STATE OF MAINE SUPERIOR COURT CUMBERLAND, ss ,CIVIL ACTION ~ " DOCKET NO. AP-07-60 ,'t~·~ r' . , ,~
~tC- C.uJV\ -. <::/) ie-:. {, >£"
.' I ,i ; - ':} ;~~ s: 52 CHRISTINA JIPSON, Petitioner ORDER ON v. PETITIONER'S RULE 80B APPEAL SOUTH PORTLAND HOUSING AUTHORITY, Respondent
Before the Court is an appeal brought pursuant to M.R. Civ. P. 80B by
Christina Jipson seeking judicial review of a decision by the South Portland
Housing Authority terminating her Section 8 assistance.
BACKGROUND Petitioner Christina Jipson ("Jipson") has participated in the Federal
Housing Assistance Payments Program ("Section 8"), a rental subsidy program,
since 1989. At the time relevant to this appeal, Jipson lived with her two sons,
Andrew Hamilton ("Andrew") and Joshua, in South Portland, Maine. On
September 19, 2007, Andrew was summonsed for possession of a usable amount
of marijuana. On October 3, 2007, the South Portland Housing Authority
("SPHA") sent Jipson notice that her Section 8 assistance would be terminated
because of Andrew's drug activity. Jipson requested an informal hearing, which
was held on October 11, 2007. The hearing officer issued a decision on October
12, 2007 supporting the SPHA's decision to terminate Jipson's voucher. Jipson
then requested a formal hearing, which was held before a different hearing officer on November 13, 2007. This second hearing officer issued a decision on
November 15, 2007 directing the SPHA to continue Jipson's Section 8 assistance.
On November 26, 2007, SPHA Executive Director Elaine Neelon
("Neelon") notified Jipson by letter that the SPHA had decided to terminate her
Section 8 assistance despite the second hearing officer's decision to the contrary.
The letter stated that the Executive Director had "reviewed this information
[from the informal and formal hearing officers] and the information contained in
our Section 8 Administrative Plan regarding this issue. As a result of this review,
it is my decision to uphold the termination of your voucher."
Jipson now appeals the decision of the SPHA, arguing that the SPHA's
decision to disregard the decision of the second hearing officer was arbitrary,
capricious and in violation of her due process rights.
STANDARD OF REVIEW
On appeal, the Superior Court reviews directly the "decision of the
Authority for' abuse of discretion, errors of law, or findings not supported by the
substantial evidence in the record.'" Dowling v. Bangor Housing Authority, 2006
ME 136,
866 A.2d 863, 866). The Superior Court is to review the decision of the
municipality de novo. Isis Dev., LLC v. Town of Wells, 2003 ME 149, n. 4,836 A.2d
1285, 1286.
On issues of fact, the Court reviews a municipality's decision for error of
law, abuse of discretion or findings not supported by substantial evidence in the
record. York v. Town of Ogunquit, 2001 ME 53,
evidence is evidence that is sufficient for a municipality to have reasonably
found the facts as it did. Ryan v. Town of Camden, 582 A.2d 973, 975 (Me. 1990).
2 The burden of persuasion is on the challenging party to show that the evidence
compels a different result. Twigg v. Town of Kennebunk, 662 A.2d 914, 916 (1996).
Indeed, "a demonstration that no competent evidence supports the local board's
findings is required in order to vacate the board's decision." Gensheimer, 2005
NIE 22, <][ 17, 868 A.2d at 166, quoting Thacker v. Konover Dev. Corp., 2003 ME 30, <][
8, 818 A.2d 1013, 1017. The Court must not substitute its judgment for that of the
municipality and "is limited to determining whether the evidence of record facts
could reasonably have been found by the zoning body to justify its decision."
Driscoll v. Gheewalla, 441 A.2d 1023, 1026 (Me. 1982). Further, a municipality's
decision is not wrong because the record is inconsistent or because a different
conclusion could be drawn from the record. Twigg, 662 A.2d at 916.
