# Bond v. Town of Windham

> Superior Court of Maine · January 4, 2016

URL: https://www.frixlaw.com/law-library/cases/10811170

## Case

- **Court:** Superior Court of Maine
- **Decided:** January 4, 2016
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Judges:** Nancy Mills
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10811170. Public record. Not legal advice.