Daniel Raposa Jr. v. Town of York

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2019 ME 29
Docket: Yor-18-213
Submitted
On Briefs: January 17, 2019
Decided: February 26, 2019

Panel: ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.


DANIEL RAPOSA JR. et al.

v.

TOWN OF YORK et al.


MEAD, J.

[¶1] Daniel and Susan Raposa appeal from a judgment of the Superior

Court (York County, O’Neil, J.) dismissing for lack of subject matter jurisdiction

the Raposas’ Rule 80B complaint for review of factual findings made by the

Town of York’s Board of Appeals. Because we hold that the court has

jurisdiction to review the Board’s decision, we vacate the judgment and remand

to the Superior Court for consideration of the complaint on the merits.

I. BACKGROUND

[¶2] The Raposas own residential property in York that abuts property

owned by Joshua Gammon. Gammon has used his property for his commercial

landscaping business since purchasing it from party-in-interest Peter Marcuri
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in 2014. Marcuri had used the property both for his excavation business and

as his residence.

[¶3] On March 26, 2016, the Raposas contacted the Town’s Code

Enforcement Officer (CEO) to express their concern that Gammon’s use of the

property was not consistent with Marcuri’s nonconforming use. The CEO

responded by email in April, stating that

[t]he uses on the lots are consistent with the previous uses and no
violations are warranted at this time. If you would like to appeal
this determination, . . . [p]lease contact [the Board of Appeals]
regarding the appeals process per article 18.8.2.1., which states,
“The Board of Appeals shall hear and decide Appeals from any
order, requirement, decision, or determination made by any
person or Board charged with administration of this Ordinance.”

[¶4] The Raposas appealed the CEO’s decision to the Town’s Board of

Appeals in May. Three hearings were held on the appeal, during which the

Raposas, their counsel, Gammon’s counsel, the CEO, and other abutters

presented testimony. Although the Board granted the Raposas’ appeal for

reasons not relevant to this appeal, the Board also made factual findings that

were not in the Raposas’ favor, namely that the use of the lot by Gammon’s

landscaping business did not constitute a change in use but rather was an

intensification of the previous use.
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[¶5] The Raposas appealed to the Superior Court pursuant to

M.R. Civ. P. 80B, challenging the Board’s factual findings. The Town moved to

dismiss the appeal for lack of subject matter jurisdiction pursuant to

M.R. Civ. P. 12(b)(1).1 The court granted the Town’s motion to dismiss, finding

that the Board’s review of the CEO’s decision was advisory and therefore

unreviewable.2 The Raposas appealed to us. See 5 M.R.S. 11008(1) (2018);

M.R. Civ. P. 80B(n).

II. DISCUSSION

[¶6] Pursuant to Maine law governing appeals from municipal boards,

“[a]ny party may take an appeal, within 45 days of the date of the vote on the

original decision, to Superior Court from any order, relief or denial in

accordance with the Maine Rules of Civil Procedure, Rule 80B.” 30-A M.R.S.

§ 2691(3)(G) (2018). Notwithstanding the authority that the Rule grants the

court to enter a judgment affirming, vacating, or modifying the decision under

review or to remand the case to the governmental agency for further

proceedings, see M. R. Civ. P. 80B(c), in a case we decided nearly twenty years

1 Gammon also appealed the decision, and the two appeals were consolidated. When the Town

moved to dismiss the appeals, Gammon joined in the Town’s motion.

2 On February 5, 2018, the Raposas filed a motion to alter or amend the court’s judgment pursuant

to M.R. Civ. P. 59(e), which the court denied after a hearing.
4

ago, we held that where the Board’s role in an appeal is advisory in nature, it is

not subject to judicial review, Herrle v. Town of Waterboro, 2001 ME 1, ¶ 9,

763 A.2d 1159. In light of the cases that we have decided since Herrle and the

Legislature’s action in this area, we take this opportunity to clarify Maine law

regarding the justiciability of a board of appeals’ review of a CEO’s

determination.

[¶7] In Herrle, a Board of Selectmen, acting in lieu of the CEO who had a

conflict of interest, determined that the use of a gravel pit was grandfathered

and, based on that determination, it declined to take enforcement action. Id.

¶ 2. In considering an appeal from those actions, we focused on the Board of

Selectmen’s decision not to “enforce,” and held that the Board of Appeals’ role

in an appeal of a determination that no violation of the Town’s zoning ordinance

existed was advisory in nature and not subject to judicial review. Id. ¶¶ 9-10.

