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Expression of exogenous DNA methyltransferases: Application in molecular and cell biology by O. V. Dyachenko; S. V. Tarlachkov; D. V. Marinitch; T. V. Shevchuk; Y. I. Buryanov (77-87).
DNA methyltransferases might be used as powerful tools for studies in molecular and cell biology due to their ability to recognize and modify nitrogen bases in specific sequences of the genome. Methylation of the eukaryotic genome using exogenous DNA methyltransferases appears to be a promising approach for studies on chromatin structure. Currently, the development of new methods for targeted methylation of specific genetic loci using DNA methyltransferases fused with DNA-binding proteins is especially interesting. In the present review, expression of exogenous DNA methyltransferase for purposes of in vivo analysis of the functional chromatin structure along with investigation of the functional role of DNA methylation in cell processes are discussed, as well as future prospects for application of DNA methyltransferases in epigenetic therapy and in plant selection.
Kinase mTOR: Regulation and role in maintenance of cellular homeostasis, tumor development, and aging by A. A. Parkhitko; O. O. Favorova; D. I. Khabibullin; V. N. Anisimov; E. P. Henske (88-101).
Serine/threonine protein kinase mTOR regulates the maintenance of cellular homeostasis by coordinating transcription, translation, metabolism, and autophagy with availability of amino acids, growth factors, ATP, and oxygen. The mTOR kinase is a component of two protein complexes, mTORC1 and mTORC2, which are different in their composition and regulate different cellular processes. An uncontrolled activation of the mTOR kinase is observed in cells of the majority of tumors, as well as in diabetes and neurodegenerative and some other diseases. At present, inhibitors of the kinase complex mTORC1 are undergoing clinical trials. This review focuses on different aspects of the regulation of the mTORC1 and mTORC2 complexes, on their role in the regulation of protein synthesis, metabolism, and autophagy, as well as on using mTOR inhibitors for treatment of tumors and slowing of aging.
Pectin methylesterase-generated methanol may be involved in tobacco leaf growth by T. V. Komarova; D. V. Pozdyshev; I. V. Petrunia; E. V. Sheshukova; Y. L. Dorokhov (102-110).
Plant leaves undergo a sink-source modification of intercellular macromolecular transport during the transition from carbon import to carbon export. After assessing the role of metabolite signaling in gene regulation in Nicotiana tabacum sink and source leaves, we observed increased pectin methylesterase (PME)-mediated methanol generation in immature leaves. Using suppression subtractive hybridization (SSH), we identified a number of genes whose activity changes from sink to source leaves. The most abundant SSH-identified genes appeared to be sensitive to methanol. We hypothesize that tobacco leaf maturation and the sink-source transition are accompanied by a change in mRNA levels of genes that function in methanol-dependent cell signaling.
Hepatitis B virus can be inhibited by DNA methyltransferase 3a via specific zinc-finger-induced methylation of the X promoter by L. Xirong; L. Rui; Y. Xiaoli; H. Qiuyan; T. Bikui; Z. Sibo; Z. Naishuo (111-123).
In this work we explored whether DNA methyltransferase 3a (Dnmt3a) targeted to the HBV X promoter (XP) causes epigenetic suppression of hepatitis B virus (HBV). The C-terminus of Dnmt3a (Dnmt3aC) was fused to a six-zinc-finger peptide specific to XP to form a fused DNA methyltransferase (XPDnmt3aC). The binding and methyl-modifying specificity of XPDnmt3aC were verified with an electrophoretic mobility shift assay and methylation-specific PCR, respectively. XP activity and HBV expression were clearly downregulated in HepG2 cells transfected with plasmid pXPDnmt3aC. The injection of XPDnmt3aC into HBV transgenic (TgHBV) mice also showed significant inhibition, leading to low serum HBV surface protein (HBsAg) levels and a reduced viral load. Thus, XPDnmt3aC specifically silenced HBV via site-selective DNA methylation delivered by zinc-finger peptides. This study establishes the foundation of an epigenetic way of controlling HBV-related diseases.
Mitochondria-targeted antioxidants prevent TNFα-induced endothelial cell damage by I. I. Galkin; O. Yu. Pletjushkina; R. A. Zinovkin; V. V. Zakharova; I. S. Birjukov; B. V. Chernyak; E. N. Popova (124-130).
Increased serum level of tumor necrosis factor α (TNFα) causes endothelial dysfunction and leads to serious vascular pathologies. TNFα signaling is known to involve reactive oxygen species (ROS). Using mitochondria-targeted antioxidant SkQR1, we studied the role of mitochondrial ROS in TNFα-induced apoptosis of human endothelial cell line EAhy926. We found that 0.2 nM SkQR1 prevents TNFα-induced apoptosis. SkQR1 has no influence on TNFα-dependent proteolytic activation of caspase-8 and Bid, but it inhibits cytochrome c release from mitochondria and cleavage of caspase-3 and its substrate PARP. SkQ analogs lacking the antioxidant moieties do not prevent TNFα-induced apoptosis. The antiapoptotic action of SkQR1 may be related to other observations made in these experiments, namely SkQR1-induced increase in Bcl-2 and corresponding decrease in Bax as well as p53. These results indicate that mitochondrial ROS production is involved in TNFα-initiated endothelial cell death, and they suggest the potential of mitochondria-targeted antioxidants as vasoprotectors.
Search for ligand of N-acetylglucosaminyl-N-acetylmuramyl dipeptide using its peptide mimetic by G. V. Savinov; A. O. Shepelyakovskaya; Kh. M. Boziev; F. A. Brovko; A. G. Laman (131-138).
The method for searching for ligands exerting an adjuvant effect is described. The method involves isolation of polysomes using an immobilized peptide mimetic of N-acetylglucosaminyl-N-acetylmuramyl dipeptide (GMDP) — RN-peptide. After the affinity chromatography and washing, RN-peptide complexes with the target sequences were dissociated with guanidine hydrochloride. The obtained mRNA was used for cDNA synthesis and subsequent cloning in an expression vector. Further studies showed the effectiveness of this method. Clones interacting with the peptide were selected using biotinylated RN-peptide. It was found that all clones encode a sequence identical to the protein YB-1. Recombinant antibodies against protein YB-1 were selected from a phage display human scFv library. Using these antibodies, we determined the binding constant of RN-peptide to protein YB-1. Competitive analysis showed that RN-peptide and GMDP compete for the same portion of YB-1 at molar ratio 1: 12.
Inhibition of oxidative hemolysis in erythrocytes by mitochondria-targeted antioxidants of SkQ series by E. O. Omarova; Y. N. Antonenko (139-145).
In the present work we studied the effect of antioxidants of the SkQ1 family (10-(6′-plastoquinonyl)decyltriphenylphosphonium) on the oxidative hemolysis of erythrocytes induced by a lipophilic free radical initiator 2,2′-azobis(2,4-dimethylvaleronitrile) (AMVN) and a water-soluble free radical initiator 2,2′-azobis(2-methylpropionamidine) dihydrochloride (AAPH). SkQ1 was found to protect erythrocytes from hemolysis, 2 μM being the optimal concentration. Both the oxidized and reduced SkQ1 forms exhibited protective properties. Both forms of SkQ1 also inhibited lipid peroxidation in erythrocytes induced by the lipophilic free radical initiator AMVN as detected by accumulation of malondialdehyde. However, in the case of induction of erythrocyte oxidation by AAPH, the accumulation of malondialdehyde was not inhibited by SkQ1. In the case of AAPH-induced hemolysis, the rhodamine-containing analog SkQR1 exerted a comparable protective effect at the concentration of 0.2 μM. At higher SkQ1 and SkQR1 concentrations, the protective effect was smaller, which was attributed to the ability of these compounds to facilitate hemolysis in the absence of oxidative stress. We found that plastoquinone in the oxidized form of SkQ1 could be reduced by erythrocytes, which apparently accounted for its protective action. Thus, the protective effect of SkQ in erythrocytes, which lack mitochondria, proceeded at concentrations that are two to three orders of magnitude higher than those that were active in isolated mitochondria.
Study on ATP concentration changes in cytosol of individual cultured neurons during glutamate-induced deregulation of calcium homeostasis by A. M. Surin; L. R. Gorbacheva; I. G. Savinkova; R. R. Sharipov; B. I. Khodorov; V. G. Pinelis (146-157).
For the first time, simultaneous monitoring of changes in the concentration of cytosolic ATP ([ATP]c), pH (pHc), and intracellular free Ca2+ concentration ([Ca2+]i) of the individual neurons challenged with toxic glutamate (Glu) concentrations was performed. To this end, the ATP-sensor AT1.03, which binds to ATP and therefore enhances the efficiency of resonance energy transfer between blue fluorescent protein (energy donor) and yellow-green fluorescent protein (energy acceptor), was expressed in cultured hippocampal neurons isolated from 1–2-day-old rat pups. Excitation of fluorescence in the acceptor protein allowed monitoring changes in pHc. Cells were loaded with fluorescent low-affinity Ca2+ indicators Fura-FF or X-rhod-FF to register [Ca2+]i. It was shown that Glu (20 μM, glycine 10 μM, Mg2+-free) produced a rapid acidification of the cytosol and decrease in [ATP]c. An approximately linear relationship (r 2 = 0.56) between the rate of [ATP]c decline and latency of glutamate-induced delayed calcium deregulation (DCD) was observed: higher rate of [ATP]c decrease corresponded to shorter DCD latency period. DCD began with a decrease in [ATP]c of as much as 15.9%. In the phase of high [Ca2+]i, the plateau of [ATP]c dropped to 10.4% compared to [ATP]c in resting neurons (100%). In the presence of the Na+/K+-ATPase inhibitor ouabain (0.5 mM), glutamate-induced reduction in [ATP]c in the phase of the high [Ca2+]i plateau was only 36.6%. Changes in [ATP]c, [Ca2+]i, mitochondrial potential, and pHc in calcium-free or sodium-free buffers, as well as in the presence of the inhibitor of Na+/K+-ATPase ouabain, led us to suggest that in addition to increase in proton conductivity and decline in [ATP]c, one of the triggering factors of DCD might be a reversion of the neuronal plasma membrane Na+/Ca2+ exchange.
