The opinion
STATE OF MAINE SUPERIOR COURT
CUMBERLAND, ss CIVIL ACTION
Docket No. AP-15-031
CHRISTOPHER A. BOND,
Plaintiff
V. ORDER ON MOTION TO DISMISS
STATE OF MAINE
TOWN OF WINDHAM, Cumberla nd ss Clerk 's Office
Defendant JAN O5 2016
REC t.::I VED
Before the court is defendant Town of Windham's motion to dismiss plaintiff
Christopher Bond's Rule SOB appeal challenging a notice of violation he received from
the Town of Windham's Code Enforcement Officer. For the following reasons, the
motion to dismiss is granted.
FACTS
Christopher Bond owns a 75-foot wide by 100-foot deep parcel located at 63
Libby Hill Road in Windham, Maine (Bond parcel). (Compl. <JI 3.) The Bond parcel abuts
Little Duck Pond and is located within the Limited Residential Shoreland Zone. (Id. <JI
4.) This zone has a setback requirement of 100 feet. (Id. <JI 5.) Because the Bond parcel is
only 100 feet deep, no structure could be constructed without a variance. (Id.) As a
result, plaintiff petitioned the Zoning Board of Appeals (Board) for a variance that
would allow him to construct a 16-foot by 20-foot structure, half of which is an open
platform and half of which is an enclosed shed. (Id. <JI<JI 6, 11.)
After hearing and a revised application and site plan, the Board granted a
variance for this structure on January 3, 2013. (Id. <JI<JI 7-12; Pl.'s Ex. B.) The variance
describes the structure as a "combined camping platform/ canoe storage structure" and
includes several conditions, including that plaintiff not make any changes to his revised
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application without Board approval. (Compl. <JI<JI 12, 15-18; Pl.'s Ex. B.) Plaintiff
subsequently applied for a building permit, which the Code Enforcement Officer (CEO)
approved. (Compl. <JI<JI 20, 22; Pl.'s Exs. C, E.) The structure was built and a woodstove
was installed in the shed. (Compl. <JI 23.)
On May 8, 2015, the CEO inspected the Bond parcel in response to a complaint
by a neighbor. (Id. <JI 24.) The CEO issued a notice of violation because he determined
that the woodstove impermissibly converted the structure to a cabin. (Id .; Pl.'s Ex. F.)
Plaintiff appealed the notice of violation to the Board on June 4, 2015 . (Compl. <JI 25; Pl.'s
Ex. G.) On June 25, 2015, the Board denied plaintiff's appeal because it determined that
the variance permitted only storage uses in the shed and only camping uses on the
platform. (Compl. <JI<JI 30, 32; Pl.'s Ex. H.) The woodstove therefore violated the variance
because it was located in the shed and was not a storage use. (Compl. <JI 32; Pl.'s Ex. H.)
PROCEDURAL HISTORY
Plaintiff filed his Rule SOB appeal on August 6, 2015. Defendant filed its motion
to dismiss on October 7, 2015 pursuant to M.R. Civ. P. 12(b)(l). Plaintiff filed an
opposition to defendant's motion on October 14, 2015. Plaintiff filed his Rule SOB brief
.
on October 15, 2015. Defendant filed a reply to plaintiff's opposition on October 16,
2015. Defendant filed its Rule SOB brief on November 13, 2015. Plaintiff filed his reply
brief on November 24, 2015.
DISCUSSION
1. Standard of Review
A motion to dismiss pursuant to M.R. Civ. P. 12(b)(l) challenges the court's
subject matter jurisdiction. M.R. Civ. P. 12(b)(l). "When a court's jurisdiction is
challenged, the plaintiff bears the initial burden of establishing that jurisdiction is
proper." Commerce Bank & Trust Co. v. Dworman, 2004 ME 142, <]I 8, 861 A.2d 662. The
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court makes no favorable inferences in favor of the plaintiff, as it does when reviewing
a motion to dismiss for failure to state a claim. Tomer v. Me. Human Rights Comm'n,
2008 ME 190, err 9, 962 A.2d 335. The court may rely on material outside the pleadings
without converting the motion to a motion for summary judgment. Gutierrez v .
Gutierrez, 2007 ME 59, err 10, 921 A.2d 153.
2. Jurisdiction over Notice of Violation Appeal
Defendant argues that the court lacks subject matter jurisdiction over plaintiff's
appeal because notices of violation are not appealable. (Def.'s Mot. Dismiss 1-4.)
Maine's statute governing boards of appeal provides in part:
Absent an express provision in a cHarter or ordinance that certain
decisions of its code enforcement officer or board of appeals are only
advisory or may not be appealed, a notice of violation or an enforcement
order by a code enforcement officer under a land use ordinance is
reviewable on appeal by the board of appeals and in turn by the Superior
Court under the Maine Rules of Civil Procedure, Rule SOB.
30-A M.R.S. § 2691(4) (2014). In Paradis v. Town of Peru, the Law Court held that
notices of violation are not appealable under the Town of Peru's ordinance. 2015 ME 54,
errerr 7-8, 115 A.3d 610. In Paradis, the petitioner appealed a notice of violation to Peru's
Board of Appeals. Id. errerr 2-3. The Board denied his appeal, and the petitioner appealed
to the Superior Court, which affirmed the Board's denial. Id. errerr 3-4. The Law Court
held that the trial court lacked jurisdiction because the Board had lacked jurisdiction to
consider the appeal. Id. <J[ 8. The Law Court based this conclusion, in part,' on section
, The Law Court also based its conclusion on the fact that the notice of violation in Paradis was sent before
30-A M.R.S. § 2691(4) as it currently reads went into effect. Paradis, 2015 ME 54, <j[ 7, 115 A.3d 610. At the
time the notice in Paradis w as sent, notices of violation were not appealable because the legislature had
not yet amended 30-A M.R.S. § 2691(4) to make them appealable unless a town provid ed otherwise. Id.
