Herrle v. Town of Waterboro
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	2001 ME 1
Docket:	Yor-00-161
Argued:	September 6,  2000
Decided:	January 4,  2001

Panel:	WATHEN, C.J., and CLIFFORD, RUDMAN, DANA, SAUFLEY, ALEXANDER, and
	CALKINS, JJ.
Majority:	WATHEN, C.J., and CLIFFORD, RUDMAN, ALEXANDER, and CALKINS, JJ.
Dissent:		DANA, and SAUFLEY, JJ.

ERIC HERRLE and DIANE HERRLE

v.

TOWN OF WATERBORO and DOUGLAS C. FOGLIO SR.

RUDMAN, J.

	[¶1]  The Town of Waterboro and Douglas C. Foglio Sr. appeal from a
judgment entered in the Superior Court (York County, Brennan, J.) vacating
the reconsidered decision of the Waterboro Zoning Board of Appeals (ZBA)
and reinstating an earlier decision by the ZBA.  In that earlier decision, the
ZBA determined that Foglio's gravel pit had lost its grandfathered status
through discontinuance and, therefore, required conditional use approval
prior to any further operation.  Because we conclude that the ZBA's role in
the administrative appeal was advisory in nature and not subject to judicial
review, we vacate the judgment of the Superior Court and remand with
instructions to dismiss the appeal.

I.  BACKGROUND

	[¶2]  Eric and Diane Herrle own property in Waterboro which is
located near a gravel pit owned and operated by Douglas C. Foglio Sr.  In
February 1999, the Herrles requested the Waterboro Code Enforcement
Officer (CEO) to initiate enforcement action against Foglio for operating a
gravel pit in the Agriculture and Residential Zone without first obtaining
conditional use approval as required by the Waterboro Zoning Ordinance. 
Because the CEO had a conflict of interest, he referred the request to the
Waterboro Board of Selectmen.  The Board of Selectmen declined to take
enforcement action against Foglio, concluding that the pit was
grandfathered.
	[¶3]  In March 1999, the Herrles filed an administrative appeal of the
Board of Selectmen's decision with the Waterboro Zoning Board of Appeals,
asserting that the Board of Selectmen had misinterpreted the ordinance and
Maine law in determining that the gravel pit was grandfathered.  The ZBA
considered the Herrles' appeal at a public hearing in May 1999.  The ZBA
determined that the gravel pit was a nonconforming use which had been
discontinued for a period in excess of one year; therefore, it had lost its
grandfathered status and could not be operated as a gravel pit without first
obtaining conditional use approval.  Based on these findings, the ZBA
determined that the conclusion of the Board of Selectmen was erroneous.
	[¶4]  At the request of the Board of Selectmen, the ZBA held a
rehearing in June 1999.  On reconsideration, the ZBA reversed its earlier
decision, finding that because the prior owners of the gravel pit had not
intended to discontinue the use of the gravel pit, it remained grandfathered. 
	[¶5]  Pursuant to M.R. Civ. P. 80B, the Herrles appealed.  The Superior
Court vacated the ZBA's reconsidered decision and reinstated the ZBA's
earlier decision.  The Court found that the ZBA erred as a matter of law in
basing its "discontinuance" determination on the subjective intent of the
prior pit owners, rather than the actual use of the property.  This appeal
followed.

II.  DISCUSSION

	[¶6]  The Town of Waterboro and Foglio argue that the ZBA lacked
jurisdiction to hear an appeal from a decision of the Board of Selectmen
concerning an enforcement decision.{1}  Although the ZBA had jurisdiction to
review the Board of Selectmen's violation determination, the ZBA's role was
advisory in nature and not subject to judicial review.
	[¶7]  30-A M.R.S.A. § 4353 (1996 & Supp. 2000) requires any
municipality which adopts a zoning ordinance to establish a board of appeals. 
The board of appeals is governed by 30-A M.R.S.A. § 2691, which provides in
part:

Any municipality establishing a board of appeals may give the
board the power to hear any appeal by any person, affected 
directly or indirectly, from any decision, order, regulation or
failure to act of any officer, board, agency or other body when an
appeal is necessary, proper or required.  No board may assert
jurisdiction over any matter unless the municipality has by
charter or ordinance specified the precise subject matter that
may be appealed to the board and the official or officials whose
action or nonaction may be appealed to the board.  Any board of
appeals shall hear any appeal submitted to the board in
accordance with Title 28-A, section 1054.