DISCUSSION
"Meaningful judicial review of an agency decision is not possible without
findings of fact sufficient to apprise the court of the decision's basis." Chapel
Road Associates, L.L.c. v. Town of Wells, 2001 ME 178, <][ 10, 787 A.2d 137, 140. In
recent years, the Law Court has particularly stressed the need for sufficient
findings to allow for meaningful judicial review. See e.g., Gensheimer v. Town of
Phippsburg, 2005 ME 22, <][ 25, 868 A.2d 161, 168; Sawyer v. Town of Cape Elizabeth,
2004 ME 71, <][ 22, 852 A.2d 58, 64; Chapel Road Associates, 2001 ME 178, <]I<][ 10-13,
787 A.2d at 140-41. The Law Court has also recently emphasized the need for
express findings of fact and conclusions of law and has stated that the courts are
not to usurp the function of administrative bodies by making its own findings
based on the evidence presented to the administrative body. Comeau v. Town of
Kittery, 2007 ME 76, <]I 12, 926 A.2d 189, 192 ("the task of an appellate court is to
3 review the findings and conclusions of the administrative agency to determine if
the findings are supported by the evidence").
While neither of the parties to this appeal have raised a question
regarding the sufficiency of the SPHA's findings, this Court can and does raise
the issue sua sponte. See Sawyer, 2004 ME 71, 852 A.2d 58 (Law Court remanded
for further findings even though the issue was not raised before the Superior
Court).
As an initial matter, the Court notes that the October 3, 2007 Notice of
Termination and the October 12, 2007 letter from the informal hearing officer are
not final judgments or final agency rulings and, therefore, are not appealable.
Carroll v. Town of Rockport, 2003 ME 135,
judgment or final administrative action is a decision that fully decides and
disposes of the entire matter pending before the court or administrative agency,
leaving no questions for the future consideration and judgment of the court or
administrative agency." [d. "Findings of fact and conclusions of law reached by
an administrative agency in the course of its deliberations, but prior to issuance
of a final decision, are not final administrative actions." [d.
Thus, any attempt by the SPHA to rely on the October 3, 2007 Notice of
Termination or the October 12, 2007 decision of the informal hearing officer as
sufficient findings of fact and conclusions of law is rejected. l
Thus, the Court is left with the November 26, 2007 "findings" of Neelon,
the Executive Director of the SPHA, which states in toto:
I Moreover, the parties conceded at oral argument that this Court is to review the November 26, 2007 letter.
4 I am in receipt of the information from both the informal and formal hearing officers regarding the termination of your participation in the Housing Choice Voucher Program because of drug-related activity by your son.
I have reviewed this information and the information contained in our Section 8 Administrative Plan regarding this issue.
Free access — add to your briefcase to read the full text and ask questions with AI
STATE OF MAINE SUPERIOR COURT CUMBERLAND, ss ,CIVIL ACTION ~ " DOCKET NO. AP-07-60 ,'t~·~ r' . , ,~
~tC- C.uJV\ -. <::/) ie-:. {, >£"
.' I ,i ; - ':} ;~~ s: 52 CHRISTINA JIPSON, Petitioner ORDER ON v. PETITIONER'S RULE 80B APPEAL SOUTH PORTLAND HOUSING AUTHORITY, Respondent
Before the Court is an appeal brought pursuant to M.R. Civ. P. 80B by
Christina Jipson seeking judicial review of a decision by the South Portland
Housing Authority terminating her Section 8 assistance.
BACKGROUND Petitioner Christina Jipson ("Jipson") has participated in the Federal
Housing Assistance Payments Program ("Section 8"), a rental subsidy program,
since 1989. At the time relevant to this appeal, Jipson lived with her two sons,
Andrew Hamilton ("Andrew") and Joshua, in South Portland, Maine. On
September 19, 2007, Andrew was summonsed for possession of a usable amount
of marijuana. On October 3, 2007, the South Portland Housing Authority
("SPHA") sent Jipson notice that her Section 8 assistance would be terminated
because of Andrew's drug activity. Jipson requested an informal hearing, which
was held on October 11, 2007. The hearing officer issued a decision on October
12, 2007 supporting the SPHA's decision to terminate Jipson's voucher. Jipson
then requested a formal hearing, which was held before a different hearing officer on November 13, 2007. This second hearing officer issued a decision on
November 15, 2007 directing the SPHA to continue Jipson's Section 8 assistance.
