9 A.3d 806
Me.2010Background
- Eliot Shores purchased 4.68 acres in Eliot in 2001.
- Shores proposed a plan called a Planned Unit Development dividing into two lots; CEO approved noting it did not meet the subdivision definition.
- Shores conveyed four lots instead of two; Valdez and Robinson purchased one of the lots.
- CEO determined the conveyances created an unapproved subdivision and issued a July 2009 NOV with possible enforcement action.
- Shores appealed to the Eliot Board of Appeals, which upheld the CEO's violation determination; Shores then sought review in Superior Court under Rule 80B.
- The Supreme Judicial Court vacated the Superior Court judgment and remanded to dismiss the Rule 80B challenge, holding the NOV and Board decision were advisory.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Board jurisdiction to hear appeal | Shores argues Board lacked jurisdiction to review the CEO's NOV. | Town asserts Board has jurisdiction under its ordinance to review such determinations. | Board had jurisdiction; authority to review CEO determinations. |
| Reviewability of Board decision under Rule 80B | Shores contends Board decision is subject to Rule 80B review as a final governmental action. | Town contends the Board decision is advisory and not subject to judicial review because it lacks legal consequences. | Decision is advisory and not subject to Rule 80B review; must be dismissed. |
| Nature of NOV as part of enforcement process | Shores maintains NOV is a final action reviewable in court. | Town asserts NOV is a preliminary step in enforcement and discretionary for future action. | NOV is a preliminary step; CEO retains discretion to initiate enforcement; advisory in nature. |
Key Cases Cited
- Farrell v. City of Auburn, 2010 ME 88 (Me. 2010) (advisory nature of board decisions when no legal consequence)
- Pepperman v. Town of Rangeley, 659 A.2d 280 (Me. 1995) (advisory character of certain board determinations)
- Herrle v. Town of Waterboro, 2001 ME 1 (Me. 2001) (review limitations on advisory rulings)
- Sanborn v. Town of Sebago, 2007 ME 60 (Me. 2007) (jurisdiction and review principles for local boards)