MAINE	SUPREME	JUDICIAL	COURT	                                       Reporter	of	Decisions	
Decision:	    2019	ME	29	
Docket:	      Yor-18-213	
Submitted	
  On	Briefs:	 January	17,	2019	
Decided:	     February	26,	2019	
	
Panel:	       ALEXANDER,	MEAD,	GORMAN,	JABAR,	HJELM,	and	HUMPHREY,	JJ.	
	
	
                              DANIEL	RAPOSA	JR.	et	al.	
                                        	
                                       v.	
                                        	
                               TOWN	OF	YORK	et	al.	
	
	
MEAD,	J.	

      [¶1]		Daniel	and	Susan	Raposa	appeal	from	a	judgment	of	the	Superior	

Court	(York	County,	O’Neil,	J.)	dismissing	for	lack	of	subject	matter	jurisdiction	

the	 Raposas’	 Rule	 80B	 complaint	 for	 review	 of	 factual	 findings	 made	 by	 the	

Town	 of	 York’s	 Board	 of	 Appeals.	 	 Because	 we	 hold	 that	 the	 court	 has	

jurisdiction	to	review	the	Board’s	decision,	we	vacate	the	judgment	and	remand	

to	the	Superior	Court	for	consideration	of	the	complaint	on	the	merits.	

                                   I.		BACKGROUND	

      [¶2]		The	Raposas	own	residential	property	in	York	that	abuts	property	

owned	by	Joshua	Gammon.		Gammon	has	used	his	property	for	his	commercial	

landscaping	business	since	purchasing	it	from	party-in-interest	Peter	Marcuri	
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in	2014.		Marcuri	had	used	the	property	both	for	his	excavation	business	and	

as	his	residence.	

      [¶3]	 	 On	 March	 26,	 2016,	 the	 Raposas	 contacted	 the	 Town’s	 Code	

Enforcement	Officer	(CEO)	to	express	their	concern	that	Gammon’s	use	of	the	

property	 was	 not	 consistent	 with	 Marcuri’s	 nonconforming	 use.	 	 The	 CEO	

responded	by	email	in	April,	stating	that	

      [t]he	uses	on	the	lots	are	consistent	with	the	previous	uses	and	no	
      violations	are	warranted	at	this	time.		If	you	would	like	to	appeal	
      this	 determination,	 .	 .	 .	 [p]lease	 contact	 [the	 Board	 of	 Appeals]	
      regarding	 the	 appeals	 process	 per	 article	 18.8.2.1.,	 which	 states,	
      “The	 Board	 of	 Appeals	 shall	 hear	 and	 decide	 Appeals	 from	 any	
      order,	 requirement,	 decision,	 or	 determination	 made	 by	 any	
      person	or	Board	charged	with	administration	of	this	Ordinance.”	
      	
      [¶4]	 	 The	 Raposas	 appealed	 the	 CEO’s	 decision	 to	 the	 Town’s	 Board	 of	

Appeals	 in	 May.	 	 Three	 hearings	 were	 held	 on	 the	 appeal,	 during	 which	 the	

Raposas,	 their	 counsel,	 Gammon’s	 counsel,	 the	 CEO,	 and	 other	 abutters	

presented	 testimony.	 	 Although	 the	 Board	 granted	 the	 Raposas’	 appeal	 for	

reasons	not	relevant	to	this	appeal,	the	Board	also	made	factual	findings	that	

were	 not	 in	 the	 Raposas’	 favor,	 namely	 that	 the	 use	 of	 the	 lot	 by	 Gammon’s	

landscaping	 business	 did	 not	 constitute	 a	 change	 in	 use	 but	 rather	 was	 an	

intensification	of	the	previous	use.	
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        [¶5]	 	 The	 Raposas	 appealed	 to	 the	 Superior	 Court	 pursuant	 to	

M.R.	Civ.	P.	80B,	challenging	the	Board’s	factual	findings.		The	Town	moved	to	

dismiss	 the	 appeal	 for	 lack	 of	 subject	 matter	 jurisdiction	 pursuant	 to	

M.R.	Civ.	P.	12(b)(1).1		The	court	granted	the	Town’s	motion	to	dismiss,	finding	

that	 the	 Board’s	 review	 of	 the	 CEO’s	 decision	 was	 advisory	 and	 therefore	

unreviewable.2	 	 The	 Raposas	 appealed	 to	 us.	 	 See	 5	 M.R.S.	 11008(1)	 (2018);	

M.R.	Civ.	P.	80B(n).	

