Municipal Code Enforcement Officers Training and Certification Manual COURT RULE 80K Executive Department State Planning Office January 2006 ENFORCEMENT OF LAND USE VIOLATIONS USING RULE 80K OF THE MAINE RULES OF CIVIL PROCEDURE Edited By: Durward W. Parkinson, Esquire BERGEN & PARKINSON, LLC 62 Portland Road Kennebunk, Maine 04043 207-985-7000 207-985-7707 (fax) www.lexmaine.com January 1994 Revised January 1996, 1998, 2000, 2002, 2006 Developed for: MUNICIPAL CODE ENFORCEMENT OFFICER TRAINING AND CERTIFICATION PROGRAM EXECUTIVE DEPARTMENT STATE PLANNING OFFICE 38 STATE HOUSE STATION AUGUSTA, MAINE 04333-0038 www.maine.gov/spo Enabling Legislation – Title 30-A M.R.S.A. § 4453 This manual has been developed for the Maine State Planning Office. It updates prior handbooks on Rule 80K prepared by Durward W. Parkinson, Esquire and Christopher Vaniotis, Esquire (1994, 1996, and 1998 editions and Rebecca Warren Seel, Senior Staff attorney at the Maine Municipal Association and the Association’s Legal Services Staff. This material has been printed by the Maine State Planning Office for the Code Enforcement Officer Training Program under appropriation number 010-07B-2901-01. The Maine State Planning Office does not discriminate on the bases of disability in admission to, access to, or operations of it’s programs, services, or activities. This material is available in alternate format by contacting the Office’s ADA Coordinator, Tony Vandenbossche at 287-1474. TABLE OF CONTENTS TABLE OF CONTENTS........................................................................................................................ii INTRODUCTION...................................................................................................................................1 CHAPTER ONE......................................................................................................................................3 WHAT IS AN 80K ACTION.....................................................................................................3 A. Overview of 80K Action .....................................................................................3 B. Who Can Commence an 80K Action?...............................................................4 CHAPTER TWO.....................................................................................................................................5 CERTIFICATION PROGRAM .................................................................................................5 A. Required Certification Programs for Municipal Code Enforcement Officers. ..............................................................................................................5 B. Required Certification Program for Municipal and Other Land Use .............6 Regulators in The Use of Rule 80K....................................................................6 CHAPTER THREE.................................................................................................................................7 WHEN TO PROCEED WITH ENFORCEMENT ACTION...................................................7 A. Preliminary Enforcement Action - FOLLOW THE ORDINANCE PROCEDURES ..................................................................................................7 B. Which System to Use ..........................................................................................8 CHAPTER FOUR.................................................................................................................................12 HOW TO PREPARE THE LAND USE CITATION AND COMPLAINT ..........................12 A. Citation and Complaint....................................................................................12 1. Contents of the Citation and Complaint..............................................12 2. Whom to Name as the Defendant.......................................................13 3. Description of Violation......................................................................14 4. Violation in Progress; Request for a Temporary Restraining Order (TRO) or a Preliminary Injunction..........................................15 5. Date, Time and Place of Hearing........................................................15 6. Penalty or Other Remedy Requested..................................................16 7. Insufficient Space on Land Use Citation and Complaint ...................18 B. Required Attachments ......................................................................................18 1. Ordinance Certification.......................................................................18 2. Prior Agreements or Variances...........................................................19 C. Keeping the Municipal Officers Informed.......................................................20 D. Cooperation Between the DEP and Municipalities........................................20 E. Checklist ...........................................................................................................21 CHAPTER FIVE...................................................................................................................................22 WHAT TO DO WITH THE 80K COMPLAINT....................................................................22 A. Serving Notice of the Complaint......................................................................22 1. Service on Violator..............................................................................22 2. Service on the Property Owner...........................................................22 3. Return of Service.........................................................................................23 B. Documents Filed With the Court.....................................................................23 1. Original Citation and Complaint.........................................................23 2. Ordinance or Regulation Violated......................................................24 3. Letter of Authorization to Represent the Municipality, the Department of Environmental Protection or the Land Use Regulation Commission......................................................................24 CHAPTER SIX .....................................................................................................................................25 HOW TO OBTAIN IMMEDIATE JUDICIAL RELIEF........................................................25 A. Temporary Restraining Order and Preliminary Injunction ...........................25 1. When to Request a TRO or Preliminary Injunction...........................25 2 Differences Between TRO, Preliminary Injunction, and Permanent Injunction ..........................................................................25 3. Notice Requirement.............................................................................26 4. Examples of "Irreparable Harm" ........................................................26 5. Affidavit...............................................................................................27 6. Motion for TRO after Complaint Filed ..............................................27 7. Bond Requirement...............................................................................28 8. Overturning a TRO..............................................................................28 9. Who Must Comply With TRO or Injunction.....................................28 B. Administrative Inspection Warrants - RULE 80E ..........................................28 CHAPTER SEVEN...............................................................................................................................32 AMENDING THE CITATION AND COMPLAINT.............................................................32 A. General Discussion ..........................................................................................32 B. Entering An Appearance..................................................................................32 CHAPTER EIGHT................................................................................................................................34 REMOVAL TO SUPERIOR COURT.....................................................................................34 CHAPTER NINE..................................................................................................................................35 OUTCOME OF A RULE 80K COMPLAINT........................................................................35 1. Findings and Conclusions................................................................................35 2. Summary Judgment..........................................................................................36 3. Levying Fines...................................................................................................36 4. Correction of the Violation..............................................................................38 5. Effect of Court Decision on Landowner .........................................................38 6. Costs and Attorneys' Fees................................................................................38 7. Contempt of Court............................................................................................40 CHAPTER TEN....................................................................................................................................41 APPEALS .................................................................................................................................41 CHAPTER ELEVEN............................................................................................................................42 COLLECTING A JUDGMENT...............................................................................................42 CHAPTER TWELVE...........................................................................................................................43 SOME SPECIFICS FOR STATE ENFORCEMENT OFFICIALS.......................................43 A. Department of Environmental Protection.......................................................43 B. Land Use Regulation Commission ..................................................................44 CHAPTER THIRTEEN........................................................................................................................45 TRIAL TIPS AND TECHNIQUES..........................................................................................45 A. Preparing for Court .........................................................................................45 1. Initial Hearing......................................................................................45 2. Burden of Proof...................................................................................45 3. Organizing the Case ............................................................................46 4. Typical Outline of Presentation..........................................................46 5. Observing Court Proceedings.............................................................48 6. When to Subpoena a Witness to Testify/Use of Depositions............49 7. Obtaining Evidence by Both Parties/"Discovery" Procedures..........49 8. Negotiation and Settlement.................................................................50 9. Dismissal of Complaint.......................................................................52 10. Continuance.........................................................................................53 11. Statute of Limitations/Laches .............................................................54 12. Estoppel................................................................................................55 13. Selective Enforcement.........................................................................56 B. Evidence...........................................................................................................56 1. Types of Evidence...............................................................................56 2. Consideration by the Judge.................................................................57 3. Rules of Evidence Generally...............................................................57 4. Relevance.............................................................................................58 5. Foundation/Reliability.........................................................................58 6. Exclusionary Rules..............................................................................59 7. Witnesses Generally............................................................................59 8. Hearsay ................................................................................................59 9. Written Documents..............................................................................60 10. Expert Witnesses.................................................................................62 11. Diagrams..............................................................................................62 12. Photographs.........................................................................................62 13. Offers to Settle.....................................................................................62 14. Evidence of Habit, Character, or Past Conduct..................................63 15. Telephone Conversations/Tape Recording ........................................63 16. Liability Insurance...............................................................................64 17. Marking "Exhibits"..............................................................................64 18. Stipulations..........................................................................................65 19. Facts Which Will Need to be Proved .................................................65 20. Method of Gathering Evidence Challenged.......................................66 21. Request for Relief................................................................................67 22. Protecting the Record for Appeal .......................................................67 C. Appearing in Court .........................................................................................68 1. Conduct and Dress Generally .............................................................68 2. Attitudes to Develop............................................................................68 3. Attitudes to Avoid ...............................................................................68 4. Violator's Response to Complaint.......................................................69 5. The Court Hearing...............................................................................69 6. Sequence of Testimony.......................................................................70 7. Witnesses.............................................................................................70 8. Use of Notes ........................................................................................71 9. Testimony by Enforcement Official...................................................72 10. Site Visit Day of Hearing....................................................................77 11. Violator Represented by an Attorney.................................................77 12. The Judge.............................................................................................78 13. Electronic Recording...........................................................................78 14. Meeting with Judge in Chambers .......................................................79 15. Failure to Appear.................................................................................79 16. Being a Pioneer....................................................................................79 CHAPTER FOURTEEN .......................................................................................................................82 CASE LAW SUMMARY (2006).............................................................................................82 Brackett v. Town of Rangeley, 2003 ME 109, 831 A.2d 422.....................................82 Tinsman v. Town of Falmouth, 2004 ME 2.................................................................83 Town of Levant v. Seymour, 2004 ME 115, 855 A.2d 1159......................................84 Isis Development v. Town of Wells, 2003 ME 149, 836 A.2d 1285..........................84 Malonson v. Town of Berwick, 2004 ME 96, 853 A.2d 224......................................85 B&B Coastal Enterprises v. Town of Kennebunk.......................................................85 Town of Boothbay v. Jenness, 822 A.2d 1169, 2003 ME 50 .....................................86 City of Bangor v. Diva’s, 830 A.2d 898, 2000 ME 51................................................86 Brackett v. Town of Rangeley, 2003 ME 109.............................................................87 Widewaters Stillwater Co., LLC v. Bacord, 2002 Me. 27..........................................88 State of Maine v. Town of Damariscotta and Lake Pemaquid, Inc............................88 (Kennebec County Superior Court, Docket No. CV-98-84)................................88 Charlton v. Town of Oxford, 2001 ME 104................................................................89 Herrle v. Waterboro, 2001 ME 1..................................................................................89 Wright vs. Town of Kennebunkport, 1998 Me. 184 ..................................................90 Sahl vs. The Town of York, 2000 ME 180..................................................................91 Peterson vs. Rangeley, 1998 ME 192, 715 A.2d 930..................................................91 Turbat Creek Preservation, LLC vs. Town of Kennebunkport,.................................92 2000 ME 109, 753 A.2d 49...................................................................................92 Juliano vs. Town of Poland, 1999 ME 42, 725 A.2d 45.............................................92 Town of Old Orchard Beach v. Suzy Mosseri.............................................................93 (Biddeford District Court, Docket No. CV-99-132).............................................93 Town of Orono v. LaPointe, 1997 ME 185.................................................................93 City of Ellsworth v. Doody, 629 A.2d 1221 (Me. 1993).............................................94 Town of Hartford v. Bryant, 645 A.2d 18 (Me. 1994)................................................95 Town of Ogunquit v. McGarva, 570 A.2d 320 (Me. 1990)........................................95 Town of Freeport v. Brickyard Cove Associates 594 A.2d 556 (Me. 1991)..............96 Town of Freeport v. Ocean Farms of Maine, Inc. 633 A.2d 396 (Me. 1993)...........96 Baker v. Town of Woolwich, 517 A.2d 64 (Me. 1987)..............................................96 Town of Orrington v. Pease, 660 A.2d 919 (Me. 1995)..............................................97 City of Rockland v. Winchenbaugh, 583 A.2d 702 (Me. 1990).................................97 City of Rockland v. Winchenbaugh, 667 A.2d 602 (Me. 1995).................................98 City of Ellsworth v. McAlpine, 590 A.2d 545 (Me. 1991).........................................98 Shafmaster v. Town of Kittery, 469 A.2d 848 (Me. 1984).........................................99 Town of Falmouth v. Long, 578 A.2d 1168 (Me. 1990).............................................99 City of Auburn v. Desgrosseilliers, 578 A.2d 712 (Me. 1990)...................................99 Town of Union v. Strong, 681 A.2d 14 (Me. 1996)....................................................99 H.E. Sargent, Inc. v. Town of Wells, 676 A.2d 920 (Me. 1996) ..............................100 Town of Shapleigh v. Shikles, 427 A.2d 460 (Me. 1981).........................................101 Town of Holden v. Pineau, 573 A.2d 1310 (Me. 1990)............................................101 Toussaint v. Town of Harpswell, 1997 ME 189........................................................102 Shadan v. Town of Skowhegan, 1997 ME 187 .........................................................102 Department of Environmental Protection v. Woodman, 1997 ME 164...................102 Fitanides v. City of Saco, 684 A.2d 421 (Me. 1996).................................................103 Otis v. Town of Sebago, 645 A.2d 3 (Me. 1994) ......................................................104 Pepperman v. Town of Rangeley, 659 A.2d 280 (Me. 1995)...................................104 INDEX…………………………………………………………………………………………...107 APPENDIX – TABLE OF CONTENTS …………..…………………………………………. 109 INTRODUCTION This manual provides basic information for local and state officials who want to use the land use enforcement system known as "Rule 80K" of the Maine Rules of Civil Procedure.1 Before Rule 80K, prosecuting a land use or environmental violation required the services of a lawyer. Rule 80K provides a simpler, speedier and less costly procedure for the prosecution of land use violations. It applies in the District Court, while prosecuting cases through a lawyer in the Superior Court remains available as an alternative. Under Rule 80K the District Court can order violators to pay fines and to stop or correct a violation. The system authorizes certified non-lawyer employees (as well as lawyers) to represent municipalities, the ("DEP") and the Maine Land Use Regulation Commission ("LURC") in the prosecution of land use violations. Until the enactment of Rule 80K, a municipality had two options for enforcing land use laws. One was to ask the local District Attorney to prosecute the case as a civil violation. Assuming the District Attorney agreed to take the case, the only remedy available was a fine in the District Court. If the municipality wanted corrective action or cessation of the violation (i.e., injunctive relief) as well, then the municipality had to exercise its second option and hire a private attorney to bring a lawsuit in Superior Court. Rule 80K represents a dramatic departure from the procedures previously used to prosecute land use and environmental violators in court. Keep in mind, however, that while Rule 80K is a very valuable tool for achieving compliance with land use and environmental laws, never should code enforcement officials aim straight for court without first attempting to resolve problems at the administrative level. Save the Rule 80K process for the truly difficult enforcement issues and the truly uncooperative violators. Also, the world of court procedures is different -- one might even say “alien” -- for municipal code enforcement officers and state enforcement officials. Therefore, it is extremely important for enforcement officials to understand the court procedures, to choose cases for prosecution carefully and to be well prepared before going to court. Local enforcement officials who wish to prosecute land use cases without an attorney should familiarize themselves with the 1 It is recommended that a local official expecting to go to court obtain a copy of the Maine Rules of Court which includes the Rules of Civil Procedure. A copy can be purchased through West Publishing Company by calling 1-800328- 9352. This book also includes the Maine Rules of Evidence. A copy of Rule 80K appears in the Appendix at A-1. 1 material contained in this manual. They must first be certified by the State and then be formally authorized by the jurisdiction that they represent. This manual will help individuals prepare for that certification, and then will serve as a resource in subsequent 80K prosecutions. 2 CHAPTER ONE WHAT IS AN 80K ACTION A. Overview of 80K Action The term “80K” is derived from the rule contained in the Maine Rules of Civil Procedure which prescribes the legal procedure which must be followed in prosecuting land use violations. Every Code Officer, whether prosecuting violations through a municipal attorney or without the assistance of counsel, should read this Rule and become familiar with its requirements. Rule 80K provides a "Summary Procedure," which means it moves faster than other court proceedings. The violator can answer the Complaint orally in court rather than in writing, and the court can decide the main issues of the case with a minimum amount of formality. That reduces the time and expense involved, without sacrificing the due process rights of the person accused of the violation. There are several types of ordinances and statutes which may be enforced through Rule 80K, including the following:2 • Subsurface wastewater disposal rules adopted by the Maine Department of Health and Human Services; • Local land use and zoning ordinances and other local ordinances, e.g., junkyards, automobile graveyards, electrical installations, plumbing, subsurface waste water disposal; • The subdivision law; • Laws pertaining to public water supplies; • Laws administered by health officials; • Laws pertaining to fire prevention and protection; • Laws pertaining to the construction of buildings for the physically disabled; • Local building and housing codes; • Shoreland zoning ordinances; • Laws pertaining to harbors; • Natural resources protection laws; • The state junkyard and automobile graveyard statute. 2 The complete list of laws and ordinances which municipal code enforcement officers may enforce under Rule 80K is set forth at 30-A M.R.S.A., section 4452, subsections 5,6 and 7, a copy of which is included in the appendix at A-3. “M.R.S.A.” stands for the Maine Revised Statutes Annotated. “30-A” is the title and “4452” is the section of the statute. Enforcement officers of the Maine Department of Environmental Protection and the Maine Land Use Regulation Commission are authorized to bring 80K actions by the statutes governing those state agencies. In addition, the jurisdiction of the District Court to hear 80K actions is set forth in 4 M.R.S.A., section 152(6-A), a copy of which is included in the appendix at A-4. 3 B. Who Can Commence an 80K Action? Rule 80K actions are designed by statute to be prosecuted by non-attorneys who have completed the certification program discussed in Chapter Two. Keep in mind, however, that although you may be permitted by law to carry the case from start to finish through the legal process, you are only an agent of the municipality. Obtaining the properly documented authority from the selectmen or council is critical prior to commencing an action. There are many reasons that the Board of Selectmen may not wish to bring an 80K action against a certain violator, even though you believe that it may be justified. Once the violation notices have gone unheeded, keep the Selectmen well informed of the situation and make sure that they formally authorize you to proceed with legal action. Also, even if you are authorized by the Board to proceed with legal action, there are cases where obtaining the assistance of an attorney is well- advised. If you believe that the case involves complex issues, do not hesitate to involve the town attorney, for your own protection. Some towns have developed a procedure where the Code Officer keeps the town attorney copied on all filings although he attorney does not actually participate in the proceedings. Chapter Three will discuss some of the other factors which you will consider in determining whether you or the town attorney should commence the Rule 80K action on behalf of the municipality. 4 CHAPTER TWO CERTIFICATION PROGRAM A. Required Certification Programs for Municipal Code Enforcement Officers. A municipality may not employ an individual to perform the duties of a Code Enforcement Officer who is not certified by the Maine State Planning Office. The law specifies five areas of responsibility applicable under this certification requirement. An individual has 12 months after beginning employment to be trained and certified. A waiver of up to one year may be granted if it can be demonstrated that a hardship to the municipality will result. Regarding the licensing of plumbing inspectors, the law now prohibits a person from holding the office of Plumbing Inspector unless certified by the State Planning Office in the same manner as Code Enforcement Officers are certified. The only exception is that an individual may be temporarily authorized by the Department of Health and Human Services, Division of Health Engineering, to be employed as a Plumbing Inspector for not more than 12 months before obtaining certification. As in the case of Code Enforcement Officers, the State Planning Office, in cooperation with the Maine Technical College system, the Department of Health and Human Services and the Maine Department of Environmental Protection, operates the program for training and certification. The Code Enforcement Officer Training and Certification Program provides examinations leading to certification in each area of enforcement enumerated in 30-A M.R.S.A. §4451.3 A Code Enforcement Officer need only be certified in the areas of actual responsibility. For example, a Code Enforcement Officer dealing only with shoreland zoning need not be certified as a local plumbing inspector. Certifications are valid for five years. A Code Enforcement Officer shall be recertified if he or she successfully completes at least 12 hours of approved training in each area of responsibility during the five year certification period. 3 A copy of which is reproduced in the Appendix at A-2. 5 Details of the Training and Certification of Municipal Code Enforcement Officers can be found in the Municipal Code Enforcement Officers Qualifications and Certification Standards Rule, found in The Code of Maine Rules, 19-488 (Chapter 300) (the "CEO Rule"). B. Required Certification Program for Municipal and Other Land Use Regulators in The Use of Rule 80K. In addition to the certification for municipal Code Enforcement Officers (CEO) set forth in 30-A M.R.S.A. §4451 and described above, a separate certification to prosecute land use violations using Rule 80K must be obtained from the State of Maine. Certification under Rule 80K is not necessary to become a certified Code Enforcement Officer. It is only necessary if that CEO wishes to prosecute land use cases in the District Court. Certification under Rule 80K is also necessary for employees of the Department of Environmental Protection and employees of the Maine Land Use Regulation Commission who wish to use the process in the prosecution of the state requirements that they are authorized to enforce. Certification is obtained after completion of a Rule 80K training course and successfully completing a written examination administered by the State Planning Office. Certification is good for five years and may be extended after completion of continuing education in legal issues and procedures. Recertification procedures may be found in the "CEO Rule." For several years, as a result of the reorganization of state government and realignment of duties, there were some inconsistencies in Maine law and in the rules of various agencies concerning Rule 80K training. The legislature has now clarified all that, enacting a new statutory provision in 1997 which provides that the State Planning Office establish certification for Code Enforcement Officers, Plumbing Inspectors, Department of Environmental Protection personnel and Maine Land Use Regulation Commission personnel. 30-A M.R.S.A. §4453. A copy of that statute is included in the Appendix at A-3(A). Remember that certification under 30-A M.R.S.A. §4453 indicates that the code official is familiar with court procedures. But it is other statutes, such as 30-A M.R.S.A. §4452 for local code enforcement officers, which list the kinds of laws, ordinances and regulations enforcement officials may prosecute under Rule 80K. See footnote 2, above. 6 CHAPTER THREE WHEN TO PROCEED WITH ENFORCEMENT ACTION A. Preliminary Enforcement Action - FOLLOW THE ORDINANCE PROCEDURES When you have the responsibility for enforcing a land use ordinance, regulation or statute and you discover a violation, you should always follow whatever process has been established by your local community or state agency, before bringing the matter to court under Rule 80K. That includes any informal contacts and attempts to resolve the problem, if the normal practice is to try to work things out with the violator before starting the formal enforcement process. If the informal process is not successful, then you will need to take formal action, following the procedures outlined in the enforcement section of the law being violated. Usually you will need to send a notice to the violator, ordering corrective action within a stated period of time.4 The notice should be sent both by certified mail and regular mail. Regular mail is a back-up in case the violator refuses to accept the certified letter, which is not unusual. Make the notice very specific as to what violations are asserted and which provisions of which ordinance are being violated. The notice must also inform the violator of the right to appeal the CEO's decision to the local board of appeals, and of the consequences of failure to appeal, which may include losing the right to contest the contents of the Code Enforcement Officer's notice. It is also a good practice to advise the violator of the range of penalties and other remedies which may be imposed for the violation. For a more detailed discussion of these preliminary enforcement procedures, see "Legal Issues and Enforcement Techniques for Local Code Enforcement Officers" prepared by the Maine State Planning office in consultation with the Maine Municipal Association, Legal Services Department. Never lose sight of your goal. Voluntary compliance by the violator is always better than going to court. Serving a citation or summons and filing a complaint in court should be a last resort. This does not mean that you should "go easy" on a violator or always settle for less than full compliance. It does mean that you should give the violator a reasonable opportunity to solve the problem before looking to the court for an answer. It also means that you should be creative and think of solutions which the violator might agree to perform and which would be satisfactory to the town, city or state without having to involve a judge. 4 A sample notice of violation letter is included in the Appendix at A-5. 