Real Estate Tip: Should Developers Select Selective Enforcement?

Let’s say you and 20 other drivers are exceeding the speed limit and the police give you, but no one else, a speeding ticket. Analyzing your fate requires using a legal concept called “selective enforcement.” This principle both prevents you from avoiding a fine because “everybody else was speeding” and prevents you from insisting that the police give tickets to the other 20 drivers.

The ME Supreme Court uses the concept of selective enforcement when reviewing, or refusing to review, the enforcement of zoning and land use ordinances by Codes Enforcement Officers and municipalities. The result could provide some comfort to developers and their lenders in the cases where municipalities, in an effort to encourage development, may be willing to take legally dangerous shortcuts.

For example, if a developer’s work requires a conditional use permit but the town says “not necessary,” a cautious developer might insist that the town nevertheless go through the formal process required to issue one. After the appeal periods have run, the developer would then be confident in proceeding with the particular use. The “selective enforcement” concept, however, might provide similar comfort while saving the time, expense and risk of seeking the conditional use permit.

In Herle v. The Town of Waterboro 2001 ME 1 (2001), the court said that a neighbor could not appeal from the town’s refusal to enforce the conditional use provisions of its ordinance. In oversimplified terms, the court said that the decision to enforce or not was “selective enforcement” within the discretion of the town. The neighbor could not force the town to enforce the ordinance and therefore the landowner could continue its questionable use with no adverse consequences.

If the town were to issue a building permit or grant some other approval based on the questionable use being permitted, the neighbor would then be allowed to appeal the granting of that permit or approval, because that action does not involve the enforcement or non-enforcement of an ordinance.

When your project is about to “benefit” from encouraging and friendly town officials, be certain to confer with experienced development counsel before deciding whether to charge ahead or insist on a more demanding process than may at first seem necessary.

Today’s real estate tip is brought to you by Rick Smith, a LEED Accredited Professional and member of Bernstein Shur’s Real Estate Practice Group and Green Building Team. Stay tuned for more useful tips for real estate professionals.

For more information, contact Rick at rsmith@bernsteinshur.com or 603 623-8700 ext. 8829 or 207 774-1200.