Maine State Supreme Judicial Court

Bryants lose final appeal on firework storage shed

Posted:  Wednesday, January 3, 2018 - 11:00am

Thomas and Kathleen Bryant, whose property abuts a storage facility owned by Allen Cohen and his wife Melissa Cohen, received a final rejection of their suit on Dec. 19 from the Maine State Supreme Judicial Court. The case lasted nearly four years.

The Bryants live on JB’s Way, in a rural area of Wiscasset. Cohen operates Big Al’s Super Value Lot Outlet on Route 1 in Wiscasset, and a fireworks store next door. Cohen also maintains a storage facility on JB’s Way, and in the summer of 2014, wanted a 35-by-60-foot expansion to accommodate firework storage at the facility. He had approval by the State Fire Marshal and the fire department, and the town’s code enforcement officer noted that the storage of fireworks was a compatible use with the rural zone.

Cohen was a member of the Planning Board; when he asked for approval, he recused himself from the decision. Approval was granted, the Bryants appealed, and the Appeals Board returned the matter to the planning board, which approved it again after two public hearings. The Bryants said they had not been properly notified, and the planning board held another discussion in January 2015 to give them time to address the issue. When the board again approved the facility, now nearly complete, at the January meeting, the Bryants filed suit in Lincoln County Superior Court against Wiscasset. In addition to requesting a review of the town’s procedures, the Bryants alleged the town broke state law and the Maine and U.S. Constitutions. The Bryants asserted that Cohen, as a member of the planning board, had a conflict of interest, and that they did not receive notice of planning board meetings where the issue was to be discussed. The court affirmed the decision of the planning board in September 2016, and the Bryants again appealed.

The appeal remained in Lincoln County Superior Court for almost a year before it was transferred to the Business and Consumer Court in Portland. The Bryants lost on another issue in March 2017, when the court found that the letter from the fire marshal constituted a final agency action, which the Bryants had contended had never occurred – and they once more appealed, this time to the state’s highest court.

According to court documents, in December, the court found the Bryants’ due process rights were more than covered by granting them a meeting in January 2015 to air their grievance, and that Al Cohen’s actions as a member of the board, by abstaining from a vote on an issue, were consistent with what is expected of a town official. The court also upheld all earlier findings in favor of the town in the process of obtaining the approval of the planning board.

The storage facility has been operating since 2015 with no record of mishap, according to the fire marshal.

Attempts to reach the Cohens and the Bryants were not immediately successful.