Opinion

Blasco v. Town of Southport

Court
Superior Court of Maine
Filed
Feb 22, 2017
Status
Unpublished
On the bench
Daniel I. Billings
Cited by
0 cases

The opinion

STATE OF MAINE SUPERIOR COURT

LINCOLN, SS. CIVIL ACTION

Docket No. AP-2016-3

DIANE BLASCO, )

Plaintiff, )

)

)

v. ) ORDER

)

)

TOWN OF SOUTHPORT, )

Defendant. )

Pending before the Court is the Plaintiff's 80B appeal of a Notice of Violation

("NOV") issued by the Code Enforcement Officer ("CEO") of the Town of Southport.

Section 7(B)(l)(a) of the Southport Land Use Ordinance provides that 1 "all

enforcement actions taken by the [CEO] pursuant to Section 2.H ... may be appealed by

an aggrieved party only to the Superior Court pursuant to Rule 80.B of the Maine Rules

of Civil Procedure." The parties and court are in agreement that the Notice of Violation

at issue in this matter is an enforcement action taken by the CEO pursuant to Section

2.H of the Southport Land Use Ordinance.

In 2013, the Maine Legislature enacted a statutory amendment providing for

review of NOVs:

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 80B.

30-A M.R.S. § 2691(4).

Under Section 2691(4), NOVs are appealable to a board of appeals and then

Superior Court unless the municipal ordinance states that they are "only advisory or

may not be appealed."

Section 7(B)(l)(a) of the Southport Land Use Ordinance does not state that

decisions of the CEO are only advisory or may not be appealed, but it attempts to allow

appeal a£ CEO decisions directly to Superior Court. This is inconsistent with

mandatory provisions of Maine law. A binding notice of violation issued by a CEO

under a land use ordinance, which may be appealed under provisions of a municipal

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ordinance, must be reviewable first by the board of appeals and only then, in turn, may

an appeal be brought to Superior Court.

Therefore, this matter is REMANDED to the Southport Board of Appeals and the

Board of Appeals is ORDERED to consider the Plaintiff's appeal as required by 30-A

M.R.S. § 2691(4).

The Clerk is directed to incorporate this Order by reference into the docket for

this case, pursuant to Rule 79(a), Maine Rules of Civil Procedure. r :

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Dated: February 22, 2017

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-JUSCE, ~INE SUPERIOR COURT .

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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