Donald R. Paradis v. Town of Peru

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2015 ME 54
Docket: Oxf-14-306
Argued: April 7, 2015
Decided: May 7, 2015

Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, and HJELM, JJ.

DONALD R. PARADIS

v.

TOWN OF PERU

GORMAN, J.

[¶1] Donald R. Paradis appeals from a judgment of the Superior Court

(Oxford County, Clifford, J.) affirming, pursuant to M.R. Civ. P. 80B, a decision

of the Town of Peru Board of Appeals on Paradis’s appeal of a notice of violation

issued by the Town’s Code Enforcement Officer (CEO) concerning Paradis’s

construction of a two-car garage. Because the notice of violation was not an

appealable decision, we vacate the judgment.

I. BACKGROUND

[¶2] In 2010, Donald Paradis1 applied for and obtained a building permit to

construct a two-car garage on a parcel of property in the Town of Peru.2 On

1
The lot is owned by Donald Paradis and his brother, William Paradis. Because only Donald pursues
this appeal, any further references to “Paradis” regard Donald alone.
2

August 1, 2013, the Town sent Paradis a notice of violation stating that “[a]fter

careful consideration amongst the Planning Board, the Board of Selectmen, and the

Code Enforcement Officer of Peru,” the Town had determined that the garage

constructed in 2010 violated multiple Ordinance provisions. The Town

“request[ed]” that Paradis take various actions to bring the property into

compliance with the Ordinance, including removing certain plumbing fixtures, or

else face legal action from the Town. Like the building permit, the notice had

three signatories: the chair of the Planning Board, the CEO, and the chair of the

Board of Selectmen.

[¶3] Paradis filed an appeal with the Board of Appeals (the Board). After

conducting a hearing at which new evidence was taken, by decision dated

October 31, 2013, the Board “conclude[d] that the Code Enforcement Officer and

2
The precise nature of the permit sought, the requirements necessary to obtain it, and the basis on
which the permit was approved are not clear in the record because neither the application nor the permit
itself contains any citation to which ordinance provisions Paradis was required to satisfy. See 1 M.R.S.
§ 407(1) (2014) (requiring agencies and municipalities to set forth minimum written findings of fact
“sufficient to [apprise] the applicant and any interested member of the public of the basis for the
decision”); Bodack v. Town of Ogunquit, 2006 ME 127, ¶ 14, 909 A.2d 620; Christian Fellowship &
Renewal Ctr. v. Town of Limington, 2001 ME 16, ¶ 15, 769 A.2d 834. In addition, because the permit
was signed by the Town’s CEO, Planning Board chair, and Board of Selectmen vice-chair, it is unclear
which person or entity was responsible for—and did—actually issue the permit. Because no appeal was
taken of the building permit itself, however, none of these deficiencies is before us in this appeal.

We also assume, without deciding, that the only ordinance the parties have provided in this appeal,
the Shoreland Zoning Ordinance, is the Ordinance that applies to this matter. See Peru, Me., Shoreland
Zoning Ordinance (June 9, 2009); Tenney v. Benson, 1999 ME 177, ¶ 1, 741 A.2d 455 (stating that the
appellant “has the burden of providing us with a sufficient record that allows adequate consideration of
his arguments”).
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the Planning Board properly applied the [Ordinance] provisions” and “voted . . . to

deny [the] appeal.” The Board declined Paradis’s request for reconsideration.

[¶4] On December 11, 2013, Paradis filed a complaint with the Superior

Court seeking review of the Board’s decision pursuant to M.R. Civ. P. 80B. The

Superior Court affirmed the judgment, and Paradis then appealed to us.

II. DISCUSSION

[¶5] Paradis challenges the Board’s provision of notice of the hearings, the

standard of proof imposed on him by the Board, the determination that his garage

violated Ordinance provisions, and the Town’s requirement that he remove certain

plumbing fixtures from the garage. Because we conclude that the notice of

violation was not an appealable decision, we do not reach the merits of the appeal.

[¶6] The parties agree that the August 1, 2013, notice to Paradis was a

notice of violation.3 The Town’s Ordinance, however, expressly precludes any

appeal of a notice of violation: “Any order, requirement, decision or determination

3
Notwithstanding the input from or accompanying signatures of the Planning Board and Board of
Selectmen on the notice of violation, the Town’s Ordinance places the role of land use enforcement
squarely in the hands of the CEO alone:

It shall be the duty of the Code Enforcement Officer to enforce the provisions of this
Ordinance. If the Code Enforcement Officer shall find that any provision of this
Ordinance is being violated, he or she shall notify in writing the person responsible for
such violation, indicating the nature of the violation and ordering the action necessary to
correct it, including discontinuance of illegal use of land, buildings or structures, or work
being done, removal of illegal buildings or structures, and abatement of nuisance
conditions. A copy of such notices shall be submitted to the municipal officers and be
maintained as a permanent record.

Peru, Me., Shoreland Zoning Ordinance § 16(I)(2)(a) (June 9, 2009).
4

made, or failure to act, in the enforcement of this ordinance is not appealable to the

Board of Appeals.” Peru, Me., Shoreland Zoning Ordinance § 16(H)(1)(a)

(June 9, 2009). Likewise, the Ordinance provision regarding the manner of taking

an appeal states that “[a]n administrative or variance appeal may be taken to the

Board of Appeals by an aggrieved party from any decision of the Code

Enforcement Officer or the Planning Board, except for enforcement-related matters

as described in Section 16(H)(1)(a) above.” Peru, Me., Shoreland Zoning

Ordinance § 16(H)(4)(a)(i) (June 9, 2009). No Ordinance section provides for any

other municipal means of challenging a CEO’s enforcement decision.

