline

stabilization work without permits at the Fernwood and Whitetail properties, and did so

without Management Controls' knowledge or consent, and because Management

Controls reasonably relied on Big Lake Marine to secure all necessary permits,

Management Controls is not responsible for any fines in conjunction with said project

under 30-A M.R.S. § 4452(2), because it did not violate any law or ordinance.

(b) Because the fines authorized under 30-A M.R.S. § 4452(3)(A)(for starting

construction or undertaking a land use activity without a permit) have temporal limits,

27
 any daily per violation fines associated with violations for conducting activities without a

permit cease to run as of October 14, 2021,the date on which the stop work order was

issued and abided by.

(c) Because the purpose of 30-A M.R.S. § 4452(2)is to encourage compliance

prospectively and not to punish past behavior, the daily per violation fines contemplated

under 30-A M.R.S. § 4452(3)(B)(for specific violations) shall cease to run as of March

25, 2022,the date on which Management Controls submitted its various after-the-fact

applications and restoration plan, as required under the various NOVs.

(d) If the Town is the prevailing party in these Rule 80B proceedings and independent

claims, it will not be entitled to its associated legal fees under 30-A M.R.S. § 4452(3)(D)

given that any award of attorneys' fees is limited to enforcement proceedings taken under

M.R. Civ. P. 80K per Baker v. Town of Woolwich, 517 A.2d 64(Me. 1987).

(e) Any fines ultimately awarded to the Town must exclude any consideration of alleged

violations by Donald Buteau in the Town of Harrison given that 30-A M.R.S. §

4452(3)(E) only contemplates violations by the "same party"(and Management Controls

is the alleged violator in these proceedings, not Donald Buteau) and in the same

jurisdiction (i.e., Raymond not Harrison).

(f) Any fines ultimately awarded to the Town may not be duplicative as outlined in this

complaint. Rather they must be consolidated such that the same party is not fined

multiple times for what is essentially the same activity; moreover, multiple parties cannot

be fined, individually for the same activity. Rather, the total amount of applicable daily

fails must be determined and then allocated between the parties.

(g) All other relief this Court deems just and proper.

28
 COUNT III
(Declaratory Judgment — Constitutional Claims)

106. Plaintiff Management Controls repeats and incorporates by reference each ofthe

allegations set forth in paragraphs 1 through 105 as if fully set forth herein.

107. Under the Equal Protection Clause and Due Process Clause ofthe 14th

Amendment ofthe U.S. Constitution, and under Article 1, Section 6A ofthe Maine Constitution,

no person may be deprived of life, liberty or property without due process oflaw, nor may any

such person be denied equal protection oflaws, civil rights, or be discriminated against in the

exercise thereof The Due Process Clause ofthe 14th Amendment and under Article I, Section

6A of the Maine Constitution affords both substantive and procedural protections.

108. Equal Protection provisions require that similarly situated parties be treated alike

under the law and without arbitrary treatment lacking in a sufficient basis or rationale.

109. Due Process provisions protect against arbitrary, irrational, or conscience

shocking conduct that works a deprivation of a protected interest, including with respect to

fundamental rights and interests in property.

1 10. Management Controls has a fundamental property interest in the Fernwood and

Whitetail properties and the right not to be subject to excessive, erroneous, and duplicative fines

imposed without due process oflaw.

111. The Town is obligated to ensure that the SZO is enforced equitably among

similarly situated individuals and in a manner that is consistent with its plain terms.

1 12. Section 16(H)(2)(a) ofthe SZO provides that "ifthe[CEO]shall find that any

provision ofthese ordinance provisions is being violated, he or she shall notify in writing the

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person responsible for such violation, indicating the nature ofthe violation and ordering the

action necessary to correct it."(emphasis added)

113. After initially failing to outline with sufficient detail the action necessary to

correct, the CEO did so by way of supplemental NOV's, which enumerated various corrective

action, which, in sum, required Management Controls and the other alleged violators to submit

after-the-fact permit applications for the work conducted and a restoration plan.

1 14. Since those NOV's were issued, Management Controls and the other alleged

violators have been diligently attempting, in good faith, to comply with the corrective action

required by the NOV's by hiring various experts and submitting multiple iterations of restoration

plans and after-the-fact permit applications.

1 15. However,the Town, acting under color of both state law and local ordinance, has

consistently rebuffed their compliance efforts by, inter alia, requiring actions not contemplated

under either the SZO or DEP regulations, and, predicating the approvals on payment of millions

of dollars in excessive fines, which are tantamount to an unlawful exaction, for the same

duplicative violations by multiple parties.

