15 LANGSFORD OWNER LLC v. TOWN OF KENNEBUNKPORT
Yor-23-265
MAINE SUPREME JUDICIAL COURT
December 19, 2024
2024 ME 79
HORTON, J.
Argued: March 7, 2024. Panel: STANFILL, C.J., and MEAD and HORTON, JJ., and HJELM and HUMPHREY, A.R.JJ. Reporter of Decisions.
[¶1] The Town of Kennebunkport appeals from a judgment of the Superior Court (York County, Mulhern, J.) vacating the Town‘s denial of applications by 15 Langsford Owner LLC (15 Langsford) for licenses under the Town‘s Short-Term Rental Ordinance (STRO). In enacting the STRO, the Town did not include any provision allowing an appeal from the denial of a license application, see Kennebunkport, Me., Code ch. 129 (current through June 6, 2022), so we must determine whether the denial of 15 Langsford‘s applications is subject to direct review under Rule 80B of the Maine Rules of Civil Procedure, which ordinarily provides the “exclusive process” for judicial review of municipal permitting and licensing decisions, Gorham v. Androscoggin Cnty., 2011 ME 63, ¶ 22, 21 A.3d 115. We conclude both that the
I. BACKGROUND
[¶2] “The following facts are drawn from the Superior Court‘s decision and are supported by the record.” Hurricane Island Found. v. Town of Vinalhaven, 2023 ME 33, ¶ 2, 295 A.3d 147. Between December 2020 and June 2021, 15 Langsford acquired eleven condominium units in Kennebunkport. Units one through nine are contained within a single structure, and units ten and eleven each occupy a freestanding structure. Each unit has one or more bedrooms, a kitchen, a living area, and at least one bathroom. Before 15 Langsford acquired the units, the freestanding units received Town approval as residential single-family dwellings and the structure containing units one through nine was approved as a legally nonconforming residential multiplex dwelling under the Town‘s Land Use Ordinance (LUO).1 See Kennebunkport, Me., Code §§ 240-2.2, -4.10, -7.11 (Nov. 6, 2018). The units were governed by a Declaration of Condominium,
[¶3] In April 2021, 15 Langsford began renting the units exclusively for occupancy for periods of less than thirty consecutive days. At that time, the Town did not regulate short-term rentals of residential property. The units were offered for rent on the website of 15 Langsford‘s parent company, which manages and operates the units and other resort properties in Kennebunkport. The parent company‘s website, which describes the parent company as offering “the best inns, resorts, and hotels in Kennebunkport,” acts as a booking platform for 15 Langsford‘s units and the parent company‘s other properties. In addition to using a shared platform to book reservations at the units, short-term rental guests at the units receive access to amenities offered by the parent company at its other properties.
[¶4] Also in April 2021, the Town contacted 15 Langsford, stating that it believed that 15 Langsford was violating the LUO and the Declaration of Condominium by using the units for transient rentals. The Town explained in May 2021 that it viewed the rentals as “part of a larger commercial hospitality enterprise” operating without Planning Board approval required by the LUO. Without issuing a formal notice of violation, the Town recommended that
[¶5] In response, on June 15, 2021, 15 Langsford amended the Declaration of Condominium to eliminate the prohibition on transient rentals and applied for Planning Board approval for use of the units as a hotel.
[¶6] Also in June 2021, the Town began regulating short-term rentals through a licensing ordinance to “require the disclosure and licensing of short-term rentals operated within the Town of Kennebunkport,” impose “modest performance standards,” and limit the number of short-term rentals in the Town. Kennebunkport, Me., Code § 129-1. Under the STRO, “[l]egally existing residential dwelling units may be used as short-term rentals upon the issuance of a short-term rental license,” but certain “lodging establishment uses,” including uses for hotels and inns, are not eligible for STRO licenses. Id. § 129-2(A), (C). The STRO lacks any provision for appeals of decisions denying STRO licenses.2
[¶7] In November 2021, 15 Langsford contacted the Town‘s code enforcement officer (CEO) about obtaining short-term rental licenses for its
[¶8] On May 12, 2022, the CEO issued letters denying each of the eleven applications because the units were not “[l]egally existing residential dwelling units” eligible to receive short-term rental licenses. Id. § 129-2(A). The CEO‘s letters reasoned that 15 Langsford had operated, advertised, and managed the units as “a commercial lodging establishment (e.g., an inn) under the unified management, control, and/or ownership of a hospitality business,” without Planning Board approval, “in violation of Town ordinances.”
[¶9] On June 7, 2022, 15 Langsford filed complaints in the Superior Court pursuant to Rule 80B and the Uniform Declaratory Judgments Act,
II. DISCUSSION
[¶10] We first explain the basis for the trial court‘s jurisdiction to consider the Town‘s petition and then review 15 Langsford‘s eligibility for the short-term rental licenses.
