arguing that illegally issued permits should be subject to collateral attack, regardless of the appeals period
How later courts described this case
- arguing that illegally issued permits should be subject to collateral attack, regardless of the appeals period
Written by the judges who cited it.
The opinion
ALEXANDER, J.,
concurring.
[¶ 26] I concur in the result, however, I would not apply the good cause exception to extend the time period for the Bracketts to file their appeal. Consideration of the good cause exception would be appropriate only if the permits were facially valid, having been issued by the proper permitting authority, the Planning Board. The permits here were ultra vires acts of a person with no more authority to issue the permits than possessed by the local dog catcher.
[¶ 27] When a public officer or agency exceeds its statutory authority or proceeds in a manner not authorized by law, its resulting orders, decrees or judgments are null and void and may be attacked collaterally. See Small v. Gartley, 363 A.2d 724, 729 (Me.1976). 6 Such a void action may be attacked even after the time for appeal has expired. Clough v. Newton, 160 Me. 301, 307 , 203 A.2d 690, 693 (1964).
[¶ 28] All citizens, including permit applicants and local code enforcement officers, are charged with knowledge of the law, including local ordinances. See City of Auburn v. Mandarelli, 320 A.2d 22, 30 (Me.1974). The construction permits, not issued by the proper authority, the Planning Board, were void the day they were issued and do not gain any validity with the passage of time. Such a void permit is subject to challenge at any time by an objecting abutter or by the town in an enforcement or a cease and desist action. See Shackford & Gooch, Inc. v. The Town of Kennebunk, 486 A.2d 102, 106 (Me.1984) (the unauthorized approval of a local building inspector cannot be grounds for estop-ping a municipality from enforcing violations of its zoning ordinance).
[¶ 29] Keeping illegal building activity from neighborly or public scrutiny, even where it may occur with the complicity of a code enforcement officer, does not grant the illegal activity immunity from appeal or enforcement as soon as some appeal period — for permits issued by another municipal body — runs. Neither the Bracketts nor the Town, nor any other individual with standing needs a good cause exception to the time for appeal to bring their challenge to these void permits.
[¶ 30] A person with a void permit issued as a result of an ultra vires act by a municipal official, if he or she is essentially blameless and has acted in detrimental *431 reliance on the permit, may assert a defense of equitable estoppel to any enforcement or removal action. See City of Auburn v. Desgrosseilliers, 578 A.2d 712, 714-16 (Me.1990). However, such a defense may not apply here if Sears was aware that he was violating the law, or if, as the record appears to indicate, Sears built in violation of the invalid permit issued to him by the code enforcement officer.
[¶ 31] Accordingly, I would vacate the judgment of the Superior Court and remand to the Superior Court with direction to declare the permits at issue void.
. In Small , we stated:
We agree that, if a public agency exceeds its statutory powers or, even in matters over which it has jurisdiction, proceeds in a manner unauthorized by law, its orders, decrees and judgments may be attacked collaterally as null and void, but, if within the periphery delimited by the legislative power grant, such orders, decrees and judgments, when unreversed or unmodified in the manner provided by the pertinent legislation, have the effect of final judgments, and they cannot be attacked before a judicial forum