116. These actions violate Management Controls' and the other alleged violators'

procedural and substantive due process rights under Due Process provisions of both the U.S. and

Maine Constitutions by unlawfully conflating two separate and distinct legal concepts, i.e.,

curing violations through corrective action on the one hand, and paying fines, on the other. By

failing to honor this distinction, the Town is holding Management Controls and the alleged

violators hostage by refusing to bless their proposed corrective action,(which meets all

governing criteria under the SZO and DEP rules) unless and until they pay excessive and

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duplicative fines in an amount exceeding two million dollars, which continue to accrue on a daily

basis.

117. Similarly, these actions also violate Management Controls' and the other alleged

violators' rights under the Equal Protection provisions of both the U.S. and Maine Constitutions

given that similarly situated individuals (i.e., those who have been served with notices of

violation) have not been compelled to pay fines prior to being allowed to engage in corrective

action.

118. Statements made by various town officials and the Town Attorney throughout the

course ofthese proceedings (that Mr. Buteau is a wealthy man,that he needs to be punished, and

that the Town must make an example of him)indicate that the Town is biased against

Management Controls and its principal, Donald Buteau, which bias is fueled by the fact that the

Town Attorney also represented the Town of Harrison, at a time when it alleged that

Management Control's principal, Donald Buteau, engaged in prior land use violations.

119. The Town's insistence on conflating corrective action and compliance with the

payment of exorbitant fines, indicate that the process has been fatally tainted by bias and a desire

to "punish" Mr. Buteau, which violates Management Controls' and the other alleged violators'

due process rights, as well as the spirit of 30-A M.R.S. § 4452, which is to incentivize

compliance, not to punish.

120. The Town is further denying Management Controls and the other alleged

violators' substantive and procedural due process by refusing to allow them to correct the alleged

violations, and, by leveraging that delay to allow the clock to continue to run against multiple

parties, thereby accruing daily fines for duplicative violations.

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 121. To the extent that the foregoing claims are cognizable as through review pursuant

to M.R. Civ. P. 80B,they are incorporated by reference as if fully set forth within Plaintiff's

counts seeking relief under M.R. Civ. P. 80B.

WHEREFORE,the Plaintiff respectfully requests that this Court enter a Judgment in its

favor against the Defendant Town,declaring as follows:

(a) The Town's refusal to process Management Control's and the other alleged violators'

permit applications and restoration plans, unless they first pay millions of dollars in fines,

is tantamount to an unlawful exaction, which constitutes a regulatory taking in violation

of their Due Process rights. Accordingly, the Town must either pay Management

Controls for the full value of its properties, or, process said applications and restoration

plans forthwith, and, in the event the Town wishes to pursue fines, it must do so through

the proper process afforded under M.R. Civ. 80K for the enforcement of land use

violations.

(b) The Town's refusal to process Management Control's and the other alleged violators'

permit applications and restoration plan is unlawful, in excess of the Selectmen's

authority, in excess ofthe Planning Board's authority, and in violation of Management

Control's Due Process rights to have its application processed in a timely fashion and to

avoid the accrual of excessive daily fines.

(c) The Town's refusal to process Management Controls' and the other alleged violators'

permit applications and restoration plan, unless they first pay millions of dollars in fines,

while it allows similarly situated individuals to engage in corrective action without

having to first pay fines, is a violation of Management Control's and other alleged

violators' Equal Protection rights.

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(d) The Town's actions and statements demonstrate that their dealings with Management

Controls and the other alleged violators have been tainted by bias and are intentional,

arbitrary, irrational, and conscience-shocking insomuch as they are motivated by bias

directed towards Management Controls, and its principal Donald Buteau, and are aimed

at depriving them oftheir fundamental interests and property rights.

(e) Any fines ultimately awarded to the Town may not be duplicative as outlined in this

complaint, rather they must be consolidated such that the same party is not fined multiple

times for what is essentially the same activity; moreover, multiple parties cannot be fined,

individually for the same activity. Rather, the total amount of applicable daily fails must

be determined and then allocated between the parties.

(f) All other relief this Court deems just and proper.

Dated at Portland, Maine this L day of September, 2022.

effrey T. Piampiano
Leah B. Rachin
Benjamin J. Plante
Attorneysfor PlaintiffManagement
Controls, LLC
[email protected]
lrachin(ii:dwmlaw.corn
bplanteVdwmlaw.com

Drummond Woodsum
84 Marginal Way, Suite 600
Portland, Maine 04101-2480
(207)772-1941

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