103 A.3d 556
Me.2014Background
- Dubois Livestock operates a composting facility in Arundel's R-4 zone processing off-site fish waste, horse and cow manure; operation began in 1981 and became nonconforming after 2000 zoning changes.
- The Town ordinance requires all solid waste processing facilities to obtain and renew conditional use permits every three years; Dubois received permits in 2000 and 2011.
- The 2011 permit required annual reports (bills of lading and summaries) and allowed annual on-site inspections; Dubois refused to provide reports and denied inspections in 2012.
- Town code enforcement issued a notice of violation (Oct. 30, 2012); Dubois appealed to the Zoning Board of Appeals (ZBA), arguing the Town lacked authority because state law (Agriculture Protection Act and Solid Waste Act) preempted the ordinance.
- The ZBA denied the appeal (January 2013), concluding Dubois violated the permit; ZBA also found the preemption claim time-barred but alternatively concluded no preemption. Superior Court affirmed; Dubois appealed to the Maine Supreme Judicial Court.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Justiciability of appeal from notice of violation | Dubois: appeal is proper because notice affects property use and is Dubois’s only remedy | Town: appeal should be dismissed as advisory; enforcement is discretionary (Rule 80K) | Court: Justiciable — Sackett and statutory amendment authorize 80B review of notices after local review exhausted |
| Timeliness of Dubois’s ZBA appeal | Dubois: appeal not time-barred because it raises an ultra vires/jurisdictional claim that can be raised anytime | Town: Dubois waited too long and should have challenged permit earlier | Court: Timely — ultra vires challenges to jurisdiction may be raised at any time (subject to equitable defenses) |
| Preemption by Agriculture Protection Act | Dubois: facility is an agricultural composting operation/farm so state law preempts local regulation | Town: Dubois is not a "farm" under the Act (imports materials) and Act does not occupy the field or bar local ordinances | Court: No preemption — Dubois isn’t a "farm" under the Act; Act expressly preserves municipal authority and does not frustrate the Act’s purpose |
| Preemption by Solid Waste Act | Dubois: state solid waste scheme governs composting and displaces municipal regulation | Town: Ordinance aligns with DEP/Act standards and definitions and is permitted by 38 M.R.S. § 1310-U | Court: No preemption — ordinance standards and definitions are consistent/not stricter; statute permits municipal regulation meeting Act’s requirements |
Key Cases Cited
- Sackett v. EPA, 132 S. Ct. 1367 (U.S. 2012) (administrative compliance orders affecting property use are reviewable)
- Eliot Shores, LLC v. Town of Eliot, 9 A.3d 806 (Me. 2010) (dismissing 80B appeals from notices of violation as advisory in prior precedent)
- State v. Brown, 95 A.3d 82 (Me. 2014) (statutory preemption reviewed de novo; home rule considerations)
- Int’l Paper Co. v. Town of Jay, 665 A.2d 998 (Me. 1995) (municipal ordinance invalid only when Legislature clearly occupied the field or ordinance frustrates state law)
- E. Perry Iron & Metal Co. v. City of Portland, 941 A.2d 457 (Me. 2008) (municipal standards must not be inconsistent with state solid waste scheme; definition/standard comparison approach)
- Sawyer Envtl. Recovery Facilities, Inc. v. Town of Hampden, 760 A.2d 257 (Me. 2000) (preemption requires a comprehensive and exclusive state regulatory scheme)