KERRY EMANUEL, et al. Plaintiff,
TOWN OF BRISTOL, Defendant,
WOTTON'S LOBSTER WHARF, LLC Party-In-Interest
Emanuel Susan Emanuel Marylyn Hanlon William Hanlon Nora
Waystack Peter Waystack MECO, LLP Attorney: Scott D. Anderson
Verrill Dana, LLP One Portland Square
of Bristol David Wotton Town of Bristol: David M. Kallin 84
Marginal Way, Ste 600 Portland, ME 04101 Donald Wotton: Judy
Metcalf John Cunningham
ORDER ON DEFENDANT'S AND PARTY-IN-INTEREST'S
MOTIONS TO DISMISS
I. Billings, Justice
matter is before the Court on the Defendant's and
Party-In-Interest's Motions to Dismiss.
challenge a land use determination made by the Defendant Town
of Bristol ("the Town") that Party-in-Interest
Wotton's Lobster Wharf, LLC's
("Wotton's") use and recent expansion of its
operations are not regulated under the Town's Shoreland
Zoning Ordinance ("SZO"). (Pis.' Br. 1).
Wotton's recently began using a refrigerated trailer to
store bait. (Record "R." at 5-6, 13). The unit runs
loudly and at unpredictable intervals. (R. at 5-6, 13).
Plaintiffs own houses adjacent to and nearby the location of
Wotton's and its refrigerated trailer. (R. at 1, 3).
wrote a letter to Mr. Wotton on September 6, 2016 stating
their concerns with the trailer. (R. at 3). Mr. Wotton took
no action as a result of this letter. (Pis.' Br. at 3).
Plaintiffs then contacted the Town with their objections to
the operation of the trailer without review or approval by
the Town planning board or code enforcement officer. (R. at
5-7). These discussions culminated in a letter dated December
5, 2016, requesting that the Town require Wotton's to
obtain a planning board permit. (R. at 5-7).
February 22, 2017, the Town issued a response through its
Code Enforcement Officer ("CEO") in which the CEO
determined the trailer was not a "structure" that
required a permit, and therefore there was no SZO violation,
and he would not be issuing an order of violation. (R. at
21). Plaintiffs now appeal to the Superior Court pursuant to
M.R. Civ. P. 8OB. The Town and Wotton's have both filed
Motions to Dismiss for lack of jurisdiction over the subject
matter pursuant to M.R. Civ. P. 12(b)(1).
Standard of Review
court reviews a motion to dismiss under M.R. Civ. P. 12(b)(1)
without making any inferences in favor of the plaintiff.
Persson v. Dep't of Human Servs., 2001 ME 124');">2001 ME 124,
¶ 8, 775 A.2d 363. "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.
30-A M.R.S. § 4452, titled "Enforcement of Land Use
Laws and Ordinances, " "all proceedings arising
under locally administered laws and ordinances shall be
brought in the name of the municipality." 30-A M.R.S.
§4452(4). This section of the statute applies to
"shoreland zoning ordinances adopted pursuant to Title
38, sections 435 to 447." Id. at §
4452(5)(Q). The Town's SZO was prepared in accordance
with 38 M.R.S. §§ 435-449, and therefore this
statute applies. SZO § 1(2).
Court cases have discussed 30-A M.R.S. § 4452 in detail:
Herrle v. Town of Waterboro and Charlton v. Town
of Oxford,2001 ME 1, 763 A.2d 1159; 2001 ME 104, 774
A.2d 366. Here, as in Herrle, Plaintiffs are
appealing the Town's decision not to enforce its
ordinance against their neighbors. The court in
Herrle, as an alternate ground to dismiss the case,
found that under 30-A M.R.S. § 4452, the plaintiffs, as
individuals, "would not have standing to initiate
enforcement proceedings against [their neighbor] even if it
was determined that he was in violation of the
ordinance." Herrle,2001 ME 1, ¶ 11.
Additionally, similar to Charlton, where the
plaintiffs, as private individuals, attempted to bring a
private cause of action for statutory public nuisance,
Plaintiffs here are also attempting to bring a private action
for a land use violation, The court in Charlton
stated that: "section 4452 gives a municipality, and
only a municipality, the authority to enforce land use
regulations. Accordingly, only municipalities may bring an
action for such regulations, " Charlton, 2001
ME 104, ¶ 19, Here, it is the duty of the CEO to enforce
the SZO and investigate complaints of alleged ...