                                          II.		DISCUSSION	

	       [¶6]		Pursuant	to	Maine	law	governing	appeals	from	municipal	boards,	

“[a]ny	party	may	take	an	appeal,	within	45	days	of	the	date	of	the	vote	on	the	

original	 decision,	 to	 Superior	 Court	 from	 any	 order,	 relief	 or	 denial	 in	

accordance	 with	 the	 Maine	 Rules	 of	 Civil	 Procedure,	 Rule	 80B.”	 	 30-A	 M.R.S.	

§	2691(3)(G)	(2018).		Notwithstanding	the	authority	that	the	Rule	grants	the	

court	to	enter	a	judgment	affirming,	vacating,	or	modifying	the	decision	under	

review	 or	 to	 remand	 the	 case	 to	 the	 governmental	 agency	 for	 further	

proceedings,	see	M.	R.	Civ.	P.	80B(c),	in	a	case	we	decided	nearly	twenty	years	




  1		Gammon	also	appealed	the	decision,	and	the	two	appeals	were	consolidated.		When	the	Town	

moved	to	dismiss	the	appeals,	Gammon	joined	in	the	Town’s	motion.	

    2		On	February	5,	2018,	the	Raposas	filed	a	motion	to	alter	or	amend	the	court’s	judgment	pursuant	

to	M.R.	Civ.	P.	59(e),	which	the	court	denied	after	a	hearing.	
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ago,	we	held	that	where	the	Board’s	role	in	an	appeal	is	advisory	in	nature,	it	is	

not	 subject	 to	 judicial	 review,	 Herrle	 v.	 Town	 of	 Waterboro,	 2001	 ME	 1,	 ¶	 9,	

763	A.2d	1159.		In	light	of	the	cases	that	we	have	decided	since	Herrle	and	the	

Legislature’s	action	in	this	area,	we	take	this	opportunity	to	clarify	Maine	law	

regarding	 the	 justiciability	 of	 a	 board	 of	 appeals’	 review	 of	 a	 CEO’s	

determination.	

	     [¶7]		In	Herrle,	a	Board	of	Selectmen,	acting	in	lieu	of	the	CEO	who	had	a	

conflict	of	interest,	determined	that	the	use	of	a	gravel	pit	was	grandfathered	

and,	based	on	that	determination,	it	declined	to	take	enforcement	 action.		Id.	

¶	2.		In	considering	an	appeal	from	those	actions,	we	focused	on	the	Board	of	

Selectmen’s	decision	not	to	“enforce,”	and	held	that	the	Board	of	Appeals’	role	

in	an	appeal	of	a	determination	that	no	violation	of	the	Town’s	zoning	ordinance	

existed	was	advisory	in	nature	and	not	subject	to	judicial	review.		Id.	¶¶	9-10.		

We	 reasoned	 that	 because	 the	 Board	 of	Selectmen	 retained	 discretion	 not	 to	

bring	an	enforcement	action,	any	decision	by	the	court	on	the	issue	of	whether	

the	violation	determination	was	correct	would	lack	legal	significance.		Id.	¶	10.		

In	a	later	case,	we	 explained	that	“Herrle	precludes	the	court’s	intrusion	into	

municipal	 decision-making	 when	 a	 municipality	 decides	 whether	 or	 not	 to	

undertake	an	enforcement	action.		If	the	municipality	undertakes	a	subsequent	
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enforcement	action,	that	action	may	be	subject	to	judicial	scrutiny	if	review	is	

authorized	 by	 an	 appropriate	 law	 and	 ordinance.”	 	 Salisbury	 v.	 Town	 of	 Bar	

Harbor,	2002	ME	13,	¶	11,	788	A.2d	598.	

