Opinion
Civil Action AP-16-0034 AP-16-0035
05-16-2018
DANIEL RAPOSA, SUSAN RAPOSA, and JOSHUA GAMMON, d/b/a GAMMON LAWN CARE, Plaintiffs, v. TOWN OF YORK, Defendant, and PETER MARCURI, Party-in-Interest,
ATTORNEY FOR APPELLANT: SANDRA L. GUAY, ESQ. WOODMAN EDMANDS DANYLIK AUSTIN ATTORNEY FOR APPELLEE INHABITANTS OF THE TOWN OF YORK MARY COSTIGAN, ESQ. ATTORNEY FOR PARTY-IN-INTEREST MATTHEW HOWELL, ESQ. CLARK & HOWELL ATTORNEY FOR APPELLANT MATTHEW HOWELL, ESQ. CLARK & HOWELL ATTORNEY FOR APPELLEE INHABITANTS OF THE TOWN OF YORK: MARY COSTIGAN, ESQ. ATTORNEY FOR PARTIES-IN-INTEREST: SANDRA L. GUAY, ESQ. WOODMAN EDMANDS DANYLIK AUSTIN
ATTORNEY FOR APPELLANT: SANDRA L. GUAY, ESQ. WOODMAN EDMANDS DANYLIK AUSTIN
ATTORNEY FOR APPELLEE INHABITANTS OF THE TOWN OF YORK MARY COSTIGAN, ESQ.
ATTORNEY FOR PARTY-IN-INTEREST MATTHEW HOWELL, ESQ. CLARK & HOWELL
ATTORNEY FOR APPELLANT MATTHEW HOWELL, ESQ. CLARK & HOWELL
ATTORNEY FOR APPELLEE INHABITANTS OF THE TOWN OF YORK: MARY COSTIGAN, ESQ.
ATTORNEY FOR PARTIES-IN-INTEREST: SANDRA L. GUAY, ESQ. WOODMAN EDMANDS DANYLIK AUSTIN
ORDER ON PLAINTIFFS' MOTION TO ALTER OR AMEND THE JUDGMENT
John O'Neil, Jr. Justice
I. BACKGROUND
The instant consolidated cases arise out of a decision of the Town of York's Code Enforcement Officer ("CEO") finding no land use violations existed on property owned by plaintiff Joshua Gammon. On January 26., 2018 the court issued an Order dismissing die cases for lack of jurisdiction.
On February 2, 2018, plaintiffs Daniel and Susan Raposa filed a Motion to Alter or Amend the Judgment, arguing that the court did have jurisdiction, that the defendants did not preserve the argument on appeal, and that the Board of Appeals properly heard the appeal from the CEO's determination. (Pl.'s Mot. 2.)
II. STANDARD OF REVIEW
Pursuant to Rule 59(e), a party may move to alter or amend a judgment no later than 14 days after its entry. M.R. Civ. P. 59(e). The court has the discretion to alter or amend a judgment "when convinced it was erroneous, and substitute the proper judgment in its place." Most v. Most, 477 A.2d 250, 258 (Me. 1984) (citations omitted). Thus, the court may alter a judgment to either correct a mistake of fact or lawor simply to reach a more just result. Id.
III. DISCUSSION
a. Subject Matter Jurisdiction to Review the Board's Decision
In their motion to alter or amend the judgment, plaintiffs cite to Lakeside at Pleasant Mi. Condo. Ass'n v. Tmm of Bridgton, 2009 ME 64, ¶ 7, 974 A.2d 893 for support of their argument that the court has jurisdiction to hear the cases. In Lakeside, a condominium association requested that the Town's CEO investigate whether a neighboring inn was violating the Town's Shoreland Zoning Ordinance by making commercial use of a float located in an area zoned for residential and recreational development only. Id., ¶ 7. The CEO found no violation and the condominium association appealed to the Town's Board of Appeals, who affirmed the CEO's determination. Id. ¶¶ 7-8. The plaintiff then Filed a complaint in the Super Court under Rule SOB and subsequently appealed the court's decision to the Law Court. Id. ¶ 8.
Although the case does not address jurisdiction;, plaintiffs argue that the courts review of the CEO and Board's decision in Lakeside indicates that it has jurisdiction to review the present decision.
