Enforcement of Tax Liens

This year, one subject that raised a lot of questions related to title to real estate acquired by the foreclosure process for failure to pay real estate taxes and the sales of those properties. Although the process is laid out very clearly in the statute, Title 36, particularly §§ 942 and 943, it has proven challenging for tax assessors to always get things right. The Law Court has been very clear that if there is even a minor error in the tax foreclosure process, it will be declared to be void if challenged by the taxpayer.

One of the particular areas of concern is the requirement under Title 36, Section 943 (the so-called 30-day notice), which must be served to complete the foreclosure process. A common mistake that is made is that the notice is simply sent to the address of the property itself, rather than to the owner’s usual place of abode, or last known address. Another problem we have seen is that when a town isn’t careful, it assesses property to one property owner when there are multiple property owners, including husbands and wives. A notice of foreclosure only sent to one property owner may not be effective against the property as a whole, and, at a minimum, will not be effective against the interests of the property owner who was not notified. Even when it is clear that the process was handled properly, towns often choose to file a quiet title action to ensure that they have good title to property before attempting to re-sell it. The title standards of the bar generally require a ten-year waiting period for titles to be considered clear. There is no impediment to the town selling the property once it obtains title through the foreclosure process, even if title has not been declared by a court. It is critical that the assessor carefully follows the exact process laid out in Title 36, §§ 942 and 943, for the municipality to properly acquire title to property acquired because of tax delinquency.

Law Court Finds FOAA Complaint Properly Dismissed

Maine’s Law Court recently issued a brief decision reminding Freedom of Access Act (FOAA) practitioners that FOAA complaints are subject to dismissal, like any other complaint, where they fail to allege facts that would entitle a plaintiff to relief under the statute. 

The facts in the case, Dubois v. Town of Arundel, involved a denial by the Town of Arundel’s Planning Board of an application to renew a conditional use permit submitted by an agricultural composting facility. The Planning Board denied the application during a public hearing, which was not attended by any representative from the composting facility, including the two plaintiffs in the case. Following the Planning Board’s denial, the plaintiffs filed a complaint alleging that a memorandum drafted by the Town Planner and distributed to the Planning Board members led to an illegal executive session. The Town of Arundel moved to dismiss the complaint for failure to state a claim that would entitle the plaintiffs to relief, which the trial court granted and the plaintiffs then appealed.

On appeal, the plaintiffs argued that a complaint brought under the FOAA is not subject to dismissal for failure to state a claim. However, the Law Court rejected this argument and found no merit for the proposition that a motion to dismiss is barred in the context of a FOAA complaint. 

Turning to the substance, the Law Court examined the complaint to determine whether it alleged facts that would entitle the plaintiffs to relief. Here, the Law Court explained that the complaint failed to allege that any action was actually taken during an executive session that would violate the FOAA. On the contrary, the complaint merely alleged that a memo from the Town Planner led to an executive session, and that the Planning Board then held a public hearing at which the composting facility’s application was denied. Consequently, because the complaint failed to allege that any specific action was taken during an executive session, the Law Court found that the trial court properly dismissed the complaint for failure to state a claim under the FOAA that would entitle the plaintiffs to relief.

Are Notices of “No Violation” Appealable in Maine?

If a code enforcement officer (CEO) issues a written decision finding “no violation” of a land use ordinance, is that decision appealable? Recently, Maine’s Law Court tackled this very question and answered “yes”—but only so long as the ordinance does not say otherwise.

In Raposa v. Town of York, an abutter became concerned about how a neighbor was using property. The abutter contacted the CEO, who responded to the abutter with an email explaining that no violations were warranted based on the neighbor’s use of the property. The CEO’s email included a notice advising the abutter that the Board of Appeals could hear an appeal from “any order, requirement, decision, or determination” made by the CEO or any other person charged with administering the ordinance. Heeding that advice, the abutter appealed the CEO’s “no violation” determination to the Board of Appeals and then to the Superior Court, where the Town of York moved to dismiss the appeal for lack of jurisdiction. The Superior Court granted the Town’s motion, finding that the Board’s review of the CEO’s decision was advisory and therefore unreviewable.

Reversing the Superior Court, the Law Court explained that Notices of Violation (NOVs) have been generally appealable since 2013—when the Legislature amended the statute governing appeals from municipal boards—except where an ordinance expressly provides that certain decisions are only advisory and may not be appealed. Although the Law Court noted that the plain language of the amended statute does not explicitly address “no violation” notices, the Court also noted that its previous decisions have “expressed the understanding that such ‘no violation’ actions are similarly appealable” because of their potential impact on property uses. In Raposa, the Law Court took the opportunity to make its previous expressions more concrete, holding conclusively 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 or is not a violation—so long as the ordinance does not expressly preclude appeal.” Because the Town of York’s ordinance did not have a provision that expressly precluded appeal, the Law Court found that the abutter’s appeal was not subject to dismissal by the Superior Court. 

In light of Raposa, municipalities should review the appeal provisions in their land use ordinances and update them accordingly.

Maine Court Reiterates That Private Persons Do Not Have Standing to Enforce Land Use Ordinances

The Maine Superior Court recently issued a decision reiterating that only municipalities have the authority to enforce land use regulations. The decision is a reminder that private persons are not entitled to sue for enforcement of a land use ordinance and that, if they do, any such action may be dismissed.

At issue in Emanuel v. Town of Bristol was the use of a refrigerated trailer at a lobster wharf, which several nearby residents objected to because the trailer was loud and ran at unpredictable intervals. After the wharf owner did not respond to the residents’ concerns, the residents contacted the town with their objections, claiming that the trailer was being used without prior review or approval by the Town’s planning board or code enforcement officer (CEO). The residents requested that the Town require the wharf to obtain a planning board permit. In response, the Town’s CEO explained the trailer was not a “structure” requiring a permit and that, because there was no consequent violation of the shoreland zoning ordinance (SZO), the Town would not issue a notice of violation. The residents appealed the Town’s decision to the Superior Court.

On appeal, the Superior Court pointed to two previous decisions from Maine’s Law Court, both of which found that private persons did not have standing to initiate enforcement proceedings against their neighbors. Based on these decisions, as well as the language of the SZO, the Superior Court found that it is the duty of the CEO, not private persons, to enforce the SZO and to investigate complaints of alleged violations. And, if the CEO’s actions do not result in an abatement of the violation, then it is the municipal officers of the Town who have the authority to initiate legal action – not private persons.