Glutathionylation of the alpha-subunit of Na,K-ATPase from rat heart by oxidized glutathione inhibits the enzyme by Meng Xianyu; I. Yu. Petrushanko; E. A. Klimanova; E. A. Dergousova; O. D. Lopina (158-164).
A partially purified Na,K-ATPase preparation from rat heart containing α1- and α2-isoforms of the enzyme was shown to include both subunits in S-glutathionylated state. Glutathionylation of the α1-subunit (but not of the α2-subunit) was partially removed when the preparation was isolated in the presence of dithiothreitol. The addition of oxidized glutathione irreversibly inhibited both isoforms. Inhibition of the enzyme containing the α1-subunit was biphasic, and the rate constants of the inhibition were 3745 ± 360 and 246 ± 18 M−1·min−1. ATP, ADP, and AMP protected the Na,K-ATPase against inactivation by oxidized glutathione.

matches: V. V. V. V. V. V. V. V. V. V. V. V. V.


APPEAL FROM THE SUPREME COURT OF ARKANSAS.*98 Eugene R. Warren argued the cause for appellants. With him on the brief was Bruce T. Bullion.
This appeal challenges the constitutionality of the “anti-evolution” statute which the State of Arkansas adopted in 1928 to prohibit the teaching in its public schools and universities of the theory that man evolved from other species of life. The statute was a product of the upsurge of “fundamentalist” religious fervor of the twenties. The Arkansas statute was an adaptation of the famous Tennessee “monkey law” which that State adopted in 1925. The constitutionality of the Tennessee law was upheld by the Tennessee Supreme Court in the celebrated Scopes case in 1927.
The Arkansas law makes it unlawful for a teacher in any state-supported school or university “to teach the *99 theory or doctrine that mankind ascended or descended from a lower order of animals,” or “to adopt or use in any such institution a textbook that teaches” this theory. Violation is a misdemeanor and subjects the violator to dismissal from his position.
*100 Susan Epperson, a young woman who graduated from Arkansas’ school system and then obtained her master’s degree in zoology at the University of Illinois, was employed by the Little Rock school system in the fall of 1964 to teach 10th grade biology at Central High School. At the start of the next academic year, 1965, she was confronted by the new textbook (which one surmises from the record was not unwelcome to her). She faced at least a literal dilemma because she was supposed to use the new textbook for classroom instruction and presumably to teach the statutorily condemned chapter; but to do so would be a criminal offense and subject her to dismissal.
She instituted the present action in the Chancery Court of the State, seeking a declaration that the Arkansas statute is void and enjoining the State and the defendant officials of the Little Rock school system from dismissing her for violation of the statute’s provisions. H. H. Blanchard, a parent of children attending the public schools, intervened in support of the action.
The Chancery Court, in an opinion by Chancellor Murray O. Reed, held that the statute violated the Fourteenth Amendment to the United States Constitution. The court noted that this Amendment encompasses the prohibitions upon state interference with freedom of speech and thought which are contained in the First Amendment. Accordingly, it held that the challenged statute is unconstitutional because, in violation of the First Amendment, it “tends to hinder the quest for knowledge, restrict the freedom to learn, and restrain the freedom to teach.” In this perspective, the Act, *101 it held, was an unconstitutional and void restraint upon the freedom of speech guaranteed by the Constitution.
On appeal, the Supreme Court of Arkansas reversed. Its two-sentence opinion is set forth in the margin. It sustained the statute as an exercise of the State’s power to specify the curriculum in public schools. It did not address itself to the competing constitutional considerations.
Appeal was duly prosecuted to this Court under 28 U. S. C. § 1257 (2). Only Arkansas and Mississippi have such “anti-evolution” or “monkey” laws on their books. There is no record of any prosecutions in Arkansas *102 under its statute. It is possible that the statute is presently more of a curiosity than a vital fact of life in these States. Nevertheless, the present case was brought, the appeal as of right is properly here, and it is our duty to decide the issues presented.
At the outset, it is urged upon us that the challenged statute is vague and uncertain and therefore within the condemnation of the Due Process Clause of the Fourteenth Amendment. The contention that the Act is vague and uncertain is supported by language in the brief opinion of Arkansas’ Supreme Court. That court, perhaps reflecting the discomfort which the statute’s quixotic prohibition necessarily engenders in the modern mind, stated that it “expresses no opinion” as to whether the Act prohibits “explanation” of the theory of evolution or merely forbids “teaching that the theory is true.” Regardless of this uncertainty, the court held that the statute is constitutional.
In any event, we do not rest our decision upon the asserted vagueness of the statute. On either interpretation of its language, Arkansas’ statute cannot stand. It is of no moment whether the law is deemed to prohibit mention of Darwin’s theory, or to forbid any or all of the infinite varieties of communication embraced within the term “teaching.” Under either interpretation, the law must be stricken because of its conflict with the constitutional prohibition of state laws respecting an establishment of religion or prohibiting the free exercise thereof. The overriding fact is that Arkansas’ law selects from the body of knowledge a particular segment which it proscribes for the sole reason that it is deemed to conflict with a particular religious doctrine; that is, with a particular interpretation of the Book of Genesis by a particular religious group.
The antecedents of today’s decision are many and unmistakable. They are rooted in the foundation soil of our Nation. They are fundamental to freedom.
Government in our democracy, state and national, must be neutral in matters of religious theory, doctrine, *104 and practice. It may not be hostile to any religion or to the advocacy of no-religion; and it may not aid, foster, or promote one religion or religious theory against another or even against the militant opposite. The First Amendment mandates governmental neutrality between religion and religion, and between religion and nonreligion.
As early as 1872, this Court said: “The law knows no heresy, and is committed to the support of no dogma, the establishment of no sect.” Watson v. Jones, 13 Wall. 679, 728. This has been the interpretation of the great First Amendment which this Court has applied in the many and subtle problems which the ferment of our national life has presented for decision within the Amendment’s broad command.
Judicial interposition in the operation of the public school system of the Nation raises problems requiring care and restraint. Our courts, however, have not failed to apply the First Amendment’s mandate in our educational system where essential to safeguard the fundamental values of freedom of speech and inquiry and of belief. By and large, public education in our Nation is committed to the control of state and local authorities. Courts do not and cannot intervene in the resolution of conflicts which arise in the daily operation of school systems and which do not directly and sharply implicate basic constitutional values. On the other hand, “[t]he vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools,” Shelton v. Tucker, 364 U. S. 479, 487 (1960). As this *105 Court said in Keyishian v. Board of Regents, the First Amendment “does not tolerate laws that cast a pall of orthodoxy over the classroom.” 385 U. S. 589, 603 (1967).
The earliest cases in this Court on the subject of the impact of constitutional guarantees upon the classroom were decided before the Court expressly applied the specific prohibitions of the First Amendment to the States. But as early as 1923, the Court did not hesitate to condemn under the Due Process Clause “arbitrary” restrictions upon the freedom of teachers to teach and of students to learn. In that year, the Court, in an opinion by Justice McReynolds, held unconstitutional an Act of the State of Nebraska making it a crime to teach any subject in any language other than English to pupils who had not passed the eight grade. The State’s purpose in enacting the law was to promote civic cohesiveness by encouraging the learning of English and to combat the “baneful effect” of permitting foreigners to rear and educate their children in the language of the parents’ native land. The Court recognized these purposes, and it acknowledged the State’s power to prescribe the school curriculum, but it held that these were not adequate to support the restriction upon the liberty of teacher and pupil. The challenged statute, it held, unconstitutionally interfered with the right of the individual, guaranteed by the Due Process Clause, to engage in any of the common occupations of life and to acquire useful knowledge. Meyer v. Nebraska, 262 U. S. 390 (1923). See also Bartels v. Iowa, 262 U. S. 404 (1923).
For purposes of the present case, we need not re-enter the difficult terrain which the Court, in 1923, traversed without apparent misgivings. We need not take advantage of the broad premise which the Court’s decision *106 in Meyer furnishes, nor need we explore the implications of that decision in terms of the justiciability of the multitude of controversies that beset our campuses today. Today’s problem is capable of resolution in the narrower terms of the First Amendment’s prohibition of laws respecting an establishment of religion or prohibiting the free exercise thereof.
There is and can be no doubt that the First Amendment does not permit the State to require that teaching and learning must be tailored to the principles or prohibitions of any religious sect or dogma. In Everson v. Board of Education, this Court, in upholding a state law to provide free bus service to school children, including those attending parochial schools, said: “Neither [a State nor the Federal Government] can pass laws which aid one religion, aid all religions, or prefer one religion over another.” 330 U. S. 1, 15 (1947).
These precedents inevitably determine the result in the present case. The State’s undoubted right to prescribe the curriculum for its public schools does not carry with it the right to prohibit, on pain of criminal penalty, the teaching of a scientific theory or doctrine where that prohibition is based upon reasons that violate the First Amendment. It is much too late to argue that the State may impose upon the teachers in its schools any conditions that it chooses, however restrictive they may be of constitutional guarantees. Keyishian v. Board of Regents, 385 U. S. 589, 605-606 (1967).
