Posted by: Patricia Salkin | November 4, 2014

ME Supreme Court Holds Land Use Violation was Not an Appropriate Occasion for Application of the Anti-SLAPP Statute

The Code Enforcement Officer (CEO) for the Town of Madawaska inspected the Cayers’ property and discovered that two travel trailers had been added to a lot where one mobile home was already located. As the Cayers had not submitted an application to the Town to allow the additional trailers, the CEO issued a notice of violation alerting them to their possible violation of section 15(A)(5) of the Madawaska Shoreland Zoning Ordinance. At the hearing before the Town Board of Selectmen, the Board found the Cayers in violation of the ordinance and directed them to remove the one remaining trailer by July 2010, pay a civil penalty, and enter into the recommended resolution through a signed consent agreement. The Town then filed a land use citation and complaint in District Court, and the Cayers timely requested removal to the Superior Court for a jury trial, which was granted. Although the Cayers filed the special motion to dismiss 131 days after the Town filed its motion to amend, they did not request leave from the court to file the motion beyond the anti-SLAPP statute’s sixty-day time limitation. The court denied the special motion to dismiss, concluding that the Cayers’ motion was filed outside the time limitation.

The court utilized a two-step analysis to determine whether a special motion to dismiss should be granted: 1) whether the moving party has demonstrated that the nonmoving party’s claim was based on the moving party’s exercise of the right of petition under the Constitution of the United States or the Constitution of Maine, and 2) if the moving party makes this initial showing, the burden then shifts to the nonmoving party, and under the second step the court must dismiss the nonmoving party’s lawsuit or claim unless the non-moving party has made a prima facie showing that at least one of the moving party’s petitioning activities was devoid of any reasonable factual support or any arguable basis in law and caused actual injury to the non-moving party.

As to the first prong, the court noted that although zoning disputes make up many of the classic anti-SLAPP cases, the context for such cases has generally occurred when citizens who publically oppose development projects are sued by companies or other citizens, rather than by a government entity alleging violation of a land use ordinance. Even though Maine’s anti-SLAPP statute did not expressly exempt government enforcement actions from its application, the plain meaning of the statutory language requiring that the original claim at issue be “based on” the defendant’s First Amendment right to petition the government makes it evident that the anti-SLAPP statute does not apply in the circumstances of this case. Therefore, a citizen whose rights to petition the government were allegedly suppressed due to government ordinances or enforcement actions, could seek remedy in other ways: including a federal section 1983 action or a state constitutional challenge. Accordingly, the court found that the Town’s enforcement action against the Cayers for a land use violation was not an appropriate occasion for application of the anti-SLAPP statute, and the Cayers’ special motion to dismiss should have been denied.

Town of Madawaska v Cayer, 2014 WL 5572933 (ME 11/4/2014)

The opinion can be accessed at:

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