Posted by: Patricia Salkin | May 23, 2015

ME Supreme Judicial Court Finds Notice of Violation was not Appealable

Donald Paradis applied for and obtained a building permit to construct a two-car garage on a parcel of property in the Town of Peru. About three years later, the Town sent Paradis a notice of violation stating that “after careful consideration amongst the Planning Board, the Board of Selectmen, and the Code Enforcement Officer of Peru,” the Town had determined that the garage constructed in 2010 violated multiple Ordinance provisions, and requested that Paradis take various actions to bring the property into compliance with the Ordinance, including removing certain plumbing fixtures, or else face legal action from the Town. Paradis then brought this appeal from a judgment of the Superior Court, which affirmed the decision of the Town of Peru Board of Appeals on Paradis’s appeal of a notice of violation.

Until very recently, appeals of notices of violation were not justiciable because a notice merely provided an interpretation of an ordinance; unless and until a municipality acted to enforce the decision in some meaningful way, appeals from notices of violation were “dismissed as calling for an advisory opinion.” However, in 2013, the Maine Legislature enacted a statutory amendment providing for board of appeals and Superior Court review of municipal notices of violation. Despite this, because the notice of violation at issue here was sent before the effective date of this 2013 statute, and because the Town’s Ordinance expressly stated that no appeal from a notice of violation may be taken, it did not by its express terms does not provide Paradis with a right to appeal. Accordingly, the judgment of the Superior Court was vacated and remanded with instructions to enter an order vacating the decision of the Town of Peru Board of Appeals for lack of jurisdiction.

Paradis v Town of Peru, 2015 WL 2114385 (ME 5/7/2015)

The opinion can be accessed at: http://www.courts.maine.gov/opinions_orders/supreme/lawcourt/2015/15me54pa.pdf


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