LaMarre v. Town of China, 2021 ME 45, 259 A.3d 764
Abutters (LaMarres) objected to and appealed from the Code Enforcement Officer’s (CEO’s) after-the-fact issuance of a permit to allow placement of a “park model” trailer on a seasonal camp lot. The Town’s land use ordinance permitted individual private campsites, including “any premises providing temporary accommodation in a recreational vehicle,” with a permit from the CEO. While the default standard of review for a board of appeals is de novo (to hear anew), the ordinance set out an appellate standard of review, based on the Law Court’s previous interpretations of shoreland zoning ordinance language. However, there was no written CEO decision setting out findings of fact and no record for the Board of Appeals to review. Therefore, while the Board of Appeals affirmed the CEO’s decision and the Superior Court reversed, the Law Court remanded the matter to the CEO to issue a reviewable written decision containing findings of fact and conclusions of law, based on the record, and in accordance with administrative due process.
Practice note. Like the Town of China, many municipalities, have built their townwide zoning ordinance upon their shoreland zoning ordinance. Under State law, all municipalities must adopt shoreland zoning ordinances for land along specified water bodies, and those ordinances must be consistent with and no less stringent than the Maine Department of Environmental Protection’s (MDEP’s) Guidelines for Municipal Shoreland Zoning Ordinances (“Guidelines”). Several of these municipalities have enacted shoreland zoning and townwide zoning ordinances with appeal provisions that were based on Guidelines from the 2000s, which allowed for the option of board of appeals appellate review of CEO decisions. That is what happened in the LaMarre case (and also in the recent opinion in 29 McKown LLC v Town of Boothbay Harbor described below).
Municipalities with such appeal provisions in their shoreland zoning and zoning ordinances have two options. One option is to require CEOs to send notice, conduct administrative hearings, and issue written decisions with findings of fact and conclusions of law based on an administrative record, which, like the Law Court’s suggestion that CEOs send notice of all building permits to abutters, is absurd given the volume of building and zoning permits applied for and issued. The other option, which we recommend, is to amend shoreland zoning and zoning/land use ordinance appeal provisions to so that the board of appeals conducts de novo review of CEO decisions.
Darya I. Zappia v. Town of Old Orchard Beach, 2022 ME 15, 271 A.3d 753
In this case, property owner Zappia appealed from the Superior Court’s decision affirming the Zoning Board of Appeals’ upholding of the Code Enforcement Officer’s denial of a building permit application to construct a greenhouse in her front yard. The property was located in the Town’s Rural District, which requires a minimum front yard setback of 50 feet for “all structures.” The CEO denied the application for this accessory structure, even though it would be located outside the 50-foot setback.
The CEO read the prohibition, applicable to all zoning districts, that no accessory building “shall be located in a required front yard” as prohibiting location of accessory structures in any portion of a front yard, not just within the front yard setback. The ZBA affirmed, determining that the ordinance prohibited accessory structures anywhere in the front yard.
Following the LaMarre opinion, the Law Court determined that the ZBA appropriately had conducted de novo review of the CEO decision, and so reviewed the ZBA decision as the operative decision. The Law Court reviewed the ordinance as a whole and held, as a matter of ordinance construction, that the ordinance provision regarding “required front yard” meant the portion within the 50-foot front yard setback – not the entire front yard. Therefore, the Law Court vacated the Superior Court decision and instructed the Superior Court to remand the matter to the ZBA to act consistent with the opinion.
City of Lewiston v. William Verrinder, 2022 ME 29, ___ A.3d ___
The City’s CEO issued a notice of violation to Verrinder for two ordinance violations on his residential property: (1) “trash and construction demolition debris throughout the property” and (2) “front stairs in disrepair.” Verrinder did not appeal the notice to the Board of Appeals and also failed to correct the violations. The City filed a Rule 80K land use complaint and the Superior Court found for the City, determining that the doctrine of administrative res judicata applied because of the failure to appeal, and assessing fines in the amount of $24,300 and attorney’s fees and costs in the amount of $28,257.
On appeal, the Law Court recited prior cases in which it had held that where a notice of violation states the nature of the action (referring to the ordinance provisions violated and actions needed to address the violation) and informs the violator of the opportunity to object and the consequences of failure to address the notice, the failure to take an appeal would preclude the ability to later litigate the violation. Verrinder argued that he could not afford to pay the $150 appeal fee and that the fee was unconstitutional. However, he had made no attempt to appeal and so there was no record as to whether the fee could have been waived or was reasonable, and the issue was not litigated in the Superior Court. In response to Verrinder’s argument that the civil penalty fine was grossly disproportionate to the offense and therefore unconstitutional, the Law Court not only found the penalty, which is the mandatory minimum for land use violations, was constitutional, but also held that the Superior Court had erred in making the $24,000 and $15,000 fines “concurrent” – the Law Court held that the fine should be $39,000, plus the attorney’s fees and costs.
Estate of Albert Bean, Sr. v. City of Bangor, 2022 ME 30, __ A.3d __
Bean’s estate and widow sued the City of Bangor for negligence, wrongful death and loss of consortium when Bean died a year after falling on a Bangor sidewalk. They alleged he’d fallen as a result of a hole left open in a tree grate after a tree had been removed. The City moved for summary judgment, claiming immunity under the Maine Tort Claims Act. The estate, however, argued that the City had waived its immunity by purchasing insurance for such claims. Since the City had the burden of proof on the affirmative defense of immunity and the question of the City’s insurance coverage for such claims was not addressed in the summary judgment proceedings, the Law Court dismissed the appeal as interlocutory, and barred by the final judgment rule.
Convery v. Town of Wells, 2022 ME 35, __ A. 3d__.
A stolen vehicle which was the subject of a high-speed chase by the Town of Wells’ police department struck an automobile driven by Convery, injuring him and his passenger. The Town argued that while the Maine Tort Claims Act waives governmental immunity for a government employee’s negligent operation of a motor vehicle resulting in a collision, the collision resulted from Convery’s negligent actions – not the Town’s – and so the Town was immune from lability. The Superior Court denied the Town’s motion for summary judgment, determining that the statute did not require the government entity’s vehicle to strike Convery’s vehicle for there to be liability for the Town.
On appeal, the Law Court determined that the Maine Legislature had amended the MTCA in response to a decision that had found immunity in a case involving a high-speed chase. Therefore, it construed the phrase “resulting in a collision” to apply whether the collision was caused by a government or private vehicle, so long as the collision resulted from negligent operation of a motor vehicle.
29 McKown LLC v Town of Boothbay Harbor, 2022 ME 38, __ A.3d __.
Abutters appealed from a Superior Court decision affirming the Board of Appeals’ denial of their appeal from the Code Enforcement Officer’s decision to lift a stop work order he had issued regarding demolition and rebuilding of an existing building. Where the Town’s Land Use Ordinance required the Board of Appeals to conduct appellate review of CEO decisions, the Law Court considered the CEO’s decision to be the operative one for purposes of review. Because there was no record of the CEO proceedings, including no record of notice to abutters of the demolition and rebuilding permit required by the ordinance, and because the stop work order and its lifting did not contain findings of fact and conclusions of law, the Law Court held as it had in LaMarre that the case had to be remanded for the CEO to make a reviewable decision.