Plaintiffs' Counsel: Marcia Cleveland, Pro Se
Defendant's Counsel: Anne Torregrossa, Esq. City of
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.
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
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.
(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
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.
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.
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.").
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.
separate City Code section purports 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.
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.
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 ...