Let’s talk about a recent decision that seems simple enough on the surface but appears to raise some thorny procedural questions. Day v. Phippsburg, 2015 ME 13.
The holding in this decision is straightforward enough – you can’t unmerge previously grandfathered nonconforming lots once merged. We all are supposed to be getting rid of nonconformance, so if an ordinance is ambiguous, you adopt the interpretation against intensifying or perpetuating the nonconformance. The Court’s interpretation of the ordinance seems logical to me.
My question goes to procedure, and how the plaintiff was able to come into court and get this ruling. This wasn’t an 80B action. This was a declaratory judgment action against the town. In 2012, a landowner obtained a “no action letter” from the Board of Selectmen regarding any zoning violation that might have occurred when the owner separated the lots. The Board said that it would not seek to enforce the ordinance, and would consider both lots to be lawful nonconforming lots. (P 6). The unhappy neighbor asked the Board for clarification, and the Board didn’t respond. The landowner then applied for a coastal and sand dune permit – those come from the DEP. In response, the neighbor filed this dj action, arguing that the lots weren’t grandfathered nonconforming lots as required to get the permit. Nothing in the decision explains what happened to the APA permitting application before the DEP.
My question is how does this get to be a dj action? The town said we’re not enforcing. Enforcement decisions are unreviewable, aren’t they? The sand dune permit could have been issued or not, and then been appealed under 80C, but that’s not what happened. It’s true that there was a linkage between the 80C permit and an interpretation of an ordinance – does this decision mean that in those circumstances, you can ask a court to interpret an ordinance, i.e., when to get a permit from a state agency, an interpretation of an ordinance would be useful?
Note that this isn’t a dj to obtain a judgment about a land dispute, like whether you have an easement over someone else’s land. There, it seems clear that you can file a dj when you need to establish right, title and interest as a predicate to seek a permit. Rather, this was asking for an interpretation of an ordinance outside of any local board proceeding or the state permitting proceeding.
And so now what?
If someone wants to build and just does it, with no permits or violating an ordinance, my understanding has always been that, then it’s up to the government to enforce. The neighbor’s only remedy is a nuisance action, and they would have to show reduction in market value of their property to win. It’s like a criminal statute – you can’t go to court and make a prosecutor enforce a law and arrest somebody.
Does this judgment prevent the town from exercising their no enforcement discretion like the Board of Selectmen wanted to? If so, then couldn’t anyone run into the court for a dj when they don’t like what the ceo is deciding not to enforce, undermining this whole prosecutorial discretion body of law?
Does this mean anyone can file a dj any time a ceo or town authority declines to enforce? So e.g., someone finds out after the fact that their house is an inch within a setback. Assume there would be no reduction in value for the neighbor, so no nuisance claim. Can the neighbor sue for a dj against the town and if the town doesn’t make the owner remove the house, go after the town for violating the judgment? It’s just a declaratory judgment, but generally speaking, you don’t have to get injunctive relief with your declaratory judgment because the courts say they assume governmental entities will obey, suggesting if they don’t, then you can come in for more relief. But if a court goes beyond a declaration of the law in this context into forcing town action, then don’t we tread upon the prosecutorial discretion?
In sum, I’m a little unclear now about (1) when you can come into court and get a declaratory judgment against a town to get a judicial interpretation of an ordinance outside of an administrative appeal; and (2) under what circumstances a dj can circumvent the prosecutorial discretion rule.
