Inh. of the Town of Vassalboro v. Barnett
Opinion
STATE OF MAINE DISTRICT COURT KENNEBEC, ss LOCATION: WATERVILLE DOCKET NO. CV-08-281
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INHABITANTS OF THE TOWN OF VASSALBORO,
Plaintiff
v. JUDGMENT LEO BARNETT, Defendant
The defendant owns a ten-lot subdivision on Route 201 in Vassalboro, Maine (Town). The defendant applied for and received approval for a subdivision, not a mobile home park. 1 (Pl.'s Ex 4.) The application for a subdivision was approved in June 2006 based on the Town's expectation that the defendant would comply with the conditions in the permits. The application was approved based further on the potential uses for the subdivision as approved and not on what the applicant intended to do with the subdivision. (Pl.'s Ex. 4.; Def.'s Ex. 2, p.2.) In the Rule 80K complaint, the plaintiff alleges six violations by the defendant. M.R. Civ.P. 80K.
Hearing was held on 8/20/09. David Allen, a traffic engineer for the Maine Department of Transportation (MDOT) and Paul Mitnik, the Town's CEO and Plumbing Inspector, testified on behalf of the plaintiff. Their testimony was credible. The defendant was the sole defense witness. His testimony was not credible.
In spite of multiple notices from the Town and a significant amount of time to address the violations, the defendant has refused to comply. For the following reasons, judgment is entered in favor of the plaintiff.
1 The defendant has previously listed a lot in the subdivision for sale.
1. Driveway Entrance The defendant obtained the required entrance permit from the MDOT as required by the Town's Subdivision Ordinance but has not complied with the permit requirements. (Pl.'s Exs. I, VII(D); 20; 11.) Although the defendant was notified of the violations, (Pl.'s Exs. 12, 16, 17/18), he continues to use a second entrance on Route 201 and did not pave the southbound lane as required, in violation of the Town's Subdivision Ordinance. (Pl.'s Ex. 1.)
The Town does not have the authority to issue permits for the NIDOT. The court concludes the Town does have the authority to enforce the permits once issued, as required for approval of the subdivision. 30-A M.R.S. §§ 3001, 4452(5); 23 M.R.S. § 704.
2. Mobile Home The Vassalboro Building Ordinance requires a permit for any building on a lot.
(Pl.'s Ex. 3.) Susan Wood received a permit to place a mobile home on lot 1 of the subdivision after another mobile home was moved. (Pl.'s Ex. 7.) Paul Mitnik gave Susan Wood permission to move the mobile home to the back of the subdivision for a "day or two" until the other mobile home was moved so she could move her mobile home to lot 1. The Wood mobile home was never moved to lot 1. Instead, Paul Mitnik discovered her mobile home on lot 10 for a significant period of time. He issued a notice of violation dated 3/14/08 to the defendant. (Pl.'s Ex. 27.) When the defendant did not remove the mobile home, a second letter dated 4/1/08 was sent to the defendant. (Pl.'s Ex. 28.) The mobile home was then moved to lot 'j3 and is occupied now by Joanne Leach at that location.
2 MDOT agreed to an informal modification of the waiver from 500 feet to 250 feet. 3 The complaint was amended at trial to include the allegation of a violation with regard to lot 7.
The defendant was and is aware of these violations and controls the lots he owns.
(Pl.'s Ex. 10.) Under the circumstances of this case, the defendant is liable for these violations. See 30-A M.R.S. § 4452(2); Town of Boothbay v. Jenness, 2003 ME 50,<[16,822 A.2d 1169, 1174 n.2;
3. Subdivision Road Section VI(G) of the Town's Road Construction Ordinance requires that this subdivision's private, major road have twenty-foot wide paving and be centered in the center of the right-of-way. The defendant's subdivision road is not in compliance with the ordinance. Plaintiff's exhibits 5a, 5b, and 5c are the only plans in the defendant's subdivision file; defendant's exhibit 14 is not and was not in the file and was never seen by Paul Mitnik. (Pl.'s Exs 5a, 5b, 5c; Def.'s Ex. 14.) The defendant was notified of this violation of the ordinance. (Pl.'s Exs. 8, 9.) Although some corrective measures were taken, the subdivision road continues to be improperly aligned and is not paved as required.
