Is There a Right to a Jury Trial for Land Use Enforcement Actions in Maine?

According to a recent decision from Maine’s Superior Court, the answer depends on whether a municipality is seeking injunctive relief, such as an abatement of a zoning violation, or whether the municipality is seeking only monetary penalties. Where a town is seeking primarily injunctive or equitable relief, there is no right to a jury trial.

In Town of Lebanon v. McDonough (York County, Aug. 21, 2018), the town issued a notice of violation (NOV) finding that a property owner had continued construction in the shoreland zone after receiving a stop work order. After the owner failed to comply with the NOV, the town filed a Rule 80K complaint in the District Court alleging various violations of the shoreland zoning ordinance. In terms of relief, the town requested a permanent injunction and removal and abatement of the violations, as well as civil penalties and attorneys’ fees. The owner removed the case to the Superior Court and requested a trial by jury.

The Superior Court found that the town’s primary pursuit in the case was the removal or abatement of a zoning violation. Because the town’s primary claim was for injunctive relief, the court found that the defendants did not have a right to a jury trial. Although the town also sought civil penalties, the court found that this was an ancillary claim and did not make the town’s primarily equitable claim into a legal claim for damages that would entitle the defendants to a jury trial. Because the only basis for removing the case to Superior Court was “for a jury trial,” and because no jury trial was available given the primarily equitable nature of the town’s claims, the court found the removal improper and sent the case back to the District Court.

“Opt In” Begins for Medical Marijuana Stores

December 13 was the effective date for bills passed by the 128th Legislature, including LD 1539, An Act to Amend Maine’s Medical Marijuana Law. Prior to this amendment, medical marijuana stores had gotten around the five-patient limit by eliminating one patient from their roster when the next one walked through the door. The law now formally allows medical marijuana caregivers to serve an unlimited number of patients, eliminating the need for them to maintain these “rolling rosters.” The law also specifically prevents medical marijuana storefronts from locating in a municipality unless that municipality has affirmatively passed a zoning or other ordinance which specifically allows them.

If a municipality already has one or more medical marijuana storefronts which are operating with some type of land use approval, the law does not allow that municipality to now prohibit those particular stores. However, new stores and existing stores operating without municipal approval will not be considered legal unless and until the municipality “opts in” by enacting an ordinance to allow them. We are working with many of our municipal clients to develop licensing and zoning ordinance provisions to address both adult use and medical marijuana establishments now that we have a solid legislative framework governing the scope of municipal authority.