We reasoned that because the Board of Selectmen retained discretion not to

bring an enforcement action, any decision by the court on the issue of whether

the violation determination was correct would lack legal significance. Id. ¶ 10.

In a later case, we explained that “Herrle precludes the court’s intrusion into

municipal decision-making when a municipality decides whether or not to

undertake an enforcement action. If the municipality undertakes a subsequent
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enforcement action, that action may be subject to judicial scrutiny if review is

authorized by an appropriate law and ordinance.” Salisbury v. Town of Bar

Harbor, 2002 ME 13, ¶ 11, 788 A.2d 598.

[¶8] In 2010, we cited Herrle when we decided Farrell v. City of Auburn,

2010 ME 88, 3 A.3d 385, and Shores v. Town of Eliot, 2010 ME 129, 9 A.3d 806.

In each case, a notice of violation of the municipal ordinance (NOV) issued by

the Town’s CEO was appealed to the Board of Appeals and then to the Superior

Court. Farrell, 2010 ME 88, ¶¶ 3-5, 3 A. 3d 385; Shores, 2010 ME 129, ¶¶ 3-4,

9 A.3d 806. We concluded that because the only legal significance of each

Board’s decision was to provide an advisory opinion concerning whether the

CEO’s violation determination was correct, neither decision was subject to

judicial review. Farrell, 2010 ME 88, ¶ 17, 3 A.3d 385; Shores, 2010 ME 129,

¶ 10, 9 A.3d 806. As discussed below, however, these two decisions were

subsequently vitiated by statute. See 30-A M.R.S. § 2691(4) (2018); Dubois

Livestock, Inc. v. Town of Arundel, 2014 ME 122, ¶ 9, 103 A.3d 556.

[¶9] In 2013, the Legislature enacted P.L. 2013, ch. 144, amending

30-A M.R.S. § 2691(4) (2013), to provide for board of appeals and Superior

Court review of municipal notices of violation. See Paradis v. Town of Peru,

2015 ME 54, ¶ 7, 115 A.3d 610. The statute as amended provides that “[a]bsent
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an express provision in a charter or ordinance that certain decisions of its code

enforcement officer or board of appeals are only advisory and may not be

appealed, a notice of violation or enforcement order by a code enforcement

officer under a land use ordinance is reviewable on appeal by the board of

appeals and in turn by the Superior Court under the Maine Rules of

Civil Procedure, Rule 80B.” 30-A M.R.S. § 2691(4).

[¶10] Since the enactment of the amendment, NOVs have been generally

appealable. See Paradis, 2015 ME 54, ¶ 7, 115 A.3d 610. Although the plain

language of the statute does not explicitly address whether an appeal from a

notice indicating that there is no violation is likewise authorized by section

2691(4), our opinions interpreting the provision have expressed the

understanding that such “no violation” actions are similarly appealable. For

example, in Dubois Livestock, Inc., 2014 ME 122, ¶¶ 9-11, 103 A.3d 556, we

addressed the justiciability of an appeal from a CEO’s NOV. We considered the

effect of the Supreme Court’s ruling in Sackett v. EPA “that an Environmental

Protection Agency compliance order, the equivalent of a municipal [NOV], was

a final agency action subject to judicial review because the order affected the

use of the property at issue and appeal was the only adequate remedy.” Id. ¶ 10

(citing Sackett v. EPA, 566 U.S. 120 (2012)) (quotation marks omitted). We also
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referenced our holding in Annable v. Board of Environmental Protection “that a

court may reach the merits in a declaratory judgment action when an agency

decision, although a notice or advisory opinion, can affect property uses.” Id.

(citing Annable v. Bd. of Envtl. Prot., 507 A.2d 592, 595-96 (Me. 1986)). We then

concluded that, “like the compliance order at issue in Sackett, or the agency

opinion at issue in Annable, [an NOV] affects the use, and may affect the value,

of the property, and Dubois’s only remedy, absent a Rule 80K action to defend,

is appeal.” Id. Thus, in light of the reasoning in Sackett and Annable and the

amendment to section 2691(4), we held that the NOV appeal was justiciable.

Id. ¶ 11.

