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Dubois Livestock, Inc. v. Town of Arundel

Supreme Judicial Court of Maine

November 4, 2014

DUBOIS LIVESTOCK, INC.
v.
TOWN OF ARUNDEL et al

Argued September 10, 2014.

Page 557

On the briefs: Scott D. Giese, Esq., Law Office of Scott D. Giese, Biddeford, for appellant Dubois Livestock, Inc.

Leah B. Rachin, Esq., Bergen & Parkinson, LLC, Kennebunk, for appellees Town of Arundel et al.

At oral argument: L. Clinton Boothby, Esq., Boothby Perry, LLC, Turner, for appellant Dubois Livestock, Inc.

Leah B. Rachin, Esq., Bergen & Parkinson, LLC, Kennebunk, for appellees Town of Arundel et al.

Panel: SAUFLEY, C.J., and ALEXANDER, SILVER, MEAD, GORMAN, JABAR, and HJELM, JJ.

OPINION

Page 558

ALEXANDER, J.

[¶1] Dubois Livestock, Inc., appeals from a judgment of the Superior Court (York County, O'Neil, J.) affirming, pursuant to M.R. Civ. P. 80B, the decision of the Town of Arundel's Zoning Board of Appeals (ZBA), which upheld a notice of violation that the Town's code enforcement officer issued to Dubois for failure to comply with its conditional use permit. Dubois argues that (1) its appeal to the ZBA was not time-barred because it raises a jurisdictional issue, which can be raised at any time; and (2) the Town did not have the authority to regulate Dubois's operation because section 8.10.B.1 of the Town of Arundel Land Use Ordinance (2013) (the Ordinance)[1] is preempted by state law, specifically by the Maine Agriculture Protection Act (Agriculture Protection Act), 7 M.R.S. § § 151-163 (2013), and the Maine Hazardous Waste, Septage and Solid Waste Management Act (Solid Waste Act), 38 M.R.S. § § 1301-1319-Y (2013).[2] We affirm.

I. CASE HISTORY

[¶2] On a parcel in zone " R-4" in Arundel, Dubois composts horse and cow manure, horse and cow bedding, and fish waste (including fish, shellfish entrails, shells, and bones), none of which are generated on-site. Dubois's original 1999 solid waste order from the Maine Department of Environmental Protection (DEP) allowed it to receive 1,733 tons of fish waste and 3,467 tons of horse manure annually. In 2012, the DEP order was amended to allow Dubois to receive not more than 29,000 tons of total material annually, including cow manure and bedding in addition to the materials noted above. Dubois's operation was permitted when it began in 1981 and is now a nonconforming use in the Arundel R-4 zone. In 2000, section 6.2 of the Ordinance was

Page 559

amended to prohibit solid waste processing in the R-4 zone.

[¶3] Pursuant to the Ordinance, the operator of any " solid waste facility" in the Town is required to obtain a conditional use permit, which must be reviewed and renewed every three years. Ordinance § § 8.10.B.1, 8.10.B.3. Accordingly, Dubois applied for a conditional use permit from the Town Planning Board. The Board issued a conditional use permit to Dubois on February 24, 2000. On February 24, 2011, the Town reissued a conditional use permit to Dubois.

[¶4] The 2011 permit is the subject of this appeal. Among other conditions, the permit required Dubois to provide the Town with bills of lading and an annual summary report documenting the amount of material processed at and shipped from the facility each year, pursuant to section 8.10.F.2.e of the Ordinance. The permit also required Dubois to allow the code enforcement officer and town planner to inspect certain parts of the facility annually, accompanied by Dubois representatives, to ensure the facility's proper working order and compliance with the conditional use permit. Dubois did ...


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