Maine’s highest court has found that the Phippsburg Select Board failed to follow the town’s land use ordinance when it rescinded a code violation against a local man whose home firewood business caused noise and smoke pollution for his neighbors.
In a decision published on Tuesday, the Maine Supreme Judicial Court determined that the Select Board had no authority to overrule the decisions of the town’s code enforcement officer and the Board of Appeals, which had issued the violations against local man Dan Gurney between 2020 and 2021.
According to court documents, in 2020, two sets of Gurney’s neighbors filed a nuisance complaint with the town’s code enforcement officer over his home firewood business, claiming it generated excessive noise and smoke. The code enforcement officer then sent a letter to the two families — Juanita and Stephen Clark, and Linda and Cliff Trebilcock — claiming that Gurney did not violate the land use ordinance.
In December of 2020, the neighbors appealed the decision to the Board of Appeals, which found that, while Gurney did not need a business permit for the business he’d been operating for 30 years, the operation did violate the land use ordinance due to its excessive noise and smoke. The board required the code enforcement officer to write a consent agreement for the Clarks, Trebilcocks and Gurney.
The code enforcement officer sent the agreement to the parties in June 2021, according to court documents. It provided guidelines for Gurney’s business, including operating hours, terms for complying with all fire regulations and a setback from his property line. However, Gurney did not sign the agreement in time, so the code enforcement officer sent him a notice of violation.
Juanita Clark, according to court documents, reported Gurney’s continued use of his business despite the violation to the Phippsburg Select Board. When the board discussed the matter in September 2021, its chair, Julia House, said, “I spoke to Mr. Gurney and I said, ‘If I was you, I wouldn’t sign [the consent agreement] because I’m not signing that myself.’”
The Select Board visited Gurney’s property, decided that he had abated the nuisance and voted to rescind the violation.
The abutters appealed the decision to Sagadahoc County Superior Court — which affirmed the town’s decision — and then the Clarks appealed it to the Law Court. According to court documents, Maine’s highest court decided that the Phippsburg Select Board exceeded its authority and violated due process when it decided to rescind Gurney’s violation.
“A decision by a code enforcement officer as to whether a violation exists is typically, and specifically in Phippsburg, reviewable by the board of appeals. Nothing in any statute or the [land use ordinance] provides that the [Select Board] has authority to review the [code enforcement officer’s] decision,” the Supreme Court wrote in its decision.
The high court claimed that the Select Board’s duty in this case was to determine the best way to get Gurney to comply with the violation notice, not to determine whether he violated a land use ordinance in the first place.
And, House’s ex parte advice to Gurney to not sign the consent agreement was deemed concerning by the justices, who ordered that the decision be sent back to the Select Board for another hearing without House.
Jules Walkup is a Report for America corps member. Additional support for this reporting is provided by BDN readers.