In the present case, there can be no doubt that Arkansas has sought to prevent its teachers from discussing the theory of evolution because it is contrary to the belief of some that the Book of Genesis must be the exclusive source of doctrine as to the origin of man. No suggestion has been made that Arkansas’ law may be justified by considerations of state policy other than the religious views of some of its citizens. It is clear *108 that fundamentalist sectarian conviction was and is the law’s reason for existence. Its antecedent, Tennessee’s “monkey law,” candidly stated its purpose: to make it unlawful “to teach any theory that denies the story of the Divine Creation of man as taught in the Bible, and to teach instead that man has descended from a *109 lower order of animals.” Perhaps the sensational publicity attendant upon the Scopes trial induced Arkansas to adopt less explicit language. It eliminated Tennessee’s reference to “the story of the Divine Creation of man” as taught in the Bible, but there is no doubt that the motivation for the law was the same: to suppress the teaching of a theory which, it was thought, “denied” the divine creation of man.
Arkansas’ law cannot be defended as an act of religious neutrality. Arkansas did not seek to excise from the curricula of its schools and universities all discussion of the origin of man. The law’s effort was confined to an attempt to blot out a particular theory because of its supposed conflict with the Biblical account, literally read. Plainly, the law is contrary to the mandate of the First, and in violation of the Fourteenth, Amendment to the Constitution.
I am by no means sure that this case presents a genuinely justiciable case or controversy. Although Arkansas Initiated Act No. 1, the statute alleged to be unconstitutional, was passed by the voters of Arkansas in 1928, we are informed that there has never been even a single attempt by the State to enforce it. And the pallid, unenthusiastic, even apologetic defense of the Act presented by the State in this Court indicates that the State would make no attempt to enforce the law *110 should it remain on the books for the next century. Now, nearly 40 years after the law has slumbered on the books as though dead, a teacher alleging fear that the State might arouse from its lethargy and try to punish her has asked for a declaratory judgment holding the law unconstitutional. She was subsequently joined by a parent who alleged his interest in seeing that his two then school-age sons “be informed of all scientific theories and hypotheses . . . .” But whether this Arkansas teacher is still a teacher, fearful of punishment under the Act, we do not know. It may be, as has been published in the daily press, that she has long since given up her job as a teacher and moved to a distant city, thereby escaping the dangers she had imagined might befall her under this lifeless Arkansas Act. And there is not one iota of concrete evidence to show that the parent-intervenor’s sons have not been or will not be taught about evolution. The textbook adopted for use in biology classes in Little Rock includes an entire chapter dealing with evolution. There is no evidence that this chapter is not being freely taught in the schools that use the text-book and no evidence that the intervenor’s sons, who were 15 and 17 years old when this suit was brought three years ago, are still in high school or yet to take biology. Unfortunately, however, the State’s languid interest in the case has not prompted it to keep this Court informed concerning facts that might easily justify dismissal of this alleged lawsuit as moot or as lacking the qualities of a genuine case or controversy.
It is plain that a state law prohibiting all teaching of human development or biology is constitutionally quite different from a law that compels a teacher to teach as true only one theory of a given doctrine. It would be difficult to make a First Amendment case out of a state law eliminating the subject of higher mathematics, or astronomy, or biology from its curriculum. And, for all the Supreme Court of Arkansas has said, this particular Act may prohibit that and nothing else. This Court, however, treats the Arkansas Act as though it made it a misdemeanor to teach or to use a book that teaches that evolution is true. But it is not for this Court to arrogate to itself the power to determine the scope of Arkansas statutes. Since the highest court of *112 Arkansas has deliberately refused to give its statute that meaning, we should not presume to do so.
It seems to me that in this situation the statute is too vague for us to strike it down on any ground but that: vagueness. Under this statute as construed by the Arkansas Supreme Court, a teacher cannot know whether he is forbidden to mention Darwin’s theory at all or only free to discuss it as long as he refrains from contending that it is true. It is an established rule that a statute which leaves an ordinary man so doubtful about its meaning that he cannot know when he has violated it denies him the first essential of due process. See, e. g., Connally v. General Construction Co., 269 U. S. 385, 391 (1926). Holding the statute too vague to enforce would not only follow long-standing constitutional precedents but it would avoid having this Court take unto itself the duty of a State’s highest court to interpret and mark the boundaries of the State’s laws. And, more important, it would not place this Court in the unenviable position of violating the principle of leaving the States absolutely free to choose their own curriculums for their own schools so long as their action does not palpably conflict with a clear constitutional command.
1. In the first place I find it difficult to agree with the Court’s statement that “there can be no doubt that Arkansas has sought to prevent its teachers from discussing the theory of evolution because it is contrary to the belief of some that the Book of Genesis must be the exclusive source of doctrine as to the origin of man.” It may be instead that the people’s motive was merely that it would be best to remove this controversial *113 subject from its schools; there is no reason I can imagine why a State is without power to withdraw from its curriculum any subject deemed too emotional and controversial for its public schools. And this Court has consistently held that it is not for us to invalidate a statute because of our views that the “motives” behind its passage were improper; it is simply too difficult to determine what those motives were. See, e. g., United States v. O’Brien, 391 U. S. 367, 382-383 (1968).
2. A second question that arises for me is whether this Court’s decision forbidding a State to exclude the subject of evolution from its schools infringes the religious freedom of those who consider evolution an anti-religious doctrine. If the theory is considered anti-religious, as the Court indicates, how can the State be bound by the Federal Constitution to permit its teachers to advocate such an “anti-religious” doctrine to schoolchildren? The very cases cited by the Court as supporting its conclusion hold that the State must be neutral, not favoring one religious or anti-religious view over another. The Darwinian theory is said to challenge the Bible’s story of creation; so too have some of those who believe in the Bible, along with many others, challenged the Darwinian theory. Since there is no indication that the literal Biblical doctrine of the origin of man is included in the curriculum of Arkansas schools, does not the removal of the subject of evolution leave the State in a neutral position toward these supposedly competing religious and anti-religious doctrines? Unless this Court is prepared simply to write off as pure nonsense the views of those who consider evolution an anti-religious doctrine, then this issue presents problems under the Establishment Clause far more troublesome than are discussed in the Court’s opinion.
3. I am also not ready to hold that a person hired to teach school children takes with him into the classroom a constitutional right to teach sociological, economic, *114 political, or religious subjects that the school’s managers do not want discussed. This Court has said that the rights of free speech “while fundamental in our democratic society, still do not mean that everyone with opinions or beliefs to express may address a group at any public place and at any time.” Cox v. Louisiana, 379 U. S. 536, 554; Cox v. Louisiana, 379 U. S. 559, 574. I question whether it is absolutely certain, as the Court’s opinion indicates, that “academic freedom” permits a teacher to breach his contractual agreement to teach only the subjects designated by the school authorities who hired him.
I think it deplorable that this case should have come to us with such an opaque opinion by the State’s highest court. With all respect, that court’s handling of the *115 case savors of a studied effort to avoid coming to grips with this anachronistic statute and to “pass the buck” to this Court. This sort of temporizing does not make for healthy operations between the state and federal judiciaries. Despite these observations, I am in agreement with this Court’s opinion that, the constitutional claims having been properly raised and necessarily decided below, resolution of the matter by us cannot properly be avoided.[*] See, e. g., Chicago Life Insurance Co. v. Needles, 113 U. S. 574, 579 (1885).
I concur in so much of the Court’s opinion as holds that the Arkansas statute constitutes an “establishment of religion” forbidden to the States by the Fourteenth Amendment. I do not understand, however, why the Court finds it necessary to explore at length appellants’ contentions that the statute is unconstitutionally vague and that it interferes with free speech, only to conclude that these issues need not be decided in this case. In the process of not deciding them, the Court obscures its otherwise straightforward holding, and opens its opinion to possible implications from which I am constrained to disassociate myself.
The States are most assuredly free “to choose their own curriculums for their own schools.” A State is entirely *116 free, for example, to decide that the only foreign language to be taught in its public school system shall be Spanish. But would a State be constitutionally free to punish a teacher for letting his students know that other languages are also spoken in the world? I think not.
It is one thing for a State to determine that “the subject of higher mathematics, or astronomy, or biology” shall or shall not be included in its public school curriculum. It is quite another thing for a State to make it a criminal offense for a public school teacher so much as to mention the very existence of an entire system of respected human thought. That kind of criminal law, I think, would clearly impinge upon the guarantees of free communication contained in the First Amendment, and made applicable to the States by the Fourteenth.
The Arkansas Supreme Court has said that the statute before us may or may not be just such a law. The result, as MR. JUSTICE BLACK points out, is that “a teacher cannot know whether he is forbidden to mention Darwin’s theory at all.” Since I believe that no State could constitutionally forbid a teacher “to mention Darwin’s theory at all,” and since Arkansas may, or may not, have done just that, I conclude that the statute before us is so vague as to be invalid under the Fourteenth Amendment. See Cramp v. Board of Pub. Instruction, 368 U. S. 278.
 Chapter 27, Tenn. Acts 1925; Tenn. Code Ann. § 49-1922 (1966 Repl. Vol.).
 Scopes v. State, 154 Tenn. 105, 289 S. W. 363 (1927). The Tennessee court, however, reversed Scopes’ conviction on the ground that the jury and not the judge should have assessed the fine of $100. Since Scopes was no longer in the State’s employ, it saw “nothing to be gained by prolonging the life of this bizarre case.” It directed that a nolle prosequi be entered, in the interests of “the peace and dignity of the State.” 154 Tenn., at 121, 289 S. W., at 367.
“§ 80-1627.—Doctrine of ascent or descent of man from lower order of animals prohibited.—It shall be unlawful for any teacher or other instructor in any University, College, Normal, Public School, or other institution of the State, which is supported in whole or in part from public funds derived by State and local taxation to teach the theory or doctrine that mankind ascended or descended from a lower order of animals and also it shall be unlawful for any teacher, textbook commission, or other authority exercising the power to select textbooks for above mentioned educational institutions to adopt or use in any such institution a textbook that teaches the doctrine or theory that mankind descended or ascended from a lower order of animals.
 The Chancery Court analyzed the holding of its sister State of Tennessee in the Scopes case sustaining Tennessee’s similar statute. It refused to follow Tennessee’s 1927 example. It declined to confine the judicial horizon to a view of the law as merely a direction by the State as employer to its employees. This sort of astigmatism, it held, would ignore overriding constitutional values, and “should not be followed,” and it proceeded to confront the substance of the law and its effect.
