STATE OF MAINE
Docket No. AP-07-22, 7/
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CPSP LLC, et al.,
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CITY OF SOUTH PORTLAND,
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FEB 0 6 2008
Before the court are the following interlocking motions:
(1) motions by
defendants City of South Portland and General Growth Properties Inc. to dismiss or
strike Count 2 of the complaint; (2) a motion by plaintiffs CPSP LLC and Cornerbrook
LLC to specify the future course of proceedings; and (3) a motion by plaintiffs for a trial
of the facts pursuant to Rule 80B(d).1
Motion to Dismiss
Count 1 of the complainf seeks review and reversal under Rule 80B of a variance
granted by the South Portland Board of Appeals relating to parking requirements.
Among the arguments raised in the Rule 80B count is a contention that the Board of
Appeals lacked jurisdiction for various reasons to consider the variance application in
question. See Amended Complaint cncn 25, 27. Count 2 of the complaint, which is the
1 While these motions were pending, plaintiffs filed a motion to amend their complaint, which
was granted without opposition. Defendants, including an additional party added because of
the amendment, have answered the amended complaint.
2 All references to the complaint refer to the amended complaint. All parties have treated the
motions to dismiss and strike, which were filed as to the original complaint, as if they also
apply to the amended complaint.
subject of the motion to dismiss, seeks a declaratory judgment that the Board lacked
jurisdiction to consider the variance application for the same reasons.
The Law Court has ruled that parties are not entitled to bring declaratory
judgment actions to collaterally attack decisions reviewable under Rule 80B. See, e.g.,
Thomas v. Amoroso, 451 A.2d 898 (Me. 1982). While that principle applies most
obviously to cases where a party