Town of Turner v. Whitman

• Court: Superior Court of Maine
• Decided: March 29, 2006
• Docket: ANDcv-04-168
• Status: Unpublished

Opinion

STATE OF MAINE SUPERIOR COLTRT - CIVIL ACTION ANDROSCOGGIN, ss. Docket No. CV-04-168

TOWN OF TURNER, Plaintiff

v. JUDGMENT AFTER TRIAL

WILLIAM C. WHITMAN, Defendant

PROCEDURAL HISTORY

On July 30, 2004, the Town of Turner filed a verified complaint against

William C. Whitman in the Androscoggin County Superior Court. In its complaint, the

Town alleged that Mr. Whtrnan owned property in Turner, located at 388 Upper Sheet,

and that he was operating an illegal automobile graveyard and/or junkyard at that

property. On September 15, 2004, Mr. Whtman filed h s answer to the complaint.

The court issued its M.R. Civ. P. 16(a) scheduling order on September 30, 2004.

That order required the parties to engage in an alternative dispute resolution process on

or before January 20, 2005. On December 9, 2004, representatives for the Town

gathered with a mediator to discuss resolution of ihe case. Despite notice, Mr. Whitrnan

failed to appear for that process. In an ortier dated May 24, 2005, the court

(Delahanty, J.) sanctioned Mr. Whitrnan by requiring h m to pay attorney fees incurred

by the Town, and the mediator's fee.

On March 22, 2006, Mr. Wlutrnan and collnsel for the Town appeared for trial

and presented testimony and argument concerning h s case. The discussion, findings,

and conclusions below are based upon the evidence submitted at tnal, and upon

Mr. Whtman's written answer to the Town's complaint. DISCUSSSION

According to Mr. Whitman, his family has owned the property located at 388

Upper Street, in the Town of Turner for over 100 years. Mr. Whitrnan has lived at the

property since birth, and expects to remain there until his death. Mr. Whtman testified

that he planned to leave the land to the Maine Farmland Trust, to ensure that the

property remained in agricultural use. If the land is, in fact, being used for agricultural

purposes, Mr. Whitman failed to establish that fact at trial. What the Town established

is that the property looks like and is an automobile graveyard and a junkyard.

Over a decade ago, Mr. Whitman began accumulating junked automobiles and

other items falling within the definition of "junk" on his property. Based upon the

evidence presented, the court determines that this accumulation began in 1993.

Plaintiff's exhibit 21. The Town began having problems with Mr. Whitman's collection

activities almost immediately thereafter and, fclr at least the past eleven years,

Mr. Whitman has been engaged in a dance with the Town's code enforcement officers

concerning his accumulating pile of debris and inoperable motor vehicles. The Record

contains a June 21, 1995 letter from the Town's Code Enforcement Officer (CEO), Bob St.

Pierre, stating that Mr. Whitman had been notified on two previous occasions that he

was in violation of the then-existing "Automobiie (;raveyard/ Junkyard Ordinance" by

failing to screeR h s junk from view. Plaintiff's exhbit 19.

Both Mr. Whtman and the Town's current CEO, Roger Williams, recalled that, at

some point, Mr. Whitman's automobile graveyard/junkyard morphed into a continual

yard sale. As a result, Mr. Whtman applied for and was granted both a "junkyard

permit" and a home occupation permit, with the understanding that he would keep

most of the "inventory" screened from view, but would be permitted to display some

items on tables set up along the perimeter of the fence. Mr. Whitrnan applied for a permit to operate a "secondhand store" on April 24, 1996. His home occupatio~~

application was granted on July 25, 1996. I'laintiff':; exhbit 29.

