Briggs v. Town of York
| Decision Date | 16 May 2015 |
| Docket Number | SUPERIOR COURT CIVIL ACTION DOCKET NO. AP-14-028 |
| Parties | MICHAEL BRIGGS et al., Plaintiffs, v. TOWN OF YORK, MAINE, and ROBERT M. GRANT, Defendants. |
| Court | Maine Superior Court |
STATE OF MAINE
YORK, SS.
Plaintiffs Michael Briggs, Sarah Sanford, Steve Rowley, and Charles Spear, Trustee of the Spear Family Revocable Trust ("the Plaintiffs") bring this appeal under M.R. Civ. P. 80B. Plaintiffs appeal a decision of the Town of York Zoning Board of Appeals ("ZBA") that reversed the CEO's Notice of Violation issued to Robert Grant ("Grant") for operating a medical marijuana cultivation facility unlawfully in the shoreland zone. The ZBA unanimously voted to allow Grant to continue operating the facility as a lawful nonconforming use.
Grant owns 17 White Birch Lane in York. The property consists of nine acres with two large steel buildings. Grant operated a lumber supply business in one building and wood manufacturing business in a second building ("Building Two"). The Townissued building permits in 2012 for Building Two to be divided into nine separate units, which are currently being leased to licensed medical marijuana caregivers and used to cultivate and package medical marijuana.
On April 30, 2014, the Town of York Assistant Code Enforcement Officer (CEO) issued a Notice of Violation that asserted the marijuana cultivation constituted a different use of Building Two that was not protected as a nonconforming, "grandfathered" use. The Notice also cited several other violations of the ordinance not relevant here. Grant timely appealed the Notice of Violation to the ZBA. After several meetings on the matter, the ZBA reversed the CEO, concluding that despite transitioning from producing wood products to producing marijuana products, the use remained "manufacturing" and thus retained nonconforming use status. Petitioners here are abutters who attended and testified at meetings on the matter before the ZBA. This appeal followed.
Pursuant to Rule 80B, the party challenging the decision of a municipal board has the burden of demonstrating an error of law, an abuse of discretion, or findings not supported in the record. Aydelott v. City of Portland, 2010 ME 25, ¶ 10, 990 A.2d 1024. The court reviews the interpretation of municipal ordinances de novo. Nugent v. Town of Camden, 1998 ME 92, ¶ 7, 710 A.2d 245. In construing ordinances, the court first looks "to the plain meaning of its language to give effect to the legislative intent, and if the meaning . . . is clear, [does] not look beyond the words themselves." Wister v. Town of Mount Desert, 2009 ME 66, ¶ 17, 974 A.2d 903. "The terms or expressions in an ordinance are to be construed reasonably with regard to both the objectives sought to beobtained and the general structure of the ordinance as a whole." Jordan v. City of Ellsworth, 2003 ME 82, ¶ 9, 828 A.2d 768 (internal quotations and citations omitted).
The court reviews the operative municipal decision directly, which the parties agree was the ZBA decision. See Yates v. Town of Southwest Harbor, 2001 ME 2, ¶ 10, 763 A.2d 1168; York, Me., Zoning Ordinance, § 18.8.3.4 (November 4, 2014) ("Ordinance") (governing ZBA's power to review decisions of the CEO).1
In general, to have standing to pursue an 80B appeal, "the appellant must prove (1) that it was a party at the administrative proceeding, and (2) that it suffered a particularized injury as a result of the agency's decision." Norris Family Assocs., LLC v. Town of Phippsburg, 2005 ME 102, ¶ 11, 879 A.2d 1007.
In the Town of York, the ZBA stands as the final arbiter of decisions by Town officials and boards charged with administering the ordinances. See Ordinance, § 18.8.2.1. By reversing the CEO's Notice of Violation, the ZBA has effectively deemed the use of the property for medical marijuana cultivation lawful under the ordinance.While the York CEO is responsible for issuing Notices of Violation, Ordinance, § 9.6, the Board of Selectman initiates enforcement actions. Id. § 9.4. There is currently no pending enforcement action.
There is no dispute that Plaintiffs participated at the hearings below and have a sufficient injury to support ordinary standing. Defendants, however, contend that appeals from a Notice of Violation are non-justiciable and the Plaintiffs lack standing to compel the Town to pursue zoning enforcement. The rights of abutters to appeal a ZBA's reversal of a Notice of Violation decision to Superior Court under Rule 80B is not apparent under the law. Several relevant Law Court precedents must be reconciled.
