City of Lewiston v. Verrinder

• Decision Date: 31 May 2022
• Docket Number: Docket: And-21-119
• Citation: 275 A.3d 327,2022 ME 29
• Parties: CITY OF LEWISTON v. William VERRINDER
• Court: Maine Supreme Court

275 A.3d 327

2022 ME 29

CITY OF LEWISTON

v.William VERRINDER

Docket: And-21-119

Supreme Judicial Court of Maine.

Submitted On Briefs: November 18, 2021

Decided: May 31, 2022

William Verrinder, appellantpro se

Michael E. Carey, Esq., and Peter J. Brann, Esq., Brann & Isaacson, Lewiston, for appelleeCity of Lewiston

Panel: MEAD, JABAR, HUMPHREY, HORTON, and CONNORS, JJ.

Majority: MEAD, JABAR, HUMPHREY, and HORTON, JJ.

Dissent: CONNORS, J.

MEAD, J.

[¶1]William Verrinder appeals from a summary judgment entered by the Superior Court(Androscoggin County, Stanfill, J. ) in favor of the City of Lewiston on the City'sM.R. Civ. P. 80K land use complaint alleging two violations of City ordinances.Verrinder contends the court erred in concluding that his challenge to the City Code Enforcement Officer's (CEO's) notice of violation was barred by the doctrine of administrative res judicata and further contends that the financial penalties the court imposed for the ongoing violations were unconstitutionally excessive.¹We disagree and affirm the judgment insofar as it found that no genuine issue of material fact remained for trial and that the City was entitled to judgment as a matter of law.SeeM.R. Civ. P. 56(c).

[¶2] The City cross-appeals, contending that the court erred in making the civil penalties it imposed for the two separate violations concurrent with each other rather than cumulative.We agree that the court did not have the discretion to allow Verrinder to pay less than the minimum statutory penalty for each violation.Accordingly, we vacate that part of the judgment and remand for entry of a judgment imposing cumulative penalties.

I.BACKGROUND

[¶3] The following facts are drawn from the summary judgment record, viewed in the light most favorable to Verrinder as the nonprevailing party.SeeCoward v. Gagne & Son Concrete Blocks, Inc. , 2020 ME 112, ¶ 3, 238 A.3d 254.Verrinder owns a residential property in Lewiston.On November 8, 2017, in response to a complaint, the CEO inspected Verrinder's property and promptly issued a notice for two ordinance violations: (1)"trash and construction demolition debris throughout the property," and (2)"[damaged] front stairs ... as the first step is missing half the tread."SeeLewiston, Me., Code of Ordinances§§ 18-51, 18-52(Sept. 15, 2011, and May 1, 2014).²Eight days later, Verrinder contacted the CEO regarding the notice.

[¶4] On December 11, 2017, the City filed a land use complaint against Verrinder in the District Court.SeeM.R. Civ. P. 80K.Verrinder removed the case to the United States District Court for the District of Maine, which, finding no federal jurisdiction, remanded it back to the state court.City of Lewiston v. Verrinder , No. 2:18-cv-00028-JAW(D. Me.Aug. 20, 2018).In September 2018, Verrinder removed the case to the Superior Court for a jury trial.

[¶5] The City and Verrinder each moved for summary judgment.SeeM.R. Civ. P. 56.By order dated January 14, 2021, the court granted the City's motion in part and denied Verrinder's motion, concluding that the doctrine of administrative res judicata entitled the City to a judgment as a matter of law because Verrinder had not appealed to the Lewiston Board of Appeals from the CEO's notice of violation when it was issued in November 2017.The court set the question of the appropriate penalty, along with costs and fees to be imposed, for an evidentiary hearing.

[¶6] At that hearing, the City requested the minimum statutory penalty of $100 per day for each of the two violations, plus attorney fees and costs.See30-A M.R.S. § 4452(3)(B), (5)(G)(2022).³The court found that, although it "consider[ed] the total civil penalty sought to be disproportionate to the offenses," it was "without discretion to impose less than $24,300.00 for the 243 days of continuing violation involving the accumulation of rubbish or garbage, and $14,700.00 for the 147 days of continuing violation involving the damaged front stairs."It then ordered that the two penalties run concurrently with each other, with the result that "the total penalty that must be paid is $24,300.00."The court also awarded the City attorney fees of $28,257.

[¶7] Verrinder appealed, asserting that the court erred in applying the administrative res judicata doctrine and in its attorney fee award.The City cross-appealed, asserting that the court had no authority to order that the civil penalties run concurrently.

