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Bond v. Town of Windham

Superior Court of Maine, Cumberland

January 5, 2016

CHRISTOPHER A. BOND, Plaintiff
v.
TOWN OF WINDHAM, Defendant

ORDER ON MOTION TO DISMISS

Nancy Mills Justice

Before the court is defendant Town of Windham's motion to dismiss plaintiff Christopher Bond's Rule 80B appeal challenging a notice of violation he received from the Town of Windham's Code Enforcement Officer. For the following reasons, the motion to dismiss is granted.

FACTS

Christopher Bond owns a 75-foot wide by 100-foot deep parcel located at 63 Libby Hill Road in Windham, Maine (Bond parcel). (Compl. ¶ 3.) The Bond parcel abuts Little Duck Pond and is located within the Limited Residential Shoreland Zone. (Id. ¶ 4.) This zone has a setback requirement of 100 feet. (Id. ¶ 5.) Because the Bond parcel is only 100 feet deep, no structure could be constructed without a variance. (Id.) As a result, plaintiff petitioned the Zoning Board of Appeals (Board) for a variance that would allow him to construct a 16-foot by 20-foot structure, half of which is an open platform and half of which is an enclosed shed. (Id. ¶¶ 6, 11.)

After hearing and a revised application and site plan, the Board granted a variance for this structure on January 3, 2013. (Id. ¶¶ 7-12; PL's Ex. B.) The variance describes the structure as a "combined camping platform/canoe storage structure" and includes several conditions, including that plaintiff not make any changes to his revised application without Board approval. (Compl. ¶¶ 12, 15-18; Pl.'s Ex. B.) Plaintiff subsequently applied for a building permit, which the Code Enforcement Officer (CEO) approved. (Compl. ¶¶ 20, 22; Pl.'s Exs. C, E.) The structure was built and a woodstove was installed in the shed. (Compl. ¶ 23.)

On May 8, 2015, the CEO inspected the Bond parcel in response to a complaint by a neighbor. (Id. ¶ 24.) The CEO issued a notice of violation because he determined that the woodstove impermissibly converted the structure to a cabin. (Id.; Pl.'s Ex. F.) Plaintiff appealed the notice of violation to the Board on June 4, 2015. (Compl. ¶ 25; Pl.'s Ex. G.) On June 25, 2015, the Board denied plaintiff's appeal because it determined that the variance permitted only storage uses in the shed and only camping uses on the platform. (Compl. ¶¶ 30, 32; Pl.'s Ex. H.) The woodstove therefore violated the variance because it was located in the shed and was not a storage use. (Compl. ¶ 32; Pl.'s Ex. H.)

PROCEDURAL HISTORY

Plaintiff filed his Rule 80B appeal on August 6, 2015. Defendant filed its motion to dismiss on October 7, 2015 pursuant to M.R. Civ. P. 12(b)(1). Plaintiff filed an opposition to defendant's motion on October 14, 2015. Plaintiff filed his Rule 80B brief on October 15, 2015. Defendant filed a reply to plaintiff's opposition on October 16, 2015. Defendant filed its Rule 80B brief on November 13, 2015. Plaintiff filed his reply brief on November 24, 2015.

DISCUSSION

1. Standard of Review

A motion to dismiss pursuant to M.R. Civ. P. 12(b)(1) challenges the court's subject matter jurisdiction. M.R. Civ. P. 12(b)(1). "When a court's jurisdiction is challenged, the plaintiff bears the initial burden of establishing that jurisdiction is proper." Commerce Bank & Trust Co. v. Dworman, 2004 ME 142, ¶ 8, 861 A.2d 662. The court makes no favorable inferences in favor of the plaintiff, as it does when reviewing a motion to dismiss for failure to state a claim. Tomer v. Me. Human Rights Comm'n, 2008 ME 190, ¶ 9, 962 A.2d 335. The court may rely on material outside the pleadings without converting the motion to a motion for summary judgment. Gutierrez v. Gutierrez, 2007 ME 59, ¶10, 921 A.2d 153.

2. jurisdiction over Notice of Violation Appeal

Defendant argues that the court lacks subject matter jurisdiction over plaintiff's appeal because notices of violation are not appealable. (Def.'s Mot. Dismiss 1-4.) Maine's statute governing boards of appeal provides in part:

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 ...

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