	     [¶8]		In	2010,	we	cited	Herrle	when	we	decided	Farrell	v.	City	of	Auburn,	

2010	ME	88,	3	A.3d	385,	and	Shores	v.	Town	of	Eliot,	2010	ME	129,	9	A.3d	806.		

In	each	case,	a	notice	of	violation	of	the	municipal	ordinance	(NOV)	issued	by	

the	Town’s	CEO	was	appealed	to	the	Board	of	Appeals	and	then	to	the	Superior	

Court.		Farrell,	2010	ME	88,	¶¶	3-5,	3	A.	3d	385;	Shores,	2010	ME	129,	¶¶	3-4,	

9	A.3d	 806.	 	 We	 concluded	 that	 because	 the	 only	 legal	 significance	 of	 each	

Board’s	decision	was	to	provide	an	advisory	opinion	concerning	whether	the	

CEO’s	 violation	 determination	 was	 correct,	 neither	 decision	 was	 subject	 to	

judicial	review.		Farrell,	2010	ME	88,	¶	17,	3	A.3d	385;	Shores,	2010	ME	129,	

¶	10,	 9	 A.3d	 806.	 	 As	 discussed	 below,	 however,	 these	 two	 decisions	 were	

subsequently	 vitiated	 by	 statute.	 	 See	 30-A	 M.R.S.	 §	 2691(4)	 (2018);	 Dubois	

Livestock,	Inc.	v.	Town	of	Arundel,	2014	ME	122,	¶	9,	103	A.3d	556.	

	     [¶9]	 	 In	 2013,	 the	 Legislature	 enacted	 P.L.	 2013,	 ch.	 144,	 amending	

30-A	M.R.S.	 §	 2691(4)	 (2013),	 to	 provide	 for	 board	 of	 appeals	 and	 Superior	

Court	 review	 of	 municipal	 notices	 of	 violation.	 	 See	 Paradis	 v.	 Town	 of	 Peru,	

2015	ME	54,	¶	7,	115	A.3d	610.		The	statute	as	amended	provides	that	“[a]bsent	
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an	express	provision	in	a	charter	or	ordinance	that	certain	decisions	of	its	code	

enforcement	 officer	 or	 board	 of	 appeals	 are	 only	 advisory	 and	 may	 not	 be	

appealed,	 a	 notice	 of	 violation	 or	 enforcement	 order	 by	 a	 code	 enforcement	

officer	 under	 a	 land	 use	 ordinance	 is	 reviewable	 on	 appeal	 by	 the	 board	 of	

appeals	 and	 in	 turn	 by	 the	 Superior	 Court	 under	 the	 Maine	 Rules	 of	

Civil	Procedure,	Rule	80B.”		30-A	M.R.S.	§	2691(4).	

      [¶10]		Since	the	enactment	of	the	amendment,	NOVs	have	been	generally	

appealable.		See	Paradis,	 2015	 ME	 54,	 ¶	7,	115	A.3d	610.		 Although	the	plain	

language	of	the	statute	does	not	explicitly	address	whether	an	appeal	from	a	

notice	 indicating	 that	 there	 is	 no	 violation	 is	 likewise	 authorized	 by	 section	

2691(4),	 our	 opinions	 interpreting	 the	 provision	 have	 expressed	 the	

understanding	 that	 such	 “no	 violation”	 actions	 are	 similarly	 appealable.	 	 For	

example,	 in	 Dubois	 Livestock,	 Inc.,	 2014	 ME	 122,	 ¶¶	 9-11,	 103	 A.3d	 556,	 we	

