204 A.3d 129
Me.2019Background
- Daniel and Susan Raposa own residential property abutting Joshua Gammon’s lot, which Gammon uses for a commercial landscaping business; the lot previously housed a commercial/residential use under prior owner Peter Marcuri.
- Raposas complained to the Town of York Code Enforcement Officer (CEO) that Gammon’s use exceeded any allowed nonconforming use; the CEO issued a written determination that the uses were consistent and no violation existed.
- Raposas appealed the CEO’s determination to the Town Board of Appeals; after hearings the Board granted the Raposas’ appeal on unrelated grounds but concluded as to the CEO’s factual finding that Gammon’s operation was an intensification (not a change) of the prior use.
- Raposas filed a Rule 80B appeal to Superior Court challenging the Board’s factual findings; the Town moved to dismiss for lack of subject matter jurisdiction, and the court granted the motion.
- The Maine Supreme Judicial Court vacated the dismissal and remanded, holding that CEO determinations interpreting land-use ordinances—whether finding a violation or finding none—are appealable to the Board and to Superior Court unless the local ordinance expressly precludes appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Superior Court has jurisdiction to review Board of Appeals’ factual findings on a CEO’s determination | Raposas: Board’s findings are reviewable under Rule 80B and 30-A M.R.S. § 2691(4) | Town: Board’s review was advisory and therefore not subject to judicial review (Herrle line of authority) | Court: Jurisdiction exists; CEO written decisions interpreting land-use ordinances are appealable to Board and Superior Court unless ordinance expressly forbids appeal |
| Whether a CEO decision finding ‘no violation’ is judicially reviewable | Raposas: A ‘no violation’ determination affects property use/value and is appealable | Town: A ‘no violation’ decision is akin to an advisory enforcement discretion decision and not reviewable | Court: ‘No violation’ determinations are reviewable under § 2691(4) absent an express local bar to appeal |
| Effect of statutory amendment to 30-A M.R.S. § 2691(4) on prior case law | Raposas: Amendment authorizes review of CEO notices and similar decisions | Town: Prior precedent (Herrle, Farrell, Shores) controls to bar review when decision is advisory | Court: Amendment and subsequent decisions (e.g., Dubois, Paradis) displace the prior rule to the extent Herrle precluded review of CEO determinations that affect property use/value |
| Whether local ordinance here precludes appeal | Raposas: York ordinance permits appeal to Superior Court under Rule 80B | Town: (implicit) York practice or advisory nature may preclude review | Court: York ordinance expressly allows appeal; Superior Court has jurisdiction |
Key Cases Cited
- Herrle v. Town of Waterboro, 763 A.2d 1159 (Me. 2001) (held Board review of a municipality’s decision not to enforce was advisory and not judicially reviewable)
- Farrell v. City of Auburn, 3 A.3d 385 (Me. 2010) (applied Herrle to preclude review of Board advisory determinations on NOVs)
- Shores v. Town of Eliot, 9 A.3d 806 (Me. 2010) (applied Herrle to bar judicial review of Board advisory determinations)
- Dubois Livestock, Inc. v. Town of Arundel, 103 A.3d 556 (Me. 2014) (concluded NOVs affect property use/value and are justiciable post-Sackett)
- Paradis v. Town of Peru, 115 A.3d 610 (Me. 2015) (interpreted § 2691(4) and recognized legislative change affecting NOV appeals)
- Sackett v. EPA, 566 U.S. 120 (2012) (federal precedent treating a compliance order as final agency action subject to judicial review)
- Annable v. Board of Environmental Protection, 507 A.2d 592 (Me. 1986) (permitted merits review when an agency advisory opinion could affect property use/value)