7 If all else fails, though, and the violation is well-documented, do not hesitate to go to court. The fact that a certified official can summons a violator to court and prosecute the case without having to hire a lawyer may be enough to persuade some violators to correct a problem. B. Which System to Use Before you decide whether to prosecute a case yourself in District Court or to refer the matter to an attorney for prosecution, you should think seriously about whether your case is the kind where the simplified Rule 80K procedure will work well. Some of the factors you should consider in making that decision are: 1) The complexity of the case. Especially at the beginning of your "career" as a Rule 80K prosecutor, you probably want to avoid cases that have a lot of complicated facts, such as a long history of property transfers, disputes over the location of boundaries, uncertainties about who owns the land or who has actually caused the violations. Rule 80K works best when you have fairly simple facts--for example, the garage is 10 feet too close to the property line and there is really no dispute about that--and the reason for bringing the violator into court is not to sort out a complicated situation, but simply to force the violator to respond. 2) The likelihood of the violator being represented by an attorney. It may be a sad fact of life in our judicial system, but it is true. A violator represented by an experienced attorney will have the upper hand, because the attorney is likely to know more about the law, court rules and all the unwritten rules of court procedure. If you know your violator to be litigious, it may be time to call in your own counsel. 3) The availability of the violator and the landowner within the state and the difficulty of effecting personal "in-hand" service of the complaint on the violator and landowner. A critical first step to a Rule 80K proceeding is to make "service" of the complaint on the violator. If you are dealing with people outside the state of Maine, it is fairly complicated legally and you will then need legal help. 4) The amount of the fine which the town, city or states wants to recover. Remember that Rule 80K is a "summary process." It is very similar to the process used to prosecute relatively minor traffic infractions. Generally, it is not well suited to the "big" case, one with high public visibility where it is important for the municipality or state to set an example by securing large penalties and dramatic remedies. Although there are some exceptions, the design of the court system in Maine is such that the "big" cases go to Superior Court while the smaller matters are handled in the District Court. Keep that in mind as you evaluate your case. 5) The type of corrective action which the municipality wants the court to order. The District Court under Rule 80K can grant the same kinds of relief as can the Superior Court, but, in practice, the District Court is your best choice only if you are 8 looking simply for some penalties and some fairly straightforward relief, such as "seal up the pipe that is leaking into the stream." That is because the District Court is typically a high volume operation where you will probably see the judge only once or twice. If the action needed to correct the violation is complicated and may require some kind of continuing oversight by the court, then the Superior Court and the use of an attorney are probably better choices. 6) The relationship between the person responsible for the violation and the property on which the violation occurred. You may find yourself in situations where an absentee landlord, an unresponsive tenant and perhaps even a third party like a contractor are all involved in the violation and all pointing fingers at one another. Those situations are likely to involve fairly complicated legal relationships, which you probably want the help of a lawyer to decipher. 7) The costs (including attorney's fees) which the town, city or state wants to recover. As you will learn later in these materials, even though the law usually entitles a city, town or the state to recover costs and attorney's fees if the government is the prevailing party, actually collecting them is sometimes a very difficult task. If you have a case where there are already substantial costs involved--perhaps consulting fees or attorney fees expended in trying to deal with the violation before even commencing a court action--it is probably wise to engage the services of a lawyer. 8) The type of evidence which will have to be presented in court to prove the violation. Is there a complicated chain of deeds which might have to be introduced (to prove a subdivision violation, for example)? Does proving the violation require the proof of scientific or technical facts so that you will need to present an "expert" witness? In cases where you feel you can tell the story of the violation yourself, with a minimum of complicated paper evidence or specialized expert evidence, Rule 80K is appropriate. But when the evidence gets complicated, so do the rules of evidence, and 80K may not be the preferred route. 9) Whether the necessary information can only be obtained through a process known as "discovery". As the name implies "discovery" is supposed to be a process for finding out about the other side's case. In practice, it often turns into a battleground where the two sides try to beat each other down. It is governed by fairly complicated court rules and is best left to lawyers (whose job is to beat the other side down?) 10) The benefits of combining the lawsuit under consideration with another lawsuit, which could not be prosecuted under Rule 80K. Rule 80K is a stand-alone process; you cannot combine other claims with your land use violation prosecution. There may be cases where it makes sense to combine several claims. For example an escape of pollutants which constitutes a land use violation may also have caused damage to a town's adjacent property when the pollution spread. The town's claim for damages is not a land use prosecution and could not be brought under Rule 80K. 9 But it could be "joined" with a land use prosecution in the Superior Court. 11) The likelihood that the violator will want to file a "counterclaim" against the town or city or a "third party complaint" against another person and request that the case be "removed" to Superior Court. This will be discussed in more detail below. For now, keep in mind that a violator can "remove" your 80K complaint to the Superior Court, where you will have to hire an attorney (remember that your authority to "practice law" is limited to the District Court). 12) The authority of the enforcement officer to enforce a particular law or ordinance. Remember that your authority under Rule 80K is limited to certain specific "land use" type violations, specified in 4 M.R.S.A. §152(6-A), the statute which determines the jurisdiction of the District Court. The statute is included in the Appendix to this manual at A-4. For example, if your city or town has a business licensing ordinance that regulates pinball machines or video games, that is not a land use ordinance and violations are not enforceable under Rule 80K. 13) The willingness of the governing body to support the enforcement effort. Even a simple Rule 80K prosecution involves certain costs. More importantly, what appears simple at the outset can easily turn into a protracted legal battle for which the municipality or state agency may end up having to use legal counsel. Especially at the municipal level, it is important to know that the city or town council or the board of selectmen agrees that the prosecution should be carried forward and is ready to stand behind you in your efforts. Especially when you first start prosecuting 80K actions, it probably makes sense to discuss a case with the city or town attorney, or Attorney General's Office, if you are representing a state agency. Your legal counsel can then help you decide whether it is one that you should take it upon yourself to prosecute. In the beginning, you may want to have your counsel accompany you or work together with you in prosecuting several cases while you "get your feet wet," become familiar with court procedures and gain some confidence. In time, you will probably feel comfortable being on your own. One reason a municipality may encourage or require its code enforcement officer to become Rule 80K certified is to save the expense of utilizing legal services. You, as the code enforcement official, should explain to the selectmen or your supervisor in municipal administration that utilizing the local code enforcement officer to prosecute land use violations under Rule 80K may -- or may not -- realize substantial savings in legal fees. It should be understood that you will continue to need legal advice in some cases, and that some cases which start out as Rule 80K prosecutions may become more complicated, ending up in the Superior Court where the use of an attorney is required. 10 You may find your legal counsel useful in another way. Sometimes just the threat of legal action by the government's attorneys is enough to cure a violation. A letter from your lawyer advising the violator that litigation will be commenced by a certain date unless the violation is corrected will occasionally solve the problem. 11 CHAPTER FOUR HOW TO PREPARE THE LAND USE CITATION AND COMPLAINT A. Citation and Complaint 1. Contents of the Citation and Complaint Included in the Appendix at A-6 is a sample Rule 80K Citation and Complaint. It may be modified depending on the circumstances of the case. However, Rule 80K is specific about certain information which must be set forth including: 1. The name and address of the person alleged to have committed the violation (the "Defendant"); 2. The name and address of the property owner (or owners) if different from that of the violator; 3. The time and place of the violation. If the violation is a continuing one, list the inclusive dates (i.e., “January 1st through February 15th,” right up to the date you are filling out the complaint); 4. A brief description of the violation; 5. A summary of the provision of the statute, ordinance, or regulation being violated and a summary of the possible penalties for such a violation; 6. A request for a preliminary injunction, if desired; and any other relief sought; 7. The time, date, and place when the person accused of the violation is to appear in court (Note: This will be determined by talking to the court clerk. The hearing should be at least 20 days from the date of service of citation and complaint except where temporary restraining order is sought); 8. A statement that the person accused of the violation was advised of the violation, where applicable; 9. The signature and title of the local official filing the complaint (the "Plaintiff"); 10. The signature of the alleged violator to show that he or she received the citation and the complaint, or a statement by the local official that the violator refused to sign or could not sign; and 11. A statement notifying the violator that if he or she fails to appear in court on the day specified, the court may enter a default judgment in the town or city's favor. 12 If an attorney will be prosecuting a violation for the municipality under Rule 80K, the attorney should sign the complaint on the line which says "Complainant", cross out those words, and type "attorney" in their place. It may also be useful to attach an affidavit prepared by the enforcement official to every complaint, whether or not a TRO is being requested. Such an affidavit may make it easier for a judge to grant injunctive relief if the defendant defaults. The affidavit could be as simple as a statement, under oath, that the Code Enforcement Officer has read the contents of the complaint and that the information in the complaint is true of the Code Enforcement Officer’s own knowledge. 2. Whom to Name as the Defendant If the person committing the violation is not the landowner, then the enforcement official must decide whether to name both the actual violator and the landowner as defendants. This decision may depend in part on whether the landowner was actively involved in instructing the violator or in actually performing some of the work. It also may depend on whether the enforcement official had previously advised the landowner about the work to be performed and what the local ordinance requires. Under many ordinances, the mere fact that a violation exists on a parcel of land is enough to make the landowner in violation. However, the enforcement official may decide not to name the landowner as a defendant if the only basis for his or her violation is the mere fact of ownership. One reason to name the landowner as a defendant is to obtain a decision from the court which would be binding on both the violator and the landowner. A good rule of thumb is that absent a good reason to the contrary the landowner should be named as a defendant. Often naming the landowner provides the enforcement officer with additional power to get the violation corrected. It also eliminates any question about whether the landowner is a "necessary party" to the proceedings. In any event, the landowner must be served with a copy of the citation and complaint even if not named as a defendant. If the land on which the violation occurred is in joint or common ownership, then all of the people with an ownership interest must be treated as "the landowner" for the purposes of preparing the complaint. Although the practice may vary in different courts, it is not necessary to name a mortgage or lien holder as a defendant. It is believed the term "owner" as used in Rule 80K is not intended to include mortgage or lien holders. 13 To determine ownership, the enforcement official should check the records at the Registry of Deeds. (A brief explanation of how to conduct a title search appears in the Appendix at A-9.) If there is any confusion about who the owner is based on a review of the deeds, the enforcement official should consult with an attorney. The enforcement official should not rely on assessment records. They can be misleading because in certain cases a person other than the current owner may legally have been taxed. In a case where the violator is not the landowner, the enforcement official must determine whether the violator is an individual, a partnership, a corporation, some other legal entity, or a combination of these in order to use the proper designation in naming the violator as a defendant. This is important partly in order to determine the proper method for serving the complaint. It may require some investigation through the Corporations Bureau or the Motor Vehicle Division office of the Secretary of State in Augusta. The information which those agencies collect is public. Usually it can be provided over the telephone or by mail. For example, if someone observes Joe Smith in a "Smith Sand and Gravel Co." truck dumping a load of sand into a pond, the enforcement official should investigate whether "Smith Sand and Gravel" is a corporation, sole proprietorship or partnership and what Joe Smith's relationship is to the entity. It also may be necessary to determine whether Joe Smith was acting as an agent for the entity or whether he was acting on his own and outside the scope of the authority given to him. In some cases it may be necessary to name both the company and the employee, particularly if it is unclear what authority the employee was given, and see what information unfolds during testimony at the court hearing. When a business is the violator, the enforcement official may want to consult with an attorney about the proper entity or people to name as defendants. 3. Description of Violation The description of the violation does not have to be detailed. The sample Citation and Complaint provides the violator and the judge with information regarding when the violation was first observed and what State statute or local ordinance is being violated. The purpose of the description section is to "zero in" on the specific activity which violates those laws so that anyone reading the complaint will know generally what conduct the town or city believes is in conflict with the sections of the statute or ordinance cited elsewhere in the Complaint. More detail about exactly how the specific conduct violates the specific sections of the statute or ordinance can be provided to the judge during the court hearing. 14 4. Violation in Progress; Request for a Temporary Restraining Order (TRO) or a Preliminary Injunction If the enforcement official finds a violation which must be stopped quickly, before a full court hearing can be scheduled on whether a violation legally exists, he or she should consider asking the court for a Temporary Restraining Order (TRO) or Preliminary Injunction. More information about these remedies is provided later in this handbook. 5. Date, Time and Place of Hearing The District Court or the division of the District Court in which a complaint should be filed is the one serving the town or city in which the land on which the violation occurred is located. (A list of District Courts and their territories appears in the Appendix at A-25.) In order to know what information to include in the Citation and Complaint regarding the date and time that a particular case will be heard for the first time, the enforcement officer preparing the case should contact the court clerk's office to determine the procedure being used in that particular District Court. Some courts may have scheduled certain days of the week or certain times of day for Rule 80K cases. The scheduling of Rule 80K cases varies significantly throughout the State, and may even vary from judge to judge at a particular District Court location. The clerk could explain this and tell the enforcement official the name of the person who assigns hearing dates, if the clerk does not do this. Although this initial contact with the clerk's office probably could be done over the telephone, it would be best to make an appointment and go in person to discuss it so the clerk can get to know the enforcement officials who will be using Rule 80K. Developing a good relationship with the court clerk's staff is very important. If the town attorney or agency attorney is familiar with the staff in the clerk’s office, that attorney might provide an introduction, by letter, telephone, or -- best of all -- in person. Alternatively, the enforcement officer could simply call the clerk’s office and see if a brief meeting might be arranged at a time convenient to the clerk so that the code officer can introduce himself/herself and discuss procedures with the clerk. For some “tips” on dealing with court personnel, see the section of this manual entitled “Being a Pioneer” located at the end of Chapter 8. Whether a case is decided at the initial hearing or whether the case must be scheduled for a full hearing at a later date will depend on the complexity of the case, issues raised by the violator's 15 answer, and the workload of the court. The busier courts treat the initial hearing as similar to an "arraignment" where the violator is given an opportunity to tell the judge whether he admits or denies the allegations. The case is then scheduled for a full hearing at a later date if the allegations are denied. Again, and this bears repeating because it is so important, the code official must try to ascertain in advance the practices of the particular court and of the particular judge who will be presiding; if necessary, ask the clerk to ask the judge whether the appearance date will be similar to an arraignment or will be a full scale hearing. And, if there is any doubt, be prepared for a full-scale hearing. The worst that will happen is that preparation will be done early and ready for use at a later date. If the enforcement official has an opportunity to select a hearing date, he or she should be sure that it is not a day when the court will be closed for a holiday or some other special reason. He or she should check with the clerk or the court calendar to determine this. Another thing to consider in scheduling the hearing date is the amount of time it will take the enforcement official to serve the citation and complaint on the necessary parties. There should be enough time between the date of service and the hearing date to allow everyone an adequate opportunity to prepare for the hearing. Otherwise, the judge will postpone the hearing to allow the other side to prepare. 6. Penalty or Other Remedy Requested The section of the complaint form called "Relief Sought from Court" lists six different options for the enforcement official to choose. More than one box can be checked depending on: (1) what the violation involves; (2) what kind of remedy or penalty will remove or minimize the violation and punish the violator, and (3) what the provisions of 30-A M.R.S.A. §4452 authorize the court to order either as punishment or corrective measures. A "permanent injunction" should be requested when the enforcement official wants the court to issue an order prohibiting the violator from completing or otherwise continuing the activity which the court found to be in violation of an ordinance or statute. A permanent injunction may be preceded by a TRO or preliminary injunction, but this is not necessary. A "civil penalty" means a monetary fine, the amount of which will be decided by the court based on the range of fines established by 30-A M.R.S.A. §4452(3) which may be assessed on a per- day basis. That section provides the following fines for the violation of the land use statutes or ordinances which are listed in 30-A M.R.S.A. §4452(5): • The minimum penalty for starting construction or undertaking a land use activity 16 without a required permit shall be $100, and the maximum penalty shall be $2,500. • The minimum penalty for a specific violation shall be $100, and the maximum penalty shall be $2,500. • The maximum penalty may exceed $2,500, but shall not exceed $25,000, when it can be shown that there has been a previous conviction of the same party within the past 2 years of the same law or ordinance. • If the economic benefit resulting from the violation exceeds applicable penalties, the maximum penalty may be increased to twice the value of the economic benefit. "Economic benefit" includes, but is not limited to, the costs avoided or enhanced value accrued at the time of the violation as a result of the violator's noncompliance with applicable legal requirements. The statute provides that penalties may be assessed on a per-day basis. If the local ordinance or the statute you are enforcing states that each day of violation is a separate offense, be sure to seek daily penalties. A state statute which requires that penalties be assessed on a daily basis is likely to be interpreted as mandatory, leaving the judge with no discretion to impose less than the minimum penalty for every day the violation existed. See discussion of Town of Orono v. LaPointe, 197 ME 185, in the Case Law Summary at Chapter 14 of this manual. "Removal of the violation" is sometimes called an "affirmative injunction" or "remedial action" meaning correcting or eliminating the prohibited activity or otherwise trying to restore the site to its original condition. An example would be an order to the violator to remove an illegally installed septic system or to tear down an illegal building. If the violation was "willful," 30-A M.R.S.A. §4452(3)(c) states that the court must order removal of an illegal structure in most cases. If the violation was not "willful," the court has the discretion to order removal of the violation, but is not required to do so. Therefore, if the enforcement official intends to prove "willfulness," this should be noted in the complaint to put the violator on notice of this fact. The element of "willfulness" could be shown by noting in the "Description of Violation" section of the Complaint that an illegal activity was performed after the enforcement official had given information to the person regarding the requirements of the ordinance. An example would be where the person consulted the CEO about the need for a permit to build a house and then built it without a permit. Also, in the "Relief Sought" section, the words "for a willful violation" could be typed or printed after the words "Civil Penalty." Since "willfulness" involves proving the violator's state of mind, the enforcement official should carefully review facts 17 in support of this contention. For violations of a shoreland zoning ordinance, the statute is tougher. In those cases, the court must order the violator to correct or mitigate the violations even if they were not willful. The only exception is if the court finds that the correction or mitigation itself would result in a threat or hazard to public health or safety, substantial environmental damage or "[a] substantial injustice." 30A M.R.S.A. §4452(3) (C-1). Under the category called "Other," the enforcement officials could ask the court to order the violator to apply for necessary permits or other local approval required by a statute or ordinance where the activity was done in compliance with the performance standards of the law but without a permit. This category also might be used where the town or city and the violator have negotiated a consent agreement to resolve the violation out of court and would like the court to approve it as a "Consent Order." It also could be used to request attorneys' fees pursuant to 30-A M.R.S.A. §4452 (3)(D) in appropriate cases. If multiple violations are covered in a single complaint, it might be helpful to the judge to note on the Complaint which type of relief is being sought for which violation. 7. Insufficient Space on Land Use Citation and Complaint If the enforcement official finds that the Land Use Citation and Complaint form provided in the Appendix does not contain adequate space in which to provide information required in a specific section, it is permissible to complete the information on a separate sheet and attach it to the complaint form. The attachment should be headed "Addendum to Land Use Citation and Complaint" and the information contained in it should be clearly labeled regarding the section of the complaint to which it pertains. It also should be signed by the enforcement officer and dated. B. Required Attachments 1. Ordinance Certification A certified (attested) copy of the section or sections of the local ordinance or local or State regulation allegedly being violated must be attached to the complaint and served on the violator and landowner as well as filed with the court. A statement indicating where the complete text of the ordinance or regulation may be obtained must appear on the copy of the section which is served. If a State statute is the law being violated, this is not necessary because the judge will take "judicial notice" of a statute. A local "ordinance" is a law adopted by the town or city's legislative body (town 18 meeting or council). A local "regulation" is a law which has been adopted by a board or committee based on authority granted to that board by State law. An example of a "local regulation" would be local subdivision regulations adopted by the Planning Board pursuant to the state subdivision law. A State "statute" is a law adopted by the Maine Legislature. A State "regulation" is a law adopted by a State administrative agency or department based on authority delegated to that agency by statute. An example of a "State regulation" is the State Subsurface Wastewater Disposal Rules which is adopted by the Department of Health and Human Services pursuant to 22 M.R.S.A. §42. A Code Enforcement Officer must be specifically authorized by local officials to enforce these state statutes or regulations within his/her town. If the basis for the violation is a local ordinance or local regulation, then the copy of the section which will be attached to the citation and complaint should be attested by the town or city clerk. (Sample language for the clerk's certification is contained in the Appendix at A-12.) If the violation being prosecuted involves a State regulation, the enforcement official should contact the agency to find out how to get an attested copy. If the regulation involved is the State Plumbing Code, then a letter may be sent to the Department of Health and Human Services, Division of Health Engineering, to obtain the number of certified copies needed to serve on the violator and landowner, file with the court and introduce into evidence during the court hearing. (A sample letter to the Department of Health and Human Services is contained in the Appendix at A-12.) Although the attested copy of the section of the ordinance or regulation which the enforcement official filed with the court should be available to use as evidence, the enforcement official should bring an extra attested copy to court on the day of the hearing to be safe. A non-certified enforcement official should not prepare and serve the citation and complaint without first determining whether the town or city intends to provide an attorney to prosecute the case. This is because a non-certified enforcement official cannot prosecute alone. Most attorneys would prefer to help shape the case at the outset rather than being brought into it in the middle. 2. Prior Agreements or Variances It is advisable to also attach to the Citation a copy of any existing agreements or other decisions which affect the property such as variances, conditional use approvals and conditions, Consent Agreements or subdivision approvals. Sometimes, the property owner must be reminded of the legal effect of these decisions and that they continue to bind subsequent owners of the property. It is also helpful when the judge is reviewing the Citation if these documents are included as 19 attachments. C. Keeping the Municipal Officers Informed Even though the enforcement official obtains general authorization from the selectmen or council to represent the town or city in court, that does not mean that the enforcement official should have no further contact with the selectmen or council. The enforcement official should keep them informed about individual enforcement actions and should let them know whenever he or she is considering legal action under Rule 80K. If the enforcement official does not make an effort to communicate with them and to explain why it is necessary to go to court in a given case, the selectmen or council may decide that they are not happy with the degree of authority which they previously granted to the enforcement official or may revoke that authority. The CEO using 80K is representing the municipality, but the selectmen or council are the elected policy makers of that municipality and they are the municipal officials in charge of controlling the taxpayer dollars spent on the enforcement activity. D. Cooperation Between the DEP and Municipalities There are occasions when the same activity or a group of related activities will constitute violations of both municipal ordinances and land use statutes administered by the DEP, such as the Natural Resources Protection Act. Enforcement officials should be aware of the opportunities for cooperation in those situations. For example, the DEP does not have any authority to issue a stop work order; its only option is to go into court and seek a temporary restraining order from the court. A municipal code enforcement officer, on the other hand, typically has authority under local ordinances to order cessation of work. DEP staff has had some experience in obtaining administrative inspection warrants. For municipal code enforcement officers, that is typically an unfamiliar and daunting process. Those differing experiences and capabilities may provide a unique opportunity for complementary enforcement activities. The DEP reports one successful case where the municipal code enforcement officer issued a stop order, bringing the activity to a halt, while the DEP obtained an administrative inspection warrant to go on the property and get the necessary details for a Rule 80K action. 20 E. Checklist Included in the Appendix to these materials, you will find a helpful checklist which can be used to aid you in making sure that you have obtained all of the necessary information for filing the Citation and Complaint. You may wish to add certain notes to this checklist as you create your own version and as you become familiar with the courts in your district. 21 CHAPTER FIVE WHAT TO DO WITH THE 80K COMPLAINT A. Serving Notice of the Complaint 1. Service on Violator Once a Land Use Citation and Complaint form has been filled out, the next step is to "serve" a copy and an attested copy of the section of the ordinance or regulation being violated on the violator and the landowner. "Service of process" is the legal act of providing notice that a complaint is being filed with the court. The obvious purpose of "service" is to give the person against whom the Complaint is being filed a chance to prepare a response and to appear in court to present that response to the judge, either with or without an attorney. Rule 80K provides that the Citation may be served within the state by a duly certified local or state enforcement official or other official authorized to serve process on matters falling under the rule. Rule 4 of the Maine Rules of Civil Procedure outlines the proper method for "in hand" (in person) service depending on whether the violator or landowner is an individual, a child, a mentally incompetent person, a business, or a government official or government agency. The text of Rule 4 appears in the Appendix at A-24. If a land use violation will be prosecuted under Rule 80K by an attorney representing the town or city and the attorney prepares the Citation and Complaint, a local enforcement official still may serve the Citation and Complaint pursuant to the authority granted by Rule 80K. The procedures are the same as those outlined in the preceding paragraph. A good rule of thumb where service cannot be made in person is to consult with the town or city attorney. If someone other than the local enforcement official serves the Citation and Complaint, the enforcement official should take responsibility for the filing of the "Return of Service" (Proof of Service) with the District Court prior to hearing. 2. Service on the Property Owner Whenever Rule 80K requires service on the violator, each owner of the land involved also must be served with a copy of the Citation and Complaint and an attested copy of the section of the ordinance or regulation allegedly violated. The enforcement official should determine ownership through searching records in the Registry of Deeds. (See explanation of how to conduct a title 22 search appears in the Appendix at A-9). If there is any confusion about who the owner is based on a review of deeds at the Registry, the enforcement official should consult with an attorney. The enforcement official should not rely on assessment records. They can be misleading since property assessments do not necessarily show the owner if the property is leased or if it was sold after April 1st. Also, if the property is in common ownership, all owners may not be listed. In cases where the town or city is requesting injunctive relief, it is particularly important to be sure that the proper person(s) has been served as "landowner" since important property rights are being affected. Service on the landowner may be accomplished by any appropriate method provided in Rule 4. 