addressed	the	justiciability	of	an	appeal	from	a	CEO’s	NOV.		We	considered	the	

effect	of	the	Supreme	Court’s	ruling	in	Sackett	v.	EPA	“that	an	Environmental	

Protection	Agency	compliance	order,	the	equivalent	of	a	municipal	[NOV],	was	

a	final	agency	action	subject	to	judicial	review	because	the	order	affected	the	

use	of	the	property	at	issue	and	appeal	was	the	only	adequate	remedy.”		Id.	¶	10	

(citing	Sackett	v.	EPA,	566	U.S.	120	(2012))	(quotation	marks	omitted).		We	also	
                                                                                                           7	

referenced	our	holding	in	Annable	v.	Board	of	Environmental	Protection	“that	a	

court	may	reach	the	merits	in	a	declaratory	judgment	action	when	an	agency	

decision,	although	a	notice	or	advisory	opinion,	can	affect	property	uses.”		Id.	

(citing	Annable	v.	Bd.	of	Envtl.	Prot.,	507	A.2d	592,	595-96	(Me.	1986)).		We	then	

concluded	 that,	 “like	 the	 compliance	 order	 at	 issue	 in	 Sackett,	 or	 the	 agency	

opinion	at	issue	in	Annable,	[an	NOV]	affects	the	use,	and	may	affect	the	value,	

of	the	property,	and	Dubois’s	only	remedy,	absent	a	Rule	80K	action	to	defend,	

is	appeal.”		Id.		Thus,	in	light	of	the	reasoning	in	Sackett	and	Annable	and	the	

amendment	to	section	2691(4),	we	held	that	the	NOV	appeal	was	justiciable.		

Id.	¶	11.	

        [¶11]		In	accordance	with	our	reasoning	in	Dubois,3	we	hold	today	that	a	

CEO’s	written	decision	interpreting	a	land	use	ordinance	is	appealable	to	the	

Board	and	in	turn	to	the	Superior	Court—whether	the	CEO	finds	that	there	is	



    3		Only	when	statutory	language	is	ambiguous	do	we	“examine	other	indicia	of	legislative	intent,	

such	as	legislative	history.”		Kimball	v.	Land	Use	Regulation	Comm’n,	2000	ME	20,	¶	18,	745	A.2d	387	
(quotation	marks	omitted).		Although	the	statutory	language	at	issue	is	unambiguous	and	we	need	
not	 consult	 extrinsic	 information	 to	 determine	 its	 meaning,	 we	 note	 that	 the	 stated	 purpose	 for	
amending	 section	 2691	 was	 to	 address	 our	 decisions	 in	 Farrell	 and	 Shores.	 	 L.D.	 1204,	 Summary	
(126th	Legis.	2013).		As	the	proponents	of	the	bill	testified,	after	Farrell	and	Shores,	CEO	decisions	
were	 not	 binding	 on	 the	 parties,	 but	 instead	 were	 merely	 advisory.	 	 L.D.	 1204,	 Public	 Hearing	
Summary	(126th	Legis.	2013).		The	proponents	explained	that,	pursuant	to	this	bill,	a	CEO’s	written	
decision	 interpreting	 a	 local	 ordinance	 would	 be	 binding	 unless	 timely	 appealed	 to	 the	 board	 of	
appeals—resulting	in	a	quick	and	inexpensive	method	of	resolving	disputes	at	the	local	level.		Id.		It	
is	clear	from	the	legislative	history	that	the	proponents	of	the	bill—and	the	Legislature	in	enacting	
the	 bill—favored	 allowing	 appeals	 of	 municipal	 decisions	 that	 affect	 the	 property	 interests	 of	
landowners.	
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or	 is	 not	 a	 violation—so	 long	 as	 the	 ordinance	 does	 not	 expressly	 preclude	

appeal.	 	 See	 30-A	 M.R.S.	 §	 2691(4);	 Paradis,	 2015	 ME	 54,	 ¶	 7,	 115	 A.3d	 610	