A. The Basis for the Superior Court‘s Jurisdiction
[¶11] We begin by identifying and examining the jurisdictional issues presented by the anomalous absence of a provision in the STRO that would allow an appeal from the denial of a license application.*
[¶13] We have not regularly had to examine the common law writs to consider jurisdiction over actions governed by Rule 80B because review of decisions made under municipal ordinances is often available by statute. For example, if an ordinance provides for decisions by the municipality‘s CEO, planning board, or other decision-maker to be appealed to the municipal board of appeals, judicial review of the board of appeals‘s decision is available by statute.
[¶14] The absence in the STRO of any procedure allowing appeals to the Town zoning board of appeals (ZBA) rules out jurisdiction by virtue of
[¶15] Neither the Superior Court nor the parties in their briefs to us addressed the basis for the court‘s jurisdiction. Nevertheless, because we cannot confirm statutory jurisdiction for Rule 80B review, we must consider whether Rule 80B review of the CEO‘s denial is “otherwise available by law” by virtue of the jurisdiction conferred by any of the common law writs. Dowey, 516 A.2d at 959 (“[I]f a jurisdictional question exists, we will not hesitate to address it on our own motion.“). After hearing oral argument in this matter, we requested that the parties submit supplemental briefing regarding whether, pursuant to
[¶16] In response to our request for supplemental briefing, neither party advanced a statutory argument for Rule 80B review. The Town did not address whether review is “otherwise available by law” and argued that the Superior Court lacked jurisdiction because there is no statutory basis for Rule 80B review. 15 Langsford argued that review pursuant to Rule 80B is “otherwise
1. Judicial Review “Otherwise Available by Law” Before Adoption of Rule 80B
[¶17] Until they were abolished by an amendment to Rule 81 of the Maine Rules of Civil Procedure in 1967, see
When the law requires the public officer to do a specified act, in a specified way, upon a conceded state of facts, without regard to his own judgment as to the propriety of the act, and with no power to exercise discretion, the duty is ministerial in character and performance may be compelled by mandamus if there is no other remedy. When, however, the law requires a judicial determination to be made, such as the decision of a question of fact, or the exercise of judgment in deciding whether the act should be done or not, the duty is regarded as judicial and mandamus will not lie to compel performance.
Young v. Johnson, 161 Me. 64, 70, 207 A.2d 392 (1965) (quotation marks omitted).
[¶18] Similarly, we have explained the context in which review by certiorari applies: “Whether an act is judicial or quasi-judicial so as to be reviewable by certiorari depends on the nature of the act performed, rather than on the character of the officer or body performing it. Judicial action is an adjudication on the rights of the parties who, in general, appear or are brought
2. The Common Law Basis for Review of a Refusal to Perform the Ministerial Act of Issuing a Permit or License
[¶19] Because the nature of the decision, rather than the identity of the decision maker, dictated which common law writ was the vehicle for review, we next examine the nature of the CEO‘s decision to deny 15 Langsford‘s permit applications. A CEO‘s decisions under an ordinance can be either discretionary or ministerial, depending on whether the decisions involve discretionary determinations of fact or non-discretionary applications of the ordinance. In situations in which a CEO has made a discretionary factual determination in a non-adjudicatory manner, i.e., without affording notice and opportunity to be heard or making findings of fact sufficient to enable judicial review, we have remanded the matter for the CEO to convene a proceeding and render findings of fact. See Mills v. Town of Eliot, 2008 ME 134, ¶ 20, 955 A.2d 258; 29 McKown LLC v. Town of Boothbay Harbor, 2022 ME 38, ¶ 13, 277 A.3d 364. In Mills, for example, the CEO‘s issuance of the disputed building permit required factual determinations, but the CEO‘s “only determination was his decision to issue the building permit.” Mills, 2008 ME 134, ¶ 18, 955 A.2d 258. We therefore
[¶20] The STRO provides, “If the Town Clerk, or the Town Clerk‘s designee, in consultation with” the CEO reviews an application and “determines that the proposed short-term rental application complies with the short-term rental standards, the Town Clerk shall issue the applicant a short-term rental license.” Kennebunkport, Me., Code § 129-5(F). Whether a proposed rental complies with all ordinance standards might in some cases involve issues of fact, but here, as the court noted, there were no disputed issues of fact that required the CEO to find facts in an adjudicatory capacity and make a discretionary determination.4 The only issue before us—whether the units meet the STRO‘s definition of “[l]egally existing residential dwelling units“—centers solely on the interpretation of the ordinance, which the court properly addressed de novo, without deference to the CEO‘s interpretation. Id. § 129-2(A); see, e.g., Tominsky v. Town of Ogunquit, 2023 ME 30, ¶ 22, 294 A.3d
[¶21] “It is well settled that a writ of mandamus can issue against a public officer or body to compel performance when the petitioners have a clear legal right to the performance of the specific act sought to be compelled, and the defendants have a clear legal duty to perform such act, and the act is ministerial.” 5 Patricia E. Salkin, American Law of Zoning § 43:1 (5th ed.), Westlaw (database updated Nov. 2024). Accordingly, before the advent of Rule 80B, we endorsed the use of mandamus to compel the ministerial issuance of a municipal building permit after it was denied:
Mandamus is available to the landowner to compel the administrative officer to do his duty as required by law. Perhaps the most frequent group of cases where mandamus is employed by landowners is where the building inspector refuses a permit which he ought lawfully to grant.