 242 Ark. 922, 416 S. W. 2d 322 (1967).
 “Per Curiam. Upon the principal issue, that of constitutionality, the court holds that Initiated Measure No. 1 of 1928, Ark. Stat. Ann. § 80-1627 and § 80-1628 (Repl. 1960), is a valid exercise of the state’s power to specify the curriculum in its public schools. The court expresses no opinion on the question whether the Act prohibits any explanation of the theory of evolution or merely prohibits teaching that the theory is true; the answer not being necessary to a decision in the case, and the issue not having been raised.
“The decree is reversed and the cause dismissed.
“Ward, J., concurs. Brown, J., dissents.
“Paul Ward, Justice, concurring. I agree with the first sentence in the majority opinion.
 Miss. Code Ann. §§ 6798, 6799 (1942). Ark. Stat. Ann. §§ 80-1627, 80-1628 (1960 Repl. Vol.). The Tennessee law was repealed in 1967. Oklahoma enacted an anti-evolution law, but it was repealed in 1926. The Florida and Texas Legislatures, in the period between 1921 and 1929, adopted resolutions against teaching the doctrine of evolution. In all, during that period, bills to this effect were introduced in 20 States. American Civil Liberties Union (ACLU), The Gag on Teaching 8 (2d ed., 1937).
 Clarence Darrow, who was counsel for the defense in the Scopes trial, in his biography published in 1932, somewhat sardonically pointed out that States with anti-evolution laws did not insist upon the fundamentalist theory in all respects. He said: “I understand that the States of Tennessee and Mississippi both continue to teach that the earth is round and that the revolution on its axis brings the day and night, in spite of all opposition.” The Story of My Life 247 (1932).
 Everson v. Board of Education, 330 U. S. 1, 18 (1947); McCollum v. Board of Education, 333 U. S. 203 (1948); Zorach v. Clauson, 343 U. S. 306, 313-314 (1952); Fowler v. Rhode Island, 345 U. S. 67 (1953); Torcaso v. Watkins, 367 U. S. 488, 495 (1961).
 See the discussion in Developments in The Law—Academic Freedom, 81 Harv. L. Rev. 1045, 1051-1055 (1968).
 The case involved a conviction for teaching “the subject of reading in the German language” to a child of 10 years.
 Former Dean Leflar of the University of Arkansas School of Law has stated that “the same ideological considerations underlie the anti-evolution enactment” as underlie the typical blasphemy statute. He says that the purpose of these statutes is an “ideological” one which “involves an effort to prevent (by censorship) or punish the presentation of intellectually significant matter which contradicts accepted social, moral or religious ideas.” Leflar, Legal Liability for the Exercise of Free Speech, 10 Ark. L. Rev. 155, 158 (1956). See also R. Hofstadter & W. Metzger, The Development of Academic Freedom in the United States 320-366 (1955) (passim); H. Beale, A History of Freedom of Teaching in American Schools 202-207 (1941); Emerson & Haber, The Scopes Case in Modern Dress, 27 U. Chi. L. Rev. 522 (1960); Waller, The Constitutionality of the Tennessee Anti-Evolution Act, 35 Yale L. J. 191 (1925) (passim); ACLU, The Gag on Teaching 7 (2d ed., 1937); J. Scopes & J. Presley, Center of the Storm 45-53 (1967).
“THE BIBLE OR ATHEISM, WHICH?
“All atheists favor evolution. If you agree with atheism vote against Act No. 1. If you agree with the Bible vote for Act No. 1. . . . Shall conscientious church members be forced to pay taxes to support teachers to teach evolution which will undermine the faith of their children? The Gazette said Russian Bolshevists laughed at Tennessee. True, and that sort will laugh at Arkansas. Who cares? Vote FOR ACT NO. 1.” The Arkansas Gazette, Little Rock, Nov. 4, 1928, p. 12, cols. 4-5.
Letters from the public expressed the fear that teaching of evolution would be “subversive of Christianity,” id., Oct. 24, 1928, p. 7, col. 2; see also id., Nov. 4, 1928, p. 19, col. 4; and that it would cause school children “to disrespect the Bible,” id., Oct. 27, 1928, p. 15, col. 5. One letter read: “The cosmogony taught by [evolution] runs contrary to that of Moses and Jesus, and as such is nothing, if anything at all, but atheism. . . . Now let the mothers and fathers of our state that are trying to raise their children in the Christian faith arise in their might and vote for this anti-evolution bill that will take it out of our tax supported schools. When they have saved the children, they have saved the state.” Id., at cols. 4-5.
 Arkansas’ law was adopted by popular initiative in 1928, three years after Tennessee’s law was enacted and one year after the Tennessee Supreme Court’s decision in the Scopes case, supra.
[*] Short of reading the Arkansas Supreme Court’s opinion to have proceeded on the premise that it need not consider appellants’ “establishment” contention, clearly raised in the state courts and here, in view of its holding that the State possesses plenary power to fix the curriculum in its public schools, I can perceive no tenable basis for remanding the case to the state court for an explication of the purpose and meaning of the statute in question. I am unwilling to ascribe to the Arkansas Supreme Court any such quixotic approach to constitutional adjudication. I take the first sentence of its opinion (ante, at 101, n. 7) to encompass an overruling of appellants’ “establishment” point, and the second sentence to refer only to their “vagueness” claim.


Members in attendance: Roger Allaire (Chairman), Steve Foglio (Vice Chair), Madge Baker, Roland Legere, and Maggie Moody. Alternate Ann Harris was unable to attend. Code Enforcement Officer Mike Demers was also in attendance.
Minutes are not verbatim, unless in quotes “” – If the name of a citizen making a comment was not requested by the Planning Board Chairman, the reference to their name will be known as ‘Citizen’.
The minutes from Wednesday, February 27, 2019 were accepted as read.
The Planning Board meeting started at 6:30 p.m.
Joseph Stanley of LinePro was present for the review of the application.
Originally provided along with the application was an email, dated 2/11/2019, from Ron & Patricia Cote stating that LinePro Land Surveying would be representing them at the Planning Board meetings. Also provided was a plan drafted by Joseph Stanley, PLS #2453, entitled ‘Plan Showing a Proposed Building Location for Ronald H. Cote Revocable Trust & Patricia A. Ellis Living Trust, 5 Falls Lane, North Berwick, Maine, of Property Located on Hickory Street in Shapleigh, Maine’. Depicted on the plan is the footprint of both the existing house and proposed location, the location of Hickory Street & the existing driveway; the existing retaining wall; the location of the utility lines and setback to those; the location of existing trees and proposed stabilization plan which includes the location of blueberry/juniper bushes and bark mulch; and an existing shed, concrete area, deck and stairs toward the water. The plan stated the lot size is 23,297 square feet ±. The distance from the existing structure to the high water mark is indicated as 35.9 feet ±; the distance of the existing structure to the centerline of Hickory Street is 64.7 feet at the closest point; the distance to the lot line of Map 29, Lot 28 is 27.2 feet ±; and the distance to the lot line of Map 29, Lot 30 is 35 feet ±. The distance from the proposed new structure to the high water mark is indicated as 75.9 feet and the distance to the centerline of Hickory Street is 35.9 feet. The 30 foot minimum requirement for the side setbacks back is also indicated on the plan and the existing and proposed structure meets the requirement.
Board members did a site inspection prior to this evenings meeting.
Roger A. asked Mr. Stanley to let the board now what his client wanted to do. Mr. Stanley stated, “As a recap, now that members have seen the site, the current proposal to meet the best practical location is to slide the existing camp back as far as possible, before we hit the setback for the powerline easement”. He said that distance is moving the structure back approximately 40 feet.
Mr. Stanley stated that it puts the front of the new structure at the back of the overhang of the existing structure. He said based on what they viewed, at least 4 trees would be impacted. One on the corner, is in the vicinity of where the number 35.9 is depicted on the plan. He wasn’t sure if the tree can be saved or not.
Roger A. asked if there would be a full foundation? Mr. Stanley stated that was his assumption, but he usually tells his clients to put the brakes on what they visualize until the board approves a location. He stated that he believed they wanted single level living due to the fact they are getting older, and the owner is hoping the lot coverage calculations will allow for a small garage and workshop attached to a single level home.
Mr. Stanley noted the location of the stone retaining wall and where the 100 foot mark was from the high water line, stating that it ran thru the middle of the proposed new home.
Mr. Stanley stated that much of his work was based on an existing survey plan done by Middle Branch Land Surveyors. He said the boundaries used are from the Middle Branch plan. He said with respect to the road, Middle Branch depicted a gravel drive to the cottage and a separate gravel drive to the neighboring property. He said with the snow cover it is hard to depict where the travel way is.
A direct abutter, Mr. McArdle, stated that the shed on his property, used to belong to the applicants property. Another direct abutter, Mr. Stonemetz agreed. Mr. McArdle said the shed was part of this property, so there was a driveway by the shed that went to the applicant’s property. Mr. Stanley said there may be a situation that access was for convenience, whereas the actually travel way / deeded right-of-way may be in another location. He said the deeds he reviewed were not specific with respect to the location of the ROW, going back to at least the 1920’s. Mr. McArdle did not disagree. He said the issue is the person who used to own the applicants property, he let her cut through his property because she was an elder and was used to going this way.
Mr. Stanley said the existing plan done by Middle Branch was what he used to create the right-of-way for this plan. Mr. McArdle asked where the driveway for his applicant would be located? Mr. Stanley stated he would not know until the building is designed. He said they were before the board just to get the location, meeting the dimensional requirements of the property as best possible. He believed the existing loop was used out of convenience, but may not be the ROW.
