Earlier this year, Maine’s Superior Court issued a decision
in Blasco v. Town of Southport that provides a useful reminder for
municipalities about appeals of code enforcement actions.
The case involved an 80B appeal of a notice of violation that
had been issued by the Town of Southport’s code enforcement officer. The
plaintiff filed the appeal pursuant to a provision in Southport’s land use
ordinance that provided that all enforcement actions taken by the CEO “may be
appealed by an aggrieved party only to the Superior Court pursuant to Rule 80B
of the Maine Rules of Civil Procedure.” There was no dispute among the
parties that the notice of violation at issue was an enforcement action within
the ambit of the ordinance.
The question for the Superior Court was whether Southport’s
ordinance, which allowed CEO enforcement actions to be appealed directly to
Superior Court, was consistent with Maine law. The court answered that
question with an unequivocal “no.” The court pointed out that, in 2013,
the Maine Legislature enacted a statutory amendment that authorized enforcement
orders such as a notice of violation to be appealed, unless there is clear
language in an ordinance stating that such decisions are “only advisory.” However, that statute, 30-A M.R.S.A. § 2691(4), also requires that an appeal
must be taken to the Board of Appeals prior to any appeal to the Superior
Court. In this case, Southport’s ordinance did not state that the CEO’s
decisions were only advisory, and so, it did not necessarily preclude an appeal
of the notice of violation at issue. But, because the ordinance attempted
to allow for appeals of CEO decisions to be taken directly to Superior Court
without first being presented to the Board of Appeals, the Superior Court found
Southport’s ordinance was inconsistent with Section 2691(4) and remanded the
appeal to Southport’s Board of Appeals for its consideration.
