DANIEL RAPOSA JR. et al.
TOWN OF YORK et al.
Submitted On Briefs: January 17, 2019
L. Guay, Esq., Woodman Edmands Danylik & Austin, P.A.,
Biddeford, for appellants Daniel Raposa Jr. and Susan Raposa
E. Costigan, Esq., Bernstein Shur, Portland, for appellee
Town of York
Matthew W. Howell, Esq., Clark & Howell, LLC, York, for
appellee Joshua Gammon York County Superior Court docket
numbers AP-2016-34, 35 For Clerk Reference Only
ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.
REPORTER OF DECISIONS
Daniel and Susan Raposa appeal from a judgment of the
Superior Court (York County, O'Neil, J.)
dismissing for lack of subject matter jurisdiction the
Raposas' Rule 8OB complaint for review of factual
findings made by the Town of York's Board of Appeals.
Because we hold that the court has jurisdiction to review the
Board's decision, we vacate the judgment and remand to
the Superior Court for consideration of the complaint on the
The Raposas own residential property in York that abuts
property owned by Joshua Gammon. Gammon has used his property
for his commercial landscaping business since purchasing it
from party-in-interest Peter Marcuri in 2014. Marcuri had
used the property both for his excavation business and as his
On March 26, 2016, the Raposas contacted the Town's Code
Enforcement Officer (CEO) to express their concern that
Gammon's use of the property was not consistent with
Marcuri's nonconforming use. The CEO responded by email
in April, stating that
[t]he uses on the lots are consistent with the previous uses
and no violations are warranted at this time. If you would
like to appeal this determination, . . . [p]lease contact
[the Board of Appeals] regarding the appeals process per
article 188.8.131.52., which states, "The Board of Appeals
shall hear and decide Appeals from any order, requirement,
decision, or determination made by any person or Board
charged with administration of this Ordinance."
The Raposas appealed the CEO's decision to the Town's
Board of Appeals in May. Three hearings were held on the
appeal, during which the Raposas, their counsel, Gammon's
counsel, the CEO, and other abutters presented testimony.
Although the Board granted the Raposas' appeal for
reasons not relevant to this appeal, the Board also made
factual findings that were not in the Raposas' favor,
namely that the use of the lot by Gammon's landscaping
business did not constitute a change in use but rather was an
intensification of the previous use.
The Raposas appealed to the Superior Court pursuant to M.R.
Civ. P. 8OB, challenging the Board's factual findings.
The Town moved to dismiss the appeal for lack of subject
matter jurisdiction pursuant to M.R. Civ. P.
12(b)(1). The court granted the Town's motion to
dismiss, finding that the Board's review of the CEO's
decision was advisory and ...