The opinion
STATE OF MAINE SUPERIOR COURT
HANCOCK, ss DOCKET NO. AP-2009-15
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TERRENCE O'CONNELL
Plaintiff
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BAR HARBOR BOARD OF APPEALS COURTS
DECISION AND ORDER
This matter is before the Court on an appeal from the
Plaintiff of a decision by the Bar Harbor Board of Appeals
affirming the decision of the Code Enforcement Officer to
withdraw a Notice of Violation. The Decision suggests that
the Code Enforcement Officer (CEO) had made a preliminary
decision that a Bar Harbor resident was operating a
commercial kennel as defined by the Bar Harbor Land Use
Ordinance (hereinafter LUO) , and the CEO issued a Notice of
Violation with respect to the apparent operation of a
commercial kennel. The Decision further suggests that a
subsequent investigation led the CEO to conclude that her
initial decision was wrong and the CEO withdrew the Notice
of Violation and elected not to prosecute the resident for
operating a commercial kennel.
The Plaintiff appealed the decision of the CEO to
withdraw the Notice of Violation to the Bar Harbor Board of
Appeals. The Board of Appeals dismissed the appeal
concluding that the UCEO's decision not to prosecute the
neighbor for operating a commercial ke~nel is not an
appealable decision..,u.
The Law Court decided this issue in 2002 and more
recently in 2009. In Salisbury v. Town of Bar Harbor 2002
ME 13, ~11, 788 A.2D 598, 601, the Law Court made it clear
that the court is precluded from intruding uinto municipal
decision-making when a municipality decides whether or not
to undertake and enforcement action." In Moore v. Town of
Bar Harbor, 2009 Me. Unpub. LEXIS 3, the Law Court directed
that U(b)ecause the CEO's determination to undertake an
1
investigation is discretionary, it is not an appealable
decision."
As the Board noted in the O'Connell decision
dismissing the appeal, Mr. Moore in his case filed a
complaint with the CEO alleging a LUO violation by a third
party but the CEO declined to prosecute the matter (Record
at pg. 4). In the O'Connell matter, Mr. O'Connell is
seeking a chance to contest the CEO's decision not to
prosecute a citizen who Mr. O'Connell feels is operating a
commercial kennel. THAT decision is precisely the type of
decision that the Law Court identified as being
'discretionary' on the part of the CEO and "not appealable"
to the Board of Appeals or this Court.
This Court is satisfied that the actions of the CEO in
deciding not to undertake an enforcement action in the form
of prosecuting a Notice of Violation, falls within the
sound discretion of the Code Enforcement Officer and
nothing provided in the Record on Appeal compels a
different conclusion. For the reasons stated the 80 B
ed6. :."
appeal in this matter filed by and on behalf of Mr.
O'Connell is denied and the matter is. ad~is
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May 6, 2010
Kevin M. Cuddy
Justice, Superior c~rt
2
Date Filed 12/23/2009
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HANCOCK Docket No. AP-2009-15- A
County
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RULE 80B APPEAL
ASSIGNED TO JUSTICE KEVIN M. CunDY
TERENCE O'CONNELL BAR HARBOR BOARD OF APPEALS
vs.
Plaintiff's Attorney Defendant's Attorney
LYNNE WILLIAMS LEE K. BRAGG. ESQ
13 ALBERT MEADOW AMANDA A. MEADER. ESQ
BAR HARBOR ME 04609 BERNSTEIN SHUR
146 CAPITOL STREET
POBOX 5057
AUGUSTA. ME 04332-5057
Date of
Entry
12/23/09 Review of Governmental Action ME R Civ. P. 80B Filed.
1/20/10 Notice and Briefing Schedule filed.
Plaintiff's Brief is due 40 days (from 1/20/2010).
Defendant's brief due 30 days after service of brief by plaintiff.
Plaintiff has 14 days after service of brief by Defendant for reply brief.
Copy forwarded to all attorneys/parties of record.
3/1/2010 Appearance of Lee K. Bragg. eSq and Amanda A. Meader. Esq for Bar Harbor
Board of Appeals.
The Town Does not anticipate filing a brief or participating in the hearing
in this action.
3/1/2010 Memorandum of Law filed by Plaintiff.
3/1/2010 Memorandum of Law filed by plaintiff
4/16/2010 Oral Argument on 80B Appeal scheduled for 5/4/2010 at 10:30 a.m. Copy
forwarded to all attorneys/parties of record.
5/4/2010 Oral Argument on 80B Appeal Held. Justice Kevin M. Cuddy Presiding.
Electronic Recording Tape No. 1244. Index 2609-3380. Margaret Costain
Courtroom Clerk. Lynne Williams Esq for Plaintiff. No appearance
for Defendant. After Hearing. Decision reserved. order to issue.
5/6/2010 Decision and Order: (Cuddy. J). For the reasons stated: The 80B
Appeal in this matter filed by and on behalf of Mr. O'connell is
Denied and the matter is dismissed. Copy forwarded to all attorneys
of record and to the reporter of decisions.
5/6/2010 Appeal Denied/Dismissed
ATRUE~ ....1./ •
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Attest~~~::::;~~---;-;:;-"==---tOT--
~ Clerk of Courts