(determining	 that	 section	 2691(4)	 did	 not	 provide	 a	 right	 to	 appeal	 an	 NOV	

where	 the	 ordinance	 expressly	 stated	 that	 no	 appeal	 from	 an	 NOV	 may	 be	

taken).		In	making	this	announcement,	we	recognize	that	such	decisions	often	

determine	 the	 use	 and	 value	 of	 property	 and	 that	 persons	 affected	 by	 these	

decisions	 would	 otherwise	 have	 no	 remedy.	 	 See	 Dubois,	 2014	 ME	 122,	

¶¶	10-11,	 103	 A.3d	 556.	 	 The	 applicable	 statutes	 and	 the	 terms	 of	 the	

ordinance—not	the	potential	advisory	nature	of	appellate	review—define	the	

court’s	jurisdiction.4	

	        [¶12]		We	thus	turn	to	the	Raposas’	appeal.		Because	the	Board	conducted	

a	de	novo	review	of	the	CEO’s	determination,	we	review	the	Board’s	decision	

directly.	 	 See	 Yates	 v.	 Town	 of	 Sw.	 Harbor,	 2001	 ME	 2,	 ¶	 10,	 763	 A.2d	 1168;	

Stewart	v.	Town	of	Sedgwick,	2000	ME	157,	¶	7,	757	A.2d	773.		The	Board	found	

that	Gammon’s	use	of	the	lot	did	not	constitute	a	change	of	use	but	rather	an	

intensification	of	the	same	use.		This	determination—which	would	be	final	if	



     4		To	the	extent	that	Herrle	holds	otherwise,	it	is	overruled.		Although	the	general	rule	that	that	the	

Board	of	Selectmen	retains	discretion	in	whether	to	bring	an	enforcement	action	for	an	ordinance	
violation	continues	to	exist,	see	Adams	v.	Town	of	Brunswick,	2010	ME	7,	¶	10,	987	A.2d	502;	Herrle	v.	
Town	of	Waterboro,	2001	ME	1,	¶	10,	763	A.2d	1159,	a	municipality’s	decision	that	an	ordinance	has	
not	 been	 violated	 is	 a	 legal	 determination	 that	 is	 appealable	 subject	 to	 the	 provisions	 of	 that	
municipality’s	ordinance.		See	Herrle,	2001	ME	1,	¶¶	13-14,	763	A.2d	1159	(Dana,	J.,	dissenting).	
                                                                                  9	

the	Raposas	could	not	appeal—allows	Gammon	to	continue	to	operate	his	lawn	

service	 business,	 thereby	 affecting	 the	 use	 of	 Gammon’s	 property	 and	

potentially	affecting	the	value	of	the	Raposas’	abutting	property.	

         [¶13]		Absent	an	express	provision	in	the	Town’s	ordinance	stating	that	

the	 Raposas	 may	 not	 appeal,	 a	 determination	 of	 whether	 there	 has	 been	 a	

violation	of	the	ordinance	is	reviewable	on	appeal.		See	30-A	M.R.S.	§	2691(4).		

The	Town	of	York’s	ordinance	provides	that	“[a]ny	party	may	take	an	appeal	

within	45	days	of	the	vote	on	the	[Board’s]	decision,	to	Superior	Court	from	any	

order,	relief	or	denial	in	accordance	with	the	Maine	Rules	of	Civil	Procedure,	

Rule	80B.”		York,	Me.,	Zoning	Ordinance	§	18.8.3.6	(May	21,	2016)	(emphasis	

added).		The	Superior	Court	therefore	has	jurisdiction	in	this	case.	

         The	entry	is:	

                            Judgment	 vacated.	 	 Remanded	 for	 further	
                            proceedings.	
	
	     	     	      	     	      	
	
Sandra L. Guay, Esq., Woodman Edmands Danylik & Austin, P.A., Biddeford, for
appellants Daniel Raposa Jr. and Susan Raposa

Mary	E.	Costigan,	Esq.,	Bernstein	Shur,	Portland,	for	appellee	Town	of	York	
	
Matthew W. Howell, Esq., Clark & Howell, LLC, York, for appellee Joshua
Gammon
	
York	County	Superior	Court	docket	numbers	AP-2016-34,	35	
FOR	CLERK	REFERENCE	ONLY	
