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.

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.