MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2019 ME 29
Docket: Yor-18-213
Submitted
On Briefs: January 17, 2019
Decided: February 26, 2019
Panel: ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.
DANIEL RAPOSA JR. et al.
v.
TOWN OF YORK et al.
MEAD, J.
[¶1] Daniel and Susan Raposa appeal from a judgment of the Superior
Court (York County, O’Neil, J.) dismissing for lack of subject matter jurisdiction
the Raposas’ Rule 80B complaint for review of factual findings made by the
Town of York’s Board of Appeals. Because we hold that the court has
jurisdiction to review the Board’s decision, we vacate the judgment and remand
to the Superior Court for consideration of the complaint on the merits.
I. BACKGROUND
[¶2] The Raposas own residential property in York that abuts property
owned by Joshua Gammon. Gammon has used his property for his commercial
landscaping business since purchasing it from party-in-interest Peter Marcuri
2
in 2014. Marcuri had used the property both for his excavation business and
as his residence.
[¶3] On March 26, 2016, the Raposas contacted the Town’s Code
Enforcement Officer (CEO) to express their concern that Gammon’s use of the
property was not consistent with Marcuri’s nonconforming use. The CEO
responded by email in April, stating that
[t]he uses on the lots are consistent with the previous uses and no
violations are warranted at this time. If you would like to appeal
this determination, . . . [p]lease contact [the Board of Appeals]
regarding the appeals process per article 18.8.2.1., which states,
“The Board of Appeals shall hear and decide Appeals from any
order, requirement, decision, or determination made by any
person or Board charged with administration of this Ordinance.”
[¶4] The Raposas appealed the CEO’s decision to the Town’s Board of
Appeals in May. Three hearings were held on the appeal, during which the
Raposas, their counsel, Gammon’s counsel, the CEO, and other abutters
presented testimony. Although the Board granted the Raposas’ appeal for
reasons not relevant to this appeal, the Board also made factual findings that
were not in the Raposas’ favor, namely that the use of the lot by Gammon’s
landscaping business did not constitute a change in use but rather was an
intensification of the previous use.
3
[¶5] The Raposas appealed to the Superior Court pursuant to
M.R. Civ. P. 80B, challenging the Board’s factual findings. The Town moved to
dismiss the appeal for lack of subject matter jurisdiction pursuant to
M.R. Civ. P. 12(b)(1).1 The court granted the Town’s motion to dismiss, finding
that the Board’s review of the CEO’s decision was advisory and therefore
unreviewable.2 The Raposas appealed to us. See 5 M.R.S. 11008(1) (2018);
M.R. Civ. P. 80B(n).
II. DISCUSSION
[¶6] Pursuant to Maine law governing appeals from municipal boards,
“[a]ny party may take an appeal, within 45 days of the date of the vote on the
original decision, to Superior Court from any order, relief or denial in
accordance with the Maine Rules of Civil Procedure, Rule 80B.” 30-A M.R.S.
§ 2691(3)(G) (2018). Notwithstanding the authority that the Rule grants the
court to enter a judgment affirming, vacating, or modifying the decision under
review or to remand the case to the governmental agency for further
proceedings, see M. R. Civ. P. 80B(c), in a case we decided nearly twenty years
1 Gammon also appealed the decision, and the two appeals were consolidated. When the Town
moved to dismiss the appeals, Gammon joined in the Town’s motion.
2 On February 5, 2018, the Raposas filed a motion to alter or amend the court’s judgment pursuant
to M.R. Civ. P. 59(e), which the court denied after a hearing.
4
ago, we held that where the Board’s role in an appeal is advisory in nature, it is
not subject to judicial review, Herrle v. Town of Waterboro, 2001 ME 1, ¶ 9,
763 A.2d 1159. In light of the cases that we have decided since Herrle and the
Legislature’s action in this area, we take this opportunity to clarify Maine law
regarding the justiciability of a board of appeals’ review of a CEO’s
determination.
[¶7] In Herrle, a Board of Selectmen, acting in lieu of the CEO who had a
conflict of interest, determined that the use of a gravel pit was grandfathered
and, based on that determination, it declined to take enforcement action. Id.