II.DISCUSSION

A.Administrative Res Judicata

[¶8]We have recognized the doctrine of administrative res judicata, which provides that "the decisions of state and municipal administrative agencies are to be accorded the same finality that attaches to judicial judgments."Hebron Acad., Inc. v. Town of Hebron , 2013 ME 15, ¶ 28, 60 A.3d 774(alteration and quotation marks omitted);see30-A M.R.S. § 2691(4)(2022)("[A] notice of violation or an enforcement order by a code enforcement officer under a land use ordinance ... that is not timely appealed is subject to the same preclusive effect as otherwise provided by law.").Pursuant to the doctrine, "[i]f a party does not challenge an administrative order through an available appeal that contains the essential elements of adjudication, the failure to do so may have preclusive effect upon any subsequent litigation on identical issues and claims dealt with in the administrative order."Town of Boothbay v. Jenness , 2003 ME 50, ¶ 21, 822 A.2d 1169(quotation marks omitted);seeTown of Freeport v. Greenlaw , 602 A.2d 1156, 1160(Me.1992).Specifically,

in order to have a preclusive effect, the notice [of violation] should state the nature of the action and inform the recipient of the opportunity to object and of the consequences of a failure to heed the notice.

...[T]o be effective in triggering the running of an appeal period, an order to refrain from taking or continuing certain action because it violates a zoning ordinance should refer to the provisions of the ordinance allegedly being violated, inform the violator of the right to dispute the order and how that right is exercised by appeal, and specify the consequences of the failure to appeal.

Greenlaw , 602 A.2d at 1160-61(citation and footnotes omitted).

[¶9]We review de novo the court's conclusion that Verrinder's challenge to the CEO's notice of violation was foreclosed by administrative res judicata, seeJenness , 2003 ME 50, ¶ 19, 822 A.2d 1169, and conclude that on this record the court's determination was correct.The notice set out the provisions of the ordinances being violated verbatim; detailed the corrective action required and the date by which it must be taken; informed Verrinder that he could appeal to the Lewiston Board of Appeals and request a hearing by filing a written petition within ten days of receiving the notice; and advised him that if he did not comply with the order or appeal it, he would be subject to stated penalties and "barred from any opportunity to contest or challenge the content or terms of this Notice and Order in any further legal proceedings."

[¶10] Verrinder acknowledged that he did not take an administrative appeal, asserting in the summary judgment record that he could not pay the $150 appeal fee and that the fee was unconstitutional.SeeLewiston, Me., Code of Ordinances§ 2-166(Dec. 31, 2009).The court was not persuaded by that argument, concluding that because Verrinder made no attempt to appeal within the required time, it was left "without any facts as to whether the $150.00 fee affected [his] ability to appeal the Notice, [or] whether it was waivable or would have been waived."

[¶11]We agree with the court's analysis.The dissent, citing a treatise for support,⁴ states categorically that "as a matter of law" the appeal fee "could not have been" waived by the Board of Appeals, and then uses that assertion as the foundation for implicating both the Maine and United States Constitutions.Dissenting Opinion¶¶ 29, 33, 35, 38.As the trial court found, however, absent any attempt by Verrinder to pursue an appeal we do not know what the Board's response would have been, assuming Verrinder had been able to establish that he could not afford to pay the fee.⁵Perhaps the Board would have allowed the appeal to proceed or put the fee issue before the City Council for decision, perhaps not—the open question illustrates the necessity for Verrinder to have made the attempt in the first instance.Had he done so, the reasonableness of the fee and the validity of the denial of the waiver—if that is what happened—would have been adjudicated.If Verrinder prevailed on either issue, the court presumably would have remanded with an instruction to the Board to consider his appeal.The validity of the fee was never litigated in the trial court and cannot be litigated here.⁶SeeSea & Sage Audubon Soc'y, Inc. v. Plan. Comm'n of Anaheim , 34 Cal.3d 412, 194 Cal.Rptr. 357, 668 P.2d 664, 669-70(1983).

[¶12] Furthermore, the dissent, asserting that the notice of violation did not have preclusive effect because the appeal fee prevented Verrinder from having a fair opportunity to litigate the notice, relies on a readily distinguishable decision of the Alaska Supreme Court for primary support.Dissenting Opinion¶¶ 33, 41-46.In Varilek v. City of Houston , the court held that the municipality's "refusal to offer any alternative to a $200 filing fee for [an administrative appeal] amounts to an unconstitutional denial of due process to indigent claimants."104 P.3d 849, 855(Alaska2004).In that case, however, the party contesting a notice of violation actually did appeal to the municipal board of appeals and, claiming indigence, requested a fee waiver.Id. at 851.The municipality denied his request, "admit[ting] that it ha[d] no provision for waiving the required administrative fee."Id.

[¶13] Here, Verrinder made no such request for a fee waiver, the City has not refused to consider any alternative to the payment of the fee,...