Mr. McArdle stated he never used the loop because he entered his house prior to the loop. Mr. Stanley asked Mr. Stonemetz if he used the loop, and he stated that he had in the past and noted the previous owners preferred to drive through Mr. McArdle’s property. Mr. Stonemetz stated that he agreed there was no way to prove where the actual location of the ROW was because the deeds were not specific. The deeds say ‘the roadway as laid out’. Mr. Stonemetz had a copy of the Town’s Tax Map from the 1970’s. Mr. Stonemetz was concerned with emergency vehicles, he believed traveling over Mr. McArdle’s property was an easier travel way. He was also concerned with blocking it off forever. Mr. McArdle stated that the only people using it would theoretically be Mr. Stonemetz and the applicants. He added that putting the house in this new location could benefit him, because the road being used now is a safety issue, because when children are playing in his yard, literally vehicles cross thru the middle of his property, they drive by the picnic table.
the 1960’s and 1970’s but he could not depict anything due to the trees. He also looked at old survey notes and couldn’t find any information. After his research he could not find anything definitive. Mr. Stanley noted that he did not see in any of his research a loop, he felt the loop was done out of convenience, but he could not tell the board he was 100% correct or that the location of the road was as he depicted. Mr. McArdle said that if the shed was part of the applicant’s property, they could have parked on his property and walked to their house. Mr. Stanley did not disagree. Madge B. stated that the Planning Board could not straighten this situation out.
Roger A. asked if the abutter’s had access from Ivy Street? They both said, no. Roger said that on the Town Map it showed they had access. Mr. Stonemetz stated he believed CMP has access through Ivy but there is no roadway where it shows there is one on the map.
Steve F. asked if relocating this house where proposed would impact the back of the ROW, besides the fact that now there will be two-way traffic? Mr. Stanley said in this situation, believing the deeded rights run across the back, moving the structure straight back, there is a distance of 35.9 feet to the ROW.
Roland L. stated that assuming the applicant is able to place the structure as on the plan, they would then not be using the other roadway at all, correct, the continuation through Mr. McArdle’s property. Mr. Stanley thought as the surveyor, they would come off what he perceived was the ROW on the back of the property. Roland stated he was asking, because it was noted there is a possibility of wanting a garage, so he was wondering if the applicants thought the shortest distance between two points would be across the McArdle property, over the hill, instead of around and to the garage. Mr. McArdle stated that was why he asked where the driveway was. Roland wanted to know where the driveway was going to be, and he would like to hear from the abutter’s, specifically if they are opposed to the plan, or do they have a specific reservation or concern.
Madge B. said that the Planning Board cannot solve their problems. Roland L. said he understood that, but he thought visually he wished there wasn’t snow, so the board could see if there was a well-traveled path or not. He said walking on snow they could not. Madge said if it is not deeded, the board has no reason to pay attention to it. Roland would like the applicant to know they have no right to travel over the neighbor’s property. Mr. McArdle said the area between his house and the applicant’s property is all grass. He said he let the neighbors use that area next to the shed to back trailers in for a boat launch. But again he said it is grass. Mr. Stonemetz said in the past it was gravel. Mr. McArdle did not disagree but noted it has not been used as a travel way for a long time.
Mr. McArdle stated that he had grave concerns with what the building will look like. He stated that he could see the footprint and had no issues, but the issue is with the calculations for the expansion. Madge B. stated that the CEO does those, the board has nothing to do with that. Mr. Stanley stated that he was before the board just to get approval for the setbacks.
children getting hurt, whereas using the other access, it is literally through the middle of his property. Mr. McArdle stated that what Mr. Stanley depicted as the ROW would be the preferred ROW.
Madge B. stated that Mr. Stanley’s proposal does not impact the deeded ROW, so she believed the board could act on it, then let the property owners figure it out. She added that it was none of the board’s business. Steve F. stated that he agreed. Madge understood that the board should listen to what the abutter’s have to say, and she believed the board did that. She felt now the board needs to decide if the plan depicts the best possible location for a non-conforming structure.
Madge B. added that the board is not to solve property issues. Roland L. stated that he did not feel the board was supposed to create a problem for someone else. He said he would like to know where the parking area was going to be located. Madge said that was their problem, not the board’s problem. She stated that the applicant’s had to figure out how to put the cars on their lot. She said the board does not normally ask people where they were going to put their cars. Roland did not entirely agree.
Roger A. stated that he asked Mr. Stanley about the deeded access, and if there isn’t deeded access across Mr. McArdle’s property, then they should use what is noted on the plan. It is up to the applicant’s how they will access their site, but he didn’t feel the board should encourage someone to trespass across someone else’s property. Roger said if Mr. Stonemetz feels he wants to continue to use the access through Mr. McArdle’s property, it will be a civil matter, the board cannot dictate where the ROW is. Mr. Stonemetz stated that he did not have to continue to use it, his concern was with respect to emergency vehicles and he said it was a shock to change which road is being used. He said again it was just a concern, because he understood he had no legal document that states it was deeded in any particular configuration.
Madge B. asked if the board can discuss the safety issue when dealing with the best possible location? She said she wanted to look at the best possible location requirements. Roger A. stated that he felt the best possible location as presented was fine. Steve F. stated that he didn’t see a better possibility, unless the board moves them back closer to the lake, which is counterintuitive. Maggie M. asked how far the proposed structure was from the side lot line? Maggie thought there was a lot of space between the side lot line and the new structure. Roger A. did not agree, because he felt the new septic system would be going between the new structure and Mr. McArdle’s property. Steve noted they meet the shoreland side setbacks.
Madge B. stated she understood what Maggie M. was getting at, should the board not only move it back but shift the structure closer to Mr. McArdle’s property to make room for parking and easier access. Madge said she also understood Roger’s thought about the septic system location, because then they would not have to have a pump up system. She asked if the septic system had to go behind the 100 foot setback to the water? Roger said because it’s in the Shoreland, it will get a variance. She said not if it is more than 100 feet back. She wondered if they could put it back beyond the 100 foot mark. Roger didn’t think it was best, due to the slope of the land. Roger said that would be up to CEO Demers. Madge said Maggie’s point of view is there would be more room for a garage if the structure was shifted. Madge said if the board approves this location, there is nothing that prevents the applicant from coming back with a plan for a better location, once a septic location is established.
Steve F. said the applicant meets the side setbacks. He said the board is only looking at the variance from the water and the road. Madge B. stated she understood that but she was talking about shifting the structure, but Steve is saying the side setbacks are met, so they don’t necessarily have to come back to the board. Steve said the board can’t pin them down for setbacks that can be met.
Madge B. believed the board was ready to discuss whether or not the setbacks as presented met the criteria in the ordinance; she began by looking at §105-4.D(5) ‘Removal, reconstruction or replacement’, which allows the Planning Board to consider the location as to whether or not the replacement location meets the setbacks to the greatest practical extent.
Roger A. began by reviewing §105-4.D(5)(a) which reads in part, ‘In no case shall the structure be reconstructed or replaced so as to increase its nonconformity’. Roger believed the proposed location put the new structure more in conformity with the required setbacks but noted it could not meet the setback to the road or water, even with the move. Roger continued to read this section, ‘it shall not be any larger than the original structure, except as allowed pursuant to Subsection D(1)’. Roger noted that this section the Planning Board did not look at, as it pertains to the actual expansion calculations. Roger said the board looks at the footprint of the original structure only, and is moving that footprint to the best possible location. Mr. McArdle asked if the size of the expansion had been calculated? Mr. Stanley said, “No, this is a tracing of the existing building, slid back, there is no change. So they vote on setbacks and then it’s my job to be sure they meet the lot coverage and everything else”.
Roger A. said it was the camp today, slid back. Mr. McArdle said, “I get it, but adding 30% to that changes the look of that whole thing”. He said he understood where it was going but it was going to get bigger. Roger said legally he was bound to only look at it this way. Mr. McArdle noted that he had to look at it, like another abutting structure that had a dramatic change. Mr. Stanley stated that he believed his clients were planning on doing a single story structure. He said it can’t be any wider front to back as the existing structure, but it could move closer to the side lots lines as the structure meets that criteria. Mr. McArdle said he wasn’t upset with the new location, only how the final structure might look. He said he was misunderstanding the process but now he understands what they are explaining. Roger said several years ago the board looked at it differently but the DEP came in and explained to the board they cannot look at the 30%. Roger said the DEP told the board they can only move the existing structure back and then the CEO looks at the expansion. Roger said the board wanted to view the whole thing but they are unable to do so.
Mr. Stanley said the current structures on the lot cover about 7% of the lot, what will hold back a big expansion is lot coverage which is maxed out at 10%. He said this is a small lot, so at 30% there is a limiting factor. Mr. McArdle said, “But they can go up”. Madge B. stated that they only want a single story. Mr. Stanley stated that he cannot guarantee that. Mr. McArdle stated that was what his other neighbor stated, was that she only wanted a single story and it did not happen. Mr. McArdle said she was going to add one room and she got a second story.
requirements of state law and the State of Maine Subsurface Wastewater Disposal Rules, or that a new system can be installed in compliance with the law and said rules. In no case shall a structure be relocated in a manner that causes the structure to be more nonconforming’. Roger believed due to there being a distance between the structure and side lot line, a site evaluator could design a system to fit.
 Trees, woody vegetation and ground cover.
[a] Trees removed in order to relocate a structure must be replanted with at least one native tree, six (6) feet in height, measured from the base of the trunk to the top of the tree, for every tree removed. If more than five trees are planted, no one species of tree shall make up more than 50% of the number of trees planted. Replaced trees must be planted no further from the water or wetland than the trees that were removed. Trees shall be planted greater than five feet from the side lot lines, and shall create a well-distributed stand of trees.
Roger A. stated that any trees planted cannot be any closer than six feet from any lot line.