30-A M.R.S.A. § 2691(4) (1996) (emphasis added).
	[¶8]  Section 10.01 of the Waterboro Zoning Ordinance establishes a
Zoning Board of Appeals "to receive, hear, and decide appeals from
interpretations of this ordinance and decisions of the officer, the Planning
Board and/or the Selectmen, and all requests for variances . . . ." (citations
omitted).  Various sections of the ordinance specifically provide that appeals
may be made to the ZBA from decisions of the CEO granting or denying
building or occupancy permits, decisions of the Planning Board approving or
disapproving conditional use applications, and any decisions, final actions or
failures to act of the Planning Board.  In contrast, the enforcement
provisions of the ordinance do not provide for an administrative appeal to
the ZBA from a violation determination by the CEO, or in this case, the
Board of Selectmen.
	[¶9]  To the extent that Section 13.02{2} authorizes an appeal to the
ZBA from a violation determination by the CEO or Board of Selectmen, the
ZBA's role in such an appeal is advisory in nature and not subject to judicial
review.  Cf. Pepperman v. Town of Rangeley, 659 A.2d 280 (Me. 1995)
(holding that the ZBA's role in appeal from CEO's violation determination
was advisory in nature and not subject to judicial review when the ordinance
only authorized the ZBA to recommend that the CEO reconsider her
violation determination).  Although the ZBA's determination in an
interpretation appeal under Section 13.02 is "final," as opposed to merely a
"recommendation" as in Pepperman, and even though the CEO has a duty
under the Waterboro Zoning Ordinance to issue a code enforcement order
when a violation is found to exist,{3} the Board of Selectmen has discretion in
deciding whether to institute an enforcement action if a violator fails to
comply with the CEO's order.{4}
	[¶10]  In this case, the Board of Selectmen never reached the
enforcement stage because it determined that no violation existed, and the
ZBA agreed.  The only legal significance of the Superior Court's decision,
therefore, was to provide a declaratory judgment on the issue of whether
that violation determination was correct.  Even if we were to affirm the
Superior Court's decision finding error in the ZBA's legal analysis, the Board
of Selectmen could still decide in their discretion not to bring an
enforcement action against Foglio.  See supra note 3; 30-A M.R.S.A.
§ 4452(1) (1996) ("A municipal official . . . who is designated by ordinance
or law with the responsibility to enforce a particular law or ordinance . . .
may: . . . [i]ssue a summons to any person who violates a law or ordinance
. . ." (emphasis added)); cf. State v. Heald, 382 A.2d 290, 301 (Me. 1978)
(stating that "a reasonable prosecutorial discretion in the enforcement of
criminal laws is inherent in our criminal justice system . . .").
	[¶11]  Furthermore, 30-A M.R.S.A. § 4452(4) (1996), dealing with the
enforcement of land use laws and ordinances, provides that "[a]ll
proceedings arising under locally administered laws and ordinances shall be
brought in the name of the municipality."  The Herrles, therefore, would not
have standing to initiate enforcement proceedings against Foglio even if it
was determined that he was in violation of the ordinance.  Cf. City of Houston
v. Tri-Lakes Limited, 681 So.2d 104 (Miss. 1996) (holding that private
citizens do not have standing to initiate criminal proceedings for zoning
ordinance violations, only local governing authorities and the proper local
authorities of any county or municipality may initiate such proceedings).
	[¶12]  Because the ZBA's role in the administrative appeal from the
Board of Selectmen's violation determination was purely advisory in nature,
the ZBA's denial of the Herrles' appeal should not have been reviewed by the
Superior Court.  See Pepperman, 659 A.2d at 283.
	The entry is:
Judgment vacated.  Remanded to the
Superior Court with direction to dismiss
the appeal.
DANA, J., with whom SAUFLEY, J. joins, dissenting.

