Know Your Ordinance: Enforcement Orders Subject to Appeal

One thing we always look for when reviewing a land use ordinance is whether it inadvertently allows for appeal of enforcement orders issued by the code enforcement officer (CEO). We prefer not to have such orders be appealable, because a notice of violation is only a preliminary determination and will always be reviewed by a court before any penalties are assessed. Further, notices of violation are often an important first step in encouraging negotiation and resolution of violations. If a property owner can appeal a decision, he or she will usually take that step instead of trying to work things out with the CEO.

The Legislature recently highlighted this issue when it added language to the Board of Appeals statute, 30-A M.R.S. § 2691, which reads as follows:

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 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.

It is now clear that by default, enforcement orders may be appealed. If that is not your municipality’s intention, ordinances should be amended ASAP to clearly state that there is no jurisdiction to allow such appeals.

One positive thing to note is that at least one court has refused to read the new language so broadly as to allow appeal of a CEO’s failure to find a violation. In Rappos v. Town of York, AP-16-34, abutters submitted a complaint against their neighbor and then appealed the CEO’s decision not to take action on that complaint. The Court held that neither the Zoning Board of Appeals nor the Court had jurisdiction to issue a binding order on the appeal.

The Gift That Doesn’t Keep on Giving? How Municipalities Can Make Funds Held in Trust for a Public Purpose More Manageable

Many municipalities are the recipients of generous monetary gifts to be held in trust for various public purposes. Such gifts can range in size from a few hundred dollars to a few hundred thousand dollars or more, and may be accompanied by very specific instructions for how they are to be spent or by no instructions at all. While important to serving their various public purposes, these funds can also pose a problem for municipalities with limited financial management resources, particularly when sums given or restrictions imposed decades ago become obsolete and make it difficult for municipalities to efficiently carry out the wishes of their donors. 

One viable alternative for municipalities is to seek out a private, third-party nonprofit organization that specializes in administering funds of the nature held in trust by the municipality and seek approval from the Consumer Protection Division of the Office of the Attorney General to transfer the funds. Depending on certain factors, the funds held in trust may be subject to the Maine Uniform Trust Code, 18-B M.R.S.A. § 101 et seq., which prescribes certain rules for matters such as the creation, validity, modification, or termination of a trust. In this particular situation, the municipality may need to seek approval from either the Probate or Superior Court to modify or terminate the trust in question on the basis of circumstances not anticipated by the settlor of the trust, with consideration being given to the settlor’s probable intent. Although in some cases, decedents of the original settlor may object to such modification or termination, as a practical matter, the Consumer Protection Division is often the only party in a position to challenge such action. Therefore, approaching the Division prior to petitioning the court to obtain their informal approval is advisable. 

Our firm has previously assisted with seeking court approval of similar transfers of trusts, including the relocation of Cony High School in Augusta, Maine, in 2007, which drew significant community attention, but ultimately resulted in a favorable outcome. 

Municipalities that choose to administer funds independently or are unable to identify a viable private third-party recipient of such funds are subject to certain statutory guidelines regarding the management and disbursement of trust funds held by the municipality for charitable public purposes. Under Maine law, two different laws appear to govern such activities, which appear to create ambiguities and practical difficulties for municipalities; however, after working with the Consumer Protection Division, we have determined that Maine’s Uniform Prudent Management of Institutional Funds Act, 13 M.R.S.A. § 5101 et seq. (“UPMIFA”), is a proper authority under which to manage and invest such funds. 

While Subchapter 3-A of Chapter 223 of Title 30-A of the Maine Revised Statutes Annotated, regarding municipal investments, also applies to public purpose funds held in trust by a municipality, the Division recently stated informally that they would not object to a municipality managing and investing funds held by the municipality for public purposes under UPMIFA because it is both more recent than Subchapter 3-A and specifically applies to charitable funds held by government institutions. UPMIFA additionally offers a standard of prudence by negative inference with regard to the expenditure of funds. UPMIFA provides, in part, that any appropriation for expenditure of an amount greater than 7% of the fair market value of the fund, calculated over certain time periods, creates a rebuttable presumption of imprudence. 

UPMIFA is also the statute applicable to municipalities managing and investing charitable funds for private purposes, meaning that management under UPMIFA could be consistently applied to funds designated for both public and private purposes, an additional benefit to municipalities with limited resources to manage those funds under different statutory schemes.

Superior Court Clarifies Grandfathered Status of Non-conforming Structures

Maine’s Superior Court recently issued a decision that provides clarification on the grandfathered status of non-conforming structures and, more specifically, the circumstances under which that status may be lost. 

At issue in Plourde v. Town of Casco was the non-conforming status of a dock. In 2005, the town had issued a building permit for a dock to a family that owned property in a subdivision. The permit identified the family’s lot as the relevant lot associated with the permit. In 2016, the plaintiffs, who also owned property in the subdivision, purchased the dock from the family. The family then sold their lot separately to a new owner. After the new owner filed a complaint with the town regarding the dock, the code enforcement officer (CEO) conducted an inspection. Unable to determine who owned the dock, the CEO issued a notice of violation ordering the removal of the dock and invalidating its permit. Among other violations, the CEO cited the width of the dock and fact that the permit for the dock had been issued to the prior owner of the lot. After receiving notice of the violation, the plaintiffs filed an application seeking to construct a new temporary dock in the same location as the former dock. Ultimately, the town’s Zoning Board of Appeals (ZBA) denied the building permit, finding that the plaintiffs’ application was for a new dock and not a grandfathered replacement dock, and that the dock was located in a beach area in violation of the town’s ordinance. 

On appeal, the plaintiffs argued that it is structures that are grandfathered, not owners, and so the dock and its location were grandfathered regardless of any ownership interest in the lot formerly associated with the dock. The Superior Court disagreed, however, pointing out that the rights conferred by a building permit attach to the land. Here, the 2005 building permit made the dock appurtenant to a specific lot. The court explained that although a change in ownership in the lot would not affect the non-conforming status of any appurtenant structure, that status may not be separated from the lot and sold in a transaction independent from a sale of the lot. Consequently, when the plaintiffs purchased the dock in an independent transaction, “they did not validly obtain any right or privilege to place the dock in its current location and never obtained any non-conforming status associated with the dock’s location.” As a result, the court found that the town’s ZBA appropriately denied the plaintiffs’ application for a building permit where the application was for a new dock and not a replacement for a grandfathered non-conforming dock.