On November 26, 2007, SPHA Executive Director Elaine Neelon
("Neelon") notified Jipson by letter that the SPHA had decided to terminate her
Section 8 assistance despite the second hearing officer's decision to the contrary.
The letter stated that the Executive Director had "reviewed this information
[from the informal and formal hearing officers] and the information contained in
our Section 8 Administrative Plan regarding this issue. As a result of this review,
it is my decision to uphold the termination of your voucher."
Jipson now appeals the decision of the SPHA, arguing that the SPHA's
decision to disregard the decision of the second hearing officer was arbitrary,
capricious and in violation of her due process rights.
STANDARD OF REVIEW
On appeal, the Superior Court reviews directly the "decision of the
Authority for' abuse of discretion, errors of law, or findings not supported by the
substantial evidence in the record.'" Dowling v. Bangor Housing Authority, 2006
ME 136,
866 A.2d 863, 866). The Superior Court is to review the decision of the
municipality de novo. Isis Dev., LLC v. Town of Wells, 2003 ME 149, n. 4,836 A.2d
1285, 1286.
On issues of fact, the Court reviews a municipality's decision for error of
law, abuse of discretion or findings not supported by substantial evidence in the
record. York v. Town of Ogunquit, 2001 ME 53,
evidence is evidence that is sufficient for a municipality to have reasonably
found the facts as it did. Ryan v. Town of Camden, 582 A.2d 973, 975 (Me. 1990).
2 The burden of persuasion is on the challenging party to show that the evidence
compels a different result. Twigg v. Town of Kennebunk, 662 A.2d 914, 916 (1996).
Indeed, "a demonstration that no competent evidence supports the local board's
findings is required in order to vacate the board's decision." Gensheimer, 2005
NIE 22, <][ 17, 868 A.2d at 166, quoting Thacker v. Konover Dev. Corp., 2003 ME 30, <][
8, 818 A.2d 1013, 1017. The Court must not substitute its judgment for that of the
municipality and "is limited to determining whether the evidence of record facts
could reasonably have been found by the zoning body to justify its decision."
Driscoll v. Gheewalla, 441 A.2d 1023, 1026 (Me. 1982). Further, a municipality's
decision is not wrong because the record is inconsistent or because a different
conclusion could be drawn from the record. Twigg, 662 A.2d at 916.
DISCUSSION
"Meaningful judicial review of an agency decision is not possible without
findings of fact sufficient to apprise the court of the decision's basis." Chapel
Road Associates, L.L.c. v. Town of Wells, 2001 ME 178, <][ 10, 787 A.2d 137, 140. In
recent years, the Law Court has particularly stressed the need for sufficient
findings to allow for meaningful judicial review. See e.g., Gensheimer v. Town of
Phippsburg, 2005 ME 22, <][ 25, 868 A.2d 161, 168; Sawyer v. Town of Cape Elizabeth,
2004 ME 71, <][ 22, 852 A.2d 58, 64; Chapel Road Associates, 2001 ME 178, <]I<][ 10-13,
787 A.2d at 140-41. The Law Court has also recently emphasized the need for
express findings of fact and conclusions of law and has stated that the courts are
not to usurp the function of administrative bodies by making its own findings
based on the evidence presented to the administrative body. Comeau v. Town of
Kittery, 2007 ME 76, <]I 12, 926 A.2d 189, 192 ("the task of an appellate court is to
3 review the findings and conclusions of the administrative agency to determine if
the findings are supported by the evidence").
While neither of the parties to this appeal have raised a question
regarding the sufficiency of the SPHA's findings, this Court can and does raise
the issue sua sponte. See Sawyer, 2004 ME 71, 852 A.2d 58 (Law Court remanded
for further findings even though the issue was not raised before the Superior
Court).