On January 9, 1997, another CEO, Richard Marble, notified Mr. Whitman that he

was in violation of Section 4-A of Turner's Automobile Graveyard/ Junkyard Ordinance

by failing to obtain a permit. Plaintiff's exhibit 21. Mr. Whitn~anapplied for the permit

on January 15, 1997, and was granted it on February 3, 1997. Plaintiff's exhibit 21. On

April 2, 1997, CEO Marble sent Mr. VVhtrnan yet another letter. In that letter, CEO

Marble told Mr. Whihnan that, in order to comply with t l ~ ejunkyard ordinance, he

would have to create a junk-free zone around the perimeter of his well. Plaintiff's

exhibit 20. The record contains no information to allow the court to determine whether

Mr. Whitrnan complied with that order.

No documents were submitted to show what happened between 1997 and 1998.

On March 5, 1998, CEO Marble again wrote to Mr. Whitrnan, telling h m that he was in

violation of the "Zoning Ordinance" by failing to provide adequate off-street parlung

for his home occupation. I'laintiff's exhbit 22. The record does not permit the court to

determine what happened next, but on May 18, 1998, CEO h4arble wrote to

Mr. Whtrnan and notified h m that his July 25, 1996 home occupation permit was

withdrawn. In that letter, CEO Iclarble instructed Mr. Wl-~ibnanto remove "all material

for sale that is piled on [your] property." Plaintiff's exhbit 27.

On the following day, May 19, 1998, CEO r\/larble delivered a document entitled

"Nobce of ViolationIOrder for Corrective Action" to Mr. Whitrnan. That document

told Mr. Whtrnan that he was in violabon of Turner's Auto Graveyard/Junkyard

Ordinance, and in violation of 30-A M.R.S.A. g§ 3751-3760. The CEO ordered

Mr. Whitrnan to: Remove all material for sale that is piled on [your] property. Also remove all worn out or junked plumbing, heating, household appliances, furniture, [scrapped.] or junked lumber, rotten wood, scrap metal, rope, rags, batteries, paper trash, rubber debris or any other waste material or garbage to the area behind the fence on your property where you have a licensed junkyard. Also any automobiles that are not ready for service as evidenced by being registered, inspected and road ready other than 2 vehicles or 2 parts to a vehcle.

Plaintiff's exhibit 23. Although the record contains no documents that would allow the

court to determine precisely what occurred next, a January 29, 1999 letter from CEO

Pratt to hfr. Whitman c ~ n t a i n sa summary of those events. Plaintiff's exl-iibit 28.

Mr. Whitrnan apparently appealed CEO Marble's hIay 19, 1998 order to the Tuner

Board of Appeals. l'hat Board did not act on the appeal, but apparently allowed Mr.

Whitman to continue his operation, based upon an agreement reached between Mr.

Whitman and CEO Marble. On January 29, 1999, CEO Pratt withdrew Mr. Whtman's

home occupation permit, again, based upon his determination that Mr. Whitman had

failed to comply with the terms of the agreement he had reached with the previous

CEO. Mr. W h t m a n took no appeal from CEO Pratt's action and, therefore, he has had

no home occupation permit since January 29,1999.

Just over four months later, on June 8, 1999, CEO Kenneth Pratt sent another

letter to Mr. Whitman, this time explaining that, after a public hearing held June 7, 1999,

Turner's Selectme11 had voted to revoke h s junkyard permit as of June 7, 1999. CEO

Pratt notified Mr. Whtman that he was to "remove all materials associated with [ h s ]

Junkyard by July 9, 1999." Plaintiff's exhibit 24.

I,Vith this final letter, Mr. Whtman's on-going enterprises should have ended.

The Town had finally revoked both of Mr. Whitman's permits to operate either an

automobile graveyard/junkyard a n d / o r a home occupation on h s property. Despite

those revocations, however, Mr. lltihtrnan took no steps to clean u p his property and, until very recently, the Town did not take the steps necessary to enforce its ordinances

or the orders of its CEOs. Although the court appreciates that all towns, including

Turner, wish to resolve issues without initiating costly litigation, delay helps neither

party when the problem presented is as large, and the property owner as intransigent,

as this one. Based upon the evidence presented, including Mr. Whitman's own

testimony, the court must conclude that Mr. Whitman has continued to accumulate junk

and debris since 1999. As a result, he--and perhaps the Town-will be faced with a

much larger clean up project in 2006 than either would have faced in 1999.

