Court Urges De Novo Review of CEO Decisions

Training for: Legal Notes

For the second time in two years, the Maine Supreme Judicial Court has “strongly urged” municipalities to amend their land use ordinances to provide that local appeals of code enforcement officer (CEO) decisions are reviewed on a de novo rather than an appellate basis.

A local ordinance may allow a board of appeals (BOA) to consider appeals “de novo,” meaning the BOA conducts the entire permit review or violation determination anew by assembling its own record, taking testimony from interested parties, and making its own independent decision on the matter.

Alternatively, a municipal ordinance may direct the BOA to consider appeals on an “appellate” basis, which generally limits the BOA to reviewing the record (file) compiled by the CEO and determining if the original decision was clearly erroneous based on the information in that record. No new facts or testimony are considered. (An ordinance may also expressly provide for direct appeal of CEO decisions to Superior Court.)

The BOA’s standard of review is important because if a CEO’s decision is later appealed to court, the court will review the most recent de novo proceeding. If the local BOA conducted an appellate review, the court would review the record created by the CEO.

In both 29 McKown, LLC v. Town of Boothbay Harbor, 2022 ME 38, and LaMarre v Town of China, 2021 ME 45, the Court reviewed appeals of CEO decisions where the local BOA had considered the appeal on an appellate basis. In both cases, the Court determined that the record compiled by the CEO was insufficient to allow for judicial review because the CEO’s decision did not contain written findings of fact based on substantial evidence in the record sufficient to allow the court to determine the basis for the decision. Moreover, constitutional due process concerns arose because abutters and other parties had no opportunity to provide input to the CEO or BOA.

In both cases, the Court remanded the entire matter back to the town, directing the CEO to issue a reviewable decision after providing due process for the parties.

Without faulting CEOs, the Court noted in 29 McKown that “planning boards, and some boards of appeals adjudicate; that is their function. In contrast, adjudication is not a usual CEO task.” Although the typical procedures involved when a CEO reviews a permit application or issues a notice of violation do not lend themselves to creation of a detailed record or opportunity for input from parties, these deficiencies are generally cured when a local BOA conducts a de novo review if the decision is appealed.

To address the Court’s concerns and avoid costly and time-consuming court proceedings, municipalities may either: (1) establish local procedures enabling the CEO to provide due process to interested parties and to create a sufficient record and decision, or (2) provide for de novo review when CEO decisions are appealed to the BOA. Given the workload and responsibilities of CEOs, we recommend the latter option.

For more information on appeal procedures and for sample ordinance language establishing de novo review of CEO decisions, contact MMA Legal Services at legal@memun.org or 800-452-8786. (S.F.P.)

For the second time in two years, the Maine Supreme Judicial Court has “strongly urged” municipalities to amend their land use ordinances to provide that local appeals of code enforcement officer (CEO) decisions are reviewed on a de novo rather than an appellate basis.

A local ordinance may allow a board of appeals (BOA) to consider appeals “de novo,” meaning the BOA conducts the entire permit review or violation determination anew by assembling its own record, taking testimony from interested parties, and making its own independent decision on the matter.

Alternatively, a municipal ordinance may direct the BOA to consider appeals on an “appellate” basis, which generally limits the BOA to reviewing the record (file) compiled by the CEO and determining if the original decision was clearly erroneous based on the information in that record. No new facts or testimony are considered. (An ordinance may also expressly provide for direct appeal of CEO decisions to Superior Court.)

The BOA’s standard of review is important because if a CEO’s decision is later appealed to court, the court will review the most recent de novo proceeding. If the local BOA conducted an appellate review, the court would review the record created by the CEO.

In both 29 McKown, LLC v. Town of Boothbay Harbor, 2022 ME 38, and LaMarre v Town of China, 2021 ME 45, the Court reviewed appeals of CEO decisions where the local BOA had considered the appeal on an appellate basis. In both cases, the Court determined that the record compiled by the CEO was insufficient to allow for judicial review because the CEO’s decision did not contain written findings of fact based on substantial evidence in the record sufficient to allow the court to determine the basis for the decision. Moreover, constitutional due process concerns arose because abutters and other parties had no opportunity to provide input to the CEO or BOA.

In both cases, the Court remanded the entire matter back to the town, directing the CEO to issue a reviewable decision after providing due process for the parties.

Without faulting CEOs, the Court noted in 29 McKown that “planning boards, and some boards of appeals adjudicate; that is their function. In contrast, adjudication is not a usual CEO task.” Although the typical procedures involved when a CEO reviews a permit application or issues a notice of violation do not lend themselves to creation of a detailed record or opportunity for input from parties, these deficiencies are generally cured when a local BOA conducts a de novo review if the decision is appealed.

To address the Court’s concerns and avoid costly and time-consuming court proceedings, municipalities may either: (1) establish local procedures enabling the CEO to provide due process to interested parties and to create a sufficient record and decision, or (2) provide for de novo review when CEO decisions are appealed to the BOA. Given the workload and responsibilities of CEOs, we recommend the latter option.

For more information on appeal procedures and for sample ordinance language establishing de novo review of CEO decisions, contact MMA Legal Services at legal@memun.org or 800-452-8786. (S.F.P.)