Background
Juanita Clark complained that her neighbor, Dan Gurney, was operating a firewood business in violation of Phippsburg’s land use ordinance. In prior litigation, the Law Court held that the Town’s Board of Selectmen had exceeded its authority by deciding that the nuisance was abated; the ordinance instead required the Board to decide whether to pursue enforcement through a consent agreement or court action. The Court remanded for that determination without the Board chair, whose participation had created an appearance of bias.
After remand, the Board entered into a proposed consent agreement and the code enforcement officer issued Gurney a cease-and-desist order. Clark later provided the officer a video that she alleged showed Gurney continuing the business. The officer told the Board that Gurney was violating the order and requested legal enforcement. After discussions involving Gurney and his brother, the Board voted on July 23, 2025, to find no violation and take no action. A week later, after consulting counsel, the Board characterized its prior action as a nonbinding opinion and stated that the officer’s decision was final. The Superior Court dismissed Clark’s Rule 80B complaint for lack of reviewable final government action.
The Court’s Holding
The Maine Supreme Judicial Court vacated the dismissal and remanded. Taking Clark’s allegations as true at the pleading stage, the Court held that she stated a cognizable claim for review of final government action: that the Board unlawfully refused to bring legal action after receiving the code enforcement officer’s report of a cease-and-desist-order violation.
The Court rejected the Superior Court’s conclusion that the Board’s July 30 clarification eliminated any reviewable action. Clark alleged that the Board’s July 23 refusal to enforce followed members’ review of the video and off-the-record discussions with Gurney, and that irregularities at both the July 23 and July 30 meetings violated due process. Those allegations warranted further proceedings rather than dismissal.
Key Takeaways
- A municipal board’s alleged refusal to enforce an existing cease-and-desist order can constitute reviewable final government action.
- At the motion-to-dismiss stage, the court must accept the complaint’s well-pleaded allegations and determine whether they could support relief.
- A board’s later characterization of its earlier action does not necessarily defeat judicial review where the complaint alleges an unlawful enforcement refusal and procedural irregularities.
Why It Matters
The decision permits Clark to pursue her challenge to the Select Board’s handling of alleged violations of the cease-and-desist order. It does not decide whether Gurney violated the order or whether the Board ultimately was required to sue; those issues remain for further proceedings.
For municipal practitioners, the case underscores that enforcement decisions following an administrative remand must be made through lawful procedures and may be subject to Rule 80B review when they finally resolve whether the municipality will act on an alleged violation.