[b] Other woody and herbaceous vegetation, and ground cover, that is removed or destroyed in order to relocate a structure must be re-established. An area at least the same size as the area where vegetation and/or ground cover was disturbed, damaged, or removed must be established within the setback area. The vegetation and/or ground cover must consist of similar native vegetation and/or ground cover that was disturbed, destroyed or removed.
 Where feasible, when a structure is relocated on a parcel the original location of the structure shall be replanted with vegetation which may consist of grasses, shrubs, trees, or a combination thereof.
(c) All approved plans shall require confirmation in writing by a licensed surveyor that the placement of the structure is correct per the specifications approved by the Planning Board.
ordinance is concerned to not have a lot of exposed soil for erosion. Mr. Stanley said he knew the board would be bringing up best management practices. Roger said yes, “BMP”.
Roland L. added that all the debris would have to be taken out of town. Roger A. agreed. Roland stated that it would be appreciated if Mr. Stanley would make an effort to save the large oak on the corner. Mr.
Stanley said, “Absolutely. Once we see the final design and know the lot coverage”. He agreed it would be nice to save the oak tree. He added that he didn’t think they wanted more living space, just adding a garage or workshop and parking area.
Roger A. stated the placement of the structure as per the plan. Madge B. said, “With respect to the setback”. Steve F. stated it was 35.9 feet from Hickory Street and 75.9 feet from the high water line.
Roland L. said for the record, the applicant will not approach the building from the far side? Madge B. did not believe it was up to the board to determine. She felt it was between the applicants and the abutters. Madge thought the approval should say 35.9 or greater, in case the house is moved toward the opposite lot line. Steve agreed 35.9 minimum to Hickory Street.
1) The date of completion for the project, including the revegetation of all disturbed areas, shall be April 30, 2020. If this date cannot be met, the applicant shall come back before the Planning Board to determine a new date of completion.
2) Best Management Practices shall be kept in place until the project is completed. There must be a person certified by the DEP in erosion control practices on site during the project.
3) All demolition material from the existing structure to be removed, shall be taken out of Shapleigh and disposed of properly.
4) Placement of the new structure shall be per the plans provided, the new structure shall be 75.9 feet at the closest point from the high water line and a minimum of 35.9 feet to centerline of Hickory Street.
5) Per Zoning Ordinance §105-4, the approved plan shall be confirmed in writing by a licensed surveyor that the placement of the structure is correct per the specifications approved by the Planning Board.
Madge B. made the motion for approval of the Best Practical Location to replace the existing structure on Map 29, Lot 29, 43 Hickory Street, with the conditions enumerated. Maggie M. 2nd the motion. All voting members were in favor. By a vote of 4 – 0 the motion passed unanimously.
Note: Steve F. abstained from the vote, as the applicant is someone that works at his Real Estate Office, and he did not want there to be a perception of a conflict of interest.
1. The owners of Shapleigh Tax Map 29, Lot 29 (43 Hickory Street), are Ronald H. Cote Revocable Trust & Patricia A. Ellis Living Trust, of 5 Falls Lane, North Berwick, Maine 03906.
2. The property is located in the Shoreland District and according to the assessor contains 0.52 acres. According to Joseph Stanley of LinePro Land Surveying, PLS #2453, the property contains 23,297 ± square feet.
3. The applicant is before the board for a Best Possible Location to replace the existing structure.
4. Received was an email, dated 2/11/2019, from Ron & Patricia Cote stating that LinePro Land Surveying would be representing them at the Planning Board meetings.
5. Received was a plan drafted by Joseph Stanley, PLS #2453, entitled ‘Plan Showing a Proposed Building Location for Ronald H. Cote Revocable Trust & Patricia A. Ellis Living Trust, 5 Falls Lane, North Berwick, Maine, of Property Located on Hickory Street in Shapleigh, Maine’. Depicted on the plan is the footprint of both the existing house and proposed location, the location of Hickory Street & the existing driveway; the existing retaining wall; the location of the utility lines and setback to those; the location of existing trees and proposed stabilization plan which includes the location of blueberry/juniper bushes and bark mulch; and an existing shed, concrete area, deck and stairs toward the water.
6. The plan received depicted the distance from the existing structure to the high water mark as 35.9 feet ±; the distance of the existing structure to the centerline of Hickory Street is 64.7 feet at the closest point; the distance to the lot line of Map 29, Lot 28 is 27.2 feet ±; and the distance to the lot line of Map 29, Lot 30 is 35 feet ±.
7. The plan received depicted the distance from the proposed new structure to the high water mark as 75.9 feet and the distance to the centerline of Hickory Street as 35.9 feet. The 30 foot minimum requirement for the side setbacks back is also indicated on the plan and the existing and proposed structure meets the requirement.
8. The board reviewed Zoning Ordinance §105-4, ‘Nonconformance’, and concurred the application and information as presented met the standards applicable in this chapter.
9. A notice was mailed to all abutters within 500 feet of the property on February 28, 2019. Meetings were held on Wednesday, February 27, 2019 and Tuesday, March 12, 2019.
After careful consideration and a review of all material presented to the Board, including the review of Zoning Ordinance §105-4, ‘Nonconformance’, a motion was made to approve the best possible location to replace and relocate the existing structure on Tax Map 29, Lot 29, per the plan provided by Joseph Stanley, PLS #2453, dated February 8, 2019, with five conditions.
By a unanimous vote of 4 – 0, the motion to approve the Best Possible Location to replace and relocate the existing structure on Tax Map 29, Lot 29, per the plan provided by Joseph Stanley, PLS #2453, dated February 8, 2019, with five conditions, was accepted.
The Best Possible Location application to replace and relocate the existing structure on Tax Map 29, Lot 29, per the plan provided by Joseph Stanley, PLS #2453, dated February 8, 2019, with five conditions was approved.
Note: Per Shapleigh Zoning Ordinance §105-4.D(1)(d), the approved plan must be recorded with the registry of deeds, within 90 days of approval, or the application shall be null and void. The recorded plan must show the existing and proposed footprint of the non-conforming structure, the existing and proposed structure height, the footprint of any other structures on the parcel, the shoreland zone boundary and evidence of approval.
Roger A. read a letter from Mr. James McArdle, who was an audience member this evening, regarding an abutting property to his, which received approval for a 30% expansion to add a 12 x 20 addition. The property is located at Map 29, Lot 66. Mr. McArdle believed the structure was not expanded correctly, and it resulted in not only the 12 x 20 addition but also an increase in height of the original structure, which now is obstructing the view to the water from his property. He felt the expansion was now more like 67% vs 30% in volume.
several areas of suggested improvements with respect to roof improvement or enhancement to mitigate a negative impact on surrounding properties.
The letter in it’s entirely can be read at the Town Hall during regular office hours. Both the Town Administrator and Land Use Secretary have a copy.
Roger A. added that the 30% calculations are up to the CEO. Steve F. noted that volume isn’t even calculated anymore. Roger felt it was much easier when the board could look at both the placement and the expansion, as it gave a better idea of what would work best on the lot.
Madge B. wanted to discuss one other item with the board. She said at the last meeting the board briefly discussed an issue, because she was concerned about being handed a deed to read at a meeting and not having enough time to process what she was reading; she wanted the board in the future, and this was her motion, that when the Planning Board requests additional information for a subsequent meeting, for a permit, the Planning Board may ask the applicant to submit the material by mail 7 days ahead of the meeting. She said again, that was her motion.
Madge B. said it would enable the board to get the material ahead of the meeting, if the board believed it would be helpful to get the information ahead of the next meeting for consideration. She said, “It doesn’t say they have to, but if it’s a case of a deed, it means I could say I would really like the deed before the meeting”.
Steve F. asked if the board had to change the ordinance? Madge B. stated no, but she wanted to change it as an agreed upon policy or procedure. Steve asked where it would have to go in the future? Madge stated that eventually it can go into the ordinance but she didn’t have to put it in the book right now. She asked the board members if they would accept it as a procedural preference, enforcement no. Steve stated he would say he would like to have it 3 calendar days prior to the next meeting received by us, or if you want to, say mailed by 7 days. He felt the issue was the timing. Madge agreed. Steve stated that as an applicant, when you leave here, you hit the ground running Wednesday, you don’t have a lot of time. Madge understood that. She said she was open to something else, but she said her mail often takes a long time to be received.
Madge B. said that by having the word ‘may’ instead of ‘shall’, whether it was a planting plan or whatever, or a deed, that it’s may, so it can be requested ahead and the applicant can say they really can’t meet that. The applicant may ask if the board would consider something else, it opens the dialogue but would give the board something to stand on. Steve F. thought it was a good idea.
currently, in her opinion. She was trying to make the board more conscious of the need that at times the information needs to be reviewed prior to the meeting.
Madge B. made the motion that when the Planning Board requests additional information for a subsequent meeting during the review of a permit, the Planning Board may ask the applicant to submit the material by mail 7 days ahead of the following meeting to allow for more time to adequately review the information. Maggie M. 2nd the motion. All members were in favor. By a vote of 5 – 0, the motion passed unanimously.
There are growth permits available.
The Planning Board meeting ended at 7:30 p.m.
NOTE: The winter hours are in effect thru March 31st, the meetings now begin at 6:30 p.m. and any scheduled public hearing begins at 6:00 p.m.
The next meeting will be held Tuesday, March 26, 2019 at 6:30 p.m.
The Planning Board meets the 2nd and 4th Tuesday of each month unless it falls on a holiday or Election Day. Should there be a cancellation due to a storm event, holiday or Election, the meeting will typically be held the following Wednesday, also at 6:30 p.m. Please contact the Land Use Secretary if there is a question in scheduling, 207-636-2844, x404.