The court is unpersuaded by this argument. The issue of this court's jurisdiction is not addressed hi Lakeside. As discussed in this court's previous order, the Law Court affirmed its decision in Herrle v. Town of Waterboro, 2001 ME 1, 763 A.2d 1159 holding that this court lacks jurisdiction to review such decisions in Farrell v. City of Auburn, 2010 ME 88, 3 A.3d 385, which was decided after the Lakeside decision. Additionally, the court notes that the Superior Court (Cumberland County, Norton, J.) recently reached the same decision as this court in Bowditch v. Town of Sebago, No. CUMSC-AP-16-16, 2016 Me. Super. LEXIS 177 (August 29, 2016), a copy of which plaintiffs attached to their motion. In Bowditch, the court likewise concluded that it lacked jurisdiction over a Board of Appeals decision which overturned a CEO's determination that an ordinance was not violated and refusal to bring an enforcement action. Id. at *3-4. After examining Herrle, Farrell, and 30-A M.R.S. § 2691(4), the court concluded that it lacked jurisdiction and declined to hear the appeal, stating:
[T]he determination whether to initiate any actual enforcement action, as opposed to a notice of violation and accompanying order, rests with the [Selectmen], not the CEO. Moreover, if judicial review is available in this case, it would be of the [Board of Appeals] decision, not the CEO's decision directly. The [Board's] decision is still advisory as far as any enforcement action is concerned, and therefore is not subject to judicial review.
Likewise, the fact that the CEO's decision not to issue a notice of violation was based on what the Plaintiffs [sic] claim is an incorrect reading of the Ordinance does not change the outcome. The rule of Herrle does not allow the court, hi deciding whether judicial review is available, to examine the reasoning underlying a municipal decision not to initiate enforcement action. To examine the reasoning behind the decision would be to conduct judicial review, A municipal decision either is subject to judicial review or is not. The [Board's] decision in this case is not.Id. at* 16.
Given prior Law Court precedent and the Superior Court's recent decision in Bowditch, the court reaffirms its holding that it Jacks jurisdiction to review the instant decision and declines to alter or amend the judgment on this ground, b. Whether the Issue of Jurisdiction Was Preserved
Next, plaintiffs argue that even if the court lacks jurisdiction, defendants failed to preserve this issue on appeal by raising it before the Board of Appeals. Again, plaintiffs cite to Lakeside for support. In Lakeside, the court discussed:
On appeal, both the Town and Shawnee Peak raise issues that were not raised before the Board of Appeals. Shawnee Peak argues that [Board] did not have jurisdiction to hear Lakeside's appeal of the[CEO's] decision because the Town's Shoreland Zoning Ordinance does not specifically give the Board jurisdiction to hear appeals of enforcement actions and because Lakeside does not meet the definition, of aggrieved party because no permit or variance was granted for the float. Shawnee Peak also argues that Lakeside's appeal to the Board was untimely. Additionally, the Town argues that Lakeside's Rule 80B appeal should have been denied because the swim float is not a "land area," and, therefore, the Town's Shoreland Zoning Ordinance did not even apply. Because Shawnee Peak and the Town did not raise these issues before the Board, the issues are unpreserved and we do not address them.Lakeside, 2009 ME 64, ¶ 14 n.2, 974 A.2d 893 (citation omitted).
Although it Is well-established that parties can fail to preserve arguments by not raising them at earlier stages of proceedings, defendants needed not raise the issue of this court's appeal at before the Board because it was not ripe for resolution at that stage. Thus, the court finds that the issue of jurisdiction did not need to be raised before the Board and declines to alter or amend the decision on this basis.
c. Whether the Board Properly Heard the Matter
Finally, plaintiffs argue that the Town's Board of Appeals properly heard and decided the appeal from the CEO's refusal to find a violation of the Town's Ordinance. (Pl.'s Mot. 4.) This challenge is off-base. In its January 26 Order, the court did not address whether the Board had proper jurisdiction to address the appeal below; it only determined that it lacked jurisdiction to hear the appeal to this court. Again, die court reaffirms its conclusion that it lacks jurisdiction to hear the present case, notwithstanding whether or not the Board had jurisdiction to address it below, Consequently, plaintiffs' motion to alter or amend the judgment is denied.
IV. CONCLUSION
For the reasons set forth above, this court lacks jurisdiction to review this action. Plaintiffs5 motion to alter or amend the judgment is denied. The clerk shall make the following entry on the docket;
Plaintiffs' motion to alter or amend the judgment is hereby DENIED.
SO ORDERED.