As an initial matter, the Court notes that the October 3, 2007 Notice of
Termination and the October 12, 2007 letter from the informal hearing officer are
not final judgments or final agency rulings and, therefore, are not appealable.
Carroll v. Town of Rockport, 2003 ME 135,
judgment or final administrative action is a decision that fully decides and
disposes of the entire matter pending before the court or administrative agency,
leaving no questions for the future consideration and judgment of the court or
administrative agency." [d. "Findings of fact and conclusions of law reached by
an administrative agency in the course of its deliberations, but prior to issuance
of a final decision, are not final administrative actions." [d.
Thus, any attempt by the SPHA to rely on the October 3, 2007 Notice of
Termination or the October 12, 2007 decision of the informal hearing officer as
sufficient findings of fact and conclusions of law is rejected. l
Thus, the Court is left with the November 26, 2007 "findings" of Neelon,
the Executive Director of the SPHA, which states in toto:
I Moreover, the parties conceded at oral argument that this Court is to review the November 26, 2007 letter.
4 I am in receipt of the information from both the informal and formal hearing officers regarding the termination of your participation in the Housing Choice Voucher Program because of drug-related activity by your son.
I have reviewed this information and the information contained in our Section 8 Administrative Plan regarding this issue. As a result of this review, it is my decision to uphold the termination of your voucher.
The obligations of the Housing Authority will terminate on January 31, 2008. Your landlord will be notified of this decision prior to January 1, 2008.
These "findings" are insufficient to permit meaningful judicial review by
this Court. At oral argument, the SPHA conceded that the decision whether or
not to terminate in the instant case was discretionary. Yet the letter does not set
forth which specific law or rule Jipson has violated and the facts supporting the
alleged violation that underlie the Executive Director's exercise of discretion. For
example, there has been no finding that any of Hamilton's transgressions are
imputed to Jipson. In sum, there is no way for this Court to determine by
looking at the findings of fact and conclusions of law what law or rule has been
violated and how it has been violated nor how and why Neelon decided as she
did. Thus, "there is nothing in the [SPHA's] findings ...offering any possibility
for review of the sufficiency of the evidence to support [its] conclusion."
Harrington v. Town of Kennebunk, 459 A.2d 557, 561-62 (Me. 1983) (Law Court
remanded "rather than to permit a Rule 80B review to be conducted on the basis
of hypothesis").
The remedy for insufficient findings of fact and conclusions of law is
remand to the agency "for findings that permit meaningful judicial review."
Kurlanski v. Portland Yacht Club, 2001 ME 147,
Christian Fellowship & Renewal Ctr. v. Town of Limington, 2001 ME 16,
5 A.2d 834, 838. Accordingly, this Court hereby remands this case to the South
Portland Housing Authority for the issuance of sufficient findings.
Therefore, the entry is:
This case is remanded to the South Portland Housing Authority for further proceedings consistent with this order.
The clerk shall incorporate this Order into the docket by reference pursuant to M.R. Civ. P. 79(a).
Dated at Portland, Maine this 2.,v c{ day of ------r/~~.14~""'+------', 2008.
RtifoL;1y Justice, Superior Court
6 I Date Fi led _=- 12",- ~1, -,7,- - , 0,-,-7 _ CUMBERLAND County Docket No. -----'A=P"-------'0"-'7'------>6<--"0'--- •
Action 80B COMPLAINT
CHRISTINA JIPSON SOUTH PORTLAND HOUSING AUTHORITY
Ys.
Plaintiff's Attorney Defendant's Attorney KATHERINE MCGOVERN ESQ WENDY J PARADIS ESQ FRANK D'ALESSANDRO ESQ BERNSTEIN SHUR SAWYER & NELSON PO BOX 547 PO BOX 9729 PORTLAND ME 04112 PORTLAND ME 04104-5029 (207)774-8211 EXT 1216 (207) 774-1200
Date of Entry