[¶11] In accordance with our reasoning in Dubois,3 we hold today that a

CEO’s written decision interpreting a land use ordinance is appealable to the

Board and in turn to the Superior Court—whether the CEO finds that there is

3 Only when statutory language is ambiguous do we “examine other indicia of legislative intent,

such as legislative history.” Kimball v. Land Use Regulation Comm’n, 2000 ME 20, ¶ 18, 745 A.2d 387
(quotation marks omitted). Although the statutory language at issue is unambiguous and we need
not consult extrinsic information to determine its meaning, we note that the stated purpose for
amending section 2691 was to address our decisions in Farrell and Shores. L.D. 1204, Summary
(126th Legis. 2013). As the proponents of the bill testified, after Farrell and Shores, CEO decisions
were not binding on the parties, but instead were merely advisory. L.D. 1204, Public Hearing
Summary (126th Legis. 2013). The proponents explained that, pursuant to this bill, a CEO’s written
decision interpreting a local ordinance would be binding unless timely appealed to the board of
appeals—resulting in a quick and inexpensive method of resolving disputes at the local level. Id. It
is clear from the legislative history that the proponents of the bill—and the Legislature in enacting
the bill—favored allowing appeals of municipal decisions that affect the property interests of
landowners.
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or is not a violation—so long as the ordinance does not expressly preclude

appeal. See 30-A M.R.S. § 2691(4); Paradis, 2015 ME 54, ¶ 7, 115 A.3d 610

(determining that section 2691(4) did not provide a right to appeal an NOV

where the ordinance expressly stated that no appeal from an NOV may be

taken). In making this announcement, we recognize that such decisions often

determine the use and value of property and that persons affected by these

decisions would otherwise have no remedy. See Dubois, 2014 ME 122,

¶¶ 10-11, 103 A.3d 556. The applicable statutes and the terms of the

ordinance—not the potential advisory nature of appellate review—define the

court’s jurisdiction.4

[¶12] We thus turn to the Raposas’ appeal. Because the Board conducted

a de novo review of the CEO’s determination, we review the Board’s decision

directly. See Yates v. Town of Sw. Harbor, 2001 ME 2, ¶ 10, 763 A.2d 1168;

Stewart v. Town of Sedgwick, 2000 ME 157, ¶ 7, 757 A.2d 773. The Board found

that Gammon’s use of the lot did not constitute a change of use but rather an

intensification of the same use. This determination—which would be final if

4 To the extent that Herrle holds otherwise, it is overruled. Although the general rule that that the

Board of Selectmen retains discretion in whether to bring an enforcement action for an ordinance
violation continues to exist, see Adams v. Town of Brunswick, 2010 ME 7, ¶ 10, 987 A.2d 502; Herrle v.
Town of Waterboro, 2001 ME 1, ¶ 10, 763 A.2d 1159, a municipality’s decision that an ordinance has
not been violated is a legal determination that is appealable subject to the provisions of that
municipality’s ordinance. See Herrle, 2001 ME 1, ¶¶ 13-14, 763 A.2d 1159 (Dana, J., dissenting).
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the Raposas could not appeal—allows Gammon to continue to operate his lawn

service business, thereby affecting the use of Gammon’s property and

potentially affecting the value of the Raposas’ abutting property.

[¶13] Absent an express provision in the Town’s ordinance stating that

the Raposas may not appeal, a determination of whether there has been a

violation of the ordinance is reviewable on appeal. See 30-A M.R.S. § 2691(4).

The Town of York’s ordinance provides that “[a]ny party may take an appeal

within 45 days of the vote on the [Board’s] decision, to Superior Court from any

order, relief or denial in accordance with the Maine Rules of Civil Procedure,

Rule 80B.” York, Me., Zoning Ordinance § 18.8.3.6 (May 21, 2016) (emphasis

added). The Superior Court therefore has jurisdiction in this case.

The entry is:

Judgment vacated. Remanded for further
proceedings.



Sandra L. Guay, Esq., Woodman Edmands Danylik & Austin, P.A., Biddeford, for
appellants Daniel Raposa Jr. and Susan Raposa

Mary E. Costigan, Esq., Bernstein Shur, Portland, for appellee Town of York

Matthew W. Howell, Esq., Clark & Howell, LLC, York, for appellee Joshua
Gammon

York County Superior Court docket numbers AP-2016-34, 35
FOR CLERK REFERENCE ONLY