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Paradis v. Town of Peru

Supreme Judicial Court of Maine

May 7, 2015

DONALD R. PARADIS
v.
TOWN OF PERU

Argued April 7, 2015.

Judgment of the Superior Court vacated and remanded with instructions to enter an order vacating the decision of the Town of Peru Board of Appeals for lack of jurisdiction.

On the briefs and at oral argument:

Jennifer F. Kreckel, Esq., Kreckel Law, P.A., Rumford, for appellant Donald Paradis.

Theodore Small, Esq., Isaacson & Raymond, P.A., Lewison, for appellee Town of Peru.

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

OPINION

Page 611

GORMAN, J.

[¶1] Donald R. Paradis appeals from a judgment of the Superior Court (Oxford County, Clifford, J. ) affirming, pursuant to M.R. Civ. P. 80B, a decision of the Town of Peru Board of Appeals on Paradis's appeal of a notice of violation issued by the Town's Code Enforcement Officer (CEO) concerning Paradis's construction of a two-car garage. Because the notice of violation was not an appealable decision, we vacate the judgment.

I. BACKGROUND

[¶2] In 2010, Donald Paradis[1] applied for and obtained a building permit to construct a two-car garage on a parcel of property in the Town of Peru.[2] On August 1, 2013, the Town sent Paradis a notice of violation stating that " [a]fter careful consideration amongst the Planning Board, the Board of Selectmen, and the Code Enforcement Officer of Peru," the Town had determined that the garage constructed in 2010 violated multiple Ordinance provisions. The Town " request[ed]" that Paradis take various actions to bring the property into compliance with the Ordinance, including removing certain plumbing fixtures, or else face legal action from the Town. Like the building permit, the notice had three signatories: the chair of the Planning Board, the CEO, and the chair of the Board of Selectmen.

[¶3] Paradis filed an appeal with the Board of Appeals (the Board). After conducting a hearing at which new evidence was taken, by decision dated October 31, 2013, the Board " conclude[d] that the Code Enforcement Officer and the Planning Board properly applied the [Ordinance] provisions" and " voted . . . to deny [the] appeal." The Board declined Paradis's request for reconsideration.

[¶4] On December 11, 2013, Paradis filed a complaint with the Superior Court seeking review of the Board's decision pursuant to M.R. Civ. P. 80B. The Superior Court affirmed the judgment, and Paradis then appealed to us.

Page 612

II. DISCUSSION

[¶5] Paradis challenges the Board's provision of notice of the hearings, the standard of proof imposed on him by the Board, the determination that his garage violated Ordinance provisions, and the Town's requirement that he remove certain plumbing fixtures from the garage. Because we conclude that the notice of violation was not an appealable decision, we do not reach the merits of the appeal.

[¶6] The parties agree that the August 1, 2013, notice to Paradis was a notice of violation.[3] The Town's Ordinance, however, expressly precludes any appeal of a notice of violation: " Any order, requirement, decision or determination made, or failure to act, in the enforcement of this ordinance is not appealable to the Board of Appeals." Peru, Me., Shoreland Zoning Ordinance § 16(H)(1)(a) (June 9, 2009). Likewise, the Ordinance provision regarding the manner of taking an appeal states that " [a]n administrative or variance appeal may be taken to the Board of Appeals by an aggrieved party from any decision of the Code Enforcement Officer or the Planning Board, except for enforcement-related matters as described in Section 16(H)(1)(a) above." Peru, Me., Shoreland Zoning Ordinance § 16(H)(4)(a)(i) (June 9, 2009). No Ordinance section provides for any other municipal means of challenging a CEO's enforcement decision.

[¶7] Until very recently, appeals of notices of violation were not justiciable because a notice merely provided an interpretation of an ordinance; unless and until a municipality acted to enforce the decision in some meaningful way, appeals from notices of violation were " dismissed as calling for an advisory opinion." Dubois Livestock, Inc. v. Town of Arundel, 2014 ME 122, ¶ 9, 103 A.3d 556; see Eliot Shores, LLC v. Town of Eliot, 2010 ME 129, ¶¶ 5-10, 9 A.3d 806; Farrell v. City of Auburn, 2010 ME 88, ¶¶ 6-18, 3 A.3d 385. In 2013, however, the Maine Legislature enacted a statutory amendment providing for board of appeals and Superior Court review of municipal notices of violation:

Absent an express provision in a charter or ordinance that certain decisions of its code enforcement officer or board of appeals are only advisory or may not be appealed, a notice of violation or an 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.

P.L. 2013, ch. 144, § 1 (effective Oct. 9, 2013) (codified at 30-A M.R.S. § 2691(4) (2014)). Notices of violation, therefore, have been generally appealable since October of 2013. Nevertheless, because the notice of violation at issue here was sent before the effective date of section 2691(4), and because the Town's Ordinance expressly states that no appeal from a notice

Page 613

of violation may be taken, section 2691(4) by its express terms does not provide Paradis with a right to appeal.[4] See Peru, Me., Shoreland Zoning Ordinance § 16(H)(1)(a); cf. Dubois Livestock, Inc., 2014 ME 122, ¶ 11, 103 A.3d 556 (considering the appeal of a notice of violation in the absence of an express provision in the municipality's ordinance prohibiting it).

[¶8] We conclude that the Board of Appeals lacked jurisdiction to consider Paradis's appeal, which in turn deprived the Superior Court of jurisdiction to consider it, and further precludes our review of the merits of the matter.[5] See Hopkinson v. Town of China, 615 A.2d 1166, 1167 (Me. 1992) (" Administrative bodies such as the board are statutory in nature and can only have such powers as those expressly conferred on them by the Legislature, or such as arise therefrom by necessary implication to allow carrying out the powers accorded to them." ).

The entry is:

Judgment of the Superior Court vacated and remanded with instructions to enter an order vacating the decision of the Town of Peru Board of Appeals for lack of jurisdiction.


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