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Cleveland v. City of Portland

Superior Court of Maine, Cumberland

August 22, 2018

MARCIA CLEVELAND and DANIEL PAUL Petitioners
v.
CITY OF PORTLAND Respondent

          Plaintiffs' Counsel: Marcia Cleveland, Pro Se

          Defendant's Counsel: Anne Torregrossa, Esq. City of Portland

          DECISION

          A. M. Horton, Justice

         These appeals pursuant to M.R. Civ. P. 80B came before the court for oral argument August 9, 2018, with Petitioner Marcia Cleveland on behalf of herself and Petitioner Daniel Paul, and Associate Corporation Counsel Anne Torregrossa on behalf of Respondent City of Portland ["City"], participating. The oral argument was electronically recorded.

         In these cases, the Petitioners are challenging two Notices of Violation issued to them by the City's Permitting and Inspection Department based on a code enforcement officer's finding that Petitioners' property is in violation of fire code requirements. Petitioners have brought appeals under Rule 80B and also seek declaratory relief that their property is not in violation. The City maintains that the Petitioners' property does violate the fire code incorporated by reference in the City's Code of Ordinances and also contends that the Petitioners' appeal should be dismissed based on their failure to exhaust administrative remedies.

         Based on the entire record, the court dismisses the Petitioners' Rule 80B appeals, but grants limited declaratory relief, on the following grounds:

(1) Any appeal of the City's Notices of Violation must be presented initially to the City of Portland Zoning Board of Appeals (ZBA). The appeals in these cases were made directly to this court.[1]
(2) Although this court therefore lacks jurisdiction to address the merits of these direct Rule 80B appeals from the Notices of Violation, it does have jurisdiction to address the City's contention that the Petitioners have failed to exhaust their administrative remedies.
(3) The City's two Notices of Violations to the Petitioners failed to trigger the running of the period for appeal because neither Notice provided accurate information on how Petitioners could exercise their right of appeal. Thus, Petitioners have not failed to exhaust their administrative remedies.

         Background

         Petitioners Marcia Cleveland and Daniel Paul are the owners of a three-unit apartment building at 6 Houlton Street in the City of Portland. Petitioners occupy one of the units and rent the other two to long-term tenants with leases. Petitioners also rent out parts of their unit through the AirBnb rental website during the summers.

         The structure was built in the nineteenth century and is of wood frame construction, with plaster and lathe interior walls. The total living space in the three units is approximately 3000 square feet.

         The City of Portland has adopted a City Code that, in pertinent part, requires all dwelling units in the City to have exits that comply with the National Fire Protection Association Life Safety Code [''NFPA Code"]. See City of Portland Code of Ordinances ["City Code"] Sec. 16-116(e) ("Every dwelling, dwelling unit, rooming house and rooming unit shall comply with the applicable provisions of the most current edition of the National Fire Protection Association Life Safety Code, and with all other applicable state statutes and regulations.").

         The National Fire Protection Association is a national body that has developed a numbered series of codes that incorporate standards for safety and fire protection. The NFPA Life Safety Code is numbered 101 in the series.

         A separate City Code section purports[2] to adopt and incorporate by reference the NFPA Code. City Code Sec. 10-1. The City Code also designates the City fire department and the City's Housing Safety Office, Permitting and Inspections Department, as the City authorities with jurisdiction to enforce the NFPA Code requirements that are incorporated in the City Code. See id. sec. 10-2. The City's Housing Safety Office administers a program for registering and inspecting residential rental properties in Portland.

         On February 16, 2018, the Housing Safety Office, through a code enforcement officer with the City's Permitting and Inspections Department, conducted a routine inspection of the Petitioners' apartment building. As a result of the inspection, the City's Permitting and Inspections Department issued a Notice of Violation dated February 17, 2018 to Petitioners, citing four violations of the City Code. Three of the four violations cited in the February 17, 2018 Notice have been or are being remediated without objection.

         However, the Petitioners challenge the City's contention that the NFPA Life Safety Code requires them to install seven fire doors to replace seven wooden doors ...


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