Dubois Livestock, Inc. v. Town of Arundel

• Decision Date: 04 November 2014
• Docket Number: Docket No. Yor–13–478.
• Citation: 2014 ME 122,103 A.3d 556
• Court: Maine Supreme Court
• Parties: DUBOIS LIVESTOCK, INC., v. TOWN OF ARUNDEL, et al.

103 A.3d 556

2014 ME 122

DUBOIS LIVESTOCK, INC.

v.TOWN OF ARUNDEL, et al.

Docket No. Yor–13–478.

Supreme Judicial Court of Maine.

Argued: Sept. 10, 2014.

Decided: Nov. 4, 2014.

Scott D. Giese, Esq., Law Office of Scott D. Giese, Biddeford, L. Clinton Boothby, Esq. (orally), Boothby Perry, LLC, Turner, for appellant Dubois Livestock, Inc.

Leah B. Rachin, Esq. (orally), Bergen & Parkinson, LLC, Kennebunk, for appellees Town of Arundel et al.

Panel: SAUFLEY, C.J., and ALEXANDER, SILVER, MEAD, GORMAN, JABAR, and HJELM, JJ.

Opinion

ALEXANDER, J.

[¶ 1] Dubois Livestock, Inc., appeals from a judgment of the Superior Court (York County, O'Neil, J. ) affirming, pursuant to M.R. Civ. P. 80B, the decision of the Town of Arundel's Zoning Board of Appeals (ZBA), which upheld a notice of violation that the Town's code enforcement officer issued to Dubois for failure to comply with its conditional use permit. Dubois argues that (1) its appeal to the ZBA was not time-barred because it raises a jurisdictional issue, which can be raised at any time; and (2) the Town did not have the authority to regulate Dubois's operation because section 8.10.B.1 of the Town of Arundel Land Use Ordinance (2013) (the Ordinance)¹ is preempted by state law, specifically by the Maine Agriculture Protection Act (Agriculture Protection Act), 7 M.R.S. §§ 151 –163 (2013), and the Maine Hazardous Waste, Septage and Solid Waste Management Act (Solid Waste Act), 38 M.R.S. §§ 1301 –1319–Y (2013).² We affirm.

I. CASE HISTORY

[¶ 2] On a parcel in zone “R–4” in Arundel, Dubois composts horse and cow manure, horse and cow bedding, and fish waste (including fish, shellfish entrails, shells, and bones), none of which are generated on-site. Dubois's original 1999 solid waste order from the Maine Department of Environmental Protection (DEP) allowed it to receive 1,733 tons of fish waste and 3,467 tons of horse manure annually. In 2012, the DEP order was amended to allow Dubois to receive not more than 29,000 tons of total material annually, including cow manure and bedding in addition to the materials noted above. Dubois's operation was permitted when it began in 1981 and is now a nonconforming use in the Arundel R–4 zone. In 2000, section 6.2 of the Ordinance was amended to prohibit solid waste processing in the R–4 zone.

[¶ 3] Pursuant to the Ordinance, the operator of any “solid waste facility” in the Town is required to obtain a conditional use permit, which must be reviewed and renewed every three years. Ordinance §§ 8.10.B.1, 8.10.B.3. Accordingly, Dubois applied for a conditional use permit from the Town Planning Board. The Board issued a conditional use permit to Dubois on February 24, 2000. On February 24, 2011, the Town reissued a conditional use permit to Dubois.

[¶ 4] The 2011 permit is the subject of this appeal. Among other conditions, the permit required Dubois to provide the Town with bills of lading and an annual summary report documenting the amount of material processed at and shipped from the facility each year, pursuant to section 8.10.F.2.e of the Ordinance. The permit also required Dubois to allow the code enforcement officer and town planner to inspect certain parts of the facility annually, accompanied by Dubois representatives, to ensure the facility's proper working order and compliance with the conditional use permit. Dubois did not appeal from the issuance of the 2011 conditional use permit, as was its right pursuant to Ordinance § 10.3.C and M.R. Civ. P. 80B.

[¶ 5] After the 2011 permit was issued, Dubois contacted the Maine Department of Agriculture (DOA) and the DEP to determine the potential impact of the Agriculture Protection Act and the Solid Waste Act on its operations. Based on the information Dubois provided, the DOA and DEP issued opinion letters in July and December of 2011, respectively, stating that Dubois's facility is an “agricultural composting operation” under the Agriculture Protection Act and the Solid Waste Act. The DOA also stated that Dubois is a “farm” as defined in its Rules for the Agricultural Compliance Program. 1 C.M.R. 01 001 010–1 § 2(12) (2007).³ “Agriculture,” as defined in section 2.2 of the Ordinance, is unconditionally permitted in zone R–4, unlike solid waste processing. Ordinance § 6.2.