3. Return of Service After the violator and the landowner have been served, the person making service must file the original Citation and Complaint with the court clerk, either in person or by mailing it with a cover letter. This should be done as soon as possible and no later than 20 days after service. In addition, a "Return of Service" meaning "proof of service" must be filed with the court as provided in Rule 4(h) or (j). This is basically accomplished by filling in the section of the original complaint entitled "Return of Service" and filing it within the deadline. If the "Return of Service" is mailed to the clerk, the enforcement official should confirm receipt by calling the clerk. Filing the Return of Service with the court constitutes a representation by the enforcement official that the copy of the Complaint which was served was a true copy. The enforcement official must write the date of service on the copies left with the violator and the landowner. The proper form for "Return of Service" has been incorporated by the Supreme Court into the Land Use Citation and Complaint. A sample "Return of Service" appears as part of the sample Land Use Citation and Complaint which is found in the Appendix at page A-6. B. Documents Filed With the Court 1. Original Citation and Complaint Once the violator and landowner have been served, the original Land Use Citation and Complaint, including the Proof of Service, must be filed with the court clerk within 20 days of service. Before filing these or any other documents with the court, the enforcement official should make photocopies for his or her own file, including copies of any cover letters. A sample Return of Service form is included in the Appendix at A-7. 23 2. Ordinance or Regulation Violated An attested copy of the section of the local ordinance or local or state regulation being violated must be filed with the court clerk. A statement by the town or city clerk attesting a section of an ordinance as a true copy of the original which is in his or her custody in the town or city records must appear on the local ordinance or regulation. If the law being violated is a state agency regulation, the agency will prepare a copy in the form required by Rule 80K. A sample Ordinance Certification is included in the Appendix at A-13. 3. Letter of Authorization to Represent the Municipality, the Department of Environmental Protection or the Land Use Regulation Commission A letter authorizing a specific official to represent the town, city, Department of Environmental Protection or the Land Use Regulation Commission in court must be prepared and signed by the municipal officers, the DEP or LURC and filed with the court clerk the first time the official files a Complaint. A sample letter is included with the Appendix at A-15. This letter would not need to be filed again until a new person is authorized to represent the town city, DEP or LURC. Sometimes a local ordinance requires the municipal officers (town councilors or selectmen) to be involved whenever litigation is commenced. For example, one ordinance in a greater Portland community states: "[w]hen any violation of any provision of this Ordinance ... shall be found to exist, the Building Inspector shall notify the Municipal Officers who may then institute any and all actions to be brought in the name of the Town." If an ordinance contains similar language, it would be prudent for the Code Enforcement Officer to have a specific letter authorizing the specific Rule 80K case, in addition to the general letter of authorization. Prior to an enforcement official's first appearance in District Court under Rule 80K, the Certificate of Familiarity with Court procedures enforcement official must also file the certificate issued to him or her certifying that he or she has completed the State of Maine's certification program and is familiar with court procedures as described in Chapter One. This does not need to be done again until a new certificate is issued upon recertification. A final word of caution -- unless you are a frequent prosecutor of Rule 80K cases in a particular court, it is possible that court personnel may misplace or otherwise lose track of the letter and certificate you have previously filed. It is a good idea to check when you file your Rule 80K complaint. Also, if you have any doubt, bring duplicates with you on the day you appear in court. 24 CHAPTER SIX HOW TO OBTAIN IMMEDIATE JUDICIAL RELIEF A. Temporary Restraining Order and Preliminary Injunction 1. When to Request a TRO or Preliminary Injunction There may be times when an enforcement official finds a violation in progress and cannot locate the person responsible or cannot persuade the person conducting the illegal activity to stop voluntarily until the project has been reviewed and approved by the proper official(s) or until the project has been brought into compliance with the law. If the activity will cause "irreparable harm" which cannot be undone by the kind of corrective action that a court could order after a full hearing on the substance of a Rule 80K complaint, then the local official should consider requesting a type of injunctive relief called a "Temporary Restraining Order" (TRO) or a Preliminary Injunction as part of the land use Citation and Complaint filed with the court. The enforcement official should realize, however, that this type of relief is granted sparingly by the courts and only in extreme cases. Requests for injunctions are governed by Rule 65 of the Civil Rules of Procedure.5 2. Differences Between TRO, Preliminary Injunction, and Permanent Injunction Both a TRO and an injunction order a person to act or cease acting in a particular manner. Both require a showing of "irreparable harm." The difference between them is the speed with which the court will act, the amount of evidence necessary to obtain them, and their duration. A TRO is by its very nature of brief duration. The court acts quickly on a motion for a TRO because the nature of the acts complained about is such that irreparable harm will result immediately if the court does not intercede. Because a TRO only lasts for a short time, the court does not normally require the same evidentiary showing required to obtain a preliminary or permanent injunction, both of which require more evidence. While a TRO can be granted based only on evidence contained in an affidavit attached to the motion or complaint, an injunction requires a full evidentiary hearing with the 5 The requirements for injunctive relief are set forth in Ingraham v. University of Maine, 441 A.2d 691 (Me. 1982). Before granting an injunction, the court must find that four criteria are met: 1) that plaintiff will suffer irreparable injury if the injunction is not granted; 2) that such injury outweighs any harm which granting the injunctive relief would inflict on the defendant; 3) that plaintiff has exhibited a likelihood of success on the merits (at most, a probability; at least, a substantial possibility); 4) that the public interest will not be adversely affected by granting the injunction. 25 testimony of witnesses. It should be emphasized that in the case of both a TRO and a preliminary injunction, the court will be reluctant to order the requested relief without convincing evidence as to the type of irreparable harm which will occur. 3. Notice Requirement A TRO may be issued in true emergencies without the violator being present before the judge. Rule 80K provides that, where an enforcement official believes: (1) that someone is committing a violation of a law which he or she has authority to enforce; and (2) that immediate irreparable harm will result from the violation before the violator or his attorney can attend a hearing to oppose a TRO, the enforcement official may file the original Citation and Complaint directly with the court clerk without first personally serving a copy on the violator or the landowner. The enforcement official may ask the court clerk at the same time if a judge is available to hear a request for a TRO. As a practical matter, however, the enforcement official first must have made a good faith effort to notify the other side that he or she will be requesting a TRO and the time, date, and court where the request will be made. Courts are reluctant to issue TRO's without the presence of the other side. For that reason the enforcement official should make an effort to notify the violator before making the request for a TRO. At a minimum, he or she should try to reach the violator by telephone before going to the courthouse and should continue to try to reach him right up to the time of the hearing. If the violator does not attend, the court will proceed to hear the request and issue a TRO if appropriate. If the violator appears, the court will hear both sides before deciding whether to issue the TRO. If a TRO is issued, the court will normally set another hearing date in the near future to decide whether a preliminary injunction should be issued. Rule 80K states that at the earliest possible opportunity following a TRO hearing, the enforcement official must serve: (1) the Citation and Complaint including the Affidavit in support of the TRO on the violator and landowner, if that was not done prior to the hearing; and (2) notice of the hearing scheduled on the preliminary injunction. 4. Examples of "Irreparable Harm" Examples of the types of violations which would cause "irreparable harm" and which would justify a TRO or preliminary injunction are (1) the clearcutting of a forested area in the shoreland zone, (2) the existence of a badly malfunctioning septic system where raw sewage was accumulating on the ground in a thickly-settled residential neighborhood, or (3) the filling of a stream with solid 26 fill material in a shoreland zone. While a court also might be willing to grant a request for a TRO to prevent the construction of a dwelling without a permit before a full hearing could be held, the enforcement official may have a more difficult time convincing the court that irreparable harm will result without a TRO since the harm may not seem as serious or immediate as in the other examples. In a case where an expensive building is being built illegally, it might be wise to seek a TRO or preliminary injunction even if it is denied as a way to convince the court to order the removal of the building later if the town or city ultimately wins its case. 5. Affidavit The Citation and Complaint form is used where a TRO or preliminary injunction is being requested. In addition to the information in the sample form for a regular Citation and Complaint, the enforcement official should check the appropriate boxes for a TRO and/or a preliminary injunction under "Relief Sought from Court" and complete an "Affidavit". A sample Affidavit is included in the Appendix at A-11. Included in the Affidavit should be a certification containing information regarding the enforcement official's attempts to give notice to the violator that a TRO is being requested. It should also indicate what efforts were made to give notice to the violator as well as specific reasons why notice should not be required. The "Affidavit" is a sworn statement by the enforcement official outlining facts which will support a finding by the judge that "irreparable harm" exists. It must state specific facts which show the "irreparable" damage that has or will result and must also show that it is more probable than not that the municipality will ultimately win a permanent injunction when a full trial on the merits is held. The information contained in the Affidavit may be based on the enforcement official's personal knowledge or on reliable information provided by another person. If based on another's information, the affidavit should say that it is based on "information and belief, and should indicate why the source of information is reliable. The affidavit must be sworn to before a notary public or an attorney. If statements are made on “information and belief” the person making the affidavit must swear that he or she believes those statements to be true. 6. Motion for TRO after Complaint Filed If the enforcement official serves and files the complaint and then finds that a TRO is needed, a TRO can be requested by filing a separate "Motion" with the clerk accompanied by an Affidavit in the same form described above. An example of such a "Motion" appears in the 27 Appendix at A-10. 7. Bond Requirement Rule 80K provides that if a TRO or preliminary injunction is granted, the town or city is not required to give security as a condition of the court's approval of the motion. 8. Overturning a TRO Rule 65 provides that the person against whom a TRO is ordered without notice may make a motion to have the TRO modified or dissolved after giving at least two days' notice to the municipality or on shorter notice if approved by the court. 9. Who Must Comply With TRO or Injunction According to Rule 65, a TRO, a preliminary injunction, and a permanent injunction are each binding only against people named as parties in the complaint, their officers, agents, servants, employees, and attorneys, and upon people "in active concert or participation" with them who have actual notice of the order by personal service or otherwise. B. Administrative Inspection Warrants - RULE 80E Several statutory provisions allow municipal code enforcement officers, plumbing inspectors and certain State officers the right to enter and inspect property. Those statutes seem to distinguish between outdoor inspections and inspections within a building; outdoor inspections are limited to "reasonable hours," while indoor inspections require the consent of the "owner, occupant or agent" before the inspection can occur. Unfortunately, the statutes are written somewhat ambiguously, so it is not crystal clear whether the consent is required only for indoor inspections. If you are an employee or agent of the Department of Environmental Protection or of the Land Use Regulation Commission, you need to follow the advice of the Attorney General's Office, and the AG's office has consistently interpreted the statute to mean that no consent is needed for outdoor inspections (except in some unusual circumstances where there are Fourth Amendment issues, which will be discussed briefly below). If you are a municipal code enforcement official or local plumbing inspector, you should check with your municipal legal counsel if you are concerned that a property owner may object to an outdoor inspection. You also need to be aware that the protections of the Fourth Amendment of the United States Constitution against unreasonable searches and seizures apply to inspections by administrative officers. Therefore, even though one of the statutes mentioned above might prevent you from being charged with trespassing, you could find yourself in a situation where the evidence you gather 28 during an inspection is "suppressed" by the court because the property owner argues successfully that you had no right to be where you were and see what you saw. This is just like suppression of police evidence in a criminal case if the court decides that police acted improperly. Whether or not a search is unreasonable has a lot to do with the property owner's "expectation of privacy" in the particular circumstances and whether the violation you observe is in "plain view." When three apparently junked cars are lined up in an open field which you can see from a public road and there are no "no trespassing" signs or other indications that you should stay out of the field, you are probably okay to take a walk over and see whether the cars are wearing current license plates. But if you have to walk by the "keep out" signs, dodge the barbed wire and jump over a six foot tall stockade fence to find the source of that strange odor the neighbors have been complaining about, then you can safely anticipate a Fourth Amendment challenge to the evidence you discover in that place which the owner clearly expected to remain private. And when you are greeted by the growling German Shepherd, the barrel of a shotgun and the words "get the _________ off my land," that is not the time to pull out the statute books. You need the help of the court! That help is available through what is called an "administrative inspection warrant" (the equivalent of a police officer's search warrant). And you can get it yourself without the aid of a lawyer. The process is set out in another District Court rule, Maine Rule of Civil Procedure 80E. Rule 80E allows officials and employees of the state or any municipality who are authorized to conduct inspections to apply to a District Court judge for a warrant. The request must be made in the division and district where the property to be inspected is located. If you are not sure about which court you should be using, do not hesitate to call the court which you think is the right one. The clerks know (or can easily find out) what towns they cover. And be forewarned that you will have to pay the same filing fee as if you were filing a complaint. You should provide the court with a draft warrant, and it needs to be very detailed. The court will issue a warrant only to inspect a particularly described property for particularly described purposes. Be specific. It is not sufficient to say that you are going to search John Smith's several properties located in the Town of Smithville to see if there are violations of the Smithville Zoning Ordinance. You need to say something like: you are going to search property owned by John Smith located at 11 Smith Road in the Town of Smithville, identified on the Smithville assessor's records as Map ________, Lot _________, and described in a deed recorded in the Registry of Deeds in 29 Book ______, Page _________, for the purpose of determining whether there are three or more unregistered and unserviceable motor vehicles on the property constituting an unlawful junkyard. The request for an administrative inspection warrant must be in the form of a sworn affidavit, and Rule 80E has very specific requirements for the contents of the application. One of the most important requirements is that the application/affidavit must state the grounds for "probable cause" to believe that there is a violation on the property. Because Rule 80E authorizes a search of private property, judges will typically require a strong showing of probable cause, based on specific facts stated in the affidavit on the basis of the enforcement officer's own knowledge. If the you believe that there is a violation because someone else has observed it, it is advisable to get an affidavit from that observer and submit it to the court. Otherwise, your second-hand statements will be "hearsay," and the judge may be reluctant to issue the warrant. For example, if you believe there is an unlawful junkyard on the Smith property because you drove by one day when the gate was open and you observed what appeared to be dozens of unregistered cars, you have personal knowledge of that and can put it in your own affidavit to establish probable cause for the inspection warrant. But if you have not seen anything yourself and are relying on the complaints of neighbors who have seen the wrecks being towed in day after day, then get affidavits from those neighbors to support your request for a warrant. The application must also state that the enforcement officer has first requested permission to inspect the property and had been turned down, and that the enforcement officer has given at least twenty-four hours advance notice to the property owner of the time and place of the hearing on the application for the warrant. Only if there is an immediate threat to the health or safety of the public can the twenty-four hour notice be waived. If a warrant is issued, the inspection must take place within ten days; and no later than ten days after that, the person doing the inspection must file a "return" with the court setting forth the date and time of the inspection and listing any violations found. An administrative inspection warrant is really a pre-Rule 80K device - - a tool which an enforcement officer will sometimes need to use in order to gather sufficient information to determine that there is a basis for bringing a Rule 80K complaint. A sample application under Rule 80E is enclosed in the Appendix at A-19. There is also a final word of warning about Rule 80E. Especially in some parts of the state, it is not used very frequently. Consequently, you may run up against District Court personnel and 30 even District Court judges who look at you as if you have appeared from another planet when you make your request for an administrative inspection warrant. Do not be discouraged. Bear in mind that judges and court personnel have to deal with so many different aspects of the law that they often need help from the litigants in an unfamiliar area. Contrary to the popular myth, judges do not know it all, and practicing lawyers actually spend a lot of their time educating judges about the law in particular cases. As a practicing Rule 80K "prosecutor," you will often have to do the same, and Rule 80E is one of those areas where you may often find yourself being a teacher as well as an applicant to the court. If you are well prepared and approach the judge respectfully, most judges will welcome your guidance and work with you to achieve an appropriate result. That does not mean you will always get what you want, but you will usually get a fair chance to ask for it. 31 CHAPTER SEVEN AMENDING THE CITATION AND COMPLAINT A. General Discussion It sometimes happens that after the Code Enforcement Officer has filed a citation and complaint, new information becomes available, or some mistake in filling out the complaint is discovered, or something new happens which is relevant to the case. In any of those situations, it may be advisable to amend the complaint. Rule 80K states that once the original Citation and Complaint have been filed with the court it may be amended only with the permission of the court. The rule further states that "motions for appropriate amendment of the Land Use Citation and Complaint shall be freely granted." The procedure for requesting permission is to file a "Motion" with the court clerk in a form similar to the one appearing in the Appendix at A-18. Before filing the motion and serving copies on the appropriate people, the enforcement official should contact the court clerk to find out about the procedure for scheduling a hearing on a motion requesting amendments to a citation and complaint. After a hearing date has been established, the enforcement official should serve copies of the motion and a notice regarding the hearing date on the violator named in the complaint, and the landowner, and any other person who will be affected by the proposed amendments. Service of the motion and hearing notice on the appropriate people may be by regular mail or in person. It is a good idea to schedule the motion at least 21 days after its filing date. That is because, under Rule 7 of the Maine Rules of Civil Procedure, an opposing party has 21 days to respond to the motion. In addition, Rule 7 requires the person filing the motion to include a notice to the opposing party of that 21 day requirement. If that notice is included in the motion and the opposing party does not respond within 21 days, then the objection to the motion is deemed waived. A "Return of Service" should be included at the end of the motion and hearing notice, filled out, and filed with the clerk along with the original motion and notice. The enforcement official should keep photocopies of these for his or her file. The procedures outlined in this chapter regarding filing and service of motions and hearing notices also should be followed in connection with other motions described in this manual, except as noted. B. Entering An Appearance If a certified enforcement official takes over as prosecutor of a case which was being handled 32 by an attorney or another enforcement official, the new enforcement official must file an "Entry of Appearance" in a form similar to the one which appears in the Appendix at A-16 and send copies by regular mail or deliver them in person to the violator, the landowner, and anyone else who will be affected. 33 CHAPTER EIGHT REMOVAL TO SUPERIOR COURT One of the shortcomings of Rule 80K is that it only works as long as the defendant allows it to. That is because the defendant has an automatic right to "remove" a Rule 80K case filed by an enforcement official to the Superior Court. And if the defendant does so, the city, town or state has no choice but to utilize a lawyer to prosecute the case because enforcement officials cannot prosecute cases in Superior Court. (To make matters worse, the defendant does not necessarily need to engage a lawyer if the defendant is an individual rather than a corporation). However, a recent District Court decision, City of Portland v. Clifford A. Ridlon (PorCV- 02-876) suggests that there may be no removal to Superior Court if the Town has requested injunctive relief. With injunctive relief, there is no right to a trial by jury which are held in Superior Court. If a removal notice is filed confer with the Town attorney regarding the applicability of this case. The request for removal can be made by any defendant named in a Rule 80K complaint, but it must be made prior to the date on which the violator is required to appear and answer the Rule 80K complaint. As long as the request meets the requirements of Rule 76C of the Maine Rules of Civil Procedure and copies of the notice requesting removal are served on all other parties, the removal happens automatically. Having your Rule 80K case pulled out from under you by a notice of removal is likely to be discouraging, especially if you have spent substantial effort preparing the case for hearing in the District Court. But you should take some comfort in knowing that the preparatory work you did will likely have laid a good foundation for the attorney who takes up the case. You will still be able to testify if the matter goes to hearing. And, by forcing the city, town or state to engage an attorney, the party who removed the case exposes himself or herself to the possibility of having to pay attorney fees under 30-A M.R.S.A. §4452. 34 CHAPTER NINE OUTCOME OF A RULE 80K COMPLAINT 1. Findings and Conclusions What happens when you do your job--when the enforcement official proves the existence of the land use violation "by a preponderance of the evidence"? The result is that the court will decide the case in favor of the town, city or state. But the court will have wide latitude as to exactly what remedy to award. The court's decision will always be in writing, but it will not necessarily be in the form of detailed "findings of fact and conclusions of law." If you receive a decision from the court that does not contain findings and conclusions, and the decision is that you have won your case, then you need do nothing more. However, if you lose, and you receive a decision which does not explain how the judge reached the decision--what facts the judge found, what evidence the judge considered, how the judge interpreted the law he or she applied--then you should ask for more by way of explanation from the court. Having written findings and conclusions will help you decide whether you have a basis for an appeal to the Superior Court. And, if do take an appeal, they are essential. The way to get a decision with written findings and conclusions is to file a motion with the District Court within five (5) days after the original decision of the case. The procedure is outlined in Rule 52 of the Maine Rules of Civil Procedure. If the case in the District Court was not electronically recorded, it is discretionary with the judge whether or not to grant the motion for findings and conclusions (see Appendix A-20). If the case was electronically recorded, the judge must issue findings and conclusions if a motion is made so requesting. Because of that distinction Rule 52 draws between cases which are electronically recorded and those which are not, it is a good idea always to request electronic recordings of the original Rule 80K hearing any time the case is sufficiently important or sufficiently complex that you think your municipality or agency may wish to appeal in the event of an adverse decision. (The same concept applies to defendants, who can also request electronic recordings and findings and conclusions; but it is relevant to them only if they lose and wish to appeal). Remember, having findings and conclusions is critical if the losing party wishes to appeal. That is because, in the absence of written findings and conclusions, the appeals court will assume that the District Court judge founds the facts correctly and found all the facts necessary to support the decision. 35 2. Summary Judgment You will recall that Rule 80K is itself a "summary" process: it moves cases along faster with fewer of the formalities which normally attach to a lawsuit. But it still requires a hearing-in essence, a trial--to bring a case to a conclusion. There is, however, the possibility to complete a Rule 80K case without a trial, by using the procedure available in Rule 56 of the Maine Rules of Civil Procedure called "summary judgment." A copy of the text of Rule 56 is included in the Appendix at A-24. Reduced to its basics, summary judgment means that there is no real dispute as to any important facts and the court can therefore decide the case "as a matter of law." Summary judgment will be granted if a party shows by affidavits, which are not contradicted by affidavits provided by the opposing party, that there is "no genuine issue of material fact" and no trial is required. Summary judgment is considered an extraordinary remedy, and courts are cautious about granting it. That is especially likely to be the case in a Rule 80K action prosecuted by a local Code Enforcement Officer. Still, it may be applicable in some limited circumstances. One example of where summary judgment might be appropriate is where the enforcement officer: (1) cites the violator for an alleged offense and specifically notes the deadline for filing an administrative appeal to the local Board of Appeals and the consequences failing to heed the order to take an appeal in a timely manner; and (2) the violator fails to file an appeal with the Board of Appeals. If the violator fails to appeal, he or she is deemed to have waived his right to contest the violation. See Town of Freeport v. Greenlaw, 602 A.2d 1156 (Me. 1992). Because the requirements regarding summary judgment are strict, it is recommended that an attorney be consulted before considering this option. 3. Levying Fines Municipalities and state agencies do not have the power to “impose” penalties on their own; they must ask the court to impose the penalties which are provided by statute or ordinance. A municipality or state agency may negotiate the amount of a fine through a consent agreement or a consent order presented to the court, but that requires the agreement of the violator. Absent such an agreement, it takes a court order to impose a penalty on the violator. As was noted earlier, 30-A M.R.S.A. §4452 establishes a range of fines for violations of land use ordinances, as follows: • The minimum penalty for starting construction or undertaking a land use activity 36 without a required permit shall be $100, and the maximum penalty shall be $2,500. • The minimum penalty for a specific violation shall be $100, and the maximum penalty shall be $2,500. • The maximum penalty may exceed $2,500, but shall not exceed $25,000, when it can be shown that there has been a previous conviction of the same party within the past 2 years of the same law or ordinance. The law also provides that the court should consider a variety of factors in setting a penalty, including: (1) Prior violations by the same party; (2) The degree of environmental damage that cannot be abated or corrected; (3) The extent to which the violation continued following a municipal order to stop; (4) The extent to which the municipality contributed to the violation by providing the violator with incorrect information or by failing to take timely action; and (5) The economic benefit resulting from the violation. The maximum civil penalty may be increased to an amount not to exceed twice the value of the economic benefit. In deciding what amount to request as a fine, the enforcement official should take into account the expense of correcting the violation if the judge also orders corrective action. You and the court can also take into account the attitude and behavior of the defendant. Proving prior violations by an individual will probably be limited to proving violations occurring within the town or city filing the current action rather than proving other violations in other Maine communities. The town or city should have records indicating such violations or prior convictions. If the violation involves the Subsurface Wastewater Disposal Rules, the Department of Health and Human Services, Division of Health Engineering also may have some useful information. While the trial judge generally has a great deal of latitude in applying the penalty provisions of §4452, there is one circumstance in which the judge has no discretion. That is where the particular statute which has been violated (not 30-A M.R.S.A. §4452) indicates that the penalties must be imposed on a per day basis and that the minimum penalty specified is 37 mandatory. See Town of Orono v. LaPointe, 1997 ME 185, where operation of a junkyard without the license required under state statute for a total of 730 days resulted in a mandatory fine of $73,000.00. The District Court had suspended all but $3,000.00 of that amount, but both the Superior Court and the Law Court decided that the minimum penalty per day was mandatory and could not be reduced. 4. Correction of the Violation 30-A M.R.S.A. §4452 also authorizes the court to order a violator to correct or minimize the violation. If the court finds that the violation was willful or if a shoreland zoning ordinance was violated, the court must order such corrective action unless it would: (1) Result in a threat or hazard to public health or safety; (2) Result in substantial environmental damage; or (3) Result in a substantial injustice. 