4. Subdivision Association The defendant has not formed an association or other enti ty to take ownership of the road and two wells, as required by the Town's Subdivision Ordinance for a multi user system. (Pl.'s Ex. 1, p. 16.) The defendant was notified of the violation. (Pl.'s Ex. 22.) He has presented no evidence to the Town that an association or other legal entity has been formed.
Although the Town's Planning Board did not require proof of the formation of an association or other legal entity, the defendant has not been prejudiced by that oversight. (Def.'s Ex. 2.)
5. Commercial Use of a Subdivision The Site Review Ordinance requires a permit for any use to which the ordinance applies, which includes new commercial uses. (P1.'s Ex. 6, §§ XI(A); II(A).) The defendant uses a machine to sift topsoil and earth moving equipment on his property and continues to sell loam from his subdivision property. This is a commercial use and not an accessory use. The defendant has not applied for or obtained a permit for this use, as required by the Town's Site Review Ordinance. (P1.'s Ex. 13; 25; 26.)
6. Removal of Topsoil Topsoil is considered part of the subdivision and only surplus topsoil may be removed. (1'1.'s Ex. 1, § VII(C)(3).) Based on Paul Mitnik's calculations, the defendant would have been justified in excavating 2,299 cubic yards of topsoil pursuant to the ordinance. (P1.'s Ex. 19(b).) The defendant testified at hearing that he had excavated 8,000 cubic yards of topsoil and sold 6,000 cubic yards at an average of $14.00 per yard.
The defendant was sent written notices of this violation and Paul Mitnik discussed the violation with the defendant. The violation remains uncorrected, in violation of the Town's Subdivision Ordinance.
ORDER Pursuant to 30-A M.R.S. § 4452(3) (C), the defendant shall
1. Discontinue use of the second entrance on Route 201 immediately.
2. Comply with the paving requirements on the southbound lane of Route 201. The parties will propose to the court within thirty days of the date of this judgment a timeframe for the completion of the paving. If the parties cannot agree, the court will determine the completion date.
3. Pave and align the subdivision road. The parties will propose to the court within thirty days of the date of this judgment a timeframe for completing the paving and
alignment. If the parties cannot agree, the court will determine the completion date.
4. Remove the mobile home from lot 7 within ten days of the date of this judgment.
5. Stop excavating and removing topsoil from the subdivision immediately.
6. Remove the existing piles of topsoil from the subdivision with ten days of the date of this judgment.
7. Establish an association or legal entity for the subdivision within thirty days of the date of this judgment and provide proof of the establishment of the association or other legal entity to the Plaintiff within thirty-five days of this judgment.
8. Pay a civil penalty of $10,000.00 to the Plaintiff within thirty days of this judgment. 30-A M.R.S. § 4452(3)(A), (B), (E)(3), & (H); 4452(4).
Counsel for the plaintiff will file an affidavit of attorney's fees within thirty days of the date of this judgment. 30-A M.R.S.A. §(3)(D).
Date: November 9,2009 Nancy Mills
Justice, Superior Court
INHABITANTS OF THE TOWN OF VASSALBORO - PLAINTIFF DISTRICT COURT WATERVILLE
Attorney for: INHABITANTS OF THE TOWN OF VASSALBORO Docket No WATDC-CV-2008-00281 ALTON STEVENS - RETAINED 10/20/2008 MARDEN DUBORD ET AL 44 ELM STREET DOCKET RECORD PO BOX 708 WATERVILLE ME 04901-0708
vs LEO BARNETT - DEFENDANT 4 MILLS ROAD, BELGRADE ME 04917 Attorney for: LEO BARNETT CLIFFORD GOODALL - RETAINED DYER GOODALL AND DENISON P.A. 61 WINTHROP ST AUGUSTA ME 04330
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