Development Projects and the Limits of Moratoria

I am always struck at how vigorously some property owners oppose development projects, despite their having previously, and successfully, pursued identical projects. Do they not remember that they did the exact same thing? Is there some definition of fairness I am not aware of? Whatever the cause, it can be exasperating for the developer and detrimental to sound zoning and planning.

A recent case in my small town has really shined a light on just how absurd this can all be.

A landowner, in compliance with state law and as is her right, created a number of lots under the so-called 2 in 5 rule. Subject to a number of exemptions and exclusions, the general rule is that a landowner can create 2 lots in any 5-year period without needing municipal (i.e., planning board) approval. 30-A MRSA section 4401(4):

4. Subdivision. "Subdivision" means the division of a tract or parcel of land into 3 or more lots within any 5-year period that begins on or after September 23, 1971. This definition applies whether the division is accomplished by sale, lease, development, buildings or otherwise. The term "subdivision" also includes the division of a new structure or structures on a tract or parcel of land into 3 or more dwelling units within a 5-year period, the construction or placement of 3 or more dwelling units on a single tract or parcel of land and the division of an existing structure or structures previously used for commercial or industrial use into 3 or more dwelling units within a 5-year period.

For the landowner the benefits of this approach are numerous, but for the most part all revolve around not having to build infrastructure such as roads, sidewalks, electric utilities, water, sanitary sewer, and stormwater infrastructure, as well as not having to set aside or otherwise provide open or common space. For Maine’s relatively “cash poor, land rich” population, the 2 in 5 rule has been a way to monetize their land over time without a lot of upfront development costs or risks.

But back to my town where the land adjacent to this landowner’s 2 in 5 development was bought by a developer “from away,” who applied to the planning board for a residential subdivision approval. Almost a year later, the project is still languishing in front of planning board. The 2 in 5 landowner is now on the planning board and is circulating a citizens petition to enact a 24-month moratorium on any subdivision needing planning board approval. Putting aside the potential conflict of interest issues at play here, a 24-month moratorium is laughably illegal.

State law limits moratoria to a definite term of not more than 180 days. In certain circumstances, a moratoria may be extended for an additional term of not more than 180 days. Moratoria are not intended to simply stop development, but are instead intended to provide a municipality breathing room to thoughtfully look at issues and impacts around development and make evidenced-based policies to guide development.

In order to adopt a moratorium, the municipality must first have evidence that additional development is likely to overburden existing facilities or that there is a shortage of such facilities. What form this evidence takes is subject to some debate, ranging from mere statements from public facilities managers (e.g., school district, water district, sewer district, public works, and so on) to glossy consultant’s reports concluding that existing public facilities are or may be insufficient to adequately address additional development.

The second criteria is that the municipality’s comprehensive plan or ordinances are inadequate to protect resources from serious harm. I find this criteria sort of odd in that municipalities, if they have a zoning ordinance, must enact a zoning ordinance that is in compliance with a comprehensive plan, that, as its principal function is supposed to protect resources from serious harm and guide development in a responsibly and thoughtful way. It might be said that a moratorium allows a municipality to correct an otherwise deficient comprehensive plan.

Anytime a municipality considers a moratorium, it should do so carefully and thoughtfully.

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.

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.

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.

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.

Municipal Land Use Appeals – Ripe for Confusion?

For the past decade, Maine's Supreme Judicial Court has been struggling to find a way to reduce – and expedite – the number of land use appeals going through the courts. It took the opportunity to make a sweeping new rule in the case of Bryant v. Town of Camden, decided last year. In Bryant, an abutter appealed the decision of the Town of Camden's Zoning Board of Appeals to issue a special exception permit to a local inn that wished to expand. The Town's Zoning Ordinance gave jurisdiction to the Board of Appeals to decide such applications by reviewing certain criteria aimed at evaluating whether the development plan would cause undue burdens on the neighborhood. Since the ZBA issued the decision, it was appealed directly to Superior Court. The Superior Court upheld the ZBA's decision and the abutter appealed to the Law Court.

To the surprise of the parties, the Law Court ended up dismissing the appeal based upon issues that had not been raised by either party. The decision begins:

In an effort to reduce confusion, costs, and delay in municipal appeals, we today announce more clearly the need for finality in municipal decisions before a municipal entity’s action may be appealed to the courts. Specifically, we consider when a municipal agency’s decision constitutes a final action subject to immediate judicial review and when, instead, additional municipal decision making is necessary before an appeal is ripe for consideration by the courts.

The Court went on to find that because the inn would still need site plan approval from the Planning Board and Code Enforcement Officer before it could go through with the planned expansion, the appeal was not ripe for consideration by any court. The inn's owner would essentially have to get all of its permits and approvals before the abutter could appeal the issues from the first decision.

Municipal and land use attorneys across the state have been trying to determine the best way to respond to the Bryant decision. All are concerned about the amount of time and expense that might be spent on proceeding through a review process when the first step has already been challenged. I represented the Town of Camden in Bryant, and have been participating in a working group aimed at finding a legislative or procedural compromise to the concerns raised by the Court. The group has presented a proposed change to Rule 80B (which governs appeals of municipal decisions) to allow the Superior Court to decide whether it is appropriate to proceed with review despite any requirement for additional permits. The group is also working on proposed legislation to at least provide that a decision is final for appeal purposes once it has been before any board with jurisdiction over the development (as opposed to final building and occupancy permits issued by the Code Enforcement Officer or other officials).

Until there is some clarification regarding the reach of the Bryant decision, we are helping our clients implement ways to streamline or consolidate their review process on multi-stage approvals. There are a few simple strategies to do so that will reduce the burden on applicants, abutters and municipal officials alike. Please contact us if you would like more information.

*Please note that this post addresses Maine law only. To the best of our knowledge, no courts in New Hampshire or Massachusetts have applied the ripeness rule in this way.