is timing everything?


Last week the Maine SJC decided another 80B case, so of course I must blog on the same:  Adams v. Town of Brunswick, 2010 ME 7, majority opinion by Justice Mead, Justice Jabar dissenting:

Basically, Brunswick has ordinances the spirit of which I think it's safe to say is to prevent Bowdoin students from piling into off-campus housing like a bunch of gerbils.  Justice Jabar thought there was enough language in the ordinances to achieve that anti-gerbilizing objective in the particular context presented (leasing a house divided into two apartments to a total of 11 students); the majority thought such language was lacking.  That aspect of the opinion provides a good example of how the Court parses ordinances and more specifically the use of the "family" concept, the modern version of which, for various reasons, most ordinances do not focus on the need for blood relations.

But the aspect of the decision that has a more universal application is the court's discussion of the difference between an appealable decision on the merits, interpreting whether a use fits the ordinance, and an unappealable decision to enforce or not enforce the ordinance, so interpreted.

In May 2007, the neighbors learned the gerbils were coming -the owners leased the first apartment to 6 students beginning September and 5 students to the other apartment in the same time frame.  After their discovery, the neighbors contacted the CEO, and on May 30, the CEO issued an opinion that it was an allowed use, then appealed to the ZBA.  The ordinance recited that the ZBA has authority "to hear and decide appeals where it is alleged there is an error in any order, requirement, decision or determination made by the" CEO.  The ordinance also expressly recited that whenever anyone files a complaint with the CEO that the ordinance "is being" violated, the CEO shall examine the complaint and if he declines to take action than neither that non-action "nor any written record or report on the complaint" constitutes an appealable order, requirement, decision or determination.

So was the CEO's conclusion an appealable decision or an unappealable declination to take action?  The SJC ruled it was the former, for two reasons.  First, it said that because the ordinance gave the CEO prosecutorial discretion when a complaint is filed asserting that the ordinance "is being" violated, and the students hadn't moved in yet, so the Ordinance was just going to be violated, this made a difference.  So one takeaway from this decision is if you find out about the violation before it occurs, that apparently is relevant, at least under the language of this ordinance.

Second, the SJC deemed the CEO's memorandum "an advisory opinion, not a decision declining to take an enforcement action, because absent a violation occurring at that time there was nothing to enforce."  While this is couched in terms of a second point, it's really related to the first point – if it hasn't happened yet, there's nothing to exercise discretion about.  The language of the court's reasoning on this second point, however, I think is infused with a separate concept, focusing on the contents of the memo.  Because the violation hadn't occurred yet, the CEO's language in his memo was all and only about whether the use was allowed under the ordinance.

I will be interested in seeing how this ruling works in application.  For example, from one perspective, the timing issue seems a little metaphysical – why should it matter whether you learn about the violation before or after it starts and what tense the ordinance uses?  Can a CEO bulletproof his conclusion simply by saying something like "whether or not this use is an allowed use, I am not going to enforce it?"  Or what if the CEO doesn't issue anything in writing?  If someone complains about something (before or after it starts) and the CEO thinks that his interpretation of the ordinance is correct, can he avoid review by simply doing nothing, and the complanant is stuck?

There's a balance that needs to be struck between the inequity of a flagrant ordinance violation with no ability of a neighbor to do anything about it (although if the use is sufficiently unreasonable and damaging, he can always file a common law private nuisance action against the neighbor), and the inequity of a newbie or harassing neighbor complaining (and in theory repeatedly) about a longstanding inoffensive use. It's the in-between is murky.  Looking only at the equities, as represented in this opinion, it seems more on the fairness side to allow judicial review – the complaint wasn't harrassing regarding a longstanding use; the issue presented, for the first time, was whether the use fit the ordinance; and the CEO's memo was couched exclusively in terms of ordinance interpretation, not enforcement.     

Because the enforcer in the non-80B/80C context (e.g. a criminal prosecutor) is a separate person from the adjudicator, it's easy to figure out whether a decision is an adjudication or an exercise of prosecutorial discretion.  The AAG could send a letter to the complainant saying "I'm not going to prosecute because I think X hasn't violated the law," and that would still be deemed an exercise of prosecutorial discretion, not an appealable decision by an adjudicator, even though he couched his decision in terms of interpreting the statute.  It's the dual role of CEO as enforcer and adjudicator that complicates things.  The SJC's citation of the timing factor as key to finding the dividing line could make sense in this context because if you complain about something before it happens, as the Court noted, obviously there's no discretion to exercise.  If you called up a criminal prosecutor and said "X is going to rob a bank tomorrow," that prosecutor (absent some conspiracy evidence, i.e. something already happening) can't do anything and isn't exercising any prosecutorial discretion.

In sum, I look forward to seeing how this ruling plays out. Is the timing factor dispositive?  Or is the nature and content of the CEO's reaction determinative?  

Stay tuned.