Bisbing v. Town of Cumberland

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BIsbmg v. Town of Cumberland, AP-10-8 (Supenor Ct. Cumberland)

JUN r.:,n·\ . 2010

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Before the court is plaintiffs' appeal from a decision of thel1~-n;b~il~~JB~~rd of

Appeals.

In January 2009 plaintiff Susan Bisbing complained to the Town that a

neighboring couple, Daniel and Victoria Brouder, were not operating their home

business in compliance with the Town's prior conditional approval of the Brouders'

home occupation under the Cumberland zoning ordinance. On August 25, 2009 the

Town's code enforcement officer issued a written decision finding no violations or

noncompliance with the Town's prior conditional approval: "The existing use appears

to be consistent with the approval and meets all the 'Special Exception' cri teria." R.3.

The code enforcement officer's decision stated that Ms. Bisbing had the right to

appeal the decision under section 603.4 of the ordinance. Id.

Ms. Bisbing and her husband then appealed the decision to the Cumberland

Board of Appeals. In January 2010 the Board dismissed their appeal on the ground that

a decision not to enforce the ordinance was not an appealable decision within the

meaning of sections 603.2.1 and 603.4 of the ordinance (R. 44, 49).

After the Board declined to reconsider a request by the Bisbings to reconsider its

dismissal of their appeal, the Bisbings appealed the Board's decision to this court

pursuant to M.R.Civ.P. 80B.

This case therefore turns on a relatively narrow legal issue - whether a decision

by the code enforcement officer that no violation has occurred is an appealable decision

under the Cumberland ordinance. The backdrop of this case consists of several Law

Court opinions on the appealability of decisions by code enforcement officers finding

violations or determining that no violations existed. One of those opinions held that a

decision by the Rangeley Board of Appeals upholding the finding of a violation by the

code enforcement officer was an advisory decision that was not subject to judicial

review. Pepperman v. Town of Rangeley, 659 A.2d 280, 282-83 (Me. 1995). Another

decision held that a decision by the Waterboro Board of Appeals that a gravel pit

retained its grandfathered status was also advisory and not subject to appeal. Herrle v.

Town of Waterboro, 2001 ME 1 crr9, 763 A.2d 1159, 1161.

In this case the Bisbings argue that under the Cumberland ordinance, they had a

right to appeal the code enforcement officer's decision finding no violation to the Board

of Appeals. They also argue that the prior decisions of the Law Court were in the

context of ordinances where the towns had discretion to decide whether or not to bring

enforcement actions, see Herrle, 2001 ME 1 crr9, 763 A.2d at 1161, and they contend that

no such discretion exists under the Cumberland ordinance.

The court disagrees with the latter contention. The Cumberland ordinance

provides in section 607.2 (R. 51) that the code enforcement officer shall issue a warning

in the event that a violation is found and that if the warning does not result in

correction or abatement,

[t]he Town Council, upon notice from the Code Enforcement

Officer, shall institute or cause to be instituted in the name of

the Town, any and all actions legal and equitable, that shall

be appropriate or necessary for the enforcement of the

provisions of this Ordinance.

(emphasis added). This provision necessarily gives the town discretion to determine

what enforcement actions are "necessary or appropriate." A contrary interpretation

would deprive the Town of its inherent prosecutorial discretion. See Herrle, 2001 ME 1

9IlO, 763 A.2d at 1161-62.

However, just because the Town would have the discretion to decide whether to

bring an enforcement action if a violation were found does not mean that the Bisbings

are not entitled to appeal the code enforcement officer's decision in this case to the

Cumberland Board of Appeals. On this issue Peterman and Herrle do not necessarily

support the Town's position because both of those cases involved situations where a

municipal appeal had already been taken and the issue was whether a further appeal

could be taken to the Superior Court.