Casino Motor Co. v. Needham, 151 Me. 333, 339-40, 118 A.2d 781, 784 (1955) (emphasis added and quotation marks omitted).5
B. 15 Langsford‘s Eligibility for Short-Term Rental Licenses
[¶23] “The interpretation of a local ordinance is a question of law, and we review that determination de novo.” Rudolph v. Golick, 2010 ME 106, ¶ 8, 8 A.3d 684 (quotation marks omitted). When construing an ordinance, we will not redefine terms that the ordinance expressly defines, id. ¶ 9, and we will look to the plain, common meaning of undefined terms “unless the context clearly
[¶24] The STRO‘s stated purposes are “to require the disclosure and licensing of short-term rentals” in the Town and to “monitor and track” their proliferation to avoid unduly burdensome effects on the Town‘s neighborhoods. Kennebunkport, Me., Code § 129-1. Under the ordinance, “[l]egally existing residential dwelling units may be used as short-term rentals upon the issuance of a short-term rental license for the premises in accordance with the requirements” of the STRO. Id. § 129-2(A). “Short-term rental” under the ordinance is defined, circularly, as “[t]he use, control, management or operation of a legally existing residential dwelling unit offered for rent for transient occupancy for dwelling, sleeping or lodging purposes by short-term rental guests for a tenancy of less than 30 consecutive days, for compensation, directly or indirectly, excluding,” among other establishments, hotels and inns. Id. § 129-3.
[¶25] Without a license, short-term rental of any property is prohibited. Id. §§ 129-2(B)(1), -4(A). Additionally, certain “lodging establishment uses,”
[¶26] The STRO contains a transitional provision for licensing properties that were used for short-term rentals before the Town enacted the ordinance. Id. § 129-5(E). That provision provides, in relevant part, that “[p]ersons or entities who operated a legally existing residential dwelling unit as a short-term rental” prior to the effective date of the STRO must obtain a short-term rental license and must demonstrate that “the premises were previously used for short-term rental use . . . for a period of less than 30 consecutive days per tenancy and for at least 14 total days” in 2019, 2020, or 2021.6 Id.
[¶27] The STRO does not define “legally existing residential dwelling unit,” the term at the crux of the parties’ dispute.
[¶28] 15 Langsford contends that because the units had been approved as single-family and multiplex residential dwellings under the LUO when 15 Langsford began offering them for transient occupancy, and because a property must have been used for transient occupancy for commercial gain prior to enactment of the STRO in order to be eligible to receive a short-term rental license, the units were “legally existing residential dwelling units” during
[¶29] The Town argues that 15 Langsford‘s units were not “legally existing residential dwelling units” under the STRO because when the units were offered for short-term rental prior to enactment of the STRO, 15 Langsford was operating as a hotel or inn in violation of the LUO, and the units therefore were neither “legally existing” nor “residential.” In support of this argument, the Town emphasizes that 15 Langsford is owned by an entity that manages resort properties, that the units were advertised in concert with those resort properties, and that guests renting the units received access to the resort properties.
[¶30] Under the LUO, a hotel is a “building or group of buildings having 10 or more guest rooms in which lodging or meals and lodging are offered for compensation.” Kennebunkport, Me., Code § 240-2.2. Similarly, an inn is a “business establishment having nine or fewer guest rooms in which lodging is offered to guests for compensation.”7 Id. We have recognized that hotels and
[¶31] Each of 15 Langsford‘s units contains a living space, a kitchen, at least one bedroom, and at least one bathroom. They are plainly more than “guest rooms” and are arranged and intended for “complete, independent housekeeping purposes,” i.e., residential occupancy. See, e.g., Town of Conway v. Kudrick, 301 A.3d 823, 829 (N.H. 2023); Heef Realty & Invs., LLP v. City of
The entry is:
Judgment affirmed.
Daniel J. Murphy, Esq. (orally), Bernstein, Shur, Sawyer & Nelson, P.A., Portland, for appellee 15 Langsford Owner LLC
York County Superior Court docket number AP-2022-17
FOR CLERK REFERENCE ONLY