Posted by: Patricia Salkin | May 15, 2011

ME Supreme Court Upholds Town Enforcement of State DOT Permit Conditions and Paving Requirements for Subdivision

In 2006, the defendant spoke with the Town of Vassalboro Planning Board regarding the construction of a ten lot subdivision and later was granted an approval on a subdivision application. In 2008, it became evident that the defendant was not following the conditions and was also violating other ordinances. In fact, the Town brought six land use counts against the defendant, alleging that he did not comply with highway entrance requirements, that a mobile home was on the property without proper permits, the subdivision road was deficient, that he did not create a legal entity to own the road and wells, sold top soil without a permit, and removed more top soil than was necessary to construct a subdivision. The defendant did not prevail on the counts and appealed.

As for the first count, the defendant did not assert that he had not violated the MDOT permit by not complying with the highway entrance requirements, but rather asserted that the Town did not have authority to enforce it. The court did not agree with the defendant, as it is true that MDOT has the exclusive right to issue permits to join a road to a highway, however, the statute does not afford MDOT exclusive enforcement rights, but rather evidences intent to share enforcement duties with the applicable municipality. As such, the Town prevailed on this count.

The court then addressed whether the subdivision road complied with the city ordinance, as it was designated as a “private major,” which required that the road be paved, twenty feet wide, and have a centerline in the middle of the road.  Despite notices of deficiency, the road remained unpaved and the center line deviated from the center of the right of way by six to eight feet. The defendant contended that the subdivision was actually a mobile home park, which did not have to abide by the paved road rules.  The court disagreed, finding that the subdivision lot did not match the definition of a mobile home park, thus the road requirements had to be met.

The court next address the defendant’s contention that he should not be liable for his failure to create a legal entity to hold the common road and wells, as the Town Board overlooked the lack of legal entity when approving the application. The court held there would be no prejudice against the defendant in bringing this action, as the defendant had been put on notice of the deficiency before the land use complaints were brought to court. Thus this requirement of the ordinance is not unenforceable and the defendant was held liable.

The Supreme Judicial Court of Maine dismissed of the remaining land use charges against the defendant, finding that the record supports the lower court’s determination by a preponderance of the evidence.  

Town of Vassalboro v. Barnett, 2011 ME 21, (2/15/ 2011)

The opinion can be accessed at: http://www.courts.state.me.us/court_info/opinions/2011%20documents/11me21ba.pdf.


Responses

  1. Thank you for the post. This really speaks to why we all must be familiar with DOT and transportation laws as it relates to our own property. I think we can take a lot away from this case. Thanks again for the information.


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