Whether the Bisbings can appeal depends on whether the Board correctly

concluded that an appealable "decision" within the meaning of sections 603.2.1 and

603.4 of the ordinance does not include "a non-enforcement decision" by a code

enforcement officer. See R.31. On an 80B appeal, interpretation of a local ordinance is a

question of law that is subject to de novo review. Isis Development LLC v. Town of

Wells, 2003 ME 149 err 3, 836 A.2d 1285, 1287. In the court's view, the Cumberland

ordinance makes all decisions of the code enforcement officer appealable and does not

draw a distinction between enforcement decisions (or non-enforcement decisions) and

other decisions. Thus, even though future Board action on the Bisbings' appeal may be

advisory in nature and may not be subject to further judicial review, see Herrle, 2001

ME 1 9[6, 763 A.2d at 1160/ the Bisbings have the right to take an appeal as stated in the

code enforcement officer's decision.

The Town could amend its ordinance to provide that a decision by a code

enforcement officer not to take action on a neighbor's complaint is not appealable. See,

e.g., Brunswick ordinance quoted in Adams v. Town of Brunswick, 2010 ME 7 '1[7, 987

A.2d 502, 506. However, absent such language or any other language limiting the kind

of decisions that are appealable, the code enforcement officer's August 25, 2009 decision

in this case was an appealable decision under section 603.4.

The entry shall be:

The January 14, 2010 decision of the Cumberland Board of Appeals dismissing

plaintiff's appeal is reversed. The Clerk is directed to incorporate this order in the

docket by reference pursuant to Rule 79(a).

1 Notably, the Law Court found that the ZBA's decision in Herrle was adVisory in nature even

though the Waterboro zoning ordinance did not contain any language to that effect. See 2001

ME 1!]!9, 763 A.2d at 1161 (comparing language in Waterboro ordinance to the

"recommendation" language at issue in Peterman).

Dated: June 2. f , 2010

Thomas D. Warren

Justice, Superior Court

Date Filcd 02-12-10 ~BERl.A=N=D _ Dock e t No. _ _",-,A~P_-_",1""0_--",0-,,,8,---------,

County

Action __~8""-0"-,<B_A~p.£'p-'oe-,,,,a==1_

SPENCE BISBING TOWN OF CUMBERLAND

SUSAN BISBING

vs.

/--------------------------,,---------------------­

Plaintiff's Attorney Defendant's Attorney

DAVID M. HIRSHON, ESQ. KENNETH COLE ESQ

MARSHALL J. TINKLE, ESQ. NATALIE BURNS ESQ

THMPKINS, CLOUGH, HIRSHON & LANGER, P.A.

THREE CANAL PLAZA, PO BOX 15060

PORTLAND, ME 04112

l),ltc of

Entry

2010

Feb. 18 Received February 12, 2010.

Complaint Pur5uant to M.R. Civ.P. 80B filed.

Feb 18 Received February 17, 2010.

Entry of Appearance of Kenneth M. Cole III, Esq. and Natalie L. Burns, Esq.

abo Town of Cumberland filed.

Feb. 19 Received 2-19-10.

Waiver and acceptance of service filed showing service on Town of

Cumberland to Kenneth cole, Esq.

Mar. 19 Received 3-19-10.

Plaintiff's brief and record filed.

Apr 15 Received 4/15/10

Defendant's Rule 80B Brief filed.

Apr 23 Received 4/23/10

Plaintiff's 80B reply brief filed.

Apr 27 Rec. 4/27/10

Justice T.D. Warren

On April 26, 2010 the court received from the clerk's office and

took under advisement the appeal in the above-captioned case.

If the court determines that oral argument is appropriate,

counsel will be advised as to the date and time.

Under advisement order issued.

Copies mailed to all parties 4/30/10

June 15 On 6/11/10.

Telephonic Conference held.

Warren, J. Presiding, no recording. Marshall Tinkle, Esq for Plainti(f

and Natalie Burns Esq. for Defendant

" " Order en Telephonic conference entered. Copies to parties/counsel 6/15/10.