[¶ 6] In 2012, Town representatives attempted to gather information from Dubois and inspect the composting facility pursuant to the 2011 conditional use permit, but Dubois refused to provide the information or permit the inspection. The Town's code enforcement officer issued a notice to Dubois on October 30, 2012, informing Dubois that it was in violation of the 2011 permit and section 8.10.F.2.e of the Ordinance. Dubois timely appealed the notice of violation to the Town of Arundel's ZBA, which held a hearing in January 2013. At that hearing, Dubois admitted that it refused to comply with the conditions imposed by the 2011 permit but argued that it was not subject to regulation by the Town pursuant to the Ordinance or the permit, because state laws, specifically the Agriculture Protection Act and the Solid Waste Act, preempt the Ordinance. ⁴

[¶ 7] On January 10, 2013, the ZBA voted to deny Dubois's appeal. In its written findings and conclusions, the ZBA upheld the code enforcement officer's notice of violation because Dubois admitted to violating the conditions of the 2011 permit. Despite concluding that Dubois's appeal was time-barred, the ZBA went on to conclude that, if the appeal was not time-barred, neither the Agriculture Protection Act nor the Solid Waste Act preempted the Ordinance.⁵ The record does not indicate that the Town has initiated any enforcement action pursuant to M.R. Civ. P. 80K to address the violations found by the code enforcement officer and affirmed by the ZBA.

[¶ 8] On February 8, 2013, Dubois filed a timely Rule 80B complaint challenging the ZBA's decision. M.R. Civ. P. 80B. After a hearing, the court affirmed the ZBA's decision on September 19, 2013.⁶ Dubois timely appealed from the Superior Court's decision pursuant to 5 M.R.S. § 11008(1) and M.R. Civ. P. 80B(n).

II. LEGAL ANALYSIS

A. Justiciability

[¶ 9] Even though the parties have not raised the issue, we must, in light of our recent precedents, first address whether this appeal is justiciable. Under those precedents, an appeal of a notice of violation would be dismissed as calling for an advisory opinion. See Eliot Shores, LLC v. Town of Eliot, 2010 ME 129, ¶¶ 1, 8, 9 A.3d 806 ; Farrell v. City of Auburn, 2010 ME 88, ¶¶ 1, 8, 3 A.3d 385 (each dismissing an 80B appeal from a notice of violation because, no matter how we ruled, the municipality retained discretion to initiate, or decline to initiate, a Rule 80K enforcement action). Some recent developments require review of that precedent.

[¶ 10] In 2012, the United States Supreme Court held in Sackett v. EPA, 566 U.S. ––––, 132 S.Ct. 1367, 182 L.Ed.2d 367 (2012), that an Environmental Protection Agency “compliance order,” the equivalent of a municipal notice of violation, was a final agency action subject to judicial review because the order affected the use of the property at issue and appeal was the only adequate remedy. Id. at 1372–74 ; see also Annable v. Bd. of Envtl. Prot., 507 A.2d 592, 595–96 (Me.1986) (holding that a court may reach the merits in a declaratory judgment action when an agency decision, although a notice or advisory opinion, can affect property uses). Here, like the compliance order at issue in Sackett, or the agency opinion at issue in Annable, the notice of violation affects the use, and may affect the value, of the property, and Dubois's only remedy, absent a Rule 80K action to defend, is appeal.

[¶ 11] We also recognize that in 2013, the Maine Legislature enacted P.L. 2013, ch. 144, amending 30–A M.R.S. § 2691(4) (2013), to allow appeals to the Superior Court, pursuant to M.R. Civ. P. 80B, from municipal notices of violation after local administrative reviews of the notice of violation have been exhausted. In light of the reasoning in Sackett and section 2691(4), which expressly provides for appeals to the Superior Court from notices of violation, we reach the merits of this appeal.

B. Timeliness

[¶ 12] Contrary to the Town's contentions, Dubois's appeal to the ZBA was not untimely. “Subject to equitable defenses including laches, a governmental action may be challenged at any time, as ultra vires, when the action itself is beyond the jurisdiction or authority of the administrative body to act.” Sold, Inc. v. Town of Gorham, 2005 ME 24, ¶ 12, 868 A.2d 172 (emphasis added). Here, Dubois contends that the Town lacked jurisdiction to regulate its operations pursuant to Ordinance § 8.10.B.1 and the conditional use permit issued under it because state laws, specifically the Agriculture Protection Act and the Solid Waste Act, preempt the Ordinance. Thus, Dubois's contention that, as a matter of law, the Town did not have jurisdiction to regulate Dubois is not untimely.

C. Preemption

[¶ 13] “The issue of whether a [s]tate statute preempts municipal regulation is a question of law that we review de novo.” State v. Brown, 2014 ME 79, ¶ 23, 95 A.3d 82. Pursuant to the “home rule” provision of 30–A M.R.S. § 3001 (2013), a municipality may exercise its authority to adopt an ordinance if that power is not “denied either expressly or by clear implication” under state law. See E. Perry Iron & Metal Co. v. City of Portland, 2008 ME 10, ¶ 7, 941 A.2d 457. Local ordinances are presumptively valid, 30–A M.R.S. § 3001(2), and an ordinance will be invalidated only “when the Legislature has expressly prohibited local regulation, or when the Legislature has intended to occupy the field and the municipal legislation would frustrate the purpose of a state law,” Int'l Paper Co. v. Town of Jay, 665 A.2d 998, 1001–02 (Me.1995). Accordingly, “[an] ordinance will be preempted only when state law is interpreted to create a comprehensive and exclusive regulatory scheme inconsistent with the local action,”...