Although the amendment to 30-A M.R.S. § 2691(4) was in effect at the time the notice of violation was
sent in this case, that difference does not change the result because Paradis still holds that a court does
not have jurisdiction when the ordinance contains a prohibition on appeals of enforcement matters, as
defendant's ordinance does here.
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16(H)(l)(a) of Peru's ordinance, which, the Law Court determined, prohibited appeals
of notices of violation. Id. <J[ 6. That section grants the Board jurisdiction:
[T]o hear and decide administrative appeals on a de novo basis where it is
alleged by an aggrieved party that there is an error in any order,
requirement, decision or determination made by, or failure to act by, the
Code Enforcement Officer in his or her review of and action on a permit
application under this Ordinance. Any order, requirement, decision or
determination made, or failure to act, in the enforcement of this ordinance
is not appealable to the Board of Appeals.
Id. <J[<J[ 6-7; Peru, Me., Shoreland Zoning Ordinance§ 16(H)(l)(a) Gune 9, 2009).
The result in this case must be the same because defendant's ordinance contains
an identical provision. Section 199-16(I)(2)(a) grants the Board jurisdiction:
[T]o hear and decide administrative appeals on a de novo basis where it is
alleged by an aggrieved party that there is an error in any order,
requirement, decision or determination made by, or failure to act by, the
Code Enforcement Officer in his or her review of and action on a permit
application under this Ordinance. Any order, requirement, decision or
determination made, or failure to act, in the enforcement of this ordinance
is not appealable to the Board of Appeals.
Windham, Me., Shoreland Zoning Ordinance§ 199-16(I)(2)(a) CTuly 9, 2009).
Further, both ordinances include a separate provision reiterating that
enforcement matters are not appealable. See Peru, Me., Shoreland Zoning Ordinance §
16(H)(4)(a)(i) Gune 9, 2009) (" An administrative or variance appeal may be taken to the
Board of Appeals by an aggrieved party from any decision of the Code Enforcement
Officer or the Planning Board, except for enforcement-related matters as described in
Section 16(H)(l)(a) above."); Windham, Me., Shoreland Zoning Ordinance § 199-
16(~)(4)(a) Guly 9, 2009) (" An appeal of a decision made by the Code Enforcement
Officer, except for enforcement-related matters as described in Section 16(I)(2)(b) [sic]
above, must be filed within thirty (30) days of the date of the official written decision." ).
Plaintiff argues that the Law Court in Paradis found that the Town of Peru's
prohibition on appeals expressly includes notices of violation, whereas the defendant's
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ordinance does not. (Pl.'s Reply 2-3.) The Law Court cites to section 16(H)(l)(a) to
support its conclusion that the Town of Peru's prohibition on appeals expressly
includes notices of violation. Paradis, 2015 ME 54, CJICJI 6-7, 115 A.3d 610. Because that
section is identical to section 199-16(I)(2)(a) in defendant's ordinance, this court
concludes that section 199-16(I)(2)(a) also includes notices of violation. Moreover, both
ordinances provide that notices of violation come under the CEO' s enforcement
powers. See Peru, Me., Shoreland Zoning Ordinance§ 16(I)(2)(a) (June 9, 2009) ("It shall
be the duty of the Code Enforcement Officer to enforce the provisions of this Ordinance.
If the Code Enforcement Officer shall find that any provision of this Ordinance is being
violated, he or she shall notify in writing the person responsible for such violation
.... "); Windham, Me., Shoreland Zoning Ordinance§ 199-16(0)(2)(a) Guly 9, 2009) ("It
shall be the duty of the Code Enforcement Officer to enforce the provisions of this
Ordinance. If the Code Enforcement Officer shall find that any provisions of this
Ordinance is being violated, he or she shall notify in writing the person responsible for
such violation .. . ."). Therefore, section 199-16(I)(2)(a) also includes notices of violation,
and Paradis is not distinguishable on this ground.
Plaintiff also argues that section 199-16(I)(2)(a) does not apply because that
section applies only to the CEO's "review of and action on a permit application[.]" (Pl.'s
Reply 2.) However, the inclusion of that phrase does not mean that the entire section
relates only to permit applications. Indeed, the language in the last sentence of that
section makes clear that the prohibition on appeals of enforcement matters applies to
the entire ordinance, not just to permit applications. See Windham, Me., Shoreland
Zoning Ordinance § 199-16(I)(2)(a) Guly 9, 2009) (" Any order, requirement, decision or
determination made, or failure to act, in the enforcement of this ordinance is not
appealable to the Board of Appeals.") (emphasis added). Moreover, the Town of Peru's
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ordinance contained the same phrase, and yet the Law Court did not construe the entire
section as applying only to permit applications. Paradis, 2015 ME 54, <JI<JI 6-7, 115 A.3d
610; Peru, Me., Shoreland Zoning Ordinance § 16(H)(l)(a) 0une 9, 2009). Paradis
controls the result in this case because defendant' s ordinance is not distinguishable
from the Town of Peru's ordinance.
CONCLUSION
Section 199-16(I)(2)(a) of defendant's ordinance renders notices of violation not
appealable. This court lacks jurisdiction over plaintiff's appeal.
The entry is
Defendant Town of Windham's Motion to Dismiss is GRANTED.
Dated: January 4, 2016
Nancy Mills
Justice, Superior Court
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