The Maine Department of Transportation has responded to a September request for reconsideration by Wawenock LLC et al. The plaintiffs filed their motion on the grounds that one of the counts was decided wrongly by the Business and Consumer Court in Portland.

In its opposition, MDOT said the decision was correct. MDOT cited statutes and prior decisions and said even filing the request for reconsideration was improper.

The count involved the right of a private individual to enforce a state statute that relates to municipalities or the population. The Sensible Transportation Policy Act was enacted by referendum, because the Legislature did not choose to pursue it.  The State Judicial Supreme Court had found in an earlier ruling that it was hesitant to “imply a private right of action where the legislature has not expressly stated that a cause of action exists.” The plaintiffs said because the issue was made law by referendum, the legislative intent was irrelevant and that voters intended a private right of action. MDOT said that the law did not expressly give a private right of action. The court agreed. 

MDOT said the reconsideration motion, under Maine law, should not be filed unless the plaintiffs can bring to the court’s attention an error, omission, or new material that could not have been presented before. MDOT is arguing that re-argument of rulings is not permitted, making the filing “improper”and it should be denied.

Wawenock LLC et al are several small corporations owned by the Doering family for the purposes of rental property, both retail and residential.  The two large blocks of retail space, Wawenock Block on the north side of Main Street and Bermuda Isles on the south side, have angled parking spaces in front. The MDOT plan would remove that parking and expand the sidewalks.  Wawenock LLC filed an injunction in February to halt the project. MDOT requested a summary judgment, which was granted in August in favor of MDOT.

With MDOT’s answer, the judge will now decide whether or not to consider the Wawenock LLC request. If the motion is not taken up, Wawenock could ask the Supreme Judicial Court for relief.