277 A.3d 364
Me.2022Background
- Harbor Crossing sought (March–June 2020) first a renovation permit, then a demolish-and-rebuild permit; the Code Enforcement Officer (CEO) issued the June 8, 2020 demolish-and-rebuild permit without published notice to abutters.
- After construction began, the CEO issued a stop-work order on September 17, 2020 citing an unspecified deviation from permit #20-41 and requested revised plans.
- Harbor Crossing submitted revised plans; on September 25, 2020 the CEO lifted the stop-work order without issuing a new permit and with a one-line finding that the submitted information “satisfies this office.”
- Abutters 29 McKown LLC and Chandler Wright appealed the CEO’s action to the Town Board of Appeals (BOA), arguing the revised project required Planning Board approval; the BOA (exercising appellate-only review) denied the appeal after relying on the CEO’s oral statements.
- The Superior Court affirmed the BOA; the Maine Supreme Judicial Court vacated and remanded, concluding the CEO’s action was not a judicially reviewable decision and that 29 McKown was deprived of administrative due process.
- The Court directed remand for the CEO to create an evidentiary record, allow parties to submit and rebut evidence, avoid substantive ex parte communications, and issue findings of fact and conclusions of law sufficient for appellate review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the operative decision for review is the BOA’s or the CEO’s | 29 McKown: Because the BOA’s review is appellate, the CEO’s decision is the operative record | Harbor Crossing/Town: BOA decision controls; review of BOA is appropriate | Court: Ordinance makes BOA appellate only; review is of the CEO’s decision directly (Zappia/LaMarre) |
| Whether the CEO’s lifting of the stop-work order constituted a reviewable decision | 29 McKown: Lifting the stop-work effectively granted a de facto permit without Planning Board approval and without adequate findings or notice | Harbor Crossing/Town: CEO properly lifted the order based on submitted plans; action was sufficient | Court: CEO’s one-line statement was insufficient; not judicially reviewable absent factual findings and record |
| Whether 29 McKown received adequate process (notice and opportunity to be heard) | 29 McKown: No statutory notice of the June permit; denied chance to present evidence; due process violated | Harbor Crossing/Town: Objector had prior notice of Planning Board use approval; appeal timely to BOA | Court: Lack of published notice and appellate-only BOA review deprived abutters of administrative due process; good-cause principles support relief |
| Proper remedy when CEO record is inadequate | 29 McKown: Remand for a full hearing, record, and findings by CEO | Harbor Crossing/Town: Affirm BOA/Superior Court judgment | Court: Vacate judgment and remand to CEO to create a record, permit evidence and rebuttal, avoid ex parte contacts, and issue findings/conclusions for appellate review |
Key Cases Cited
- LaMarre v. Town of China, 259 A.3d 764 (Me. 2021) (warning about pitfalls of appellate-only BOA review; requiring CEO findings and record for meaningful review)
- Zappia v. Town of Old Orchard Beach, 271 A.3d 753 (Me. 2022) (when BOA review is expressly appellate, the operative decision for judicial review is the CEO’s)
- Fox Islands Wind Neighbors v. Dep’t of Env’t Prot., 116 A.3d 940 (Me. 2015) (enforcement actions and regulatory decisions are judicially reviewable)
- Brackett v. Town of Rangeley, 831 A.2d 422 (Me. 2003) (equity may relax appeal deadlines when town violates its own notice procedures)
- Viles v. Town of Embden, 905 A.2d 298 (Me. 2006) (good-cause exception to permit appeal deadlines where lack of notice prevented timely challenge)