5. Effect of Court Decision on Landowner If the person who actually conducted the illegal activity was not the landowner and the landowner has not been formally named as a defendant in the Land Use Citation and Complaint, then any decision issued by the court would not legally prevent the landowner from conducting the same activity. A separate Complaint would have to be filed to prosecute the landowner. That is why it is always advisable to name the landowner as a defendant in the Rule 80K action. It is also a good policy to record the Court Order and Judgment or Consent Order in the Registry of Deeds. That way, if the property is transferred, a future owner will have notice of the violation and what is required to correct it. 6. Costs and Attorneys' Fees 30-A M.R.S.A. §4452 provides that if the town or city wins the case, then the court "must" award to the town or city its attorneys' fees (if any), its expert witness fees (if any), and other costs associated with the case (such as serving the citation, filing fees, mileage, photocopying, etc.), unless the court finds that such an award would be unfair to the losing party because of special circumstances. See Town of Ogunquit v. McGarva, 570 A.2d 320 (Me. 1990) and Baker v. Town of Woolwich, 517 A.2d 64 (Me. 1986) (cases involving a sizeable award of attorney's fees.) If the defendant (violator or landowner) is the winning party, then the court may award reasonable attorneys' fees, expert witness fees and costs to the defendant. See Town of Freeport v. Ocean Farms of Maine, Inc., 633 A.2d 396 (Me. 1993). This attorneys' fee provision 38 applies whether the case is initially prosecuted under Rule 80K or in Superior Court, if the prosecution is by an attorney. It also applies if a case is removed to Superior Court and prosecuted by an attorney. Arguably, any time spent by an attorney in helping the enforcement official prepare to prosecute the violation could be recovered as well, but the law is not as clear on this point. Also not clear is whether the Code Official's time qualifies as reimbursable "costs"; that may be up to the judge's discretion. It is important for the enforcement official or anyone else involved in the town or city's case to keep good records of the money and hours spent in preparing and presenting the case. Although the court probably will not award costs to the town or city sufficient to cover all of the time spent by the enforcement official and others, or all of his or her mileage, photocopying and similar expenses, it is appropriate to mention these costs to the court. A municipality should never count on being able to receive an award of attorney fees and costs at the end of a case. That is, a municipality should bring a Rule 80K action only if it is willing to pay the fare and treat any award of attorney fees as bonus miles. Remember the way the statute is worded: if the municipality prevails, the court "must" award attorney fees "unless" the court finds that such an award would be "unjust." Accordingly, the Maine Supreme Court has viewed the decision of whether or not to award attorney fees as discretionary with the trial judge, meaning that the judge has wide latitude to decide whether or not to award attorney fees and how much. See, for example, City of Ellsworth v. Doody, 629 A.2d 1221 (Me. 1993) (where the city prevailed on one of its five claims, the Superior Court properly determined that it would be unjust to award the City its attorney fees on that one claim). The decision to award or not to award attorney fees and in what amount can be appealed by any party to the Rule 80K action, including the prevailing party. But, overturning that decision on appeal is highly unlikely, because the appeals court will interfere only if it determines that there has been an abuse of the discretion vested in the trial court. See, City of Ellsworth v. Doody, supra. It is also possible that a municipality will succeed in an 80K action in getting an award of fines and attorneys' fees, but the violator won't pay. The municipality may have to undertake further court proceedings to collect the penalty. See section on "Collecting a Judgment" below. In that case, the municipality would also be entitled to recover its attorneys' fees spent to collect the penalties. City of Ellsworth v. McAlpine, 590 A.2d 545 (Me. 1991). Even that assumes the 39 violator has some assets which can be reached to satisfy the judgment. In short, don't count your attorney fees until the money is actually deposited in the municipal treasury. The final important point about attorney fees is that you should always ask for them expressly in the Rule 80K citation and complaint. Otherwise, there are some procedural rules about filing a petition for attorney fees after judgment has been entered in the case, and such a petition must be filed within 90 days. If, however, you have asked for attorney fees in the original complaint, then the 90 day limit does not apply. See, Town of Orrington v. Pease, 660 A.2d 919 (Me. 1995). 7. Contempt of Court If the violator fails or refuses to comply with the court's decision after having decided not to appeal the decision, the violator will be "in contempt." The enforcement official should file a motion with the court requesting a contempt order which would both penalize the violator for lack of compliance with the original decision as well as ordering compliance with the original decision. The contempt proceeding can be handled in the District Court. Civil contempt is an "equitable civil procedural device" which does not entitle the violator to a jury trial or to removal to the Superior Court. "It is a coercive tool, available to parties who seek to enforce a previously obtained judgment." City of Rockland v. Conrad Winchenbaugh, 667 A.2d 602 (Me. 1995). 40 CHAPTER TEN APPEALS Rule 80K states that "a party entitled to appeal may do so as in other civil actions." Appeals from a decision by a District Court judge are governed by Rule 2 of the Maine Rules of Appellate Procedure. Under that rule, appeals may be filed by "an aggrieved party" may file an appeal to the Maine Supreme Judicial Court also known as the “Law Court.” "Aggrieved" does not necessarily mean that you have lost the case; it could mean that you got less relief than you asked for, or smaller fines or were denied an award of attorney fees and costs. Those are all appealable issues. Generally, Appeals must be filed with the District Court Clerk within 21 days from the date on which the District Court judge's decision is made and officially recorded in the court docket book. BE CAREFUL! The 21 days begins on the day the clerk enters the judgment on the docket, not the date you find out about it. If the court mails out the decision and it gets lost in the mail and your 21 days goes by, you lose your right to appeal. So, don’t be shy about calling the court clerk once a week or so after your hearing to ask if a decision has been rendered. An appeal must be based either on a misinterpretation or misapplication of the law by the judge (an "error of law") or on a clearly erroneous finding of fact. In practice, it is very hard to overturn a factual finding on appeal. Because an appeal in a Rule 80K action goes from the District Court to the Law Court, an appeal means that the municipality or state will have to use an attorney. Remember, code officials are authorized to practice only in the District Court. If you are considering an appeal from an unsuccessful Rule 80K prosecution, you need to be sure that your municipality or the state will fund the cost of the appeal. If you were successful in the 80K prosecution and the other side files a notice of appeal, you need to contact your municipal attorney (or the Attorney General's Office for state agencies) immediately so that no deadlines are missed in the Law Court. 41 CHAPTER ELEVEN COLLECTING A JUDGMENT An overlooked area in the 80K process is the procedure for collecting the monetary fines and attorneys' fees associated with a favorable judgment. Following the expiration of the appeal period, the enforcement officer may request a "Writ of Execution" from the court. The Writ of Execution states that a judgment was granted and specifies the amount of monetary fines and attorneys' fees. The Writ may then be recorded in the Registry of Deeds and serves as an "Execution Lien" against the property. It is recommended that an attorney be used in the process as the lien may not be effective if the proper procedures including notice to the defendant are not followed. It is also possible to have a "disclosure hearing" following the judgment to determine the defendant's ability to pay the judgment. Again, an attorney should be consulted if this option is undertaken. 42 CHAPTER TWELVE SOME SPECIFICS FOR STATE ENFORCEMENT OFFICIALS A. Department of Environmental Protection Certified employees of the DEP, when authorized by the Commissioner of the Department of Environmental Protection, may represent the Department in District Court. 38 M.R.S.A. §342(7). The process for enforcement activities by the DEP is spelled out in considerable detail in statute, at 38 M.R.S.A. §347-A. The procedures differ in several significant respects from those typically utilized by municipal code enforcement officers. First, the statute specifically provides several alternatives to court enforcement. A violation of the statutes administered by the DEP may be handled through an administrative consent agreement, signed by the violator and approved by the Board of Environmental Protection and the Attorney General. 38 M.R.S.A. §347-A(1)(A)(1). The Attorney General may undertake criminal prosecution of certain violations where the statutes allow a criminal penalty to be imposed. 38 M.R.S.A. §347-A(1)(A)(2); a criminal prosecution is something which DEP staff cannot undertake. The Commissioner may hold an enforcement hearing on the alleged violation. 38 M.R.S.A. §347-A(1)(A)(3). And, finally, authorized DEP employees may initiate a civil action under Rule 80K, but they cannot act entirely on their own. The statute requires prior approval of the Attorney General. 38 M.R.S.A. §347-A(1)(A)(4). When DEP enforcement officials do prosecute a case, there is an additional step once the complaint is filed in the District Court. 38 M.R.S.A. §347-A(4)(E) provides that: “The District Court shall refer the parties to mediation if either party requests mediation at or before the time the alleged violator appears to answer the department’s complaint.” Upon such request by either the DEP or the alleged violator, the parties are required to meet at least once with a mediator appointed by the Court Alternative Dispute Resolution Service (CADRES) at least once “and try in good faith to reach an agreement.” If no agreement is reached at the first meeting, the mediation ceases at the request of either party. Since the mediation option has been in the statute, the DEP has made a request for mediation in a handful of cases and the mediation has resulted in settlement in fewer than half of those where it has occurred. Nevertheless, the DEP views mediation as a worthwhile tool. The mediation session can serve as an opportunity for both sides to learn more about the other’s position and, even if no settlement results, the issues can be narrowed and focused before the 43 trial of the 80K action. Interestingly, the DEP reports that it has not had an alleged violator request mediation. One plausible explanation for that phenomenon is that the request for mediation must be made before or at the initial appearance to answer the complaint, and alleged violators may simply be unaware of the availability of mediation or the need to make the request in such a short period of time. Keep in mind that the fines and penalties for violations of DEP statutes are set forth in 38 M.R.S.A. §349. In other parts of this manual, there are discussions about the general land use enforcement statute, 30-A M.R.S.A. §4452, but that statute governs only enforcement activities by municipalities. The DEP looks to its own statutes for penalties and remedies. B. Land Use Regulation Commission LURC employees are authorized to prosecute cases in the District Court by 12 M.R.S.A. §685-C(9). As with DEP employees, they must be specifically authorized by the agency and they must be certified under 30-A M.R.S.A. §4453. Penalties and remedies in LURC enforcement actions are determined by the LURC statute, not by 30-A M.R.S.A. §4452. Unlike the DEP statute, which provides considerable detail about fines and penalties, the LURC statute is extremely open-ended. The basic rule is: “[a]ny person who violates any provision of this chapter, or the terms or conditions of any standards, rules, permits or orders adopted or issued pursuant to this chapter, is subject to a civil penalty, payable to the State, of not more than $10,000.00 for each day of the violation." 12 M.R.S.A. §685-C(8). Talk about giving the trial judge a wide range of discretion! The statute also provides that “the court may order restoration of any area affected by any action or inaction found to be in violation of any of the provisions of this chapter or of any order, standard, rule or permit of the commission, or of any decree of the court, to the condition of such area prior to the violation. When such restoration is not practicable, the court may order other actions to be taken by the person charged with the violation which are in mitigation of the damage caused by the violation.” Again, the court is given wide latitude in fashioning remedies. 44 CHAPTER THIRTEEN TRIAL TIPS AND TECHNIQUES A. Preparing for Court 1. Initial Hearing In some District Courts the first hearing which is scheduled for a Rule 80K complaint is treated as an "arraignment". This means that the violator appears only to admit or deny the allegations. If the violator denies the allegations, then another date is set for a hearing on the complaint. In other cases, the court expects both sides to be ready to argue the full case at the first hearing. The enforcement official should check with the clerk before preparing for court to determine which procedure they will face. Be prepared for multiple "hard luck" stories from the alleged violator and a request for a continuance (postponement). Also be prepared for the possibility that the judge may fashion a procedure somewhat different from the specific process set out in Rule 80K. For example, a judge might tell the parties to return for a “preliminary hearing” to deal with a particular aspect of the case; that might be accompanied by a strong suggestion that the parties try to resolve that aspect of the case before the preliminary hearing. In other words, the next step after the initial answer to the complaint is not necessarily the full Rule 80K trial on the merits. The trial judge has a great deal of discretion in terms of when the trial is scheduled and what preliminary matters are taken up in advance. 2. Burden of Proof Under Rule 80K the town or agency has the burden of convincing the court that the person named as the defendant in the complaint has violated the particular law or laws cited in the complaint. This means that the town or city has the "burden of proof'”. The court will not presume that just because a person is being prosecuted that he or she has violated a law. Rule 80K states that a court may only find a person liable of a land use law violation "by a preponderance of the evidence." This is the "standard of proof" that guides the court in analyzing the evidence presented by the town or city and by the violator. The court must find that the evidence presented by the town or city outweighs the evidence presented by the violator, either because the town or city presented a greater amount of credible evidence or because what was presented was more convincing than what the violator presented. It must find that it is "more likely than not" that the person accused actually committed the violation which has been alleged. Stated another way, the enforcement official must prove that it is "more probable than not" 45 that each element of the offense exists as a fact. The "elements of the offense" means "a series of factual conclusions stated in the law being enforced, the combination of which support the legal conclusion that the law has been violated." It is essential that the proper person(s) be named as the defendant in the complaint. It also is essential that the proper laws be cited in the complaint as a basis for the violation and prosecution. A court will not find a violation of a law if it was not properly cited in the complaint since the person would not have had proper notice of the charges against him or her and, therefore, would not have had an opportunity to prepare a defense. Finally, it is essential that the town or city's case be supported by admissible evidence, such as, testimony of eye witnesses, personal observations by the enforcement official and photographs and physical measurements taken by the enforcement official or someone acting at his request who can testify. A case built only on second-hand, unsubstantiated information, information about the violator's reputation in the community or circumstantial evidence will not be considered. 3. Organizing the Case Since the court's only knowledge of the violations being prosecuted is the limited information contained in the Land Use Citation and Complaint, it will be important to the success of the case to clearly identify the elements of the offense and lay the facts out in a systematic and logical way which will be easy for the judge to follow. One way to prepare is to make an outline of the sequence to follow during the presentation, listing each fact which must be proved and how to prove it. A sample outline is a follows: 4. Typical Outline of Presentation • Summarize the violations cited in the Citation and Complaint; • Summarize the laws cited in the Complaint and introduce attested copies of each into evidence; • Explain how the violation came to the enforcement official's attention and what preliminary steps were taken, for example: received phone call, checked files to determine whether permits issued, went to property, found violator completing work, told him he needed permits, told him to talk to landowner, followed this with a letter to violator and to landowner describing violation and setting deadline for making necessary applications, nothing done by either one, introduce attested copies of notice of violation (see Appendix A-5) sent to each violator and attested copy of deed to owner; 46 • Present Evidence to Prove Violations: (1) Introduce attested copy of zoning map and town tax map to show where the land is in relation to the zone; (2) Introduce photographs showing the violation or sketch plan of site showing their location and supporting testimony; (3) Introduce measurements showing how far the violation is located from relevant dimensional requirements; (4) Introduce testimony of witness to prove when the building was constructed in relation to the adoption date of the ordinance; (5) Introduce information regarding the piece of equipment used to measure the distances; (6) Testify that no permits were ever issued by the town for these activities according to the records maintained by the enforcement official. • Explain what corrective action and fines are authorized under 30-A M.R.S.A. §4452. Remember that each day may be assessed as a separate violation. In addition to a basic outline, maintaining a "80K Checklist" similar to the one in the Appendix at A-23 may also be helpful. As an organizational technique, it might be useful is to put information pertaining to a particular witness or a particular piece of physical evidence in separate file folders marked with tabs in numerical order. A list also should be prepared showing the contents of each numbered folder. This system should enable the enforcement official to locate material quickly both during preparation of the case and during the court hearing. Many experienced trial attorneys carry a small notebook (known as a "Trial Notebook") with them at all times in which they can make notes about a particular case as ideas occur to them, which often happens when an attorney least expects it. This is a habit which the local enforcement official should develop. The enforcement official generally must carefully plan how he or she will present the case before the day of the trial. If witnesses will be used, the enforcement official should determine the order in which they will testify to avoid delays in court. The point at which exhibits will be introduced during the hearing also must be decided in 47 advance. If possible the enforcement official should meet with the representative for the other side prior to the day of the trial: (1) to exchange lists identifying exhibits to be used; (2) to provide copies of any exhibits which are documents; (3) to agree on a numbering sequence for exhibits; and (4) to agree on ("stipulate") which exhibits can be introduced without objection (and therefore without the need to use witnesses to introduce those exhibits into evidence). Many attorneys representing violators will not agree to any of the exhibits in order to put the enforcement official "through his or her paces" and require that each exhibit be formally introduced into evidence. Once the enforcement official has shown a few attorneys that he or she has mastered this part of the process, the word probably will spread and there will be more of a willingness to stipulate to exhibits. Also, if the code enforcement official has attempted to reach agreement on exhibits and opposing counsel has declined to participate, telling that to the judge in advance of the trial will at least explain to the judge why the code official is going through the somewhat tedious process of introducing exhibits one-by-one; the judge might even order opposing counsel to sit down and attempt to work out stipulations. A final suggestion regarding general organization is that the enforcement official may find it useful to count backward from the hearing date and note on a calendar some deadlines by which certain tasks must be accomplished in order to be ready for court - - for example, lining up witnesses and exhibits, meeting with other side, reviewing the ordinance being violated, and so forth. The important thing is to determine what points need to be made in court and what evidence needs to be presented to support a particular point. Then be certain that all the physical evidence (photos, documents, etc.) has been collected and all of the necessary arrangements have been made for witnesses to testify. Finally, review the outline and all of the evidence, including the law being violated, as many times as is necessary to feel comfortable with it and knowledgeable about it. Also, make sure that all witnesses who will be called to testify are fully prepared and that you are comfortable and familiar with their anticipated testimony. 5. Observing Court Proceedings In addition to becoming familiar with the evidence, another effective way to prepare is to observe court cases being presented by other people, preferably a matter being presented under Rule 80K. Seeing where the courtroom is located, how it is arranged, and how the judge and others involved conduct themselves can make the experience less intimidating when an enforcement official has to present his or her own case. It may be helpful to observe a number of different judges. 48 The court clerk will know when Rule 80K cases have been scheduled. Contacting the DEP or some towns or cities which have significant code enforcement activity is another way of learning about cases which have been scheduled for a hearing. 6. When to Subpoena a Witness to Testify/Use of Depositions Generally, a witness must give his or her testimony orally in open court. If a witness will not agree to appear in court voluntarily or if there is any doubt about whether a witness will appear, procedures are available to subpoena a witness and force that person to attend. Contact your municipal or agency attorney if you feel a subpoena will be necessary. It is standard practice with some attorneys to subpoena all witnesses except municipal employees or paid expert witnesses, just as a precautionary measure. In some circumstances when the witness is unavailable, a "deposition," (sworn written statement) may be introduced into evidence as a substitute for oral testimony in court. Refer to Rule 32(a) of the Maine Rules of Civil Procedure for more details of when a deposition may be used at trial. Both sides may agree to allow the use of a deposition or other sworn statement for other reasons. If the use of a deposition becomes necessary, an attorney should be asked to assist the enforcement official. 7. Obtaining Evidence by Both Parties/"Discovery" Procedures Essentially any information about a violation or a Rule 80K case which the enforcement official has in his or her custody is public information under the Maine "Freedom of Access" Law, 1 M.R.S.A. §401 et seq. Consequently, if the violator, landowner, an attorney representing either one, or even a member of the general public wants to obtain copies of any written, taped, or filmed material which the enforcement official may have, there is no reason to refuse that person the right to: (1) inspect and copy that material; or (2) to pay the town or city the cost of making copies for him or her. However, if the information being requested is not in written or recorded form and the enforcement official cannot or will not divulge it, and if the information being requested is not confidential under State law, then the violator or landowner may file a motion for discovery for "good cause" (see discussion below). Assume that the public will be able to inspect your files at any time. Have them ready and in order. Information under the control of the landowner and the violator is not governed by the Freedom of Access Law. If there is some information which the enforcement official needs in order to prepare his or her case and the violator or landowner or some other person connected with the case will not provide it voluntarily, the enforcement official has several options. If it is information 49 which is public and is in the custody of some other governmental agency within the State, then it could be requested from that agency under the Freedom of Access Law. If it is information which cannot be obtained by any of these methods, then the enforcement official may file a motion with the court requesting permission to conduct "discovery." Rule 80K states that such a motion may be granted only upon a showing of "good cause" by the person filing the motion, assuming that the parties do not agree to discovery voluntarily. "Good cause" basically means that the court must find that the requested information is essential to the case and cannot be obtained any other way. An example of a Motion for Discovery appears in the Appendix at A-17. If discovery becomes necessary, the enforcement official should contact the town or city attorney about preparing the motion. If the motion is granted, the enforcement official should work with an attorney in the preparation of some of the particular discovery tools provided for in Maine Rules of Civil Procedure Rules 26 through 37. 8. Negotiation and Settlement You should not lose sight of the fact that even though a Rule 80K complaint has been filed, the real goal is to obtain compliance, and if that can be done without a full court hearing, everyone is usually better off. The goal should not be to "chalk up another win" or to "teach that so and so a lesson." You should remain willing to consider reasonable offers to settle the case and may want to propose such offers yourself right up until the parties enter the courtroom. To that end, it is a good idea to get settlement authority from the municipal officers of your town or city or the appropriate person in your state agency right at the start of the case. Keep in mind that if you are still trying to reach an agreement by the time a hearing is ready to begin, judges will usually be willing to grant a continuance to allow the parties more time to try to reach a settlement. Any settlement reached between the time the complaint is filed and the time of hearing should be presented to the judge with a request that the judge enter the terms of the settlement into the record as part of the court's order in the case. The word "order" is critical. A settlement between the parties is basically a private contract. If either side breaks the contract, someone has to bring a lawsuit to enforce it. But when a settlement is incorporated into an order of the court, then it is much more than a contract. Failing to live up to the terms of a court's order is a violation of law and puts the violator in contempt of court. Once you have gone to the trouble of filing a Rule 80K complaint, any agreement you reach should become the basis of a court order (see Appendix A-8) and nothing 50 less. Judges will almost always be willing to incorporate your agreement into an order, often called a "Consent Order." Examples of the kinds of terms typically contained in Consent Orders are an agreement to remove an illegal structure within a stated period of time, an agreement to pay a fine, an agreement to reseed a clear-cut area, an agreement to discontinue an illegal use of property within a stated time period, and an agreement to submit an application for a permit after-the-fact. Consent Orders allow real flexibility. For example, the enforcement official could negotiate a large fine and agree to waive the fine if certain corrective action is taken within a specified period of time. A sample "Consent Order" appears in the Appendix at A-21. In negotiating settlements involving illegal structures or activities, you should balance the amount of the penalty with the seriousness of the offense. The enforcement officer should obviously not be seen as condoning illegal activity, but resolving the violation with corrective action is usually more important than penalties. The penalty should be large enough to serve as a deterrent, but need not be punitive. The flexibility you will have to settle a case will depend on what violations were cited in the original complaint. To this end, it is often useful to cite the violator for every legitimate violation and then, if necessary, "bargain away" some of the lesser violations in the return for getting the violator to agree to the desired corrective action for the more serious violations. Remember, the violator usually needs to be offered something in return for an agreement with the enforcement official. This fact is particularly important when the violator has engaged an attorney, as the attorney must be able to show the client that he or she has done something positive on the client's behalf. If the person actually performing the work which causes the violation is not the landowner, then a separate Consent Order should be negotiated with the landowner pertaining to any necessary corrective action involving land or buildings, or the landowner should be made a party to a three- way agreement which becomes incorporated into an order. This is because a person who does not own the property may not have legal authority to make changes to the property. In trying to negotiate a favorable settlement, you may find it helpful to emphasize the potential costs which the court could award against the violator if the municipality wins its case. 30A M.R.S.A. §4452 authorizes fines of up to $2,500 per day for first time offenders plus an award of attorneys' fees. The DEP statutes have similar provisions. Faced with these costs plus the potential 51 for an order of remedial work (e.g., removing a building, reseeding a forest), many violators agree to settle rather than risk going to trial. 30-A M.R.S.A. §4452 provides a number of factors which a judge must consider in deciding how much of a fine to award and what kind of corrective action to order. If the court finds that a violation was willful, the statute requires the court to order corrective action unless it would: (1) result in a threat or hazard to public health or safety, (2) result in substantial environmental damage, or (3) result in a substantial injustice. In setting a fine, the statute requires the court to consider: (1) prior violations by the same person; (2) the degree of environmental damage that cannot be abated or corrected, (3) the extent to which the violation continued following the CEO's order to stop; and (4) the extent to which the municipality contributed to the violation by providing the violator with incorrect information or by failing to take timely action. In weighing the strengths of the town's or city's case against a violator and in deciding what to include in a Consent Order, keep these statutory factors in mind. If it is highly unlikely that a judge will order a large fine or total elimination of a violation because of one or more of the factors listed in the statute, then you may have to settle for less in a Consent Order. 9. Dismissal of Complaint Sometimes merely serving the citation and complaint on the landowner will result in a quick correction of the violation. Other times it will result in discussions with the landowner which lead the enforcement official to decide that things on the property are not as bad as you thought and there really is not a basis to go ahead with the Rule 80K action. In either of those circumstances, you may voluntarily dismiss your Rule 80K complaint under Rule 41(a) of the Maine Rules of Civil Procedure. Up until the time the alleged violator has appeared to answer the citation and complaint, you can dismiss the case unilaterally by filing a simple notice of dismissal (see Appendix A-22). After the alleged violator has answered, you will need to have both parties sign a "stipulation of dismissal," indicating that both sides agree that the case is over. Unless you say something different in either the notice or the stipulation, such a voluntary dismissal is "without prejudice." That means that none of the issues in the case have been decided and it would be possible to file another complaint for the same violations if it becomes necessary to do so. Remember, though, that re-filing a complaint involves starting over again with service of process and filing the complaint in court. Also, a second dismissal of the same claim does bar 52 bringing a third or subsequent complaint. Therefore, if you think the case may go forward but merely want some kind of "cooling off" period, it makes more sense to ask for a "continuance," which is discussed below. Even after (or, in fact during) hearing, the enforcement officer may decide to dismiss the case. It is possible, for example, that some facts will be revealed at the hearing which make you decide that the case really should not be prosecuted further. Once a hearing is commenced, however, only the judge can order dismissal. Also keep in mind that the Rule 80K complaint cannot be filed and then left to sit in the court's files forever. If nothing happens on the court's docket (other than a motion for a continuance) for a period of two years from the date the complaint is filed, the court may dismiss the case on its own or on a motion filed by the defendant. Generally the case will be dismissed unless the code officer can show "good cause" for the two years of inactivity. And if a case is dismissed for lack of prosecution over two years, the dismissal is usually "with prejudice." That means, in simple English, "you lose." The issues in the case are considered decided in favor of the defendant and cannot be raised again in a later prosecution. 