Except as otherwise provided in this section, in the case of any consumer credit transaction (including opening or increasing the credit limit for an open end credit plan) in which a security interest, including any such interest arising by operation of law, is or will be retained or acquired in any property which is used as the principal dwelling of the person to whom credit is extended, the obligor shall have the right to rescind the transaction until midnight of the third business day following the consummation of the transaction or the delivery of the information and rescission forms required under this section together with a statement containing the material disclosures required under this subchapter, whichever is later, by notifying the creditor, in accordance with regulations of the Bureau, of his intention to do so. The creditor shall clearly and conspicuously disclose, in accordance with regulations of the Bureau, to any obligor in a transaction subject to this section the rights of the obligor under this section. The creditor shall also provide, in accordance with regulations of the Bureau, appropriate forms for the obligor to exercise his right to rescind any transaction subject to this section.
When an obligor exercises his right to rescind under subsection (a), he is not liable for any finance or other charge, and any security interest given by the obligor, including any such interest arising by operation of law, becomes void upon such a rescission. Within 20 days after receipt of a notice of rescission, the creditor shall return to the obligor any money or property given as earnest money, downpayment, or otherwise, and shall take any action necessary or appropriate to reflect the termination of any security interest created under the transaction. If the creditor has delivered any property to the obligor, the obligor may retain possession of it. Upon the performance of the creditor’s obligations under this section, the obligor shall tender the property to the creditor, except that if return of the property in kind would be impracticable or inequitable, the obligor shall tender its reasonable value. Tender shall be made at the location of the property or at the residence of the obligor, at the option of the obligor. If the creditor does not take possession of the property within 20 days after tender by the obligor, ownership of the property vests in the obligor without obligation on his part to pay for it. The procedures prescribed by this subsection shall apply except when otherwise ordered by a court.
The Bureau may, if it finds that such action is necessary in order to permit homeowners to meet bona fide personal financial emergencies, prescribe regulations authorizing the modification or waiver of any rights created under this section to the extent and under the circumstances set forth in those regulations.
advances under a preexisting open end credit plan if a security interest has already been retained or acquired and such advances are in accordance with a previously established credit limit for such plan.
An obligor shall have no rescission rights arising solely from the form of written notice used by the creditor to inform the obligor of the rights of the obligor under this section, if the creditor provided the obligor the appropriate form of written notice published and adopted by the Bureau, or a comparable written notice of the rights of the obligor, that was properly completed by the creditor, and otherwise complied with all other requirements of this section regarding notice.
the form of notice of rescission for the transaction is not the appropriate form of written notice published and adopted by the Bureau or a comparable written notice, and otherwise complied with all the requirements of this section regarding notice.
Notwithstanding section 1605(f) of this title, and subject to the time period provided in subsection (f), for the purposes of exercising any rescission rights after the initiation of any judicial or nonjudicial foreclosure process on the principal dwelling of the obligor securing an extension of credit, the disclosure of the finance charge and other disclosures affected by any finance charge shall be treated as being accurate for purposes of this section if the amount disclosed as the finance charge does not vary from the actual finance charge by more than $35 or is greater than the amount required to be disclosed under this subchapter.
Section 1602(w) of this title, referred to in subsec. (e)(1), was redesignated section 1602(x) of this title by Pub. L. 111–203, title X, § 1100A(1)(A), July 21, 2010, 124 Stat. 2107.
2010—Subsecs. (a), (d), (h), (i)(1)(B). Pub. L. 111–203 substituted “Bureau” for “Board” wherever appearing.
1995—Subsec. (h). Pub. L. 104–29, § 5, added subsec. (h).
Subsec. (i). Pub. L. 104–29, § 8, added subsec. (i).
1980—Subsec. (a). Pub. L. 96–221, § 612(a)(1), substituted provisions relating to the right of rescission until midnight of the third business day following the consummation of the transaction or the delivery of the information and rescission forms required together with the statement containing the material disclosures required under this subchapter, whichever is later, for provisions relating to right of rescission until midnight of the third business day following the consummation of the transaction or the delivery of the required disclosures and all other material disclosures required under this part, whichever is later.
Subsec. (b). Pub. L. 96–221, § 612(a)(3), (4), inserted provisions setting forth applicability of procedures prescribed by this subsection, and substituted “20” for “ten” in two places.
Subsec. (c). Pub. L. 96–221, § 612(a)(5), inserted “information, forms, and” after “whom”.
Subsec. (e). Pub. L. 96–221, § 612(a)(6), substituted provisions relating to nonapplicability to residential mortgage transactions, refinancing or consolidation transactions, etc., for provisions relating to nonapplicability to creation or retention of first liens.
Subsec. (f). Pub. L. 96–221, § 612(a)(6), substituted provisions setting forth duration of right of rescission where the required information and forms or other disclosures required under this part have not been delivered to the obligor, and exceptions to such term, for provisions setting forth duration of right of rescission where the required disclosures or any other material disclosures required under this part have not been delivered to the obligor.
Subsec. (g). Pub. L. 96–221, § 612(a)(6), added subsec. (g).
1974—Subsecs. (a), (b). Pub. L. 93–495, § 404, inserted provisions relating to security interest arising by operation of law.
Subsec. (e). Pub. L. 93–495, § 412, inserted exemption for consumer credit transactions where a State agency is the creditor.
Subsec. (f). Pub. L. 93–495, § 405, added subsec. (f).
Amendment by Pub. L. 93–495 effective Oct. 28, 1974, see section 416 of Pub. L. 93–495, set out as an Effective Date note under section 1665a of this title.


Present: PERRETTA, KAPLAN, & GELINAS, JJ.
Divorce and Separation, Division of property, Modification of judgment. Value.
COMPLAINT for divorce filed in the Essex Division of the Probate and Family Court Department on April 25, 1996.
The case was heard by Edward J. Rockett, J., and a complaint for modification, filed on November 4, 1997, was also heard by him.
Stephen C. Maloney for Gary Champion.
David W. Rifkin for Joyce Champion.
PERRETTA, J. This matter comes to us on cross appeals from an amended judgment of divorce nisi and an amended judgment on a complaint for modification. Both parties assert that the trial judge erred in his valuation of the sole proprietorship of the former husband (Gary), and in determining the amount of support awarded the former wife (Joyce). We affirm the judgments.
1. The amended judgment of divorce. We recite the facts found by the judge that are relevant to the division of the parties' assets and the order for alimony and child support. The evidence will be related where necessary to the discussion of the various issues.
Married in 1978, the parties separated in 1995. They have shared custody of their only child, a son born in 1983, since the time of their separation. At the time of their divorce, Gary was forty-eight years of age, in good health, and operated his own telecommunications business, Champion Resources. Joyce is two years younger than Gary. She had worked as a bookkeeper for Champion Resources but was unemployed at the time of the divorce. Notwithstanding her health problems, [Note 1] the judge found that she was able to work twenty to twenty-five hours a week.
Finding that Joyce had less opportunity than Gary to acquire future capital assets and income, the judge awarded her fifty-three percent of the marital estate. The assets were valued and assigned as follows. Gary was awarded the marital home and assumed its mortgage ($81,514 equity); received sole ownership of Champion Resources ($54,000), his boat ($10,000), and his 1991 car ($8,500); and gave a secured four year, four percent note payable to Joyce ($26,523.68) for total net assets of $127,490.32. Joyce was assigned the parties' condominium and assumed its mortgage ($39,732 equity); received sole ownership of their individual retirement accounts ($76,010), and her 1985 car ($1,500); and held the aforementioned note from Gary for total net assets of $143,765.68. The judge also ordered that Gary pay Joyce $656 a week for her support ($328) and that of their child ($328).
2. Value of the sole proprietorship. There was evidence to show that Gary, as owner and operator of Champion Resources, sold and installed new and used telecommunication equipment. His expert witness, a business appraiser and accountant, opined that Champion Resources had a value of $54,000. He arrived at that figure by subtracting the business's liabilities from its inventory and receivables and making certain minor adjustments. [Note 2] The expert stated that he did not value the goodwill of Champion Resources because, in his opinion, any goodwill was personal to Gary and could not be transferred. [Note 3] The judge accepted the testimony of Gary's expert witness and put a value of $54,000 on Champion Resources.
Gary does not dispute the obvious fact that Champion Resources was a sole proprietorship. See, e.g., Ladd v. Scudder Kemper Invs., Inc., 433 Mass. 240 , 243 (2001). Instead, he claims that because Champion Resources was worth more to him as a stream of income rather than any amount for which he might have sold the business, he would not willingly sell Champion Resources no matter the sale price it might fetch. [Note 4] It is on this basis that he insists that Champion Resources should have been valued as worthless for purposes of valuing and distributing the marital assets.
Whether a business takes the form of a corporation, partnership, or sole proprietorship does not affect the valuation method that a court may use even though some methods may better lend themselves to particular types of business associations. See 2 McCahey, Valuation and Distribution of Marital Property § 22.08, at 22-102, 22-103 (2001). The willing buyer/willing seller test is used to determine the fair market value of a sole proprietorship for Federal estate and gift tax purposes, see id. at § 24.07, and the guidelines established for such purposes are relevant in divorce litigation. [Note 5] See 2 Budd & Zupcofska, Massachusetts Divorce Law Practice Manual § 14.4, at 14-23 (MCLE 2000). In the absence of a determinable market value, experts commonly value a closely held business by the assignment of value to the assets of the business, as was done here (inventory and receivables less liabilities), and by the capitalization of earnings. See Kindregan & Inker, Family Law & Practice § 45.8, at 275 (2d ed. 1996).
In assigning a value to Champion Resources, the judge found Gary's expert credible and accepted his opinion which was based upon the amount of assets left after subtracting liabilities. His finding is not clearly erroneous, and we are bound by it. See Sarrouf v. New England Patriots Football Club, Inc., 397 Mass. 542 , 550 (1986) ("[v]aluation is a question of fact, and we will not disturb a judge's determination unless it is clearly erroneous"); Fechtor v. Fechtor, 26 Mass. App. Ct. 859 , 863 (1989) ("[u]nless clearly erroneous, the trial judge's determination of value will stand").