In 2003, the Town began its most recent attempt to convince Mr. Whtman to

bring h s property into compliance. On May 7, 2003, CEO Roger Williams sent a Notice

of Violations and Order to Correct to Mr. Whtman. Plaintiff's exhibit 8. In that Notice,

CEO Williams told Mr. Whtman that he was operating an automobile

graveyardljunkyard without the required permit, and ordered him to clean up the

property within thirty (30) days. CEO Williams notified Mr. Whitrnan that he had the

right to appeal h s decision to the Superior Court.' Mr. Whtman did not do so.

On June 2, 2003, CEO Williams wrote a letter to Mr. Whitn~an,explaining that

the Selectmen would be reviewing h s property on June 16, 2003. Plaintiff's exhibit 9.

On June 11 CEO Williams wrote to Mr. Whitman again, this time referring to the 1996

home occupation permit, apparently not rellizing fhhat tE.e permit had beer! revoked in

1999. CEO Williams also warned Mr. Whtman to clean u p the property. Plaintiff's

exhibit 10. CEO Williams wrote a t h r d time on Tuly 4, 2003, and stated that he would

' The version of Turner's Ordinance that became effective on April 5, 3003 provides that parties aggrieved by a decision of the CEO may appeal to the Board of Appeals within thirty (30) days of the date of the decision. Ordinance 5 7(C)(1). grant Mr. Whitrnan an additional thirty (30) days to colne into compliance. Plaintiff's

exhibit 1 I. Then the Town took no action for four months.

On November 10, 2003, CEO Williams issued a second Notice of Violahon and

Order to Correct to Mr. PVhtrnan. Plaintiff's 13. On December 11, 2003, M r . Whtman

filed an application to appeal to the Board of Appeals from the CEO's November 10,

2003 decision. Plaintiff's exhibit 31. Mr. kvhitn~anattached an eleven-page statement

to that application, explaining h s version of events. Although his appeal was not

timely filed, the Board apparently heard it on January 6, 2004, and upheld the CEO's

decision. Plaintiff's exhbit 14A. hlr. Whtrnan did not file an appeal from this decision

with the Superior Court. 'The Selectmen then gave Mr. Whitman until May 15, 2004, to

bring hs property into compliance. Plaintiff's exhibit 14A. The evidence presented at

trial clearly shows that Mr. Whitrnan has failed to comply with that deadline.

FTNDTNGS OF FAC'I' AND CONCLLSIONS OF LAW

1. Title 30-A M.R.S.A. tj 3753 mandates that any person who ~visliesto

establish, operate or maintain an automobile graveyard or junkyard must first obtain a

nontransferab1e permit from the municipal officers of the municipality in ~vliichthe

automobile graveyard or junkyard is to be located.

2. In 2003, when the Town began the enforcement actions that ~ v c ~ u lgive d

rise to this case, 'l'urner's Zoning Ordinance, as amended April 5, 2003, and admitted

into evidence as plaintiff's exhbit 2,4, (hereinafter "Ordinance"), did not permit

automobile graveyards or junkyards in Rural 2 Districts.

3. Section 8 of the Ordinance defines an automobile graveyard as: "A place

where three or more unregistered, unserviceable, discarded, worn-out or junked

automotive vehicles, or bodies, or engines thereof are gathered together and Inav

include the sale of used vehcles." Plaintiff's exhibit 2A. 5. Section 4 of the To~vn'sAutomobile Graveyard and Junkyarcl Ordinance

defines an automobile graveyard as: ".A yard, field or other area used as a place of

storage . . . for three (3) or more unserviceable, discarded, worn out or junked motor

vehicles as defined in Title 29-A MRSA, Section 101, subsecbon 42, or parts of such

vehicles." Plaintiff's exhibit 3A.