10. Continuance If you need to have the case continued to another day because of some unexpected conflict or problem, you must file a motion for continuance with the court in accordance with Rule 40 of the Maine Rules of Civil Procedure. The reason for the requested continuance should be some serious commitment which demands that you be unavailable for the court hearing--just wanting to put it off is not likely to persuade the judge. The motion must be made at least four days before the hearing date, but the earlier the better. You want to have the opportunity to get a decision on the motion (which is likely to require a hearing in itself) early enough before the date scheduled for trial so that you can figure out what your backup plan is if the court denies the requested continuance. Rule 40 requires that you give notice to all parties, by mail if possible, but otherwise by telephone or other oral communication. The best practice of all is to contact the defendant or the defendant's attorney and inquire if the defendant will agree voluntarily to the continuance. If so, notify the court clerk by telephone that the parties have agreed to cancel the hearing. In addition, it is a good idea to file a formal motion for continuance, indicating in the motion that both sides have agreed. The judge will then ordinarily sign the motion without any kind of a hearing. Rule 40(c) imposes some specific and fairly complicated requirements for a motion to 53 continue the hearing based on the unavailability of a witness. If the reason you are considering a continuance is that one of your witnesses cannot attend, you should evaluate just how important that witness is to your case before requesting a continuance. If you or another witness can provide the same information (based on first-hand observations and not on hearsay), then you may wish to avoid the process of asking for a continuance. If you really think the witness is important, you can read Rule 40(c) carefully and supply the court with the affidavit required by that rule. Or, you can always request a continuance without the Rule 40(c) affidavit, since the decision on whether or not to grant a continuance is left to the judge's discretion, and judges may well demand less of enforcement officials bringing 80K actions than they would of lawyers seeking continuances of trials. 11. Statute of Limitations/Laches A statute of limitations is the law's way of saying that a claim is too "stale" to prosecute. But the statute of limitations never runs out on a municipality's ability to enjoin or abate a zoning violation. That is because a building, use or activity which violates the ordinance is a continuing violation until terminated. It is like a "nuisance" at common law, where a new violation arises each day the illegal activity continues. 30-A M.R.S.A. §4302 expressly provides that "[a]ny property or use existing in violation of a municipal land use ordinance or regulation is a nuisance." (The ability to collect penalties for each day a violation exists is, on the other hand, subject to Maine's general six year statute of limitations; a municipality may be able to enjoin an old zoning violation, but it cannot go back more than six years to collect daily penalties.) In some circumstances the age of a zoning violation may prevent a municipality from achieving complete abatement - - removal of a building for example. There is an equitable doctrine which goes by the name "laches," which is something like a statute of limitations - - only flexible. Laches is defined as the failure or omission to assert a right for an unreasonable and unexplained period of time under circumstances which are prejudicial to the adverse party. In simple English, it would be unfair to take enforcement action when a lot of time has gone by for no good reason. It is still not clear whether laches applies at all in zoning cases. In 1990, in Town of Falmouth v. Long, 578 A.2d 1168 (Me. 1990), Maine's Law Court said "Maine has not, as yet, adopted laches as an affirmative defense to prevent a governmental authority from enforcing its zoning regulations." The court then went on to discuss whether, if it applied, laches would have prevented the Town of Falmouth from enforcing against Long, and stated that it would not, even 54 though the unlawful use had continued for fifteen years before the town commenced enforcement activity. More recently, in H.E. Sargent v. Town of Wells, 676 A.2d 920 (Me. 1996), the Law Court repeated its statement that it has never adopted laches as an affirmative defense to prevent a town from enforcing its zoning regulations, then went on to note that 18 years was not too long in the circumstances of that case. In short, if a municipality discovers a serious zoning violation which merits enforcement action, the fact that the violation has existed for a number of years does not mean that no relief is possible. 12. Estoppel Another doctrine which may be asserted as a defense to a zoning enforcement action is the theory of "equitable estoppel." If a municipal official (like a Code Enforcement Officer) has given erroneous information, the property owner has relied on that information to undertake some activity and it was reasonable to rely on that information, then it is possible that the municipality might be "estopped" from taking enforcement action. As with all equitable doctrines, the fundamental concept is fairness. However, equitable estoppel is seldom a good defense to an enforcement action. The property owner is presumed to know what the zoning ordinance says. So if the zoning ordinance says that a building permit is required, but the building inspector has erroneously advised the property owner not to bother with the permit, there is no estoppel. The property owner has no defense in those circumstances for two reasons: (1) reliance on the obviously incorrect statement of the building inspector is not reasonable; Town of Freeport v. Brickyard Cove Associates, 595 A.2d 556 (Me. 1991); (2) the Building Inspector had no authority to make that statement and the unauthorized act of a municipal official cannot estop the municipality. Shackford & Gooch, Inc. v. Town of Kennebunk, 486 A.2d 102 (Me. 1984). The only reported zoning case where a municipality has been estopped is City of Auburn v. Desgrosseilliers, 578 A.2d 712 (Me. 1990). There the property owners were advised by the City to seek a zoning change in order to conduct their use, the City Council changed the ordinance accordingly, and then the City contended that the use was not permitted by the changed zoning. The court felt that it was not unreasonable for the property owners to have relied on the actions of the City Council - - the legislative body which (unlike the building inspector in Shackford & Gooch) was authorized to write the zoning laws. That is a fairly unusual set of facts, and in more ordinary circumstances, equitable estoppel is 55 not often a successful defense for zoning violators. Indeed, in two recent cases the Law Court has again rejected estoppel claims by property owners. In H.E. Sargent, Inc. v. Town of Wells, 676 A.2d 920 (Me. 1996), the Code Enforcement Officer had written a letter stating that the property owner’s gravel pit was “grandfathered.” But, when it turned out that the letter was based on inaccurate information supplied by the property owner (even though it did not appear the inaccuracy was an intentional lie), the court held that the CEO’s letter had no effect. In Town of Union v. Strong, 681 A.2d 14 (Me. 1996), Mr. Strong received a letter from the Planning Board (which was acting as the code enforcement officer for shoreland zoning) stating that he could continue to construct a deck on his home. About a year later a newly appointed Code Enforcement Officer formally ordered Strong to cease construction. Strong went ahead with the construction, claiming he could rely on the Planning Board’s letter. He ended up paying a $7,500.00 civil penalty and attorney fees of $5,714.00 to the Town. 13. Selective Enforcement In the popular mind, "selective enforcement" is a great defense to a prosecution for violation of some ordinance or statute. In legal doctrine, it is virtually no defense at all. Throughout the country, almost every court which as ever considered the question has concluded that it is not a defense to a prosecution of a zoning violation that the municipality has failed to enforce the ordinance against other persons violating it. Selective enforcement would succeed as a defense only if the violator could show that there was some conscious, deliberate effort to single out that person, for reasons unrelated to the legitimate goals of enforcing the zoning ordinance. Simple laxity in past enforcement practices, or even a rational exercise of prosecutorial discretion, is not enough to defeat a zoning prosecution if the facts show that the person being prosecuted committed the violations. Of course, a municipality should always strive to be even-handed and consistent in its enforcement of the zoning ordinance, but the courts will consider one violation at a time and typically will not admit evidence that other people are violating the ordinance as well. See, e.g., City of Rockland v. Winchenbaugh, 583 A.2d 702 (Me. 1990) (trial court properly excluded as irrelevant evidence of alleged violations by other property owners in the vicinity). B. Evidence 1. Types of Evidence There are a number of different types of evidence which an enforcement official may have available in proving a violation. The most obvious is the use of witnesses to testify on the witness 56 stand under oath. This includes testimony by the enforcement official in presenting the case. Another type is called "demonstrative" evidence. This includes the use of photos, diagrams or maps to illustrate the testimony of a witness. A third type is "documentary" evidence, meaning something written, such as a copy of the ordinance which is being violated. A fourth type is "real" evidence, which means a tangible object such as a bottle of polluted water or contaminated soil. 2. Consideration by the Judge Before any evidence may be considered by a judge in deciding a case, the enforcement official must formally offer it into evidence by calling a witness to testify or by introducing it as an "exhibit." This is true even for the ordinance which the enforcement official attached to the complaint when the case was filed with the court clerk. Before the judge can consider the ordinance, it must be formally introduced as an exhibit. Any exhibits should be numbered in numerical sequence and offered into evidence during the time that the appropriate witness is on the stand. Adhesive stamps leaving a space for the exhibit numbers are available at the Courthouse. 3. Rules of Evidence Generally There is nothing in either Rule 80K or in the statutory provisions creating the new land use law enforcement system which states that cases filed under Rule 80K are exempt from the Maine Rules of Evidence. Consequently, the enforcement official must develop an understanding of at least the basic rules. Some of the rules of evidence, particularly those relating to "hearsay" ("secondhand") evidence, are fairly complex. For the purposes of most land use law violation cases, it is probably safe to say that many of the complex rules of evidence will not come into play. This is because generally the prosecution of a land use violation will be based on the personal observations of the enforcement official or eye witnesses to the illegal activity, photographs, physical measurements, expert testimony, or similar types of first-hand reliable evidence. If a case will not be built upon this kind of evidence, then it is advisable either for the town or city attorney to handle the case in court or for the enforcement official to work closely with the town or city attorney in preparing the case. In order to be admissible, there are three basic requirements which all evidence must meet: 1) the evidence must be relevant; 2) the evidence must have an adequate foundation; and 3) the evidence must not be subject to any of the exclusionary rules 57 4. Relevance Rule 401 of the Maine Rules of Evidence defines "relevant" evidence as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." In other words, the evidence must have some clear bearing on some fact in the case which the enforcement official is trying to prove. Irrelevant evidence will be excluded by the judge. Even relevant evidence may be excluded by the judge if it is repetitious, unfair, or confusing. Because the court's time is under heavy demands, it is important to present only relevant evidence. 5. Foundation/Reliability The "foundation" is the underlying basis for a piece of evidence which must exist before it is admissible. To prove that evidence is based on an adequate foundation, the enforcement official must be able to show the source of the evidence and that both the source and the evidence itself are reliable. Generally, this will involve the use of testimony by someone who actually saw or heard something pertaining to the fact which the enforcement official is trying to prove or the use of diagrams, photos, or other documents which the enforcement official can show are accurate and reliable through the testimony of a witness. To lay a proper foundation for the testimony of a witness, the enforcement official must ask the witness a series of preliminary questions designed to show that the witness had an opportunity to observe or otherwise personally experience through one of the five senses the facts about which he or she will testify. When a photograph or other demonstrative evidence is used, a witness must be called to lay a foundation as to the accuracy of the picture to prove that it has not been altered. The witness would testify that he or she is familiar from personal observation with the place shown in the photo and that it is an accurate and correct depiction. The foundation needed for documentary evidence is something to prove that it is a genuine document, that it has not been altered, and that it comes from where it says it did. This can be done through the testimony of the custodian or, in some cases, through a statement on the document by the custodian attesting its accuracy. If real evidence is used, it is necessary to show a "chain of custody" as the foundation for its admissibility. This will involve testimony by all those who had physical possession from the time the evidence was generated (such as the taking of a water sample) until the time it is offered into 58 evidence to show that it was not altered in any way. 6. Exclusionary Rules There are a number of rules of evidence which prevent certain kinds of information from being admitted into evidence for any purpose, while some prevent certain information from being admitted only for certain purposes. These exclusionary rules are designed to screen out evidence which is not credible or trustworthy. 7. Witnesses Generally Rule 601 of the Maine Rules of Evidence requires witnesses to be "competent." This means that the witness must be able to understand what he or she is testifying about and must be able to explain it to the court while under oath on the witness stand. Rule 602 of the Maine Rules of Evidence states that a witness also must testify from personal knowledge. The rule requires that proof of personal knowledge be introduced into evidence, which can include the witness' own testimony. Generally this rule is designed to prevent one person from simply repeating what he or she has heard from another source. Generally a witness must testify from memory on the stand. If a person takes the stand and because of nervousness or lapse of time has trouble remembering something about which he or she was going to testify, Rule 612 of the Maine Rules of Evidence allows the witness to look at notes which he or she made in order to refresh his or her memory before testifying while on the stand. However, the rule also allows the defendant to look at those notes, cross examine the witness about them, and have them introduced into evidence. The defendant's purpose in doing so would be to show that the witness really didn't have an independent memory of the facts about which he or she was testifying. Rule 803 of the Maine Rules of Evidence also allows a witness to read notes into the court record in limited situations. If the witness made notes about an incident or fact when it occurred and was fresh in his or her mind and the notes are shown to be accurate, the witness may read those notes as his or her testimony rather than testifying from memory, but only if the witness' recollection is insufficient to allow him or her to testify fully and accurately without the notes. 8. Hearsay Probably the best known of the exclusionary rules is the one governing "hearsay." Rule 801 of the Maine Rules of Evidence defines "hearsay" evidence as a verbal or written statement made or an act performed out-of-court which is offered into evidence in court to prove the truth of the 59 statement or act. The value of an out-of-court statement or act as evidence in court usually depends on the credibility of the person who made the statement or did the act out-of-court. Consequently, the hearsay rule sometimes requires that evidence of such statements or acts be excluded from what is presented to the court unless the person who said it or did it actually comes to the hearing to testify in court before the judge. (1) For example, if X is called as a witness to testify that W told him that he saw Z dump a load of sand into the lake, X's statement is inadmissible hearsay (i.e., excluded from the evidence upon which the judge will decide the case) if offered to prove that Z dumped the sand rather than merely to prove that W spoke to X. W should have been called as a witness instead of X. (2) Another example of inadmissible hearsay would be testimony by the enforcement official regarding his telephone conversation with an expert on coastal wetland vegetation who helped him identify the boundary of a coastal wetland. To introduce that information into evidence, the expert would have to appear in court as a witness. (3) An example of testimony regarding a statement made out-of-court which would be admissible as an exception to the hearsay rule is testimony by a witness (including the enforcement official) regarding what he or she heard the violator say where the testimony is offered against the violator. (Note: Such testimony may be useful in proving a willful violation.) (4) Another example is where the enforcement official needs to introduce evidence that records maintained by some other municipal official do not indicate that a necessary permit was issued. The official who is the custodian of those records may prepare a certificate in a form which complies with Rule 803 and Rule 902 of the Maine Rules of Evidence stating that a search of those records showed that a permit was not issued. The certificate could be introduced into evidence as a substitute for that official's in-court testimony. The purpose of the hearsay rule is to encourage the use of witnesses testifying from personal knowledge about what they saw first-hand who can be cross-examined and observed while under oath in court. 9. Written Documents Rule 901 of the Maine Rules of Evidence requires that documentary evidence must be authentic in order to be admissible. Proof must be offered that the document is what it appears to be before it can be considered by the court in deciding the case. Sometimes this proof must take the form of testimony by the custodian of a record or the person who took a photo or prepared a diagram. Some documents are "self-authenticating" as defined in Rule 902 of the Maine Rules of 60 Evidence and do not require additional proof such as the testimony of a witness in order to be admissible. Rule 902 of the Maine Rules of Evidence lists the types of documents which are self- authenticating. Generally, Rule 1002 of the Maine Rules of Evidence requires that the original of a written document, recording, or photograph be offered into evidence if it is being offered to prove the contents. This is known as the "best evidence" rule. Rules 1004 and 1005 of the Maine Rules of Evidence provide exceptions to this requirement. Rule 1005 is particularly important where public records are concerned because it authorizes the use of a copy certified in accordance with Rule 902 by the custodian. An example of a self-authenticating document meeting the "best evidence rule" which will be used in almost every land use case prosecuted by a local official is an attested copy of an ordinance or regulation. In the case of an ordinance, the municipal seal (if any) and statement signed by the town or city clerk attesting it as a true copy serves as a substitute for having the clerk testify as to the accuracy of the copy in court. If there is no seal, then the ordinance should be accompanied by the clerk's notarized statement. Another example of a "self-authenticating" document is a newspaper, magazine, or similar publication, where the complete original copy is offered as evidence. (A photocopy of all or a part of such a publication usually will not meet this requirement.) A third example is a copy of a deed attested by the Registrar of Deeds. Such documents must be formally offered into evidence and marked as "Plaintiff's Exhibit", even though their authenticity is not questioned. It should be emphasized, however, that just because a document is self-authenticating, that does not necessarily mean that it will be admissible into evidence. In many cases it may be challenged on the grounds that it is "hearsay" and can only be admitted if the person who wrote or prepared it is called as a witness. In offering an attested or certified copy of a document into evidence, the enforcement official should point out that it is attested and bears the appropriate seal or stamp. If a document is not self-authenticating, such as a soils analysis prepared by a soil scientist, a subdivision plan prepared by an architect or engineer, or a ground water analysis prepared by a hydrogeologist, the person who prepared the document must be called as a witness to identify the document as his or her work, explain when and why it was prepared, and then answer questions about the contents. 61 10. Expert Witnesses Expert witnesses may be called where necessary to prove a case. Normally, this will only be necessary where an issue is so complex that the court will need expert assistance to understand it. The witness should outline the facts in the case on which his or her expert opinion is based. Examples of when expert testimony might be important are to identify soil types or vegetation, to establish whether water is contaminated by a particular chemical, to explain how certain engineering techniques could eliminate a malfunction of a septic system, or to testify regarding a boundary survey. The primary value of an expert witness is that he or she, unlike other witnesses, can reach conclusions based on the facts and testify about those conclusions. The expert is not limited to testimony about what he or she saw or touched or smelled. 11. Diagrams It is sometimes helpful for the enforcement official to prepare and use a diagram of the site involved in a violation in making a courtroom presentation. Generally a diagram will make it easier for the judge to visualize what the enforcement official or a witness is trying to describe. The diagram should be as accurate as possible and should be drawn to scale. In requesting permission from the judge to use a diagram, the enforcement official should make it clear that the diagram is for illustration purposes only and is not being offered as evidence. 12. Photographs Using color photographs of the violation is an effective way to show the court what has occurred, particularly if the violation creates a serious danger to the public health or serious damage to the environment, such as an open sewer or a clear-cut. Self-developing Polaroid-type pictures probably are the most reliable since there is less chance for someone to tamper with them. Whoever took the photo should number it and make a note on a separate sheet regarding the location, time and date it was taken. If the enforcement official did not take the picture and cannot attest to its accuracy, then the person who took it should be called as a witness. The purpose of this testimony is to "lay a foundation" for its admissibility. 13. Offers to Settle Generally, if the violator makes an offer to settle the case out of court but later withdraws that offer, the enforcement official cannot introduce into evidence any statements made in connection with such an offer or the offer itself, according to Rule 410 at the Maine Rules of Evidence. 62 14. Evidence of Habit, Character, or Past Conduct Rule 406 of the Maine Rules of Evidence allows evidence to be admitted which tends to prove that a person's conduct on a particular occasion was in conformity with his or her normal habit or routine. However, "habit" evidence is only relevant and admissible to prove conduct in a business setting. Evidence of a witness' character or past wrongful conduct is not admissible to prove the conduct in the present case of which he or she is accused. According to Rule 608, it is admissible only to show the witness' motive or intent. It also is admissible on cross-examination to impeach the witness. 15. Telephone Conversations/Tape Recording Rule 901 of the Maine Rules of Evidence provides several ways in which information about a telephone conversation can be authenticated for the purposes of admissibility. If it was an outgoing call, the person who made the call must be able to testify that: (1) he or she called a number assigned to a particular person and the person who answered identified himself or herself as the person being called; or (2) if a business call, that he or she called a number assigned to the business and the subject matter of the conversation was related to business which is reasonably conducted by that business over the phone. Such conversations might be admissible as evidence under Rules 801 and 804 where the person at the other end makes a statement against his or her own interests. If the telephone call was incoming, it may be authenticated in one of several ways by showing that: (1) by the nature of what the caller said, it had to be who the caller said it was; (2) the caller left a message and the receiver returned it (see discussion above regarding outgoing calls); or (3) the person receiving the call recognized the caller's voice and is not merely relying on the caller's self-identification. Another way to authenticate a call involves the "reply doctrine." This involves a showing that the subject of the call was a letter sent to a particular individual. If the enforcement official wants to tape record a telephone conversation, federal law requires that a beep be used every 15 seconds unless the receiver of the call gives his or her consent to be taped. A conversation which is face to face may be taped by one of the parties to the conversation without the knowledge or consent of the other. However, from a public relations standpoint, the enforcement official should generally obtain consent before using a tape recorder. 63 16. Liability Insurance Evidence that a person was or was not insured against liability is not admissible to prove that he or she acted negligently or wrongfully, according to Rule 411 of the Maine Rules of Evidence. 17. Marking "Exhibits" Before the day of the hearing, the enforcement official should decide the order in which he or she plans to introduce documents, photos, or similar types of physical evidence at the hearing and write the words "Plaintiff's Exhibit No. ____" somewhere on it. The exhibits should be numbered or lettered in sequence. Photocopies of documents or photographs being used as exhibits should be given to the other side and marked with the same number or letter. The other side also should be given an opportunity to look at the exhibit in court before it is formally given to the judge as evidence. Examples of how the process of offering exhibits into evidence should be handled is discussed under the section entitled "Testimony of Enforcement Official." This can be handled another way if the judge and the other side are agreeable. The enforcement official can show the defendant all the exhibits at once, hand them all to the judge (or if the hearing is being recorded, to the clerk), and then take the stand to begin testifying. At the appropriate point during the testimony, the enforcement official must identify the exhibits, lay the necessary foundation, and then offer it into evidence. The advantage to this approach is that it will save time, since the enforcement official will not have to keep leaving the stand to show the exhibit to the other side. Whichever method is used, the enforcement official must remember that any exhibit which will be mentioned in the testimony of any witness must be offered into evidence before the witness can begin testifying about it, unless it has already been accepted as evidence earlier in the hearing. If the document being offered into evidence is a report or diagram prepared by an expert, such as a soil evaluation or engineering study, the basic form of questioning which the enforcement official should use to "lay a foundation" for the admission of the document into evidence is as follows: Q: Would you please identify yourself and your occupation for the court? A: Terry Ferma. I am a registered site evaluator and hold State license number 25873 from the Department of Health and Human Services. Q: Could you explain what the State license signifies in terms of your qualifications and the kind of things it allows you to do? 64 A: (gives explanation) Q: Mr. Ferma, I have in my hand a document which I have previously marked Plaintiff's Exhibit #4 for identification. Do you recognize it? A: Yes, it is the site evaluation and subsurface sewage disposal system design which I prepared for Meg A. Bucks. Q: Your Honor, I now offer Plaintiff's Exhibit #4 into evidence. 18. Stipulations Sometimes the process of introducing evidence can be streamlined if each side can agree in advance ("stipulate") to the admissibility of some or all of the exhibits which will be offered into evidence. Sometimes parties stipulate to certain facts which are not in dispute to avoid the need to introduce evidence to prove those facts. The purpose of stipulations is to save time and to avoid the need for witnesses or other evidence. If such an agreement is reached, then a written statement to that effect should be prepared listing the exhibits to which the parties have stipulated. This list and the exhibits should be given to the judge at the beginning of the hearing by the enforcement official. The enforcement official should state that he or she would like to offer into evidence Plaintiff's exhibits prior to beginning his or her presentation because both parties had stipulated to the admissibility of those exhibits. The other side will do the same before beginning their presentation. It is also possible to agree to a stipulation on some fact or piece of evidence during the hearing. However, this is riskier because there is little time to carefully consider the legal ramifications. 19. Facts Which Will Need to be Proved Facts which typically will need to be proved in a land use case and the type of evidence which can be used include: 1) Content of ordinance or regulation being violated - need attested copy of the ordinance or regulation. 2) Content of state statute being violated - need photocopy of current version of the law (unattested); or court may simply take "judicial notice". 3) Failure to obtain permit - need testimony by enforcement official as custodian of those records. 4) Failure to comply with terms of permit - need attested copy of the permit. 65 5) Land ownership - need attested copy of deed from Registry of Deeds, boundary survey and testimony of surveyor in disputed cases. 6) Location of land in relation to area regulated by ordinance - need attested copy of zoning map; attested copy of tax map, U.S. Geological Survey topographical map. 7) Distance of structure from normal high water mark - bring device used to take the measurement. 8) Location of coastal wetland boundary - need expert testimony, photograph. 9) Status as a nonconforming use - need testimony of someone familiar with the use; attested copy of deed; photographs showing the use at the time of the enactment of the ordinance and testimony by person who can verify their accuracy. 10) Content of notices sent prior to filing complaint - need attested copies of letters sent by CEO or LPI marked with town seal (if any). 20. Method of Gathering Evidence Challenged It is possible that the violator or landowner may try to challenge the admissibility of evidence gathered at the site of the violation by the enforcement official on the grounds that the enforcement official entered the property without permission and therefore was conducting a search in violation of the Fourth Amendment to the U.S. Constitution. In most cases, this will not be an issue. It is wise for an enforcement official to review the permit and permit application to determine whether an inspection of the property is allowed. However, if someone does challenge the admissibility of evidence on that basis, the enforcement official should be prepared to respond and to convince the judge to allow its use. The rules governing the issue of whether an enforcement inspection of private property has violated the Fourth Amendment to the Constitution generally require that an enforcement official have express permission to conduct an inspection or search if the search is performed in a building or in an area immediately surrounding and associated with a building ("the curtilage"). The permission can be granted verbally or in writing by the landowner or a person having a legal right to grant access to the property, or it may be granted by a court in the form of an administrative inspection warrant. If an administrative warrant was issued, then the enforcement official should offer the warrant and the return filed with the court as evidence. (See earlier discussion of Rule 80E) If the search will be conducted outside the area considered to be "the curtilage", the courts are more likely to find that a search is constitutional even if conducted without express permission. 