Herrle v. Town of Waterboro
| Decision Date | 04 January 2001 |
| Citation | 763 A.2d 1159,2001 ME 1 |
| Parties | Eric HERRLE and Diane Herrle v. TOWN OF WATERBORO and Douglas C. Foglio Sr. |
| Court | Maine Supreme Court |
John C. Bannon (orally), Murray Plumb & Murray, Portland, for plaintiff.
Kenneth M. Cole III (orally), Natalie L. Burns, Jensen Baird Gardner & Henry, Portland, for defendant Town of Waterboro.
Michael H. Hill (orally), Thomas G. Leahy, Monaghan, Leahy, Hochadel & Libby, LLP, Portland, for defendant Douglas Folio.
Panel: WATHEN, C.J., and CLIFFORD, RUDMAN, DANA, SAUFLEY, ALEXANDER, and CALKINS, JJ.
[¶ 1] The Town of Waterboro and Douglas C. Foglio Sr. appeal from a judgment entered in the Superior Court (York County, Brennan, J.) vacating the reconsidered decision of the Waterboro Zoning Board of Appeals (ZBA) and reinstating an earlier decision by the ZBA. In that earlier decision, the ZBA determined that Foglio's gravel pit had lost its grandfathered status through discontinuance and, therefore, required conditional use approval prior to any further operation. Because we conclude that the ZBA's role in the administrative appeal was advisory in nature and not subject to judicial review, we vacate the judgment of the Superior Court and remand with instructions to dismiss the appeal.
[¶ 2] Eric and Diane Herrle own property in Waterboro which is located near a gravel pit owned and operated by Douglas C. Foglio Sr. In February 1999, the Herrles requested the Waterboro Code Enforcement Officer (CEO) to initiate enforcement action against Foglio for operating a gravel pit in the Agriculture and Residential Zone without first obtaining conditional use approval as required by the Waterboro Zoning Ordinance. Because the CEO had a conflict of interest, he referred the request to the Waterboro Board of Selectmen. The Board of Selectmen declined to take enforcement action against Foglio, concluding that the pit was grandfathered.
[¶ 3] In March 1999, the Herrles filed an administrative appeal of the Board of Selectmen's decision with the Waterboro Zoning Board of Appeals, asserting that the Board of Selectmen had misinterpreted the ordinance and Maine law in determining that the gravel pit was grandfathered. The ZBA considered the Herrles' appeal at a public hearing in May 1999. The ZBA determined that the gravel pit was a nonconforming use which had been discontinued for a period in excess of one year; therefore, it had lost its grandfathered status and could not be operated as a gravel pit without first obtaining conditional use approval. Based on these findings, the ZBA determined that the conclusion of the Board of Selectmen was erroneous.
[¶ 4] At the request of the Board of Selectmen, the ZBA held a rehearing in June 1999. On reconsideration, the ZBA reversed its earlier decision, finding that because the prior owners of the gravel pit had not intended to discontinue the use of the gravel pit, it remained grandfathered.
[¶ 5] Pursuant to M.R. Civ. P. 80B, the Herrles appealed. The Superior Court vacated the ZBA's reconsidered decision and reinstated the ZBA's earlier decision. The Court found that the ZBA erred as a matter of law in basing its "discontinuance" determination on the subjective intent of the prior pit owners, rather than the actual use of the property. This appeal followed.
[¶ 6] The Town of Waterboro and Foglio argue that the ZBA lacked jurisdiction to hear an appeal from a decision of the Board of Selectmen concerning an enforcement decision.1 Although the ZBA had jurisdiction to review the Board of Selectmen's violation determination, the ZBA's role was advisory in nature and not subject to judicial review.