6. Section 8 of the Ordinance defines a junkyard as:

.A visible yard, field or other area used as [a] place for storage a n d / o r sale of the follo~ving:

1. discarded, worn-out or junked plumbing, heating supplies, housel~old appliances and furniture; 2. discarded, scrap and junked lumber; and 3. old or scrap copper, brass, rope, rags, batteries, paper trash, r~lbberor plastic debris, waste and all scrap iron, steel and other scrap ferrous or non-ferrous material.

Plaintiff's exhibit 2A. P 1. Section 4 of the 'I'own's Automob~leGraveyard and Junkyard Ordinance

defines a junkyard as: "A yard, field or other area used to store discarded, Ivorn out or

junked plumbing, heating supplies, household appliances or furniture, scraped or

junked lumber, rotten wood, scrap metal, rope, rags, batteries, paper trash, rubber

debris or any waste material, garbage dumps, waste dumps, and sanitary fills."

Plaintiff's exhibit 3A.

9. In 2003, h k . Whitman did not have a permit to operate either an

automobile graveyard/junkyard or a home occupation on h s property.

10. Based upon the testimony of Roger Williams and upon thc photographs

admitted into evidence, the court finds that, since May of 2003, there have been three or

more unregistered, unserviceable, discarded, worn-out or junked automotive vehicles,

or bodies, or engines thereof on Mr. \Wh-utr~an'sproperty. 11. During h s testimony at trial, Mr. LVhitn~an confirmed that there are

actually twenty-two unusable vehicles on his property.

12. Based upon these findings, the court concludes that Mr. IsVtutrnan has

maintained an automobile graveyard on lus property, in violation of the Town's

Ordinances, and ill violation of 30-A M.R.S.A. 5 3753, since hlay of 2003.

13. Based upon the testimony of Roger J,Villiams and upon the photographs

admitted into evidence, the court further finds that, since blay of 2003, a growing

portion of Mr. \Vhhnanfs property has been filled with discarded, worn-out or junked

household appliances and furniture, and discarded, scrap and junked l ~ r n b e r . ~

14. Based upon these findings, the court concludes that Mr. LVllitman has

maintained a junkyard on his property, in violation of the Town's Ordinances and

30-A M.R.S.A. 5 3753, since May of 2003.

15. Based upon the testimony of Roger LYilliams and upon the photographs

admitted into evidence, the court finds that both the automobile graveyard and the

junkyard were still in existence as of February 21,2006.

16. Bascd upon t l ~ etestimony of Roger Williams and upon the documents

admitted into evidence, the court finds that, in May of 2003 and again in Novc~nberof

2003, Mr. IVhitn~anreceived Notices of Violation sent to him by the l ' o ~ v n .

17. Mr. \\'hitmar? filed an appea! from the Notice dated November 10, 2003,

with the 'Turner Eoard of Appeals. Plaintiff's exhibit 31. The Board denied his appeal

on or about January 6,2003.

-- .4s noted above, the l'ovvn's general Ordi~ianceincludes the word "visible" in its definition of a junkyard. Eotvever, the elemcnt of visibility is not found in either the Town's specific junkyard ordinance, or in the statutory definition of a junkyard. 30-21 M.R.S.A. 3752(4). 18. Despite losing his appeal, Mr. Whitman has not cleared the unserviceable

motor vehicles or other debris3 from his property.

19. As of March 22, 2006, the date of trial, Mr. Whitman had been in violation

ot the November 10, 2003 notice for 859 days. Although the court recognizes that

blr. I~Vliitmanhas actually been in violation for a far longer period, the court concludes

that it must determine the period of violation based upon the November 10, 2003 Notice

of Violation because Mr. Wlutrnan was given misinformation about his appeal rights

concerning the May 2003 Notice.

20. Mr. h'l~itrnantestified that he has a use or a plani~eduse for every item on

the property. 'The court does not find that statement credible. Even if the court iourtd

that statement credible, however, Mr. Whitman's plari to use the items does not prevent

the court from finding tl~atan automobile graveyard and a junkyard exist on the

property. I11 Tozu~of Po7utzal v. Enzerson, the Law Court explained: "a landowner who

stores material that meets the objective definition of the statute cannot avoid liability

because he plans eventually to use the material." 639 A.2d 619, p. 621 (Me. 1994).