[¶7] Until very recently, appeals of notices of violation were not justiciable

because a notice merely provided an interpretation of an ordinance; unless and

until a municipality acted to enforce the decision in some meaningful way, appeals

from notices of violation were “dismissed as calling for an advisory opinion.”

Dubois Livestock, Inc. v. Town of Arundel, 2014 ME 122, ¶ 9, 103 A.3d 556; see

Eliot Shores, LLC v. Town of Eliot, 2010 ME 129, ¶¶ 5-10, 9 A.3d 806; Farrell v.

City of Auburn, 2010 ME 88, ¶¶ 6-18, 3 A.3d 385. In 2013, however, the Maine

Legislature enacted a statutory amendment providing for board of appeals and

Superior Court review of municipal notices of violation:

Absent an express provision in a charter or ordinance that certain
decisions of its code enforcement officer or board of appeals are only
advisory or may not be appealed, a notice of violation or an
 5

enforcement order by a code enforcement officer under a land use
ordinance is reviewable on appeal by the board of appeals and in turn
by the Superior Court under the Maine Rules of Civil Procedure, Rule
80B.

P.L. 2013, ch. 144, § 1 (effective Oct. 9, 2013) (codified at 30-A M.R.S. § 2691(4)

(2014)). Notices of violation, therefore, have been generally appealable since

October of 2013. Nevertheless, because the notice of violation at issue here was

sent before the effective date of section 2691(4), and because the Town’s

Ordinance expressly states that no appeal from a notice of violation may be taken,

section 2691(4) by its express terms does not provide Paradis with a right to

appeal.4 See Peru, Me., Shoreland Zoning Ordinance § 16(H)(1)(a); cf. Dubois

Livestock, Inc., 2014 ME 122, ¶ 11, 103 A.3d 556 (considering the appeal of a

notice of violation in the absence of an express provision in the municipality’s

ordinance prohibiting it).

4
Nor does the United States Supreme Court’s holding in Sackett v. Environmental Protection Agency,
132 S. Ct. 1367 (2012), require us to afford Paradis a right of appeal. In that case, the Sacketts challenged
a compliance order issued by the Environmental Protection Agency finding that they had discharged
pollutants into federal waters and ordering them to restore the site and to allow the EPA access to their
property and their records pertaining to the site. Id. at 1370-71. On appeal, the Supreme Court concluded
that the compliance order was an appealable final agency action. Id. at 1374.

Notices of violation have many of the same attributes as the compliance order at issue in Sackett, but
the Supreme Court based its analysis on its interpretation of two federal statutes, noting that those statutes
did not expressly preclude judicial review of compliance orders. Id. at 1372-74. Here, in contrast, neither
of those federal statutes is at issue and the Town’s Ordinance expressly precludes appellate review of
notices of violation. Further, although we apply Supreme Court analyses to matters of procedural due
process pursuant to the Fourteenth Amendment, Merrill v. Me. Pub. Emps. Ret. Sys., 2014 ME 100, ¶ 21,
98 A.3d 211, the Supreme Court did not frame the issue in Sackett as one of due process, but rather the
exhaustion of administrative remedies required by the federal statutes. Sackett, 132 S. Ct. at 1372.
6

[¶8] We conclude that the Board of Appeals lacked jurisdiction to consider

Paradis’s appeal, which in turn deprived the Superior Court of jurisdiction to

consider it, and further precludes our review of the merits of the matter.5 See

Hopkinson v. Town of China, 615 A.2d 1166, 1167 (Me. 1992) (“Administrative

bodies such as the board are statutory in nature and can only have such powers as

those expressly conferred on them by the Legislature, or such as arise therefrom by

necessary implication to allow carrying out the powers accorded to them.”).

The entry is:

Judgment of the Superior Court vacated and
remanded with instructions to enter an order
vacating the decision of the Town of Peru Board of
Appeals for lack of jurisdiction.

5
In addition, the Board appears to have both undertaken a de novo review by accepting new evidence
and testimony during its public hearings, and completed an appellate review by upholding the decision of
the CEO. We note that this type of “amalgamated process” of accepting evidence while also purporting
to reach a decision as an appellate body violates both our prior decisions and the Town’s own Ordinance.
Stewart v. Town of Sedgwick, 2000 ME 157, ¶¶ 5, 7, 15, 757 A.2d 773; see Peru, Me., Shoreland Zoning
Ordinance § 16(H)(1)(a) (June 9, 2009); Gensheimer v. Town of Phippsburg, 2005 ME 22, ¶ 7,
868 A.2d 161. Thus, even if we were to conclude that the notice of violation is an appealable decision,
we nevertheless would vacate the judgment of the Board for failing to consider the matter on a de novo
basis and for failing to provide sufficient findings to allow for appellate review.

At argument, the Town’s counsel was forced to admit that there had been many procedural errors
committed by the Town. As we have emphasized in the past, such errors not only cause delays in the
resolution of such matters, but also cost the parties—and the taxpayers—additional funds. See Hartwell
v. Town of Ogunquit, 2015 ME 51, ¶¶ 2, 9-14, --- A.3d --- (discussing municipalities’ failure to observe
their own ordinance requirements); Beckford v. Town of Clifton, 2014 ME 156, ¶ 25 n.6, 107 A.3d 1124
(Saufley, C.J., concurring) (noting the consequences on appeal of ambiguities in a municipality’s
decision).
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On the briefs and at oral argument:

Jennifer F. Kreckel, Esq., Kreckel Law, P.A., Rumford, for
appellant Donald Paradis

Theodore Small, Esq., Isaacson & Raymond, P.A., Lewison, for
appellee Town of Peru

Oxford County Superior Court docket number AP-2013-07
FOR CLERK REFERENCE ONLY