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UNENFORCEABLE ADVISORY OPINIONS BY MUNICIPAL BOARDS OF APPEAL

Are Advisory Opinions by Municipal Boards of Appeal Enforceable?

In two opinions issued in 2010,[1] the Maine Supreme Court ruled that decisions of local boards of appeal in proceedings to enforce local ordinances were unenforceable because they were only “advisory opinions.”  These decisions have left municipal officials and their attorneys perplexed about how to correct a situation in which administrative appeals to local boards of appeals have, in effect, become useless as part of the process of enforcing municipal ordinances.  The issue is relevant now because a bill is being submitted to the upcoming legislative session which attempts to restore some measure of enforceability to the decisions of local boards of appeal.

To understand how the current impasse has developed, it is useful to review the facts of the two Supreme Court cases previously cited.   In Farrell v. City of Auburn, Farrell appealed to the board of appeals from a decision of the Code Enforcement Officer that he was operating an illegal automobile graveyard.  The Auburn Board of Zoning Appeals and the Superior Court both upheld the Code Enforcement Officer’s decision.

On appeal, the Maine Supreme Court held that the decision of the Board of Appeals was only an “advisory opinion” since the Code Enforcement Officer was free to ignore it and proceed to initiate an enforcement action regardless of the outcome.  Since advisory opinions are not judicially reviewable, the Farrell’s appeal was dismissed.

Similar circumstances were presented in the case of Eliot Shores v. Town of Eliot.  In that case, the Code Enforcement Officer determined that the developer, Eliot Shores, had created an illegal subdivision.  He advised the developer that, unless corrective action was taken, he would refer the case to the municipal officers to decide whether to take enforcement action.

As in Farrell, the Law Court ruled that, since the municipal officers were free to ignore the Eliot Board of Appeals’ decision regarding the proper construction of the subdivision ordinance and proceed to court, its decision was only “advisory” and therefore unenforceable.  The appeal was therefore dismissed.

The Law Court’s rulings in these cases have led to confusion about the status of boards of appeal in the administrative process.  Some attorneys have suggested that the problem of enforcement can be fixed by amending local ordinances to specifically provide that the board of appeals has jurisdiction to interpret ordinances in enforcement proceedings and that those decisions will be binding on the parties.  Some have concluded, on the other hand, that the Law Court is correct in characterizing such opinions as being “advisory” only and that local municipalities do not have the legal authority to alter this result.

The practical consequence of these cases is to undermine the validity of the provisions in many local ordinances which allow someone who disagrees with an enforcement decision of a local official like a Code Enforcement Officer or a Building Inspector to appeal that individual’s interpretation to the local board of appeals.  Such appeals provide an inexpensive and relatively expeditious method of resolving disputes about the meaning of local ordinances.  Although rulings by boards of appeals in such proceedings are subject to further appeal to the Superior Court, in many cases the unsuccessful party will, perhaps grudgingly, accept the local board’s ruling and modify its conduct accordingly.  In the Law Court’s view, these disputes should apparently be resolved in court after the local administrative official has initiated a Rule 80K enforcement proceeding.  The Law Court’s opinions reflect no concern about the time and expense that such court proceedings entail.  In many communities, the local code officers are not certified to bring 80K actions on their own so the hiring of an attorney would become necessary in order to proceed with the case.  Under these circumstances, some Code Enforcement Officers or municipal officers may conclude that enforcing the ordinance in a particular case is not worth the time and expense of doing so.

The legislation which is to be submitted to the upcoming legislative session would at least partially restore enforceability to decisions of local boards of appeals.  The L.D., as worded in draft form, provides that notices of appeal in enforcement cases will be reviewable by local boards of appeals and on further appeal to the Superior Court.  Persons who do not appeal adverse decisions within the required time limits will be defaulted.  If the bill is adopted in its present form, it will bring finality in at least some of the cases which are brought to local boards of appeals for resolution.

This newsletter was prepared for the municipal law clients of Linnell, Choate & Webber, LLP as well as others who are interested in municipal law issues.  It does not cover every legal issue that a municipality might encounter in going through ordinance enforcement proceedings.  If you are unsure about how to proceed in such a matter, you can contact Jack Conway at jconway@lcwlaw.com or 207-784-4563..  You may also call us if you would like to receive a copy of the proposed bill after it is in final form.


[1] Eliot Shores v. Town of Eliot, 2010 ME 129, 9 A3d 806; Farrell v. City of Auburn, 2010 ME 88, 3 A3d 385.