Superior Court Ruling Supports Municipal Authority

Michaela Murphy of the Kennebec County Superior Court recently issued a decision in favor of the Town of Readfield. The case was brought by a property owner whose occupancy permit for a residential structure had been revoked by the Code Enforcement Officer because he had misrepresented its intended use.

 The permit was revoked because the property owner was openly using the site as a commercial concert and events center where it was not allowed per zoning map. The Town also refused to put a rezoning question out for town meeting vote despite receiving the required number of signatures on the petition because the rezoning would have violated the comprehensive plan. 

Justice Murphy ruled in favor of the town on all counts. She strongly reinforced a municipality’s right to revoke a permit when clear misrepresentations had been made regarding its use and the use was in violation of applicable land use restrictions. This is an alternative way to enforce a claim rather than going to District Court for an 80K action. The Court also upheld the Select Board’s right to make a determination that certain questions not be put to a Town meeting vote.

This case was handled by Kristin Collins and Stephen Langsdorf of Preti Flaherty.

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.

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.

A New Way to Deal with Dilapidated Mobile Homes

The Municipal Law and Finance Group recently advised a client regarding the use of a relatively new statute – 30-A M.R.S. § 3106 – which provides municipalities with authority to take possession and dispose of mobile homes that have been abandoned. While the statute uses the term “abandoned,” it seems to also include mobile homes that are in a substantial state of disrepair. Code Enforcement Officers should consult municipal counsel before using the statute for a mobile home that is still inhabited. 

Section 3106 provides that the municipal officers may take corrective action after determining at a hearing that a mobile home has been abandoned. Notice of the hearing must be published or delivered at least seven days prior. 

The standards for making this determination are listed in 14 M.R.S. § 6326 and allow for a determination of abandonment if doors and windows have been boarded up, broken, or left unlocked; trash and debris has accumulated on the mortgaged premises; the premises constitute a threat to public health or safety; or the premises are unfit for occupancy. Only one of these must be proven true in order for the municipal officers to make a lawful finding of abandonment. 

After making such a determination at the hearing, the municipal officers must order that the conditions be addressed. Contents for the order are outlined in the statute. The order must give the property owner 60 days to correct the situation. If that deadline passes without action, the municipal officers are authorized to take possession of the mobile home and dispose of, it as well as any personal property located inside. Costs of doing so, including legal and administrative costs, may be assessed to the owner as a special tax if they remain unpaid after 30 days. 

Experienced CEOs will notice many parallels between this procedure and the more commonly used “dangerous building” statute (17 M.R.S. § 2851). Both allow for the process to be conducted either by the municipal officers or in court, and both allow for costs to be assessed as a personal tax. However, because Section 3106 sets a lower trigger for action, provides clear authority to dispose of personal property, and is more directly addressed to mobile homes, we recommend its use when dealing with dilapidated mobile homes.

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.

Maine Superior Court Weighs in on Code Enforcement Appeal

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.

For municipalities in Maine, the Blasco decision serves as a reminder to review land use ordinance provisions concerning the appeal of code enforcement actions. Municipalities should bear in mind that, absent any language stating that certain code enforcement decisions are only advisory and not appealable, a notice of violation or similar enforcement order is normally appealable. Any appeal, however, must first be presented to the Board of Appeals before it can be appealed to the Superior Court.