¶ 2. In considering an appeal from those actions, we focused on the Board of
Selectmen’s decision not to “enforce,” and held that the Board of Appeals’ role
in an appeal of a determination that no violation of the Town’s zoning ordinance
existed was advisory in nature and not subject to judicial review. Id. ¶¶ 9-10.
We reasoned that because the Board of Selectmen retained discretion not to
bring an enforcement action, any decision by the court on the issue of whether
the violation determination was correct would lack legal significance. Id. ¶ 10.
In a later case, we explained that “Herrle precludes the court’s intrusion into
municipal decision-making when a municipality decides whether or not to
undertake an enforcement action. If the municipality undertakes a subsequent
5
enforcement action, that action may be subject to judicial scrutiny if review is
authorized by an appropriate law and ordinance.” Salisbury v. Town of Bar
Harbor, 2002 ME 13, ¶ 11, 788 A.2d 598.
[¶8] In 2010, we cited Herrle when we decided Farrell v. City of Auburn,
2010 ME 88, 3 A.3d 385, and Shores v. Town of Eliot, 2010 ME 129, 9 A.3d 806.
In each case, a notice of violation of the municipal ordinance (NOV) issued by
the Town’s CEO was appealed to the Board of Appeals and then to the Superior
Court. Farrell, 2010 ME 88, ¶¶ 3-5, 3 A. 3d 385; Shores, 2010 ME 129, ¶¶ 3-4,
9 A.3d 806. We concluded that because the only legal significance of each
Board’s decision was to provide an advisory opinion concerning whether the
CEO’s violation determination was correct, neither decision was subject to
judicial review. Farrell, 2010 ME 88, ¶ 17, 3 A.3d 385; Shores, 2010 ME 129,
¶ 10, 9 A.3d 806. As discussed below, however, these two decisions were
subsequently vitiated by statute. See 30-A M.R.S. § 2691(4) (2018); Dubois
Livestock, Inc. v. Town of Arundel, 2014 ME 122, ¶ 9, 103 A.3d 556.
[¶9] In 2013, the Legislature enacted P.L. 2013, ch. 144, amending
30-A M.R.S. § 2691(4) (2013), to provide for board of appeals and Superior
Court review of municipal notices of violation. See Paradis v. Town of Peru,
2015 ME 54, ¶ 7, 115 A.3d 610. The statute as amended provides that “[a]bsent
6
an express provision in a charter or ordinance that certain decisions of its code
enforcement officer or board of appeals are only advisory and may not be
appealed, a notice of violation or 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.” 30-A M.R.S. § 2691(4).
[¶10] Since the enactment of the amendment, NOVs have been generally
appealable. See Paradis, 2015 ME 54, ¶ 7, 115 A.3d 610. Although the plain
language of the statute does not explicitly address whether an appeal from a
notice indicating that there is no violation is likewise authorized by section
2691(4), our opinions interpreting the provision have expressed the
understanding that such “no violation” actions are similarly appealable. For
example, in Dubois Livestock, Inc., 2014 ME 122, ¶¶ 9-11, 103 A.3d 556, we
addressed the justiciability of an appeal from a CEO’s NOV. We considered the
effect of the Supreme Court’s ruling in Sackett v. EPA “that an Environmental
Protection Agency compliance order, the equivalent of a municipal [NOV], was
a final agency action subject to judicial review because the order affected the
use of the property at issue and appeal was the only adequate remedy.” Id. ¶ 10
(citing Sackett v. EPA, 566 U.S. 120 (2012)) (quotation marks omitted). We also
7
referenced our holding in Annable v. Board of Environmental Protection “that a
court may reach the merits in a declaratory judgment action when an agency
decision, although a notice or advisory opinion, can affect property uses.” Id.
(citing Annable v. Bd. of Envtl. Prot., 507 A.2d 592, 595-96 (Me. 1986)). We then
concluded that, “like the compliance order at issue in Sackett, or the agency
opinion at issue in Annable, [an NOV] affects the use, and may affect the value,
of the property, and Dubois’s only remedy, absent a Rule 80K action to defend,
is appeal.” Id. Thus, in light of the reasoning in Sackett and Annable and the
amendment to section 2691(4), we held that the NOV appeal was justiciable.
Id. ¶ 11.