In Herrle v. Town of Waterboro, the Court held a municipal decision not to pursue zoning enforcement was unreviewable under Rule 80B. 2001 ME 1, ¶¶ 10-12, 763 A.2d 1159. The Waterboro Board of Selectman declined to pursue enforcement because the Board deemed the property lawfully grandfathered. The Waterboro Zoning Board of Appeals ultimately affirmed the Board of Selectman's determination. In dismissing the 80B appeal, the Law Court reasoned that even if the court reversed the Board of Appeals' decision for legal error, the decision to pursue enforcement would remain within the Board of Selectman's discretion. Id. Construing 30-A M.R.S. § 4452(1), the court further concluded the abutters lacked standing to pursue a Rule 80B appeal to compel enforcement proceedings, even if the landowner was in violation of the ordinance. Id. ¶ 11. Herrle has since been interpreted to mean that the court will not second-guess the municipality's decision to pursue zoning enforcement. Salisbury v. Town of Bar Harbor, 2002 ME 13, ¶ 11, 788 A.2d 598.
Later cases extended Herrle to entirely preclude judicial review of Notice of Violation decisions where the Zoning Board of Appeals acted in merely an advisory capacity to the municipal officer or agency tasked with enforcement under the ordinances. Farrell v. City of Auburn, 2010 ME 88, ¶ 8, 3 A.3d 385 (); Shores v. Town of Eliot, 2010 ME 129, ¶¶ 7-10, 9 A.3d 806 ().
Plaintiffs contend that in Dubois Livestock, Inc. v. Town of Arundel, 2014 ME 122, ¶ 9, 103 A.3d 556, the Law Court effectively abrogated Herrle. In Dubois, the Town of Arundel CEO issued a Notice of Violation, which the landowner unsuccessfully appealed to the Zoning Board of Appeals and then to the Superior Court. 2014 ME 122, ¶¶ 6-7, 103 A.3d 556. The Law Court began by noting that "recent precedents" held that "an appeal of a notice of violation would be dismissed as calling for an advisory opinion." Id. ¶ 8. Dubois did not address Herrle directly, but rather specifically revised the rule crafted in Farrell and Shores. See 2014 ME 122, ¶ 9, 103 A.3d 556 (); see Farrell, 2010 ME 88, ¶¶ 15-18, 3 A.3d 385 ().
In Dubois, the court concluded that because the Notice of Violation affected the use and value of the property, a landowner could appeal the determination pursuant to Rule 80B. 2014 ME 122, ¶ 10, 103 A.3d 556 (). The court emphasized that an appeal to the courts would be the landowner's only available remedy to review the lawfulness of the decision. Id. The court further noted that recent amendments to the statute governing municipal boards of appeals expressly allowed 80B appeals from notices of violation reviewed at the municipal level. See 30-A M.R.S. § 2691(4). As a result, the appeal was justiciable and properly before the court.
Farrell, Shores, and Dubois each involved landowners who were issued Notices of Violation by a municipal zoning enforcer that were affirmed by an intermediate appellate board and appealed to Superior Court pursuant to Rule 80B. Dubois abandoned the rule that landowners issued a Notice of Violation by a municipal officer could not pursue a Rule 80B appeal and held the landowner was entitled to a remedy. Dubois, 2014 ME 122, ¶ 10, 103 A.3d 556. Dubois did not, however, address whether an abutter would be similarly entitled to a remedy to challenge a reversal of a Notice of Violation that effectively halted municipal zoning enforcement. Different interests are implicated—a landowner wishes to remove the cloud of possible zoning enforcement from the property, whereas an abutter aims to spur the municipality into enforcement.
Herrle specifically involved an abutter's right to appeal a Notice of Violation and rested on two separate grounds. The first ground, as described above, concerned justiciability and whether the appeals would call for an advisory opinion. This issue wasclarified in Dubois and functionally overruled that portion of Herrle () to conclude that such appeals by a landowner are justiciable. Dubois, 2014 ME 122, ¶ 10, 103 A.3d 556. The second ground concerned an abutter's standing to initiate enforcement proceedings. Herrle, 2001 ME 1, ¶ 11, 763 A.2d 1159 (). There is an important distinction: in one case, a municipal official has opined that a...
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