The opinion
STATE OF MAINE SUPERIOR COURT
CIVIL ACTION
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YORK, ss.
KEVIN W. MARTELL,
Plaintiff
v. ORDER AND DECISION
INH. TOWN OF LIMINGTON,
et al.,
Defendants
Kevin Martell is the owner of real estate located near South Road in Limington.
In 2005 he applied for a growth permit and was informed by the then Code
Enforcement Officer, in a letter of August 9, 2005, that his application was denied as he
had created an illegal subdivision. The letter concluded by stating, "If you do not agree
with this decision, your next step would be taking this matter to court yourself. The
Limington Appeals Board cannot hear subdivision cases. Please let me know if you
have any questions regarding this matter." No appeal was taken.
On August 22, 2006 Mr. Martell signed a new growth permit application for the
same property. That application was denied, without explicitly stating so, by the
current Code Enforcement Officer. A more explicit denial letter was signed on October
18, 2006. Mr. Martell promptly appealed the explicit denial to the Limington Board of
Appeals which, after hearing, denied his appeal since it was thought to be an untimely
appeal from the August 9, 2005 decision. An appeal to this Court followed.
The central question in this appeal is whether the lack of a timely appeal from
the August 9,2005 denial letter prohibits a new application.
In Town of Freeport v. Greenlaw, 602 A.2d 1156 (Me. 1992) a restaurant owner
received a letter dated April 24, 1990 from the Code Enforcement Officer instructing
him to remove picnic tables which were thought to violate a municipal ordinance. No
appeal was taken from that letter. In later litigation the Town argued that Greenlaw
could not raise an issue of the grandfathered status of the tables because he had not
appealed the directive to remove the picnic tables given to him in the April 24, 1990
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letter/' at 1159. The Law Court determined that the question of whether he could raise
his defense in the Superior Court was II ••• really a matter of issue preclusion based upon
principles of administrative res judicata," at 1160.
In a detailed analysis at pages 1160-1161, the Law Court referred to case law, the
Restatement (Second) ofJudgments, and, by analogy, the Maine Administrative Procedure
Act to " ... provide a reasonable guide as to what a notice should contain in order to
trigger the application of administrative res judicata," at 1161. The notice "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," at 1161.
Since the letter of August 9, 2005 incorrectly informed Mr. Martel where his
appeal should be taken and failed to inform him of the consequences of the failure to
appeal he should not be denied the right to now appeal. While it was correct that the
Board of Appeals does not hear subdivision cases, the Planning Board does, the advice
was incorrect as the Board of Appeals does hear appeals from decisions,such as the one
to deny a growth permit, that are made by the Code Enforcement Officer.
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The entry is:
Notice of Decision of the Limington Board of Appeals of December 8, 2006
is reversed. This matter is remanded to the Limington Board of Appeals
for a hearing on the merits of Kevin Martell's appeal.
Dated: August 10, 2007
Justice, Superior Court
PLAINTIFFS:
David R. Ordway, Esq.
SMITH ELLIOTT SMITH & GARMEY
PO BOX 1179
SACO ME 04072
DEFENDANTS:
James B. Haddow, Esq.
PETRUCCELLI MARTIN & HADDOW
PO BOX 17555
PORTLAND ME 04112-8555
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