Confusion Over Municipal Estoppel
(from Maine Townsman, March 2000)
by Curtis Webber, Attorney, Linnell, Choate & Webber
One area of the law that is now in a state of confusion is municipal estoppel. A municipality will be estopped (prevented) from initiating enforcement action when someone acting on its behalf creates a misleading situation on which another reasonably relies to his detriment. A typical example is when a code enforcement officer or building inspector advises someone that he can build something which is later discovered to be illegal in that location.
In the private sector, it is well settled that A can be estopped from prohibiting B from taking action in reliance on misleading circumstances for which A was responsible. In the public sector, however, courts have been reluctant to rule in favor of an action taken by one person, such as a code enforcement officer, when it could adversely affect innocent members of the public. For example, a court would be hesitant to allow a property owner to finish constructing an illegal body shop in a residential neighborhood just because the code enforcement officer had mistakenly issued the building permit.
In the public sector, the Maine Supreme Court formerly did not hesitate to order buildings or structures to be removed even though a municipal official had mistakenly approved the construction. In City of Lewiston v. Grant, 120 Me. 194 (1921), the owner of a building addition illegally constructed in a fire zone was made to take it down even though, when asked if the project was permissible, the building inspector had said "If I was you I would go ahead and do it." (Id. at 20). Similarly, in the case of Shackford & Gooch v. Town of Kennebunk, 486 A.2d 102 (M3. 1984), the owner of the Dockside Restaurant was required to remove a rooftop deck for which the building inspector had erroneously given oral permission.
The Maine Court began to muddy the waters, however, in the case of Maine School Admin. Dist. No. 15 v. Raynolds, 412 A.2d 523, 533 (Me. 1980). In that case, the Court said:
"The law of Maine is…that, depending on the totality of the particular circumstances involved, which will include the nature of the particular governmental official or agency acting and of the particular governmental function being discharged…, equitable estoppel may be applied to activities of a governmental officer or agency in the discharge of governmental functions."
Not surprisingly, following the Raynolds decision, defendants in cases brought to enforce local land use ordinances began to claim estoppel as a defense with increasing frequency. One such case was City of Auburn v. Desgrosseillers, 578 A.2d 712 (Me. 1990). In that case, the Maine Court held that the City of Auburn was estopped to prohibit the Desgrosseillers from starting a nursery business on their property. The Court ruled that, since the Auburn City Council and Planning Board had approved a zone change in the area where the Desgrosseillers’ property was located knowing that the Desgrosseillers understood that a nursery would thereafter be permitted, the city could not stop them from starting a nursery business. Nevertheless the Court went out of its way to state that, if Mr. and Mrs. Desgrosseillers had relied solely on the assurances of the city planner that their nursery could be permitted after the zone was changed, no estoppel would have resulted. (Id. at p. 715). In other words, the Court appeared to be saying that the comments of a municipal administrator, acting alone, would not be binding on the city or town.
Following the Desgrosseillers decision, many municipal attorneys assumed that, despite the expansive language of the Raynolds case, no estoppel would result unless elected representatives of a city or town had participated in creating the misleading circumstances. That assumption was shaken, however, by the case of H.E Sargent v. Town of Wells, 676 A.2d 920 (Me. 1996). In that case, Sargent argued that it was entitled to use a certain gravel pit based solely on the assurance of the code enforcement officer that it had a grandfathered right to do so. An estoppel was denied only because Sargent had contributed to the misleading circumstances by providing incorrect information to the Maine Department of Environmental Protection (DEP) regarding the prior use of the gravel pit.
The most recent word on the estoppel issue was provided by the Maine Court in the case of Town of Union v. Strong, 681 A.2d 14 (Me. 1996). In that case, the Town of Union sought to enjoin the use of Strong’s deck. Strong had been given mixed signals by the town as to whether his proposed deck would be legal. However, in August of 1990, he received a letter from the planning board stating that he could proceed with construction. He continued to work on it even though, a year later, the code enforcement officer ordered him to cease building the deck because he was violating local ordinances.
Despite the confusing circumstances, the Maine Court ruled that the Town of Union was not estopped to block completion of Strong’s deck. It repeated, however, the familiar language from Raynolds that an estoppel could result from the actions of a government agency or a government official in the discharge of a government function. (Id. at 19). It said that the decision as to whether an estoppel has occurred will depend on a consideration of "the totality of the circumstances including the nature of the particular governmental agency, the particular governmental function being discharged, and any consideration of public policy arising from the application of estoppel to the governmental function." (Id. at 19). Obviously, the "standard" articulated by the Court is so subjective that it provides little or no guidance to municipal officials.
In the Town of Union case, the Court’s decision that no estoppel had occurred was based primarily on the fact that Strong had been given notice to stop work before he had finished his deck. The Court was also influenced by the fact that Strong’s letters to the planning board showed little respect for the Board’s authority and suggested that he would have proceeded with construction of his deck regardless of when he had been advised to stop work. Thus the lesson of the case seems to be that the existence of an estoppel will turn largely on how sympathetic a picture the citizen in question can paint of the circumstances that led him or her to take the action which the municipality later claims was illegal.
The confusion in the Law Court’s opinions appears to result from the fact that, on one hand, it is sympathetic to the plight of the citizen who relies to his or her detriment on advice received from a municipal official. At the same time, it is reluctant to rule that a whole city or town must suffer the consequences of an illegal action just because a municipal official mistakenly said it could be done. Thus, municipal administrators, who are frequently asked for advice by citizens, have to accept the possibility that, if they make a mistake, it may be too late to correct it if the person who inquired has already acted in accordance with the advice that was given.