[¶ 7] 30-A M.R.S.A. § 4353 (1996 & Supp.2000) requires any municipality which adopts a zoning ordinance to establish a board of appeals. The board of appeals is governed by 30-A M.R.S.A. § 2691, which provides in part:
Any municipality establishing a board of appeals may give the board the power to hear any appeal by any person, affected directly or indirectly, from any decision, order, regulation or failure to act of any officer, board, agency or other body when an appeal is necessary, proper or required. No board may assert jurisdiction over any matter unless the municipality has by charter or ordinance specified the precise subject matter that may be appealed to the board and the official or officials whose action or nonaction may be appealed to the board. Any board of appeals shall hear any appeal submitted to the board in accordance with Title 28-A, section 1054.
30-A M.R.S.A. § 2691(4) (1996) (emphasis added).
[¶ 8] Section 10.01 of the Waterboro Zoning Ordinance establishes a Zoning Board of Appeals "to receive, hear, and decide appeals from interpretations of this ordinance and decisions of the officer, the Planning Board and/or the Selectmen, and all requests for variances...." (citations omitted). Various sections of the ordinance specifically provide that appeals may be made to the ZBA from decisions of the CEO granting or denying building or occupancy permits, decisions of the Planning Board approving or disapproving conditional use applications, and any decisions, final actions or failures to act of the Planning Board. In contrast, the enforcement provisions of the ordinance do not provide for an administrative appeal to the ZBA from a violation determination by the CEO, or in this case, the Board of Selectmen.
[¶ 9] To the extent that Section 13.022 authorizes an appeal to the ZBA from a violation determination by the CEO or Board of Selectmen, the ZBA's role in such an appeal is advisory in nature and not subject to judicial review. Cf. Pepperman v. Town of Rangeley, 659 A.2d 280 (Me.1995)
(). Although the ZBA's determination in an interpretation appeal under Section 13.02 is "final," as opposed to merely a "recommendation" as in Pepperman, and even though the CEO has a duty under the Waterboro Zoning Ordinance to issue a code enforcement order when a violation is found to exist,3 the Board of Selectmen has discretion in deciding whether to institute an enforcement action if a violator fails to comply with the CEO's order.4
[¶ 10] In this case, the Board of Selectmen never reached the enforcement stage because it determined that no violation existed, and the ZBA agreed. The only legal significance of the Superior Court's decision, therefore, was to provide a declaratory judgment on the issue of whether that violation determination was correct. Even if we were to affirm the Superior Court's decision finding error in the ZBA's legal analysis, the Board of Selectmen could still decide in their discretion not to bring an enforcement action against Foglio. See supra note 3; 30-A M.R.S.A. § 4452(1) (1996) (); cf. State v. Heald, 382 A.2d 290, 301 (Me.1978)
().
[¶ 11] Furthermore, 30-A M.R.S.A. § 4452(4) (1996), dealing with the enforcement of land use laws and ordinances, provides that "[a]ll proceedings arising under locally administered laws and ordinances shall be brought in the name of the municipality." The Herrles, therefore, would not have standing to initiate enforcement proceedings against Foglio even if it was determined that he was in violation of the ordinance. Cf. City of Houston v. Tri-Lakes Limited, 681 So.2d 104 (Miss. 1996)
().
[¶ 12] Because the ZBA's role in the administrative appeal from the Board of Selectmen's violation determination was purely advisory in nature, the ZBA's denial of the Herrles' appeal should not have been reviewed by the Superior Court. See Pepperman, 659 A.2d at 283
.
The entry is:
Judgment vacated. Remanded to the Superior Court with direction to dismiss the appeal.
[¶ 13] I respectfully dissent. Although I agree that the Waterboro Board of Selectmen retains discretion not to bring an enforcement action, I do not agree that a judicial determination as to the meaning of the Waterboro ordinance is therefore advisory and not a judicial function. The Waterboro ZBA exists, inter alia, "to receive hear, and decide appeals from interpretations of this ordinance...." WATERBORO ZONING ORDINANCE § 10.01. The Waterboro ordinance expressly provides that the ZBA's "interpretation of any word, phrase, or provision of this ordinance called in question shall be ... subject ... to judicial review." WATERBORO ZONING ORDINANCE § 13.02, supra...
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