66 This is because the courts have found that a landowner's "expectation of privacy" is much less where the land being searched is undeveloped fields or woodlands ("open fields"). If challenged, the enforcement official can point to 30-A M.R.S.A. §4452 as additional support for the right to enter land outside the curtilage without permission. However, a good rule of thumb even in these cases is to try to get express permission at least from the landowner or other person with legal authority (such as a tenant or occupant) before conducting an inspection. There may be times when an enforcement official enters property to look for the landowner to talk about a possible violation reported by a neighbor and in approaching the house or office building to ask permission to inspect the property, the enforcement official gets a clear view of the violation from the walkway, driveway, or road. In a case such as this, a court probably would allow evidence of what the enforcement official saw to be admitted into evidence because he or she entered the property for the purpose of obtaining permission to inspect and because the information was not obtained in the course of a "search" or "inspection". Again, it would be better not to use this evidence if it is possible to get permission from the landowner or other person with legal authority to conduct a closer inspection. 21. Request for Relief The rules of evidence do not apply during the final argument and request for relief phase of the hearing, i.e., when the judge has asked the parties to indicate the appropriate fine and/or corrective action after having found the defendant liable. See Rule 1101 of Maine Rules of Evidence. 22. Protecting the Record for Appeal If a judge rules that certain documentary evidence offered by the enforcement official is not admissible, the enforcement official should be sure that the judge takes the document and makes it part of the record. This is necessary because if the town or city loses and wants to appeal, it is the only way that the appeals court can consider that piece of evidence. When a judge rules that all or part of a witness' testimony is inadmissible, the enforcement officer should make "an offer of proof." For example, if the judge rules that there is an insufficient foundation for a witness' testimony, the enforcement officer should say "Your Honor, I'd like to make an offer of proof. If this witness were allowed to continue, this is what he would have said." In order to preserve certain rights of appeal, the enforcement officer should state, on the record, his or her objection to any adverse evidentiary or procedural ruling. 67 C. Appearing in Court 1. Conduct and Dress Generally Even though a Rule 80K hearing is more informal than other kinds of court proceedings, it obviously is still a serious matter. Whenever the enforcement official is asking a question or responding to one (except when on the witness stand), the enforcement official should stand. The enforcement official should also stand when the judge enters or leaves the court. The enforcement official should dress neatly and more formally than may normally be required on the job. A sport coat and tie for men and a dress or a skirt and jacket for a woman is acceptable. The judge should be referred to as "Your Honor" and the other parties to the Rule 80K proceeding, their attorneys, and any witnesses as "Mr./Miss/Mrs./Ms. ." The enforcement official and any witnesses for the town or city should be courteous and respectful throughout the proceedings, making every effort to avoid unprofessional outbursts even if the other side behaves disrespectfully or unprofessionally. Poor behavior could prejudice the judge against the town or city's case. 2. Attitudes to Develop There are a number of attitudes which an enforcement official should try to develop in preparing to prosecute a case. One is to learn to keep the presentation of the case as simple and as straightforward as possible. Another is to remain professional and objective about each case. A third is to be fair in making a presentation and in questioning opposing witnesses, avoiding sarcasm. Displaying a vindictive or sarcastic attitude will only displease the judge and work against the enforcement official in the case being presented as well as in future cases. 3. Attitudes to Avoid The following suggestions are designed to help an enforcement official build a good reputation with the court, the court personnel and defense attorneys. A good reputation will be reflected in good results whereas a bad reputation will hinder an enforcement official at every step and ultimately have a negative impact on his or her cases. It is best to avoid trying to win a case by being overly dramatic or presenting a witness or piece of evidence that the enforcement official had purposely not divulged previously. If the enforcement official has good evidence and witnesses, it is best to let the other side know this in order to convince them to settle out of court. The "take no prisoners" attitude also will not be well received by anyone. The enforcement 68 official should not insist on going through a court hearing just for the personal satisfaction of having a judge agree with him or her if the other side is willing to enter a reasonable settlement at the courthouse steps or during the middle of the hearing. The enforcement official will have an opportunity to demonstrate the defendant's obnoxiousness before the court if the town wins the case and is asked to recommend a penalty. The District Court judges handle many kinds of criminal cases, including assaults and burglary. They also arraign alleged rapists and murderers. They will probably not view most alleged land use law violators as being in the same league with career criminals. If the enforcement official becomes self-righteous and attempts to portray the violator as tantamount to a murderer or rapist, he will only establish himself as a zealot and little else. 4. Violator's Response to Complaint Rule 80K states that the violator does not need to file a written answer in response to the complaint. Consequently, the first time that the enforcement official hears the violator's complete story may be on the day of the hearing when the violator or an attorney representing the violator makes a presentation. 5. The Court Hearing On the day of the hearing the enforcement official should arrive early in order to find the courtroom and where he or she must sit. The enforcement official will present the town or city's case first, followed by the violator's presentation. After the judge enters the room and is seated, he or she will invite everyone else to sit. Then the judge will ask if the enforcement officer wants to make an opening statement. If a statement is made, it should be brief - - just highlighting the law being violated and the general nature of the case. The defendant usually will waive an opening statement. Objections to evidence generally will be made by the Defendant rather than the enforcement official. If the Defendant objects, the enforcement official should stop talking. The judge will ask why the Defendant has objected and then ask the enforcement official to respond. Then the judge either will overrule or sustain the objection. If sustained, the enforcement official will not be able to continue what he or she was going to say. If the reason for the judge's ruling is unclear, the enforcement official should ask for clarification. Before the enforcement official objects to the Defendant's evidence, he or she should know why and be able to explain to the judge. At the end of the enforcement official's presentation of the case, the Defendant may make a motion for “judgment as a matter of law.” That motion asks the judge to find that the code 69 enforcement official has not proved his or her case and therefore loses. That motion should not be a subject for panic. Generally, it will be denied by the judge and the Defendant then will present his or her case. This is followed by the enforcement official's opportunity for general rebuttal. Each side then will be given an opportunity for closing arguments to summarize why the defendant is or is not in violation. Before beginning closing argument, the enforcement official probably should ask whether the judge wants to hear final argument regarding penalties as well. At this point, the judge may rule on whether the Defendant is in violation or not or the judge may want to hear each side indicate what the judge should do if the Defendant is found to be in violation. 6. Sequence of Testimony The order of presentation by each side during the hearing is as follows: 1. Direct-testimony: By the enforcement officer and any other witnesses for the plaintiff municipality. 2. Cross-examination: Questions by the defendant after plaintiff has finished examining one of plaintiff's witnesses. Generally done to impeach a witness. 3. Redirect: Plaintiff's opportunity to ask questions of plaintiff's witness on points brought out during defendant's cross-examination. 4. Re-cross: Defendant's opportunity to re-examine the witness on points brought out during redirect. 5. Rebuttal: Plaintiff's last opportunity to clear up any issue raised during the hearing following the completion of defendant's case. When defendant is presenting his/her case, Plaintiff will have the same opportunity for cross and recross. 7. Witnesses Whenever the enforcement official intends to call a person to testify to help prove the violation, the enforcement official should announce this to the judge. The person then approaches the witness stand, where he or she will be sworn in by an officer of the court or the Judge. The first thing a witness should be asked to do by the enforcement official is to state his or her name for the record. If the witness is being called as an "expert," he or she should be asked to explain the educational background, work experience or other credentials which make him or her an "expert." When asking a witness a question, the form of the question should not "lead" the witness to the right answer. Such questions generally are prohibited by Rule 611 of the Maine Rules of 70 Evidence. For example, "Didn't you see Mr. Looter back the truck up and dump a load of gravel at the site on November 15, 1984?" basically tells the witness what the answer should be. The proper form should be similar to the following: Q: Do you remember where you were on November 15, 1984? A: Yes. I was at my home at 100 Trout Lake Road looking out my picture window at the property across the street where Ms. Bucks has her summer place. Q: What did you see? A: I saw the defendant, Mr. Looter, and his men dumping loads of gravel and installing a tank of some sort. Before a witness for the town or city steps down from the witness stand, whoever is representing the violator has a right to ask that witness some questions ("cross-examine" the witness). Likewise, the enforcement official has a right to cross-examine any witnesses called by the violator. After cross-examination is finished, the person who called the witness may ask questions to follow-up on points brought out during cross-examination of the witness by the other side. No new line of questioning can be conducted, though, without the court's permission. For this reason, the enforcement official must make certain that the necessary information is elicited the first time the witness is examined. 8. Use of Notes If a witness has trouble remembering something while on the witness stand, the witness may refresh his or her memory by looking at written material, such as notes, or a physical object if that will help. However, the person representing the other side of the case has a right to examine the material or object and have relevant portions introduced into evidence. The other side also has a right to take notes from the person using them and cross-examine the person to see if the person's recollections are really accurate. This also applies when the enforcement official is on the witness stand and needs to look at his or her own notes. It is best not to allow any witness to rely totally on notes while on the stand in case the other side decides to take the notes away for use in cross- examination. The enforcement official should avoid "overkill" by using witnesses to repeat points which have been adequately made through the introduction of documents or photographs. The enforcement official should also only call witnesses to testify about information about which the enforcement official does not have personal knowledge or which requires an expert opinion. 71 9. Testimony by Enforcement Official In many cases, the only testimony presented in support of the town, city's or state’s case will be the testimony of the enforcement official. The following is an example of what such a presentation might include: Overview of Your Honor, my name is I.M. Good. I am the certified code enforcement Case officer and certified plumbing inspector for the Town of Happy Valley. I have held those positions since 1970. The complaint which is before you involves the installation of a subsurface sewage disposal system without a permit and the construction of a deck without a permit. Applicable Law It is the town's contention that these activities violate both the State Subsurface Wastewater Disposal Rules and the town's shoreland zoning ordinance. For the record the Wastewater Rules are commonly referred to as the State Plumbing Code. Your Honor, I have here a copy of the State Subsurface Wastewater Disposal Rules and a letter from the director of the Department of Health and Human Services, Division of Health Engineering, attesting that this is a true copy of the Rules. I have previously marked them as "Plaintiff's Exhibit #1" for identification and now offer them into evidence. (Note, The judge will ask the other side if there is any objection and then accept them into evidence.) Your Honor, I also have a copy of the town's Shoreland Zoning Ordinance and a copy of the town's Shoreland Zoning Map, both of which have been attested by the Town Clerk as true copies and stamped with the town seal. I have marked these as "Plaintiff's Exhibits #2 and #3" respectively for identification. I have provided the defendant with copies of these exhibits. I now offer them into evidence. (Judge's response.) To summarize the relevant portions of these laws, Part 11, of the Wastewater Rules requires a permit from the local plumbing inspector before a new subsurface sewage disposal system can be constructed. Section 10(22) of the town's Shoreland Zoning Ordinance also requires a permit to be issued by the code enforcement officer for systems constructed within certain shoreland areas which have been designated as "Limited Residential District" on the town's shoreland zoning map. Sections 8(b) and 12(B)(6) of the Shoreland Zoning Ordinance require a permit to be issued by the Planning Board before a deck can be added to an existing structure which is nonconforming in some way. Factual Your Honor, I first became aware of the violations cited in the complaint on Presentation the morning of January 1, 1994 when I received a phone call from an unidentified person asking if the town had issued permits for a septic system and deck which were being constructed on property at 100 Trout Lake Road in Happy Valley. I checked the files in my office where I keep records on 72 any permits which I issue as code enforcement officer or plumbing inspector or which the town's Planning Board or Board of Appeals have issued. found nothing to indicate that any permits had been issued for either the septic system or the deck, so I drove to the property on Trout Lake Road which had a "100" marked on the mailbox. When I arrived, I found the defendant, Paul Looter, and people whom he identified as his employees completing construction of the septic system and the deck. I identified myself and asked to look at the work being done. I paced off the distance between the deck and the normal high water mark and found that it was 30 feet from the normal high water mark. I informed Mr. Looter that both the deck and the septic system required permits. I asked him to stop work until the necessary applications for permits had been reviewed and approved by the town. I also invited Mr. Looter to contact me at my office to obtain copies of the ordinance and application forms. I then returned to my office and prepared written notices of violation to send to Mr. Looter and to the property owner. Your Honor, I have a copy of a deed attested by the Madison County Register of Deeds naming Ms. Meg A. Bucks as the owner of the lot at 100 Trout Lake Road. I have marked this as "Plaintiff's Exhibit #4" for identification. I have provided defendant a copy. I now offer it into evidence. (Judge's response.) Notice of I also have a photocopy of the first and second Violation letters which I sent to Mr. Looter and to Ms. Bucks notifying them of the violations and I have a certified mail receipt for each letter signed by Mr. Looter and Ms. Bucks showing that they received my letters. I have marked these as "Plaintiff's Exhibits #5 through #8" for identification. Defendant has copies. I now offer them into evidence. (Judge's response.) Application Your Honor, as I previously indicated, my records show that no disposal of Law to permit has been issued by the town for a new subsurface disposal system on Facts this property. as required by the State Subsurface Disposal Rules. I also have no record of a shoreland zoning permit having been issued for a new system. Section 10(22) of the ordinance requires a shoreland zoning permit for systems located in shoreland areas designated as the "Limited Residential District" on the town's Shoreland Zoning Map. As you can see from the map, all of the lots on Trout Lake Road are shown as Limited Residential Recreational District because they are within 250 feet of the normal high water mark of Happy Valley Pond. During my initial visit to the Bucks property on January 20, I observed new fill material on a space which was roughly 30 feet by 40 feet. The fill was partially covered with loam. An area measuring roughly 3 feet wide by 30 feet long looked like it had been dug up and replaced between the house and the fill. I concluded from this that a leach field, a septic tank, and septic line had been installed. Your Honor, I have a Polaroid photograph which I have marked as Plaintiff's Exhibit #9 for identification. (Show to Defendant) I took this picture on January 20 at 11:00 a.m. standing 3 feet from the northwest corner of the 30 by 40 filled area. It 73 is an accurate picture of what I saw. I now offer it into evidence. (Judge's response.) Regarding the deck, section 8(b) of the town's ordinance requires Planning Board approval for any expansion of a non-conforming use or structure which was in existence when the town's ordinance became effective. Section 3 states that the ordinance became effective on March 5, 1972. Your Honor, at this time, I would like to call Fran Friendly to the stand. (Enforcement official leaves stand. Witness takes oath and is seated.) Testimony of Q: Would you state your name and address for the court, please? Witness A: Fran Friendly. 102 Trout Lake Road, Happy Valley. Q: How long have you lived at this address? A: Twenty-two years. Q: Are you familiar with the property at 100 Trout Lake Road? A: Yes. That's Ms. Bucks' lot. I live right next door. Q: What, if anything, is on Ms. Bucks' lot? A: There's a main house which is sort of a Cape Cod style, a boat house, and an outhouse. Q: How do you know this? A: I can see them from my property. Q: Do you know how long the main house has been there? A: No, but it's been there as long as I've lived on the road. Q: Could you describe the main house for the court? A: Well, as I said it's basically a Cape Cod style. As of about a month ago, it now has a deck on the back side, toward the water. Q: Was there ever a deck there before? A: Not as long as I've lived on the road. Q: Thank you. No further questions. 74 (Defendant given opportunity to ask questions. Witness leaves stand. Enforcement official resumes stand.) Summary by Your Honor, as Mrs. Friendly has just testified, the house was on the lot Enforcement before the effective date of the ordinance but had no deck attached when Official the ordinance was adopted. The deed to the Bucks property indicates that the lot is only 1/2 acre, which does not meet the 1 acre lot size requirement of the ordinance. This makes the original house a nonconforming use for the purposes of section 8(b) of the ordinance. With Ms. Bucks' permission, at 10:30 a.m. on January 20, 1994, I entered her property and measured the distance between normal high water mark and the edge of the house closest to the water using a Stanley Model 568, 100 foot tape measure. I determined that the house was 42 feet from the normal high water mark, which does not comply with the 75 foot setback requirement of section 11(m) of the ordinance. This is another reason that the original structure is a nonconforming use for the purpose of section 8(b) of the ordinance. Adding a deck to the house constitutes an expansion of a nonconforming structure and requires a permit from the Planning Board. I have no record that such a permit was issued. I measured the distance between the front of the deck and the normal high water mark and found that it was 32 feet from normal high water. Your Honor, I have here a photograph of the shoreline which I took on January 20, 1994, at 11:00 a.m. showing what I used as the normal high water mark for the purposes of my measurements. I took this picture with a Polaroid camera standing in the water 3 feet from the water's edge and looking toward the house. It is an accurate representation of what I saw that day. I have marked this as Plaintiff's Exhibit #10 for identification and offer it into evidence. (Judge's response.) I also have a Polaroid photograph showing the house, deck, and lake which I took on the same day and time as the other one. I was standing 6 feet from the northwest corner of the house and looking toward the lake. This picture is an accurate representation of what I saw, I have marked it as Plaintiff's Exhibit #11 for identification (show to Defendant). I now offer it into evidence. (Judge's response.) Your Honor, unless you are interested in testimony at this time regarding the remedies which the town is seeking, I have no further testimony. (Judge's response. Defendant is given an opportunity to question I.M. Good, then he calls on the defendant to begin his presentation. The defendant is not represented by an attorney.) Testimony of Your Honor, my name is Paul Looter. My address is 123 West St., Violator Happy Valley. I was hired by the owner of the lot at 100 Trout Lake Road, Meg A. Bucks, to put in a new septic system and add a deck on her 75 house on Trout Lake Road. The only thing that I have to say is that I don't believe that permits are required for this work. I've done similar work in other towns and never had to get permits. As far as the septic system is concerned, all we're doing is replacing an old outhouse. The State Plumbing Code says that a permit isn't necessary to replace a system. The town's ordinance doesn't require a permit for this either because it says you can "improve" and "repair" a nonconforming use without a permit. The same goes for the deck which my men built. That's an "improvement" to the main house. I really don't have anything else to add. (Judge's response. Then the enforcement official has an opportunity to respond.) Response by Your Honor, I disagree with Mr. Looter's interpretation of the Plumbing Enforcement Code and the town's shoreland zoning ordinance. I do not agree that Officer to the new system which he installed is a "replacement treatment tank" for Testimony of the purposes of Part II section 3(D) of the Plumbing Code. I believe that it Violator is the construction of a new system for the purposes of section (3)(a), based on my reading of the definitions of "construction", "pit privy," "replacement system," and "subsurface wastewater disposal system" in section 1. I also disagree that the new system constitutes "an improvement" or "repair" to a nonconforming use for the purposes of section 8(b) of the town's ordinance. Those words commonly mean a change to an existing structure or system to make it better without any drastic changes to the basic structure, such as putting on a new roof, insulating, putting in new windows, and so forth. What Mr. Looter did was not an "improvement" or "repair" of the outhouse. He installed a brand new system in a different location on the lot. Regarding the deck, I also disagree that it is an "improvement" to the house for the purposes of section 8(b). I have a copy of a Maine Supreme Court case here called Frost v. Lucey, which appears to say that an increase in the amount of ground area covered by a structure constitutes an "expansion" of the structure. I have no other comments, Your Honor. (Judge's response. Judge then asks the enforcement official about the relief he is requesting.) "Yes, Your Honor, the town is asking for several things. We would like Mr. Looter to apply for the necessary plumbing and shoreland zoning permits on behalf of Ms. Bucks within a week of your decision. If he will not, then we would like them to remove or fill in the septic system and remove the deck so that they cannot be used. I have obtained several estimates from other contractors in the area regarding the cost of this corrective work which I would be happy to provide to you if Mr. Looter has no objection. We also would like you to order Mr. Looter not to 76 complete this construction and not to perform similar work in the future without obtaining the necessary permits. And finally, we would like you to order Mr. Looter to pay a fine based on the number of days during which he has failed to correct these violations since receiving notice from me. Our shoreland zoning ordinance states that each day a violation continues constitutes a separate violation. 30-A M.R.S.A. §4452 outlines the range of fines and corrective action which you can order. In this case we are seeking a fine of $500. We ask for such a fine because the defendants in this case have been particularly uncooperative. In fact, when I first met Mr. Looter and told him about the legal requirements, he told me I knew what I could do with them, that I could waste my time going to court if I wanted to but the most that would happen would be a small fine which Ms. Bucks could easily pay. I think this is a good case to use to send a message about the cost of that attitude. Thank you, Your Honor. I have no further comments at this time. (Judge's response. Then he asks defendant for comments. Judge's response.)" If the enforcement official is cross-examined about any of his or her testimony by the other side, he or she should answer the questions calmly, politely, and in a straightforward manner. If the enforcement official feels that a particular question and answer are misleading because they did not allow him or her to offer important information, the enforcement official should ask the court for a brief opportunity to offer rebuttal testimony to clarify statements made in response to the defendant's questions. This request should be made when the defendant has indicated that he or she is finished questioning the enforcement official. 10. Site Visit Day of Hearing On the day of the hearing, if at all possible, the enforcement official should take one last look at the site of the violation to see it the violation has been corrected. If it has, then the court should be made aware of this at the hearing. The town, city or state still has a right to have the hearing go on as scheduled if it wants the court to issue a permanent injunction (if there is some risk the violation will resume) or fine the violator. The Court will not usually view the property. 11. Violator Represented by an Attorney It is only natural that an enforcement official will feel more tense and intimidated in a case where the violator is represented by an attorney. Just remember that most attorneys will conduct themselves courteously and will not deliberately try to play games with procedure or the 77 rules of evidence in an effort to intimidate the enforcement official or witnesses. The Maine Legislature has clearly stated its intent that a Rule 80K proceeding should be less formal than other types of court action when it decided to allow non-attorneys to represent municipalities. The certification program authorized by the Legislature was not intended to provide the enforcement official with the same degree of knowledge and experience as three years of law school. If an attorney should become unreasonable in challenging the offerings of evidence or other actions taken by the enforcement official during the proceedings and the judge does nothing to curb it, the enforcement official should ask for an opportunity to respond to the objections, if one is not given (it usually will be). The enforcement official should explain that he or she thinks that the attorney's objections are excessive in light of the nature of a Rule 80K proceeding. If the judge does not agree and the enforcement official feels overwhelmed by the attorney for the violator, then the enforcement official should ask the judge either for a temporary recess so that the town, city or state attorney can be called to attend the hearing or for an adjournment or continuation to a specific future date so that the town, city or state attorney can be there. If the enforcement official plans to call the government’s attorney for help, the official should remember to let the attorney know in advance so that he or she will be available. Once a land use complaint has been filed with the court, the enforcement official should not communicate directly with the violator or other defendant once he or she learns that person is represented by an attorney. All conversations and correspondence should be directed to the attorney, unless the attorney has agreed otherwise. 12. The Judge It may be helpful before the day of the hearing to find out which judge will hear the case by asking the court clerk and then talking with some local attorneys to learn what their experience has been with that judge. It also might be helpful to attend some other hearings conducted by that judge to observe how the judge handles cases. Most judges will drop hints either verbally or by gestures or facial expressions that they have heard enough evidence on a particular issue or that they are unhappy about some aspect of the case. The enforcement official should learn to recognize these hints and react to them by moving the case along. 13. Electronic Recording It is recommended that in all cases that the enforcement official file a request in writing with the court clerk under Rule 76H of the Maine Rules of Civil Procedure in advance of the 78 initial hearing date requesting that the hearing be electronically recorded. A sample request appears in the Appendix at A-14. The enforcement officer should check with the court clerk to determine how many days in advance of the hearing the request must be filed. 14. Meeting with Judge in Chambers On the day of the initial hearing, the judge assigned to the case may ask the enforcement official and the other side to meet with him or her in the judge's chambers. The purpose of the meeting is to brief the judge on the case and to see if there is any possibility that the parties can settle the case without a hearing. The enforcement official should be prepared for this and should think about what key points need to be called to the judge's attention. 15. Failure to Appear If the violator fails to appear in court on the day of the hearing, the court has the authority to find him or her in default and enter a judgment in favor of the town, city or state. However, the judge may be reluctant to order corrective action or a large fine if the defendant has not actually appeared in court. Consequently, if the violator does not attend the hearing, the judge may continue the hearing and issue an order authorizing the sheriff's office to bring the violator to the courtroom either on that day or a future date (called a "bench warrant"). However, if the judge is willing to grant a default judgment, the enforcement official should be satisfied since it will be binding on the person named in the Complaint as the Defendant unless that person goes through the necessary court procedures to have the judgment vacated. 16. Being a Pioneer Although Rule 80K has been around for many years, land use enforcement actions remain a very small part of the case load in the District Court. Consequently, it is still possible that you will encounter court personnel who aren’t very familiar with the process -- and that may include judges. What do you do when the court clerk seems mystified at your phone call or when the judge calls you into chambers on hearing day and says “what’s this all about?” First, don’t panic. Remember that you are authorized, by both state statute and court rule, to do what you are doing. So you have the law on your side. It may simply take some gentle explaining to the court. That, by the way, is not all that unusual. No judge knows everything about all aspects of the law; judges frequently have to rely on the litigants to educate the court. First and foremost, be prepared to cite chapter and verse. That is, if a court clerk or even a judge questions why a code enforcement official is appearing in court, refer to the statutes and 79 to the rule. You might say something like this: Your honor, I am the Code Enforcement Officer for the Town of ________. 30-A M.R.S.A. §4452(1) authorizes me to represent the municipality in the District Court in the prosecution of alleged violations of the Town’s zoning ordinance. I have been specifically authorized to do so by the Selectmen of the Town and have filed a letter of authorization with the clerk. Maine Rule of Civil Procedure 80K(h) authorizes a person who is not an attorney to represent a municipality in a land use enforcement action. You need not be argumentative or demanding. Instead, you simply need to point out politely and quietly what sections of the law authorize you to proceed as you are requesting. If you have copies of the statutes to which you are referring, so much the better. Your attitude should be one of helpful confidence: you know the law you are relying on (you have read this manual after all!) and you are helping the court do its job by pointing out what the court needs to know. Most judges dealing with something unfamiliar will welcome input from the parties. It is possible that you may run into court clerks and their assistants who are resistant to dealing with something new to them, either because they don’t like their routines disrupted or because they are baffled by what you are proposing. Again, do not become combative or insistent. Instead, try to enlist their cooperation. Seeking help, rather than giving it, may be the most productive approach. With the clerk, you might want to try something like: When I took some training offered by the State Planning Office last winter, they indicated that as long as I had this letter from the Selectmen in my Town, I could represent the Town at a hearing in court on a land use violation. I think it says that somewhere in Rule 80K of the Rules of Civil Procedure. Do you suppose you could check that for me, or maybe ask the judge whether there is any problem? In most cases, your polite request for assistance is likely to be met with a positive response. There may be times, however, when you will encounter resistance, no matter how well prepared you are and how professionally you conduct yourself. If you find yourself in a situation where you are pretty sure that Rule 80K or a statute authorizes something which court personnel or a judge are telling you cannot accomplish, that may be the time to call for help. If you feel you are getting nowhere, thank the court clerk for his or her time and indicate that you want to do some further checking and will get back to him or her. If you are in front of a judge, ask if you can have a continuance to seek assistance of legal counsel. In either case, it’s time to contact your municipal or agency attorney. 