Justice Lance Walker of the Superior Court in Portland has denied an appeal filed by Thomas and Kathleen Bryant of Wiscasset against the town of Wiscasset in connection with the fireworks storage facility owned by Allen Cohen on JB’s Way.

According to the background portion of  Walker’s decision, the Bryants had filed an appeal after the planning board had approved Cohen’s building expansion on the private road that serves as a shared driveway for both the facility and the Bryants’ home. Both properties are in the rural zone.

In August 2014, Cohen applied for an expansion of the facility. The Bryants objected because of the proximity to their home. The board approved the site plan and issued a written decision concluding that the Cohens' current building and proposed expansion met the site plan review standards for the storage of hazardous materials because it “had been previously approved and inspected by the State Fire Marshal's Office.”

The Bryants appealed, claiming the board erred by failing to review the Cohens' application against all applicable legal standards, including National Fire Protection Association Standard 1124;  that the finding that the State Fire Marshal had "approved" and “inspected" the building and expansion was not supported by substantial evidence; and that Cohen, a member of the Planning Board, violated Maine’s conflicts of interest law by personally advocating for approval of his application. The appeal was heard by Wiscasset’s Board of Appeals, which voted to send it back to the Planning Board with instructions to obtain the Fire Marshal’s signature.

The planning board later reconsidered and approved Cohen’s application. The Bryants were not personally notified for either meeting, and did not attend. They wrote a letter protesting the approval and in late December 2014, filed a second appeal reiterating their objections and also stating they were deprived of due process by the lack of notice and opportunity to be heard at the November meetings.

The Bryants also filed a complaint with the Superior Court in Lincoln County. The planning board wrote to the Bryants and told them that although it was not required to give personal notice in the matter, the board would reconsider the approval. At a January 2015 meeting, the only issue raised was whether the application was required to adhere to the NFPA regulations, Walker states in the background portion of his ruling. The board voted again to accept the application, and later, the Board of Appeals denied the Bryants’ appeal.

The case was to be heard in Superior Court in Lincoln County, and Justice Daniel Billings dismissed the Bryants’ request for a trial of facts, but allowed another part of their appeal, on whether there was a conflict of interest violating Maine state law, and whether they were denied due process, to continue. A flurry of amendments, answers, and responses ensued, until in late August 2015 the last bit of paperwork was submitted.

The case was referred to Justice Walker in Portland in August of this year. On Sept. 28, he rendered his decision.

Walker’s decision was based on Wiscasset ordinances and case law from other nearby towns. He said Wiscasset followed its law. “Thus, on reconsideration, the Planning Board effectively reaffirmed its earlier decision. Therefore, there is only one operative decision for review: the Planning Board's September 22, 2014 decision, which it reaffirmed on reconsideration,” he wrote. On the issue of whether or not NFPA standards were considered, Walker said that that is not a matter for the Planning Board, but for the State Fire Marshal. “The Planning Board has no authority (on it),” he wrote. He wrote that there was evidence that the Fire Marshal had approved the facility to the extent necessary.

As to the due process claim, Walker decided that even if the board had erred in not inviting the Bryants to the Nov. 24, 2014 meeting, the board reconsidered the proposal at the January 2015 meeting at which they were present and presented evidence before another vote was taken.

Walker also dismissed the idea that Cohen attempted to influence the board as anything other than an applicant. Since Cohen did not vote on the application, and appeared only as an applicant, Walker said, “There is nothing in the statute that prohibits Mr. Cohen from appearing before the Planning Board in his individual capacity as an applicant to advocate for his application for site plan review. Therefore, Mr. Cohen did not violate Maine’s conflicts of interest law.”

“We’re pleased that the courts recognized the process that our Planning Board and Appeals Board go through when a decision is made,” said Wiscasset Town Manager Marian Anderson. “Obviously, the Bryants are members of our community, and we will be continuing to work with them, going forward.”

Kathleen Bryant said that she and her husband were reviewing the decision with their lawyer, Jon Pottle, of Eaton Peabody of Bangor.  Pottle said that he believed there was one additional count still pending, a declaratory judgment, in which a party involved in a legal matter can ask a court to conclusively rule on and affirm the rights, duties, or obligations of one or more parties in a civil dispute. Pottle said he would contact the court to determine how the case would proceed going forward.

Calls to Al Cohen, also a defendant in the case, were not immediately returned.