21. Ah-. Whitman has also challenged the Town's actions, calling its

enforcement of the ordinances an attempt to impose "Martha Stewart" standards on

him and other long-time residents. At the risk of pointing oiit to M r . firhitman what he

already IGIOM~S,!he ordinance was adopted blrI the citizens of Tl~mer.The State stabtes

concerning automobile graveyards and junkyards were enacted by the members of

Maine's legislature, all of whom are Maine citizens and residents. Ms. Stewart may

otvn property in Maine, but there is no evidence that she participated in any of Turner's

.3 "Debris" is defined as "fragments, litter left after a smash; rubbish." by WEBSTER'SNEWAMERICAN L~ICTIONAIIY 256 (19bl); alternately it is defined as "scattered broken pieces" according to the OXFORD AXIER:CAN DICT:ONARY 163 (1980). Contrary to Mr. Whitman's assertions a t tria!, " d ~ b r i s "accurately describes the vast majority ot items located on his property. onin mectings; nor is there evidence that she participated in any legislative proceedings.

h4r. Whitman must face up to the fact that the 'Town's ordinances and the Statc's laws

apply to him, whether or not he agrees with them.

Bascd upon the findings and conclusions above, the court issues the following

ORDELIS:

A. Mr. Whitman shall immediately cease and desist in his continuing operation

a n d / o r maintenance of an autoxnobilc graveyard and/or iunkyard on his

property.

B. It'ithin 120 days from the date of this Order, Mr. M'hitman shall remove but

hvo (2) unregistered and/ or unserviceable motor vehicles from the property.

C. Within 120 days from the date of this Order, M r . Whitman shall remove all of the

discarded, worn-out or junked household appliances and furnih~re,and all of the

discarded, scrap and junked lumber located on his property. Some of these itcms

can bc seen in the photographs admitted into evidence as plaintiff's exhibits.

D. hlr. Wl-utrnan shall pay civil penalties to the Town, pursuant to 30-A hl.R.S.A.

5 4452(3)(B) in the amount of $85,900, execution to issue forthwith. This figure represents the minimurn fine that could be imposed by the court, $100 per day,

for every ciay since Nove~ltber16,2003. 'l'he accurnuldtjon of fines will be tolled

during the next I20 days while r?.lr. W$i?xLa:-, complies v;i~h Lhis Order. Should

he fail to comply, however, the ultimate fine imposed rvill include $100 for each

of those days.

E. Within 120 days from the date of h s Order Mr. Whitman shall pay $3,548.91 to

55 3758 and 4452(3), towards the Town's the 'Town, pursuant to 30-A M.R.S.A.

reasonable attorney tees, execution to issue forthwith. F. This Order is binding upon Mi-. Whibnan's heirs, assigns, and successors, and

shall be a covenant in writing with the land. This Order may be recorded in the

Androscoggin County Registry of Deeds.

G. If h4r. Whitma11 fails to comply with the court's orders, he may face additional

sanctions.

Pursuant to 30-A r\;L.R.S.A. 3758-A(4), if Mr. Whitrnan does not complete the

ordered correction or abatement irk accordance with the ordered schedule, the

municipal officers or their designated agent may enter the property and may act to

abate the site in co~npliancewith the order. 1'0 recover any actual and direct expenses

incurred by the municipality in the abatement of the nuisance, the municipality may:

(1)File a civil action against Mr. \,%'hitmanto recover the cost of abatement, including

the expense of court costs and reasonable attorney's fees necessary to file and conduct

the action; (2) file a lien on htr. Whitman's property; or (3) assess a special tax on the

propert). The clerk is i:lstructed to incorporate this order by reference in the docket

for this case.

DATED: March 29, 2006

Justice, ~ a w ~ e r i Court o r