80 81 CHAPTER FOURTEEN CASE LAW SUMMARY (2006) As an enforcement official prosecuting land use violations under Rule 80K, you are not going to be expected to pull out the names of cases and recite citations to the Atlantic Reporter (where Maine Supreme Court cases are reported). But, especially if there is a lawyer on the other side, you may hear case names brought to the judge's attention. And it may be helpful for you to have a passing knowledge of some of the cases which have been decided in the context of enforcement actions. Brackett v. Town of Rangeley, 2003 ME 109, 831 A.2d 422 The Law Court discusses the time frame to appeal the issue on a building permit. The Law Court held for the first time that a fixed time in a Zoning Ordinance should be waived or extended for a party without notice of the permit upon a showing of good cause if otherwise there would be a “flagrant miscarriage of justice.” This case also weakens the Law Court’s 1990 decision of Juliano v. Poland regarding the finality of building permits. The facts of the case are as follows: The neighboring property owners discovered upon returning to their seasonal property that the neighbor had demolished and was rebuilding a nonconforming dwelling in the shoreland zone. The property owner had obtained a permit to renovate his non-conforming home in the Shoreland Zone from the CEO which violated local ordinances because the Planning Board should have given the approval. While rebuilding the home, the property owner discovered more defects that had been expected and decided to demolish and replace it. The new house increased the degree of non-conformity from the old house because it was larger and intruded into the setbacks. The neighbors met with the CEO and asked for a stop work order which was refused on the grounds that the property owners had relied on the permit in good faith. The neighbors filed an appeal to the Zoning Board of Appeals is 9 months after the permit was issued and 27 days after they first discovered the new house 82 next door. The ZBA found the appeal to be untimely and that the neighbors did not have good cause for being late. The Law Court found that the appeal was timely based on a “good cause” showing. This case needs to be contrasted with Wright v. Kennebunkport, 1998 ME 184, where the Court, in a footnote, reserved the question of what would happen when an extension of time was requested by an agreed party who did not have knowledge of the issuance of the building permit. The Brackett case is that case. Justice Alexander wrote in a provocative concurring opinion that he would find the original permits void regardless of whether anyone appealed timely. Alexander stated “consideration of the good cause exception would be appropriate if the permits were facially valid, having been issued by the proper permitting authority, the Planning Board. The permits here were ultra vires of a person with no more authority to issue permits than possessed by the local dog catcher.” However, the Court did not expressly overturn Juliano and based this decision solely on the good cause exception for extending the appeal period. In light of this case, a municipality might want to consider its procedure for notifying property owners of the issuance of a building permit. The property owner who received the permit may also want to be responsible for providing notice to interested parties so as to avoid this type of nightmare. Tinsman v. Town of Falmouth, 2004 ME 2 In this case, the developer devised an elaborate land division scheme involving gifts, conveyances to relatives and a conveyance to a corporation known as “Namsnit, Inc.” which is “Tinsman” spelled backwards. Tinsman was denied a permit to create a private road by the Falmouth Planning Board. In the ensuing appeal to the Law Court, the court focused on Tinsman’s “intent to avoid the objectives of the subdivision statute.” The Law Court determined that Tinsman had the burden of showing he did not “intend” to avoid the subdivision laws. 83 Intent is a “state of mind accompanying an act” which is a question of interpretation and thus reviewed de novo. The Law Court found that there was ample evidence supporting the Board’s denial of the permit. In a more recent case, with a different result than Tinsman, Tremblay v. LURC, 2005 ME110, the Law Court affirmed LURC’s decision approving a 6 lot subdivision and did not accept the opponents argument that there was “intent to avoid” subdivision approval because of prior allegedly illegal transfers. Town of Levant v. Seymour, 2004 ME 115, 855 A.2d 1159 The property owner had filed an appeal before the Board of Appeals contesting the CEO’s notice of violation on the basis that they had a grandfathered lot while at the same time the Town had filed a complaint in the District Court pursuant to Rule 80k. The zoning board of appeals found in favor of the property owners and set aside the CEO’s stop work order. The Town appealed the Board of Appeals decision to Superior Court. Meanwhile, the District Court found in favor of the Town and assessed penalties against Seymour totaling $1,800 and attorney’s fees in excess of $10,000. The Superior Court then decided the Town’s appeal of the Board of Appeals decision and found that the Board should have conducted a de novo hearing. Because it had not done so, the Court vacated the Board’s decision and remanded the matter to the Board for further proceedings. Seymour contended that the District Court’s judgment should have been dismissed for lack of subject matter jurisdiction. The Law Court found in favor of the Town finding that the jurisdiction of a board of appeals is not exclusive and it does not have the enforcement powers of the District Court. It held that the District Court was not required to wait until the administrative appeal was finally concluded before it could proceed with the enforcement actions and that the two proceedings were separate and distinct. Isis Development v. Town of Wells, 2003 ME 149, 836 A.2d 1285 84 The Law Court made clear that the judicial review of a Board’s interpretation of a municipal ordinance is de novo. In Isis, the Court cleared up any prior misconception that there is any deference to the interpretation of a zoning ordinance by a local board. However, the Law Court does continue to afford deference to state agencies because of their perceived expertise in the subject area. Review by the Superior Court in an 80B action is for “abuse of discretion, errors of law and findings not supported by the evidence.” Maritime Energy v. Fund Insurance Review Board, 2001 ME 45. Malonson v. Town of Berwick, 2004 ME 96, 853 A.2d 224 The Law Court expressed that the appeals court should not attempt to redefine or add a “gloss” to a local ordinance when ordinance terms are specifically defined. When they are not defined, the court will review the terms based on their ordinary meaning and the overall intent of the ordinance. There are hundreds of cases that have been decided about zoning and land use law, too numerous to mention here; but only a small number of those cases have involved enforcement activities, and fewer still have involved Rule 80K. Summarized below are some of the more significant and/or interesting cases decided in the context of Rule 80K or pre-80K proceedings. Also interspersed are some recent cases which do not involve Rule 80K but may be of interest to code enforcement officers for other reasons. B&B Coastal Enterprises v. Town of Kennebunk (United States District Court, District of Maine, Docket #03-05-P-C) What started out as a garden-variety sign ordinance enforcement case turned into a full blown federal court case involving constitutional claims of discrimination and free speech. Having received complaints about an excessive number of signs at Bartley’s Dockside Restaurant, the Kennebunk CEO issued a citation to the property owner. From there it became a Rule 80K nightmare! Bartley alleged that the CEO had made anti-semitic comments about the “Hebrew National” umbrellas situated on the property. Litigation ensued in Federal Court resulting in a full blown evidentiary hearing and comprehensive brief writing. The Federal Court specifically found that the CEO was “polite, reasonable and professional” and that there 85 was no credible evidence of anti-semitic bias. Bartley’s attorney later retracted statements he had made to the New York Times that the CEO was a “bigot.” The Federal case and the separate Rule 80K case ultimately settled out of court. Town of Boothbay v. Jenness, 822 A.2d 1169, 2003 ME 50 The Town of Boothbay alleged that a landlord and tenant were in violation of the local zoning ordinance operating or allowing to the operation a alcohol serving bar at “Norma’s Pub and Grill” restaurant. Permits had been previously issued for the expansion of the dining room and kitchen only. The landlord and tenant both received a notice of violation from the Town. The landlord, Jenness, argued that as a landlord she could not be held legally responsible for the actions of the tenant. The Law Court rejected this argument holding that “it is reasonable to require an owner whose land is in tenancy to take action to comply with municipal ordinances once noncompliance has been brought to the owners attention. The Law Court concluded that a landlord can be sanctioned for the continuing violation of an ordinance by a tenant when: (1) the ordinance authorized separate penalties for the landlord; (2) the landlord has notice of the violation; (3) the landlord has a reasonable authority to control the use of the land; and (4) the landlord has been given reasonable opportunity to obtain the tenant’s compliance or eviction. The Law Court also addresses the circumstances of when the doctrine of res judicata applies to Rule 80K enforcement proceedings. As a result of the failure to appeal, an enforcement letter to the Zoning Board of Appeals referencing Town of Freeport v. Greenlaw, 602 A.2d 1156 (Me. 1992), the Court confirmed that the notice from a CEO to a violator must “refer to the provisions of the Ordinance allegedly being violated, inform the violator of the right to dispute the order and how that right is exercised by appeal and the consequences of the failure to appeal.” Because the “CEO’s letter of violation can become binding on subsequent actions including the same issues, it must meet the highest level of scrutiny.” The Law Court found that the Town’s letter did meet this standard and affirmed the District Court’s judgment awarding a fine and attorney’s fees and also ordered the District court to consider the Town’s attorney’s fees on appeal. City of Bangor v. Diva’s, 830 A.2d 898, 2000 ME 51 This Rule 80K action involving an adult entertainment club provided the opportunity for the Law Court to issue a detailed decision on constitutional principles relative to municipal 86 regulations of such activity. Law Court concluded: (1) the evidence was sufficient to find that activities at the club amounted to “nude entertainment;” (2) the ordinances were “content neutral” as required by the United States Supreme Court; (3) the Ordinance was not unconstitutional and did not unduly burden free speech. Brackett v. Town of Rangeley, 2003 ME 109 This is an important case discussing the time frame to appeal the issue on a building permit. The Law Court held for the first time that a fixed time in a Zoning Ordinance should be waived or extended for a party without notice of the permit upon a showing of good cause if otherwise there would be a “flagrant miscarriage of justice.” This case also weakens the Law Court’s 1990 decision of Juliano v. Poland regarding the finality of building permits. The facts of the case are as follows: The neighboring property owners discovered upon returning to their seasonal property that the neighbor had demolished and was rebuilding a nonconforming dwelling in the shoreland zone. The property owner had gotten a permit to renovate his non-conforming home in the Shoreland Zone for the CEO which violated local ordinances because the Planning Board should have given the approval. While rebuilding the home, the property owner discovered more defects that had been expected and decided to demolish and replace it. The new house increased the degree of non-conformity from the old house because it was larger and intruded into the setbacks. The neighbors met with the CEO and asked for a stop work order which was refused on the grounds that the property owners had relied on the permit in good faith. The neighbors filed an appeal to the Zoning Board of Appeals which is 9 months after the permit was issued and 27 days after they first discovered the new house next door. The ZBA found the appeal to be untimely and that they did not have good cause for being late. The Law Court found that the appeal was timely based on a “good cause” showing. This case needs to be contrasted with Wright v. Kennebunkport, 1998 ME 184, where the Court, in a footnote, reserved the question of what would happen when an extension of time was requested by an agreed party who did not have knowledge of the issuance of the building permit. The Brackett case is that case. Justice Alexander wrote in a provocative concurring opinion that he would find the original permits void regardless of whether anyone appealed timely. Alexander stated “consideration of the good cause exception would be appropriate if the permits were facially valid, having been issued by the proper permitting authority, the Planning Board. The permits here were ultra vires of a person with no more authority to issue permits than possessed by the 87 local dog catcher.” However, the Court did not expressly overturn Juliano and based this decision solely on the good cause exception for extending the appeal period. In light of this case, a municipality might want to consider its procedure for notifying property owners of the issuance of a building permit. The property owner who received the permit may also want to be responsible for providing notice to interested parties so as to avoid this type of nightmare. Widewaters Stillwater Co., LLC v. Bacord, 2002 Me. 27 This case involves the citizen opposition to the construction of the Wal-Mart store in Bangor. The Law Court noted that while the Planning Board members talked about their reasons for voting against the applicant, only one stated a specific reason for his negative vote. Similar to its decision in Christian Fellowship and Renewal Center v. Town of Limington, 2001 Me 16, the Court remanded the case to the Planning Board to issue more specific findings. The Law Court specifically ordered the Planning Board to consider and vote on each of the standards contained in the local ordinance rather than making a blanket motion to approve or deny. An interesting question arises if different majorities found that all of the criteria were met but no group of three would agree that all of the criteria were met would there be an approval or denial of the project? Two other Supreme Court cases also have resulted in a remand to the local board for specific findings, Chapel Road Associates, LLC v. Town of Wells, 2001 Me 178; Kurlanski v. Portland Yacht Club, 2001 Me 147. State of Maine v. Town of Damariscotta and Lake Pemaquid, Inc. (Kennebec County Superior Court, Docket No. CV-98-84) This case was decided on July 26, 2001 by Justice Donald H. Marden in the Kennebec County Superior Court. The DEP alleged that Lake Pemaquid, Inc. maintained 18 residential structures within the required setback from Pemaquid Pond in violation of the mandatory Shoreland Law and the Shoreland Zoning ordinances of the Town of Damariscotta. While the case was brought in Superior Court by the Attorney General’s Office rather than in District Court pursuant to Rule 80K, the Court applied the civil penalty section relating to local land use laws found in 30-A M.R.S.A. 4452 (the same section that would be used by a CEO under Rule 80K). The DEP also pursued penalties under 38 M.R.S.A. 349 (enforcement of the mandatory Shoreland Zoning Act) which allows penalties of not less than $100 nor more than $10,000 for each day of violation. In its decision, the Court applied the minimum mandatory fine of $100 88 per day for each of the 18 cabins for a total of 84724 days in violation. The Court assessed a civil penalty in the amount of $8,472,400 plus attorneys fees and costs of $44,332.43. The Court further required all eighteen structures and accessory structures to be removed from the 100 foot setback within 30 days. This is perhaps the largest award ever in Maine in a Land Use enforcement action. The case is now on appeal to the Law Court and there is the possibility that it will be settled. Stay tuned for details! Charlton v. Town of Oxford, 2001 ME 104 William and Barbara Charlton brought a complaint against Carl Delekto, the Town of Oxford, its Planning Board and CEO in connection with Delekto’s extensive reconstruction of a neighboring property located at Thompson Lake. In 1997, Delekto obtained a building permit to build a replacement structure on Thompson Lake. The Charltons were not notified of the issuance of the permit. They did not file an appeal to the Zoning Board of Appeals. The Charlton asserted a private action for nuisance based on 30-A M.R.S.A. 4302 which makes “any property or use existing in violation of a municipal land use ordinance or regulation …. a nuisance.” The key question in the case is whether a property owner may maintain a private right of action against the Town and developer. The Law Court ruled in the negative stating “we are hesitant to imply a private right of action where the legislature has not expressly stated that a cause of action exists.” The Law Court found that there was no legislative intent to allow a private right of action and that enforcement provisions contained in 30-A M.R.S.A. 4452 must be brought in the name of the municipality. The Court also found against their claims for nuisance pursuant to 17 M.R.S.A. 2701 and common law. The lesson of the case is that it is difficult if not impossible for an aggrieved property owner to contest a building project by private right of action - - such matters must be brought pursuant under Rule 80B or by the municipality. Herrle v. Waterboro, 2001 ME 1 The facts of this case are complicated by here goes …. The Herrles owned land in Waterboro near a gravel pit operated by Douglas C. Foglio, Sr. The Herrles requested that the CEO initiate an enforcement action against Foglio for operating a gravel pit without a conditional use permit as required by the local ordinance. Because the CEO had a conflict of interest, he referred the request to the Board of Selectmen. The Selectmen declined to take enforcement action against Foglio, concluding that the pit was grandfathered. The Herrles 89 appealed the Selectmen’s decision to the ZBA. The ZBA held that the pit was not grandfathered, finding the Selectmen’s decision to be erroneous. The Selectmen requested reconsideration and the ZBA subsequently reversed its earlier decision and found that the pit remain grandfathered. The Herrles appealed to Superior Court pursuant to Rule 80B. The Supreme Court reversed the ZBA. An appeal to the Law Court ensued. The Law Court vacated the Superior Court’s decision finding the ZBA’s decision was merely “advisory in nature.” Because the Waterboro ordinance did not specifically provide for an appeal of enforcement decisions to the ZBA, its decision should not have been reviewed by the Superior Court. The Law Court further held that it was the decision of the Selectmen “in their discretion” to bring an enforcement action against Foglio. The Law Court analogizes the Selectmen’s power as being equivalent to “prosecutional discretion” in a criminal action. The Law Court also found that the Herrles would have no standing to initiate enforcement proceedings against Foglio even if a violation existed - - only local governing authorities may initiate such proceedings. Wright vs. Town of Kennebunkport, 1998 Me. 184 In this hotly contested case, the CEO issued a building permit authorizing the construction of a single-family dwelling. The CEO notified the neighbor of his decision within days after the permit was issued. Approximately six weeks later the neighbor wrote to the CEO requesting that he revoke the permit because it violated provisions of the Town’s Land Use Ordinance and its Flood Plain Management Ordinance. The CEO informed the neighbors that he would not revoke the permit because they had failed to appeal to the Board within 30 days of the issuance of the permit pursuant to the Town’s Land Use Ordinance. The neighbors appealed to the Zoning Board of Appeals. The ZBA concluded that the permit was issued in error and ordered it to be revoked. The property owner then filed an appeal to the Superior Court. The neighbors contended on appeal, asserted that the CEO’s letter refusing to revoke the permit constituted a “decision within the meaning of the Land Use Ordinance.” The Law Court disagreed with this interpretation. It stated that “an individual aggrieved by a CEO’s decision to issue a permit could by-pass the 30 day appeal deadline simply by requesting that the CEO revoke the permit.” The Law Court went on to say that strict compliance with the appeal procedure of an ordinance is necessary to ensure that once an individual obtains a building permit, he can rely on that permit with confidence that it will not be revoked after he has commenced construction.” The Law Court left open the questions whether a court can grant an 90 extension of time within which to appeal to an aggrieved party who does not have knowledge of the issuance of a permit until after the appeal period has expired. Sahl vs. The Town of York, 2000 ME 180 In 1991, a motel owner was issued a permit to expand his motel, which permit contained no expiration date. In 1995, the Town encouraged and approved a “phased” construction on the project to minimize the impact on the construction of the Town. In 1997, the Town amended its zoning ordinance to require all shore land permits issued before 1992 be completed by 1998. The motel owner determined that he could not start and finish Phase 2 of the motel within that deadline. The CEO advised the motel owner to delay the work on the project and seek and administrative relief from the ZBA. The ZBA ruled that the permit had no expiration date and that the phasing was approved by the Town in 1995 and that it was impossible for the motel developer to complete the project within one year. Neighbors of the project filed an appeal to the Superior Court. The Superior Court sided in favor of the neighbors stating that under the plain language of the ordinance, the shore land permit had expired and that the motel owner had acquired no vested rights. The motel owner then appealed to the law Court, which reversed the decision of the Superior Court. The case is of significance because it clarifies the concept of vested rights to boil down to three requirements: (1) there must be physical commencement of some significant and visible construction, (2) the commencement must be undertaken in good faith with the intention to continue the construction and to carry it thru to completion, and (3) commencement of construction must be pursuant to a validly issued building permit. The Law Court also confirmed that the term abutter not only applies to land immediately adjacent, but “in close proximity.” Peterson vs. Rangeley, 1998 ME 192, 715 A.2d 930 This case involves real estate on Rangeley Lake. The property owner applied for a permit to renovate and enlarge two cabins. The prior code enforcement officer informed the property owners that they would need a variance because they were expanding more than 30% and the camps were non-conforming structures in the shore land zone. They received a variance from the Zoning Board of Appeals. The variance contained no expiration date, and the permit issued by the CEO contained the following language: Permit shall become null and void if construction work is not started within six (6) months of date the permit is issued as noted above expires three years thereafter. The CEO issued the permit, crossed out the word six and added 91 the numeral 12 and also added “expires three years later.” The property owners (who lived out of state) planned to build in the fall of 1992. They purchased materials and began preliminary work until the fall of 1993. Through the summer of 1992, they began preliminary work on the property, but were told by the builder that they could not commence the bulk of the work until the fall of 1993. The builder then moved out of the area and the property owners were unable to locate a new builder until 1994. The new code enforcement officer met with the property owners and told them that their permit had expired, and that the Board made a mistake in granting the variance. The new CEO declined to issue a new permit. The Town contended the permit expired pursuant to the provision in the Town’s ordinance that states a building permit expires “either building or work authorized by such permit is suspended or abandoned at any time after the work is commenced for a period of six months.” The property owners argued that the language actually means that the permit expires only once the work authorized by the permit has been abandoned by a period of six months. The Law Court disagreed finding that the word “or” contemplates both the suspension and abandonment of work as independent grounds for expiration of the building permit. The Law Court also confirmed that it was possible to obtain a variance for a building permit in the shore land zone. The case was remanded to the Zoning Board of Appeals for this purpose. Turbat Creek Preservation, LLC vs. Town of Kennebunkport, 2000 ME 109, 753 A.2d 49 In this case, the property owner contended that he had a grandfathered right to use a boathouse for overnight stays. The code enforcement officer considered the structure to be a residence and cited the property owner for violating the Town’s Land Use Ordinance. The property owner contended that the Town was estopped from denying him the right to use the boathouse for overnight stays. The Law Court concluded that the property owner had mislead the code enforcement officer regarding the scope and intended uses of the improvements at the boathouse. The law Court stated that a town cannot be equitably estopped from asserting a violation in a particular use of property when the renovations of the property leading to the use received town approval based on misleading information provided by the applicant as to the nature of the renovations and the extent to the intended uses. Juliano vs. Town of Poland, 1999 ME 42, 725 A.2d 45 A commercial bottling plant owner who obtained a building permit for additions to the 92 plant sought review of the decision of town’s board of appeals upholding the stop work order issued by the new code enforcement officer directing the owner to cease construction of the plant. In July 1995, the owner received a building permit from the prior code enforcement officer for the Town of Poland. In September 1997, the new code enforcement officer ordered Juliano to cease construction on the bottling plant because it was not permitted activity within the zone. Juliano responded by calling attention to his 1995 permit. The Law Court ruled that the stop work order issued because of the work permit obtained by Juliano in 1995 was invalidly issued, it is in essence a challenge to the former code enforcement officer’s decision to issue the building permit. The Law Court determined that since the stop work order was issued nearly two years after the permit was granted, it was not timely due to the 30 day appeal period specified in the Town’s ordinance. The Law Court cited Wright vs. Town of Kennebunkport, 1999 ME 184 Para. 87, 15 A.2d 162, 165. For the proposition that “strict compliance with the appeal procedure of an ordinance is necessary to ensure that once an individual obtains a building permit he can rely on the permit with confidence that it will not be revoked after the commencement of construction.” Town of Old Orchard Beach v. Suzy Mosseri (Biddeford District Court, Docket No. CV-99-132) This is an 80K case decided in the Biddeford District Court in November, 1999 where the Town was awarded $181,000 in fines plus attorney’s fees and $2,000 per day until the violation is corrected. The case involves a commercial structure that was in violation of the BOCA National Property Maintenance Code adopted by Old Orchard Beach. The property is located in the center of town where there is tourism and a public walkway. Alleged violations included peeling paint, graffiti, deteriorating vinyl siding and accumulating debris. Town of Orono v. LaPointe, 1997 ME 185 This case is required reading for anyone involved in an 80K proceeding, because of what it says about penalties. In a nutshell: when a statute provides for a minimum penalty on a per day basis, the court has no discretion to reduce or suspend any portion of the penalty. The District Court found that Mr. Lapointe had operated a junkyard without a permit for a total of 730 days. The court assessed the fine at $100.00 per day, totaling $73,000.00, but then suspended all but $3,000.00 of that amount. The Town appealed to the Superior Court, which ruled that the penalty cannot be suspended. The Law Court affirmed. 93 The case involved reading two statutes together. 30-A M.R.S.A. §4452, the general land use enforcement statute, provided the minimum dollar amount of $100.00. 30-A M.R.S.A. §4452(3)(B) states that “the minimum penalty for a specific violation is $100.00….and monetary penalties may be assessed on a per-day basis.” Unlike “shall” or “must,” the word “may” is usually interpreted to allow discretion. However, there was different language in the state junkyard statute, under which the enforcement action was brought. 