3. Income from the business. On her cross appeal, Joyce claims that the judge erroneously used the cash basis method of accounting to determine that Gary's annual income was about $102,000. [Note 6] She argues that the accrual method should have been used and Gary's yearly income found to be $131,000.
Certain methods of accounting are more suitable for certain types of businesses. So long as Internal Revenue Service requirements are met, a business generally may use the method most appropriate for its needs. See Valuation and Distribution of Marital Property § 22.04[a], at 22-35. "The cash basis is the most commonly used accounting method, especially by individuals, sole proprietors, partnerships and certain service businesses." Id. at § 22.04[i], at 22-36.
There was evidence to show that Gary used the accrual method in maintaining Champion Resources' books but reported his income on a cash basis. However, his expert witness, found credible by the judge, testified that this practice was neither wrong nor illegal. Although Joyce's witness, an accountant who failed to qualify as an expert witness, related that Internal Revenue Service regulations may have required Gary to use the more complicated and time-consuming accrual method to compute his taxes, [Note 7] he nonetheless conceded that he would have advised Gary to report his income on a cash basis. Again, we accept the judge's determination. See Sarrouf v. New England Patriots Football Club, 397 Mass. at 550; Fechtor v. Fechtor, 26 Mass. App. Ct. at 863.
Relying upon the fact that the value of Champion Resources was based in significant measure on the accounts receivable of the business, see note 2, supra, which will cease to exist upon collection and will be converted into a stream of income, Gary claims that Joyce erroneously received "an improper double benefit." Dalessio v. Dalessio, 409 Mass. 821 , 828 (1991). According to Gary, the judge's decision constitutes a "redistribution through alimony and child support [orders] of assets already assigned." He claims that Joyce will receive an improper double benefit unless we conclude that the value of Champion Resources was nil, eliminate the promissory note awarded Joyce, and redistribute the assets of the marital estate.
Although the circumstances presented in Dalessio are quite different from those in the instant case, we think that decision instructive. In Dalessio, the husband had been awarded a multimillion dollar settlement in a personal injury lawsuit that resulted in a lump-sum payment as well as a monthly annuity payment throughout his life. The wife also received a lump-sum payment and monthly annuity payments on her loss of consortium claim. The husband and wife then pooled their lump-sum payments and invested them in a joint investment account.
"So long as it is possible (as it is in this case) to identify separate portions of a given asset of a divorcing spouse as the separate bases of the property assignment and any alimony or support obligations (thus avoiding redistribution by an alimony or support order of specific assets that already have been equitably assigned), there is nothing improper about including a particular asset within a spouse's assignable estate, assigning part of it, and then counting its remainder for alimony or child support purposes." (Emphasis added.) Gary's reliance upon Dalessio is misplaced. In the first instance, we see nothing in Dalessio that can be construed as support for the proposition that an "improper double benefit" exists whenever income produced by an asset included in a party's equitable share of the marital estate is considered in determining the need for or the ability to pay support orders. See Family Law & Practice § 41.21, at 101.
Moreover, Gary's claim of "double dipping" fails to take into account the facts that the support orders were based on his income which was determined from his tax returns for three previous years, see note 6, supra, and his future earnings were not considered, see note 2, supra, in establishing the value of Champion Resources. See Valuation and Distribution of Marital Property § 22.01 [c], at 22-8 ("[i]n valuing a sole proprietorship, a distinction must be made between the proprietor[']s own future earning capacity and the value of the business itself").
Nor does Gary's argument take into account the fact that as the receivables are being collected and converted into a stream of income, they are being replaced with new receivables. Consequently, neither the value of the sole proprietorship nor Gary's ability to earn income is diminished by treating the business as a marital asset as well as a source of income by which Gary can meet his support obligations. See, e.g., In re Marriage of Baumgartner and Baumgartner, 95 Or. App. 723, 725 (1989); Smith v. Smith, 836 S.W.2d 688, 692 (Tex. App. 1992). These facts lead us to conclude that the trial judge was able "to identify separate portions of a given asset . . . as the separate bases of the property assignment and . . . support obligations." Dalessio v. Dalessio, 409 Mass. at 828.
Even were we to conclude that the trial judge had given Joyce a "double benefit," we would conclude that to have done otherwise would have resulted in an inequity. See "Double Dipping," 7 Equit. Dist. J. at 74 ("[a]n absolute bar against double counting can occasionally create inequities, particularly where the financial situations of two parties become disparate"). There is nothing in Dalessio, supra, or G. L. c. 208, § 34, that prohibits "double dipping" as matter of law. Compare Kruschel v. Kruschel, 419 N.W.2d 119 (Minn. Ct. App. 1988); Balven v. Balven, 734 S.W.2d 909 (Mo. Ct. App. 1987); Innes v. Innes, 117 N.J. 496 (1990). That being so, we look to the equities of the situation.
As found by the trial judge at the time of the divorce, Joyce was able to work no more than twenty to twenty-five hours a week. On the other hand, Gary's annual income exceeded $100,000. For us to redistribute the marital assets in accordance with Gary's request, that is, to conclude that Champion Resources had no value and to vacate the order that he pay Joyce $26,500, would produce an inequitable result, that is, a result contrary to the mandate of G. L. c. 208, § 34. Accordingly, we refuse so to do and, instead, conclude that there is no basis for disturbing the amended judgment of divorce.
5. Modification of the support orders. Subsequent to the amended judgment of divorce, the Social Security Administration found Joyce to be totally disabled and eligible for benefits as of June, 1999. See note 1, supra. Based upon this ruling, Joyce sought a modification of the judgment in issue. She sought more support than that provided for in the amended judgment of divorce as well as an elimination of the provision therein recited that she make six weekly applications for employment.
Each of the findings upon which the trial judge based his mathematical calculations was supported by Joyce's testimony. Those findings led him to conclude that because Joyce's net weekly income exceeded her weekly expenses by about sixteen dollars, she had failed to show a change in circumstances sufficient to justify an upward modification of the alimony order set out in the amended judgment.
"In the interests of finality this court has conditioned modification upon a demonstrated change in circumstances after entry of the original decree. Robbins v. Robbins, 343 Mass. 247 , 249 (1961). The determination of the extent and palpability of such change, however, lies in large measure within the discretion of the trial judge. See Buchanan v. Buchanan, 353 Mass. 351 , 352 (1967)."
See also Bush v. Bush, 402 Mass. 406 , 411 (1988); Keller v. O'Brien, 420 Mass. 820 , 828 (1995). Although we might not have reached the same conclusion as the trial judge were the matter ours to decide in the first instance, it is not. Based upon the evidence, the findings, and the trial judge's broad range of discretion, we must conclude that his decisions on the complaint for modification and the parties' request for counsel fees are to stand.
The parties' requests for fees and costs of the appeal are denied.
[Note 1] At the trial on the divorce complaint, Joyce claimed that she was totally disabled due to lower back pain when she either stood or sat for extended periods of time. Subsequent to trial, the Social Security Administration found her to be totally disabled.
[Note 2] The expert testified that six sevenths of the business's assets consisted of accounts receivable with the remaining seventh attributed to inventory.
[Note 3] As explained by Gary's expert witness, the term "goodwill" meant the "excess earning power of a business over and above what would be an expected rate of return to the owner, either as an active participant or as a passive investor." According to the expert witness, any goodwill generated by Champion Resources was personal to Gary, the owner, and would not be transferable to any potential successors in ownership. There is support for the expert's distinction between "enterprise goodwill" and "personal goodwill" and the decision not to assign value to the latter. See generally 2 Budd & Zupcofska, Massachusetts Divorce Law Practice Manual § 14.4, at 14.41 (MCLE 2000).
[Note 4] Gary's expert also testified that Champion Resources was worth more to Gary as an income stream than as equity and that, therefore, Gary would not be a willing seller. The willing buyer/willing seller test is frequently described as the "price at which the property would change hands between a willing buyer and a willing seller, neither being under any compulsion to buy or to sell and both having reasonable knowledge of relevant facts." 2 McCahey, Valuation and Distribution of Marital Property § 24.02[a], at 24-7 (2001) (internal quotation marks, footnote omitted). The expert also testified that he would not recommend that a hypothetical buyer purchase the receivables of the business.
[Note 5] For example, Rev. Rul. 59-60 C.B. 1959-1, § 4[a]-[h] at 238-239, promulgated to aid valuations for estate and gift tax purposes, enumerates eight factors a court may rely upon to calculate the fair market value of stock in a closely held corporation: (1) the nature of the business and the history of the enterprise; (2) the economic forecast for the industry and in general; (3) book value of the stock and the financial condition of the business; (4) earning capacity; (5) dividend-paying capacity; (6) existence of goodwill or other intangible value; (7) stock sales and size of the block to be valued; and (8) market price of publicly traded stock of similar businesses. See Valuation and Distribution of Marital Property § 22.08[a], at 22-110, 22- 111. See also Kindregan & Inker, Family Law & Practice § 45.8, at 275 (2d ed. 1996). As acknowledged by Gary's expert, some of these factors were inapplicable to his valuation of the business in issue. See, e.g., Ladd v. Scudder Kemper Invs., Inc., 433 Mass. at 243-244 (a "corporation, by definition, is not a form of 'sole proprietorship' ").
[Note 6] The judge arrived at this amount by averaging Gary's Schedule C earnings for 1994, 1995, and 1996, and adding $696 for unspecified "fringe benefits."
[Note 7] The Internal Revenue Service requires businesses that derive significant income from inventory to use the accrual basis method of accounting. See Valuation and Distribution of Marital Property § 22.04, at 22-36, 22-37, citing 26 C.F.R. § 1.446-1(c)(2) (2001).
[Note 8] The cases and authorities cited in these two works show that there is a split among jurisdictions on the issues of what constitutes "double-dipping" and whether it ought to be prohibited as a matter of law.
[Note 9] The trial judge also found that there was no substantial change in Gary's yearly income since the time of the divorce.