[¶11] In accordance with our reasoning in Dubois,3 we hold today that a
CEO’s written decision interpreting a land use ordinance is appealable to the
Board and in turn to the Superior Court—whether the CEO finds that there is
3 Only when statutory language is ambiguous do we “examine other indicia of legislative intent,
such as legislative history.” Kimball v. Land Use Regulation Comm’n, 2000 ME 20, ¶ 18, 745 A.2d 387
(quotation marks omitted). Although the statutory language at issue is unambiguous and we need
not consult extrinsic information to determine its meaning, we note that the stated purpose for
amending section 2691 was to address our decisions in Farrell and Shores. L.D. 1204, Summary
(126th Legis. 2013). As the proponents of the bill testified, after Farrell and Shores, CEO decisions
were not binding on the parties, but instead were merely advisory. L.D. 1204, Public Hearing
Summary (126th Legis. 2013). The proponents explained that, pursuant to this bill, a CEO’s written
decision interpreting a local ordinance would be binding unless timely appealed to the board of
appeals—resulting in a quick and inexpensive method of resolving disputes at the local level. Id. It
is clear from the legislative history that the proponents of the bill—and the Legislature in enacting
the bill—favored allowing appeals of municipal decisions that affect the property interests of
landowners.
8
or is not a violation—so long as the ordinance does not expressly preclude
appeal. See 30-A M.R.S. § 2691(4); Paradis, 2015 ME 54, ¶ 7, 115 A.3d 610
(determining that section 2691(4) did not provide a right to appeal an NOV
where the ordinance expressly stated that no appeal from an NOV may be
taken). In making this announcement, we recognize that such decisions often
determine the use and value of property and that persons affected by these
decisions would otherwise have no remedy. See Dubois, 2014 ME 122,
¶¶ 10-11, 103 A.3d 556. The applicable statutes and the terms of the
ordinance—not the potential advisory nature of appellate review—define the
court’s jurisdiction.4
[¶12] We thus turn to the Raposas’ appeal. Because the Board conducted
a de novo review of the CEO’s determination, we review the Board’s decision
directly. See Yates v. Town of Sw. Harbor, 2001 ME 2, ¶ 10, 763 A.2d 1168;
Stewart v. Town of Sedgwick, 2000 ME 157, ¶ 7, 757 A.2d 773. The Board found
that Gammon’s use of the lot did not constitute a change of use but rather an
intensification of the same use. This determination—which would be final if
4 To the extent that Herrle holds otherwise, it is overruled. Although the general rule that that the
Board of Selectmen retains discretion in whether to bring an enforcement action for an ordinance
violation continues to exist, see Adams v. Town of Brunswick, 2010 ME 7, ¶ 10, 987 A.2d 502; Herrle v.
Town of Waterboro, 2001 ME 1, ¶ 10, 763 A.2d 1159, a municipality’s decision that an ordinance has
not been violated is a legal determination that is appealable subject to the provisions of that
municipality’s ordinance. See Herrle, 2001 ME 1, ¶¶ 13-14, 763 A.2d 1159 (Dana, J., dissenting).
9
the Raposas could not appeal—allows Gammon to continue to operate his lawn
service business, thereby affecting the use of Gammon’s property and
potentially affecting the value of the Raposas’ abutting property.
[¶13] Absent an express provision in the Town’s ordinance stating that
the Raposas may not appeal, a determination of whether there has been a
violation of the ordinance is reviewable on appeal. See 30-A M.R.S. § 2691(4).
The Town of York’s ordinance provides that “[a]ny party may take an appeal
within 45 days of the vote on the [Board’s] decision, to Superior Court from any
order, relief or denial in accordance with the Maine Rules of Civil Procedure,
Rule 80B.” York, Me., Zoning Ordinance § 18.8.3.6 (May 21, 2016) (emphasis
added). The Superior Court therefore has jurisdiction in this case.
The entry is:
Judgment vacated. Remanded for further
proceedings.
Sandra L. Guay, Esq., Woodman Edmands Danylik & Austin, P.A., Biddeford, for
appellants Daniel Raposa Jr. and Susan Raposa
Mary E. Costigan, Esq., Bernstein Shur, Portland, for appellee Town of York
Matthew W. Howell, Esq., Clark & Howell, LLC, York, for appellee Joshua
Gammon
York County Superior Court docket numbers AP-2016-34, 35
FOR CLERK REFERENCE ONLY
Daniel Raposa Jr. v. Town of York
Combined Opinion