30-A M.R.S.A. §3758(2) states that anyone who violates the junkyard statute “must be penalized in accordance with §4452. Each day that the violation continues constitutes a separate offense.” From that language, the Law Court decided that imposing the minimum penalty for every day of violation was mandatory, not discretionary. Note, however, that the Law Court continues to view §4452 as providing the court with “discretionary authority to impose penalties for continuing violations on a per-day basis.” That means that some other statute must provide the mandatory daily penalty with language similar to that found in the junkyard statute. Can a municipal ordinance provide that mandatory daily penalty? The court in Town of Orono v. LaPointe said: “[w]hen a statute imposes a minimum civil penalty a court may not assess a lesser penalty unless the Legislature has provided it with the discretion to do so.” Clearly the state legislature has the power to set penalties to be applied by the courts and direct the courts as to how they must be applied. Municipalities, on the other hand, do not have that kind of power over the court system. The question yet to be decided is whether such a provision in a municipal ordinance would be viewed by the courts as taking away the court’s discretion in the same way as the statute did in Town of Orono v. LaPointe. City of Ellsworth v. Doody, 629 A.2d 1221 (Me. 1993) This case is principally an example of everything that can go wrong with a land use prosecution. On the facts, it appeared to be a fairly simple Rule 80K case--a building constructed within 75 feet of the normal high water mark in the shoreland zone, and four other violations of shoreland zoning. The Code Enforcement Officer commenced the case under Rule 80K. The defendants removed it to Superior Court, resulting in a three day trial. Even though the local Planning Board had made a finding that Doody's house was 65 feet from the shore, the Superior Court decided it was not bound by that finding and, after hearing conflicting testimony about exactly where the high water mark was, concluded that the City had not proved its case. According to a surveyor who testified on behalf of Doody, finding the normal high water mark 94 under the ordinance definition was the "equivalent of wrestling with fog." Out of five violations alleged by the City, the City prevailed on only one (constructing a dock without a permit). And the court declined to award the City attorney fees for prevailing on that particular violation, in light of the fact that the City had lost the other four. The City appealed to the Maine Supreme Judicial Court (the "Law Court"), which upheld the Superior Court decision in its entirety. The lesson to be learned is that what appears at the outset to be a fairly straightforward Rule 80K prosecution can turn into a years'-long battle and can be very expensive. Town of Hartford v. Bryant, 645 A.2d 18 (Me. 1994) This is another interesting saga, illustrating how what appears to be a simple Rule 80K prosecution can take many twists and turns, right up through the Maine Supreme Court. Joan Bryant had cut some trees and planted some grass in the shoreland zone. When the Code Enforcement Officer determined that there was a violation, the Town demanded that Bryant sign a consent agreement requiring her to replant trees and pay a $500.00 civil penalty. Ms. Bryant agreed to plant the trees, but refused to pay the penalty and the Town filed a complaint under rule 80K. After a convoluted proceeding with a number of amended court orders, the District Court finally ordered Ms. Bryant to plant eight hemlock trees at specified locations, and pay the Town a civil penalty in the amount of $200.00. The court refused to grant the Town its attorney fees. Ms. Bryant appealed the $200.00 penalty to the Superior Court, which affirmed the penalty and awarded the Town attorney fees in the amount of $4,000.00. Both parties appealed to the Law Court -- the Town unsatisfied with the amount of the penalty and Ms. Bryant contesting both the penalty and the attorney fees. The Law Court vacated both the penalties and the attorney fees award. The court interpreted the Town’s Shoreland Zoning Ordinance as not prohibiting the cutting of certain trees as long as “a well distributed stand of other natural vegetation” was maintained. The important principle stated in the case is that “when a municipality seeks to impose penalties for violation of a zoning ordinance, we will strictly construe the provisions of the ordinance.” That means, if the ordinance can be interpreted in more than one fashion, the court will pick the interpretation more favorable to the property owner against whom the Town is seeking to impose penalties. Town of Ogunquit v. McGarva, 570 A.2d 320 (Me. 1990) Although not an 80K proceeding, this enforcement action brought in the Superior Court is an example of a land use prosecution gone right. Applying the penalty provisions of the local 95 ordinance, the Superior court awarded the Town a penalty of $100,000.00 for constructing and operating a hotel without the required permits, and awarded the Town more than $23,000.00 in attorney fees. The Law Court upheld it all and went on to award the Town its attorney fees for the appeal as well. McGarva is a case which illustrates that land use violations can be very expensive for the violator. Town of Freeport v. Brickyard Cove Associates 594 A.2d 556 (Me. 1991) This case is another example of a successful land use prosecution. The court awarded a civil penalty and attorney fees and ordered the property owners to restore, by planting new trees, the area where it had unlawfully clear-cut in the shoreland zone. Town of Freeport v. Ocean Farms of Maine, Inc. 633 A.2d 396 (Me. 1993) Things didn’t go nearly so well for Freeport in the Ocean Farms case. The Law Court upheld an award of attorney fees of $25,000.00 against the Town. On the other hand, Ocean Farms had sought more than $59,000.00 in attorney fees. And it was all over the location of a short stretch of sidewalk. Baker v. Town of Woolwich, 517 A.2d 64 (Me. 1987) This case presented an interesting dilemma for the Law Court in terms of an award of attorney fees for a land use violation. The proceedings in the Superior Court involved both a Rule 80B appeal from the decision of the Town’s Board of Appeals that a violation existed and the Town’s counterclaim to enforce the Zoning Ordinance. The Town prevailed on both and sought attorney fees. While attorney fees were recoverable for the enforcement action under the land use enforcement statute, they were not recoverable for the Town’s efforts in the Rule 80B appeal. The dilemma was that the Town’s total legal bill of over $13,000.00 represented “an undifferentiated aggregate of its counsel’s charges for defending the Town against Baker’s M.R.Civ.P. 80B action as well as for pressing the Town’s counterclaim for enforcement.” Taking its cue from King Solomon, the Superior Court cut the bill in half and awarded $7,268.00 to the Town. The Law Court agreed with that approach. It noted that both the 80B action and the enforcement counterclaim involved the same issues and the same court appearances, and concluded “we adopt that even split as a fair and equitable resolution of a problem for which there is available no better answer.” However, after allocating one half of the fees to the enforcement action, the court went on to reduce that by one half again. The court actually decided that there were “special circumstances” present in the case, noting that the 96 Town had allowed Baker’s violation to continue for years and noting that there was no evidence that Baker’s business had caused any lasting environmental damage. Baker v. Town of Woolwich is a fairly early warning from the Law Court that the authorization for attorney fees in the statute is not a guarantee that the municipality will recover all of its attorney fees if it is the prevailing party. Town of Orrington v. Pease, 660 A.2d 919 (Me. 1995) This is an example of a case which started in the District Court, was appealed to the Superior Court, and then went on to the Maine Supreme Court. When that happens, the Superior Court decision is virtually meaningless, because the Law Court reviews the record developed before the District Court directly. One of the things that happened in the District Court was that the Town raised a zoning violation which it had not included in the Rule 80K citation and complaint. The Law Court decided that that was acceptable, since the Peases did not object and that newly raised violation was therefore tried "by consent." While it is certainly not a recommended practice to bring up new violations on the date of the hearing, Town of Orrington v. Pease indicates that it is worth a try if for some reason you have omitted something from your Rule 80K citation and complaint. The other interesting aspect of Town of Orrington v. Pease concerns attorney fees. The Peases argued that the Town could not obtain attorney fees because it had not filed an application for those fees until more than 90 days after the entry of the judgment, as Maine Rule of Civil Procedure 54(b)(3) appeared to require. But the Law Court upheld the grant of attorney fees because the Town had included the request in its original citation and complaint; the Town therefore did not have to file a separate application within the 90 day period. The obvious lesson is to make sure your Rule 80K citation and complaint always requests costs and attorney fees. City of Rockland v. Winchenbaugh, 583 A.2d 702 (Me. 1990) This very short decision illustrates several interesting points. Winchenbaugh tried to defend on the basis that were similar violations by others in the vicinity of this property. The District Court excluded that evidence as irrelevant and the Law Court agreed. As discussed previously in this manual, "selective enforcement" is almost never an effective defense for the violator. Winchenbaugh is another case where the Law Court awarded attorney fees for the original trial in the District Court, for defending the appeal to the Superior Court and then for defending the appeal to the Law Court. The last sentence of the decision illustrates the role of 97 the three levels of the court system. The decision was: "[r]emanded to the Superior Court with instructions to remand to the District Court within instructions to amend award of attorney fees to the City to include litigation costs incurred defending the District Court's judgment on appeal to the Superior Court and the Law Court." As you can see, it is an interesting journey, from the District Court all the way to the Law Court to find out you are entitled to attorney fees, then all the way back to the District Court for an order that says how much you are entitled to. City of Rockland v. Winchenbaugh, 667 A.2d 602 (Me. 1995) Court cases can be like popular movies; oftentimes there is a sequel. We will call this one Winchenbaugh II. While the parties were fighting over attorney fees in Winchenbaugh I, Mr. Winchenbaugh was apparently continuing to disregard the zoning ordinance and the City filed a motion for contempt of court alleging that Winchenbaugh failed to comply with the terms of the injunction originally entered by the District Court. Winchenbaugh asked to have that contempt proceeding removed to the Superior Court and tried to a jury. The District Court refused and found him in contempt. After a pass through the Superior Court, the case wound up at the Law Court again, where Winchenbaugh lost again. The Law Court decided that there was no entitlement to a jury trial in a contempt proceeding. Said the Law Court "[c]ivil contempt is used to secure obedience to court orders. ... It is a coercive tool, available to parties who seeks to enforce a previously obtained judgment." Describing civil contempt as an equitable remedy, the court concluded that there is no right to a jury trial. The outcome: once again the case was remanded to the Superior Court with instructions to remand to the District Court to add even more attorney fees to the $6,918.66 Winchenbaugh had already become obligated to pay. Keep your eyes out for Winchenbaugh III. City of Ellsworth v. McAlpine, 590 A.2d 545 (Me. 1991) This case offers an illustration of how hard attorney fees are to collect--that is, actually get deposited into the Town Treasury. Once fees have been awarded and an order entered requiring the violator to pay, that does not necessarily mean that the defendant will hand over the money. If a defendant does not, the municipality needs to utilize collection procedures in the District Court, including one called "disclosure," where the court requires the violator to come in and answer questions about his or her assets so that the court can order some of them turned over to the Town. The good news of the McAlpine case is that the attorney fees expended in using 98 the disclosure proceeding to collect the attorney fees from the Rule 80K proceeding can also be recovered by the municipality. Shafmaster v. Town of Kittery, 469 A.2d 848 (Me. 1984) This is a pre-Rule 80K case brought in the Superior Court, but it is of interest to Code Enforcement Officers. It states the principle that a Code Enforcement Officer has an independent responsibility to enforce the provisions of the Zoning Ordinance, even where the Planning Board has approved a project. That is, Planning Board approval does not relieve the Code Enforcement Officer of the obligation to enforce, if the CEO finds that the building violates a setback requirement. Town of Falmouth v. Long, 578 A.2d 1168 (Me. 1990) This case demonstrates that the equitable defenses of estoppel and laches are typically unsuccessful as defenses to a land use enforcement action. The Town was not barred from bringing its enforcement action even though several municipal employees had apparently been aware of the problems on the property for a number of years and the defendant dentist had operated his practice in violation of the ordinance for 15 years. City of Auburn v. Desgrosseilliers, 578 A.2d 712 (Me. 1990) This is one of the few cases where the doctrine of equitable estoppel did prevent the municipality from enforcing the ordinance. What appears to distinguish this case from others is that it was the City Council itself which made the representations that lead the property owners to believe they could conduct their business as planned, and the Council did that in the context of actually passing an amendment to the Zoning Ordinance. Town of Union v. Strong, 681 A.2d 14 (Me. 1996) This was another occasion to address the concept of “equitable estoppel” as applied to municipal enforcement activities. “Equitable estoppel” means, in simpler terms, that it would be unfair to enforce the ordinance against someone who has reasonably relied on what the municipality has said. In this case Mr. Strong got a letter from the Planning Board (which at that time was acting as the Code Enforcement Officer for shoreland zoning in the Town) stating that he could continue to construct his deck. But, about a year later, a newly-appointed Code Enforcement Officer visited the Strong home and orally ordered Strong to cease construction. Strong did not cease, went ahead and completed his deck, and then argued that he could rely on the Planning Board’s letter. The Law Court disagreed. 99 Town of Union v. Strong also teaches several other lessons. One is that a deck attached to a house will be considered part of the principal structure rather than an accessory structure. Under an ordinance which applied a setback requirement to all “principal structures,” the deck had to meet the setback requirement as well. And, unless the local ordinance says something specific to the contrary, setbacks are measured along the horizontal plane rather than “over the ground.” The court noted that measuring in the horizontal plane will often result in the structures being placed further back from the high water mark, better serving the protective purposes of shoreland zoning. Perhaps the most important lesson in Town of Union v. Strong is that attitude counts. The court went out of its way to point out that Strong demonstrated bad attitude: Ample evidence in the record supports the conclusion that Strong was bent on completing the deck regardless of whether the CEO or the planning board approved its construction. As noted by the court in its findings, Strong’s letters to the planning board throughout this acrimonious permitting process demonstrated a lack of respect for and a stubborn resistance to the board’s authority. Despite repeated warnings, Strong constructed his two car garage without ever obtaining a permit for it. Given this history and conduct, there is no basis for invoking the doctrine of equitable estoppel to prevent the Town from enforcing its zoning ordinance. The result for Strong was a $7,500.00 civil penalty and an award of attorney fees to the Town of $5,714.00. H.E. Sargent, Inc. v. Town of Wells, 676 A.2d 920 (Me. 1996) This was another occasion for he Law Court to consider whether an opinion of a Code Enforcement Officer which turns out to be incorrect or inaccurate can later “estop” the municipality from enforcing the ordinance correctly. The issue in the case was whether certain excavation activity at an existing gravel pit was “grandfathered” under a zoning ordinance provision which exempted from new regulations a pit “legally operating” on a particular date. The Town interpreted the terms “legally operating” to mean operating in compliance with all required local, state and federal permits, and the applicant obtained a letter from the Maine DEP stating that the pit had not required a DEP permit under the site location law. That letter was based on certain assumptions provided by the applicant. Based on that letter from the DEP, Sargent advised the Code Enforcement Officer that it was “grandfathered” under the site location act, and the Code Enforcement Officer then wrote a letter to Sargent confirming that the pit was 100 grandfathered under the Town’s ordinance. Unfortunately for Sargent, however, a picture is worth a thousand words. At a local Board of Appeals meeting evidence was presented to show that there had been no excavation on the property at the time Sargent thought there had been and, as a result, the assumptions in the DEP’s letter were wrong. Under those circumstances, the Law Court held that the Town was not prevented by the Code Enforcement Officer’s letter (which was based on incorrect information provided by Sargent) from enforcing its Ordinance. This case also involves the related doctrine called “laches,” which prevents enforcement of a right that has been ignored for too long a period of time. Sargent argued that, since the pit had been in operation for approximately 18 years before the Town took any enforcement action, it was too late for the Town to proceed. The Law Court, noting that “[w]e never have adopted laches as an affirmative defense to prevent a Town from enforcing its zoning regulations,” rejected Sargent’s arguments. Town of Shapleigh v. Shikles, 427 A.2d 460 (Me. 1981) This is a pre-Rule 80K case, but it demonstrates that courts will exercise a great deal of discretion in determining what remedy to grant for a land use violation. This case stands for the proposition that establishing that a building is unlawful and was unlawfully constructed does not automatically entitle the municipality to an injunction requiring removal of the building. In fact, getting a court to order removal of a building is a very difficult proposition. Even in McGarva, the $100,000.00 fine case discussed above, the Superior Court did not order removal of the building and the Law Court did not disturb that decision. Town of Holden v. Pineau, 573 A.2d 1310 (Me. 1990) Pineau has lots of interesting tidbits buried in its complicated fact pattern. For one, it establishes the proposition that even if the local zoning ordinance provides a lesser penalty, the municipality can still pursue the penalties available under the state zoning enforcement statute, 30-A M.R.S.A. §4452. The state statute is an independent remedy. And the Pineau case explores the relationship between an enforcement action and a pending appeal from an adverse decision by an administrative board. The Law Court upheld a District Court order requiring removal of the offending structure (radio tower), but conditioned that order upon a final decision adverse to Pineau in Pineau's pending Superior Court appeal from a decision of the Zoning Board of appeals about the legality of the tower. 101 Toussaint v. Town of Harpswell, 1997 ME 189 Is a kennel with eleven indoor/outdoor dog runs and the capacity to board fifteen dogs allowable as a home occupation? In Harpswell, the Code Enforcement Officer and Board of Appeals thought so, despite complaints from “summer residents of the neighborhood” about “almost continuous barking by dogs…”. At the Superior Court level, the Board of Appeals was overturned, the Justice finding that “a dog kennel is unlike businesses traditionally recognized as home occupations such as dressmaking, hairdressing and tutoring…”. The Law Court reversed, noting that while traditional definitions of “home occupation” speak of businesses “customarily carried on from a home,” the Harpswell Ordinance defined home occupation to include businesses that are “customarily conducted on residential property.” Because of the “breadth of the term,” the court affirmed the Board of Appeals decision that the kennel was permissible as a home occupation. Shadan v. Town of Skowhegan, 1997 ME 187 This is not a rule 80K case, but it makes reference to one. Mr. Shadan was asserting all sorts of claims against the Town, one of which was that his constitutional rights were being violated by the Town’s efforts to enforce conditions of subdivision approval against him. Those conditions were that the property be used only for seasonal structures, not for year-round residences. The Town’s subdivision ordinance authorized the Town’s Planning Board to “take such steps as they deemed in the best interests of the Town to effect compliance with the provisions as hereinafter set forth.” Utilizing that language, the Town instituted a rule 80K proceeding to evict Shadan because he had been living on his land throughout the year. While the 80K case was not in front of the Law Court for decision, the court held that enforcement of the subdivision regulations was not “de facto” zoning and did not deprive Shadan of any constitutional rights. Department of Environmental Protection v. Woodman, 1997 ME 164 The DEP brought a land use citation and complaint against the Woodmans, who had created a pond by damming up a stream without obtaining a permit under the Natural Resources Protection Act. The Superior Court found a violation and ordered the Woodmans to restore the site to its condition prior to the construction of the dam. The Woodmans then persuaded the court that they were financially unable to comply with that order. Consequently, the court appointed an expert, Robert Gerber, to review the record, visit the site and make 102 recommendations to the court as to whether the pond should be removed or whether there were other -- presumably less expensive -- forms of remediation available. Gerber reviewed the record, but did not visit the site, concluding that a site visit was not necessary; and he recommended that the dam be removed and the site restored to its original condition. The Woodmans appealed on several grounds. One was the allegation that Gerber was biased. The Law Court rejected that, because the Woodmans had not raised it at the Superior Court level. The lesson is that objections which could be cured at the trial court must be raised in the trial court. The fact that the Woodmans were representing themselves made no difference; litigants not represented by lawyers are held to the same standards as lawyers in terms of knowing the rules. The Woodmans also objected to the court’s acceptance of the Gerber report because Gerber had not conducted a site visit. The Law Court ruled that it was acceptable for Gerber to prepare his recommendations without a site visit, because of the legal rule that an expert testifying in court may rely on facts or data made known to him through sources other than direct experience. An expert may base his or her opinion on information which would be hearsay if offered in evidence directly, if it is data of the type commonly relied on by experts forming opinions on the subject. Fitanides v. City of Saco, 684 A.2d 421 (Me. 1996) This is a useful case because it may well be the first time the Maine Supreme Judicial Court has looked at the difference between nonconforming uses, nonconforming lots and nonconforming structures and gotten it right. Fitanides’ neighbor planned to add a repair garage to his existing used car sales lot. The lot was nonconforming (that is, too small), the existing structure was nonconforming (that is, violated the setback requirements) and -- Fitanides alleged -- that the use was nonconforming. What the court did was to analyze each of those nonconformities separately. To decide the use question, the court looked to the use provisions in the ordinance and found that automobile dealers and automobile repair garages were allowed as conditional uses by the district regulations. The court therefore concluded that the existing use was not nonconforming (the ordinance definition of nonconforming use was one which “is not permitted in the district in which it is located…”). With respect to the nonconformity of the lot, the court, looking to a specific provision in the Saco Zoning Ordinance, found that the structure on the lot 103 could be expanded even though the lot itself was too small. And as to the structure, the court found that the proposed addition did not, in itself, violate the setback requirements and therefore could be built without a variance. The provisions of the Saco Zoning Ordinance were very precise on those subjects, and they worth reviewing as good models. Oftentimes, people get confused because they assume that when a lot is nonconforming the building on it cannot be expanded, or when a use is nonconforming the building cannot be enlarged without a variance, or when a building violates the setback requirements it cannot be enlarged in any dimension. Under most zoning ordinances, that is not the case. Nonconformity in one of the three categories does not necessarily prevent expansions and enlargements in one of the other categories. Otis v. Town of Sebago, 645 A.2d 3 (Me. 1994) Is everything the Code Enforcement Officer puts down in writing appealable to the local Board of Appeals? Not necessarily. In Otis v. Town of Sebago the CEO had issued a building permit on April 15th. Construction did not commence until September. Otis was an abutter, who did not receive notice of the building permit (typically abutters do not) and did not become aware of the permit until the construction started. In December Otis wrote a letter to the CEO requesting revocation of the April permit. The CEO refused that request, by letter back to Otis. Otis then appealed to the local Board of Appeals from the CEO’s letter refusing to revoke the permit. The Board of Appeals declined to hear Otis’ appeal because it was not filed within 30 days of the issuance of the building permit. The Law Court affirmed. The court stated that the Town’s ordinance “does not authorize the CEO to reconsider previous decisions nor does it provide a mechanism for an aggrieved party to request that the CEO reconsider a prior decision.” Consequently, the building permit became final 30 days after its issuance and the appeal to the Board of Appeals was too late. Perhaps the lesson for Code Enforcement Officers in Otis v. Town of Sebago is not to write letters in response to requests when the Code Officer is not authorized by ordinance to act on the request. That is, do not put advisory opinions in writing, because someone may attempt to appeal them to the Board of Appeals. Pepperman v. Town of Rangeley, 659 A.2d 280 (Me. 1995) When this case was first decided, there was some concern that it stood for the proposition that enforcement decisions of the Code Enforcement Officer could not be appealed either to the local Board of Appeals or to the Superior Court. That is not an accurate summary of the case and, further, Pepperman is probably best explained as a decision which turned on some quirky 104 language in the local zoning ordinance and therefore really doesn’t have much effect as a precedent. In Pepperman the CEO had sent a notice of violation ordering a structure violating the zoning ordinance’s setback requirement to be relocated. Pepperman appealed to the Zoning Board of Appeals under language commonly found in ordinances, authorizing the Board “to hear and decide appeals where it is alleged there is an error in any order, requirement, decision or determination by the Code Enforcement Officer…in the enforcement of this ordinance.” Under that provision, the Board of Appeals heard Pepperman’s appeal and denied it. Pepperman appealed to the Superior Court, which affirmed the decision of the Board of Appeals. The Town then filed a Rule 80K complaint in the District Court. But before that could be heard, Pepperman filed his appeal to the Maine Supreme Court (the “Law Court”), and the Rule 80K proceeding was stayed until the Law Court rendered its decision. The Law Court’s decision was, to put it politely, surprising. The Law Court ruled that the decision of the Board of Appeals was only “advisory,” and that the Superior Court should have therefore dismissed the appeal, which the Law Court promptly did. As far as the Law Court was concerned, the Board of Appeals denial of Pepperman’s appeal from the CEO’s notice of violation “was nothing more than another fact for the municipal officers to consider in deciding whether to institute an enforcement action to abate the violation. Since that denial had no legal consequences itself, the denial by the Board was not subject to judicial review by the Superior Court.” If that were a general statement of Maine law, it would indicate that a Board of Appeals can never make a binding decision about a Code Enforcement Officer’s notice of violation, stop work order, notice to correct violation, etc. But Pepperman is not really a general statement of Maine law. The Law Court’s decision seems to be based on this peculiar sentence in the Rangeley Ordinance describing the powers and duties of the Board of Appeals: “[t]he action of the Code Enforcement Officer…may be returned to [the Code Enforcement Officer] for reconsideration by the Board of Appeals by a majority vote of those present and voting except that there must be a minimum of three votes in favor of reconsideration.” Apparently it was that notion that all the Board of Appeals can do is “return” the issue to the Code Enforcement Officer for “reconsideration” that persuaded the Law Court that the Board of Appeals was only acting as an advisor, rather than a decision-maker. By way of contrast, most zoning ordinances do say, 105 forthrightly, that the Board of Appeals has the power to “reverse” or “modify” or “decide” that the Code Enforcement Officer has made an error -- not just send something back to the Code Enforcement Officer for “reconsideration.” Pepperman should probably be treated as a case which does not have much to say except within the Town of Rangeley. 106 INDEX Administrative Inspection Warrants ............................................................................................ 28 Affidavit.......................................................................................................................... 26, 27, 28 Appeals, ....................................................................... 36, 41, 73, 86, 87, 88, 93, 97, 98, 101, 102 Burden of Proof, ........................................................................................................................... 45 Citation and Complaint, ....................................... 12, 14, 15, 18, 20, 22, 23, 25, 26, 27, 32, 38, 46 Civil penalty, ................................................................................ 16, 37, 44, 56, 85, 91, 92, 93, 97 Collecting a Judgment, ................................................................................................................ 39 Contempt of Court, ...................................................................................................................... 40 Costs, ........................................................................................................................................... 38 Court Hearing, ............................................................................................................................. 69 Department of Health and Human Services, Division of Health Engineering, ............... 5, 19, 37, 72 Description of the violation, .................................................................................................... 12, 14 Discovery, .............................................................................................................................. 49, 50 Dismissal, .................................................................................................................................... 52 District Court, ................................ 1, 3, 6, 8, 10, 15, 22, 24, 29, 31, 34, 35, 38, 40, 41, 43, 44, 45, ......................................................................................... 69, 79, 80, 85, 90, 92, 93, 94, 95, 98, 102 Electronic Recording, .................................................................................................................. 78 Estoppel, ..................................................................................................................................... 55 Evidence, .................................................... 1, 46, 49, 56, 57, 58, 59, 60, 61, 62, 63, 64, 66, 67, 71 Exhibits, ........................................................................................................................... 64, 72, 73 Failure to Appear, ........................................................................................................................ 79 Findings and Conclusions, ........................................................................................................... 35 Fines, ........................................................................................................................................... 36 Foundation/Reliability, ................................................................................................................ 58 Hearsay, ...................................................................................................................................... 59 Irreparable Harm, ......................................................................................................................... 26 Laches, ........................................................................................................................................ 54 Maine Department of Environmental Protection, ........................................................................ 3, 5 Maine Land Use Regulation Commission, .............................................................................. 1, 3, 6 Maine State Planning Office, .......................................................................................................... 5 Ordinance Certification, ......................................................................................................... 18, 24 Permanent injunction, .......................................................................................... 16, 25, 27, 28, 77 Photographs, ............................................................................................................................... 62 Preliminary Injunction, .......................................................................................................... 15, 25 Record for Appeal, ....................................................................................................................... 67 Relevance, ................................................................................................................................... 58 Removal, ..................................................................................................................................... 17 Request for Relief, ....................................................................................................................... 67 Return of Service, ............................................................................................................ 22, 23, 32 Rule 80E, .................................................................................................................... 29, 30, 31, 66 Selective Enforcement, ................................................................................................................ 56 Service, ...................................................................................................................... 22, 23, 32, 43 Settlement, .................................................................................................................................. 50 Site Visit, .................................................................................................................................... 77 107 Statute of Limitations, .................................................................................................................. 54 Stipulations, ................................................................................................................................ 65 Subpoena, .................................................................................................................................... 49 Summary Judgment, .................................................................................................................... 36 Tape Recording, ........................................................................................................................... 63 Telephone Conversations, ............................................................................................................ 63 Temporary Restraining Order, ............................................................................................... 15, 25 Types of Evidence, ....................................................................................................................... 56 Witnesses, ........................................................................................................................ 59, 62, 70 108