	[¶13]  I respectfully dissent.  Although I agree that the Waterboro
Board of Selectmen retains discretion not to bring an enforcement action, I
do not agree that a judicial determination as to the meaning of the
Waterboro ordinance is therefore advisory and not a judicial function.  The
Waterboro ZBA exists, inter alia, "to receive hear, and decide appeals from
interpretations of this ordinance . . . ."  Waterboro Zoning Ordinance § 10.01.
The Waterboro ordinance expressly provides that the ZBA's "interpretation
of any word, phrase, or provision of this ordinance called in question shall
be . . . subject . . . to judicial review."  Waterboro Zoning Ordinance § 13.02,
supra note 1 of the Court's opinion.  By contrast, in Pepperman v. Town of
Rangeley, 659 A.2d 280 (Me. 1995), we held that the Rangeley ordinance
did not provide for judicial review of a CEO's violation determination.  Id. at
281-82.
	[¶14]  When a municipality refuses to bring an enforcement action
because it believes that its ordinance has not been violated, we permit a
neighbor to challenge that legal (as distinguished from discretionary)
determination.  See, e.g., Richert v. City of South Portland, 1999 ME 179,
740 A.2d 1000 (successful appeal from a city's refusal to bring an
enforcement action because of the mistaken belief that the ordinance was
not being violated); Toussaint v. Town of Harpswell, 1997 ME 189, 698 A.2d
1063 (same).
	[¶15]  Courts in other jurisdictions recognize their responsibility in
this regard.  The Missouri Court of Appeals considered a case in which a
neighbor requested the Code Enforcement Officer to issue a stop order to a
game hunting facility that was using clay pigeons for target shooting.  Ode v.
Bd. of Zoning Adjustment of Platte County, 796 S.W.2d 81, 82 (Mo. Ct. App.
1990).  The CEO denied the request, and the Board of Zoning Adjustment
affirmed.  The circuit court vacated, holding that the activity violated the
special use permit that allowed only live bird hunting at the facility.  Id.  The
Missouri Court of Appeals affirmed, concluding that "[t]he Board's failure to
require enforcement of the limitations contained within the special use
permit granted [the game hunting facility] a de facto special use permit to
establish a shooting range to shoot clay pigeons."  Id. at 84.  Here, it could
be argued that the Board of Selectmen granted Foglio a permit to reestablish
an abandoned gravel pit.
	[¶16]  When the ordinance expressly provides that the ZBA's
interpretation of the ordinance is subject to judicial review, and the ZBA
bases its decision on an interpretation of the ordinance, there is clear
precedent for review of that interpretation.  The Court should, therefore,
review and correct the ZBA's interpretation and then remand for the Board
of Selectmen to determine whether to commence an enforcement
proceeding based on a legally correct interpretation of the ordinance.  See,
e.g., Richert, 1999 ME 179, ¶ 9, 740 A.2d at 1003.  I do not assume, as the
Court may, that the Board of Selectmen will not bring an enforcement action
when we inform it that the Foglio gravel pit violates the Town's ordinance.
	[¶17]  I would take the appeal and affirm the judgment of the Superior
Court.
                                             
Attorney for plaintiff:

John C. Bannon, Esq., (orally)
Murray Plumb & Murray
P O Box 9785
Portland, ME 04104-5085

Attorneys for defendants:

Kenneth M. Cole III, Esq., (orally)
Natalie L. Burns, Esq.
Jensen Baird Gardner & Henry
P O Box 4510
Portland, ME 04112
(for Town of Waterboro)

Michael H. Hill, Esq., (orally)
Thomas G. Leahy, Esq.
Monaghan, Leahy, Hochadel & Libby, LLP
P O Box 7046
Portland, ME 04112-7046
(for Douglas Foglio)

FOOTNOTES******************************** {1} . We acknowledge that in Toussaint v. Town of Harpswell, 698 A.2d 1063 (1997), an appeal from a Superior Court judgment vacating a decision of the Harpswell Zoning Board of Appeals, we vacated the judgment of the Superior Court and remanded for entry of judgment affirming the decision of the ZBA. Neither the authority of the ZBA nor the jurisdiction of the court was challenged in that case. {2} . Section 13.02 of the Waterboro Zoning Ordinance provides in relevant part: Interpretations of words, phrases, or specific provisions of this ordinance leading to the grant or denial of a necessary permit, the approval of [sic] disapproval of any proposal, or any other action or refusal to act by the Code Enforcement Officer, the Planning Board, or the Selectmen of the town may be appealed to the Zoning Board of Appeals by an aggrieved applicant whose request gave rise to the interpretation in question, by any property owner or resident of the town whose property is within one thousand (1000) feet of the lot line of the applicant's project site, or by any of the elected or appointed municipal officials or employees listed above. The Zoning Board of Appeals [sic] interpretation of any word, phrase, or provision of this ordinance called in question shall be final subject only to judicial review. {3} . Section 2.05 of the Waterboro Zoning Ordinance provides in part: Upon finding a violation of any statute, ordinance, regulation, or condition outlined above, the Code Enforcement Officer shall notify the violator of such fact and simultaneously issue a code enforcement order to the violator requiring immediate compliance with the particular provisions of law involved. The failure to comply with a code enforcement order will subject the violator to penalties, further orders, and possibly legal action as outlined in Sections 12.02 and 12.03. (Emphasis added). {4} . Section 12.03 of the Waterboro Zoning Ordinance provides: The Selectmen acting upon the recommendation of the Code Enforcement Officer, Planning Board, or the Zoning Board of Appeals may protect the public interest and the reasonable expectations of private landowners by ordering violators to cease and/ [sic] to remove any violating activity, use or structure and, if necessary, they may order the restoration of conditions in existence prior to the violation. If fees or double fees are not paid or if a Code Enforcement Order, or an order of the Selectmen is not complied with, the town may bring whatever legal, equitable, or injunctive action is necessary to compel the payment of established fees and to seek the imposition of appropriate fines as well as compliance with its orders. The costs of such proceedings shall also be imposed on the violator. (Emphasis added).