Madawaska, variances and orders to enforce


The Maine SJC decided an important case today overruling its precedent and adopting the Second Restatement's strict liability rule for abnormally dangerous activities.  I shall blog on that decision presently.

But there was also a decision relating to 80Bs so, naturally I must take note of that first:  Cayer v. Town of Madawaska, 2009 ME 122.

The issue involved in the actual decision is fairly straightforward – was there sufficient process in the Superior Court's denial of a contempt motion (yes).  It's the surrounding facts that have me musing.

Someone got town approvals to build an extension on their camp.  Abutters appealed and won.  While the matter was on appeal, the applicant built his extension (oops!).  On the remand from the vacating of the permits, the Town and the applicants reached a settlement that kept the extension.  The applicable ordinance apparently said that can't be done absent bad advice from the town causing the violating activity.  Another appeal ensued, and the Superior Court vacated the consent agreement because it violated the ordinance.  There was another remand to address the permit application again

"or in the alternative, should  [the applicants] not wish to proceed with the permit application for any reason, for appropriate enforcement action pursuant to the provisions of 16H of the Ordinance pertaining to enforcement." 

There was more to-ing and fro-ing, a change in the ordinance and in the end the applicant kept his extension and wasn't held in contempt.  But here's my question:  did the Superior Court have the authority to tell the town to pursue an enforcement action?

It is pretty blackletter law in Maine that the decision whether or not to enforce an ordinance is unreviewable:  See generally Herrle v. Town of Waterboro, 2001 ME 1, ¶11, 763 A.2d 1159, 1162 (only officials have right to bring enforcement action).  See also Salisbury v. Town of Bar Harbor, 2002 ME 13, ¶ 11, 788 A.2d 598, 601 (“Herrle precludes the court's intrusion into municipal decision-making when a municipality decides whether or not to undertake an enforcement action.” (emphasis in original).) 

Herrle addressed private rights of action to enforce violations of local ordinances.  The SJC found no such cause of action, and that towns may exercise their discretion in enforcement decisions, based on the language of 30-A M.R.S.A. § 4452, dealing with the enforcement of land use laws and ordinances, which provides that enforcement decisions are made by municipal officials in the name of the municipality.  Herrle, 2001 ME 1, ¶¶10-11, 763 A.2d at 1162.  In reaching this conclusion, the SJC cited state law by analogy.  Id., ¶ 10, 763 A.2d at 1162 (citing, in support of the ruling that the decision to enforce lies within the discretion of officials, 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 …’)”).        Since it's up to the town whether or not to enforce its ordinance, then how can the court order it to?  Maybe the power came from the posture of the case – instead of an action to enforce, it was an action to review a consent agreement, and perhaps the court had the power to provide injunctive relief in that context.  The existence of the provision in the ordinance about not being able to settle might also give the court greater power to act. Still, it makes me ponder.  Should someone who wins an 80B revoking an approval try to get some sort of enforcement provision like this in his remand remedy, so that if the town revokes the approval it can't choose not to enforce under Herrle? I don't know how often this problem comes up.  Towns sometimes grant variances that don't meet the letter of the law, but neighbors often don't complain.  If someone does, then usually the applicant hasn't done anything in the meantime and everyone complies.  Or you may be able to get a consent judgment as long as the ordinance doesn't have a provision like Madawaska's forbidding it.  The consent judgment route is important – how many times do people go to buy a piece of property and find out something's wrong – e.g., the house is a teensy bit in the setback?  Without the consent judgment avenue, that land may be unsellable.  The way you clean up the title is to get a judgment.  All of these factors make a town's decision whether to enforce less pivotal – if a town chooses not to enforce, and there's no mechanism for a neighbor to seek judicial relief, maybe that means the building remains, but the property can't be sold.  In short, there are lots of interesting questions raised by this sort of case – but none of them are particularly relevant to the issue that was on appeal.