Posted by: Patricia Salkin | December 24, 2018

ME Supreme Court Holds Order Allowing Property Owner’s Neighbor to Testify Telephonically Did Not Violate Property Owner’s Right to Due Process

This post was authored by Matthew Loeser, Esq.

Sidney Pinkham owned property in the Town of Glenburn from December 22, 2016, through August 18, 2017. In that time, the mobile home located on the property had plumbing fixtures installed but was not connected to a sewage disposal system. Additionally, the plumbing fixtures were not supplied with potable running water, and a portable toilet was used as a substitute for a permanent toilet. The Town filed a land use citation and complaint in the District Court, alleging that Pinkham’s property was in violation of a wastewater disposal rule promulgated by the Department of Health and Human Services, and sections 305 and 601 of the Uniform Plumbing Code. The court ordered Pinkham to maintain the property in compliance with regulatory requirements by supplying the dwelling structure with pressurized water and with a subsurface wastewater disposal system, and ordered Pinkham to pay a $23,900 civil monetary penalty and reasonable attorney fees.
On appeal, Pinkham argued that the court violated his right to procedural due process and abused its discretion during the hearing on the Town’s complaint by allowing one of the Town’s witnesses to testify by telephone, and by failing to exclude two hearsay statements on its own initiative. The court found that the circumstances necessitating the call constituted good cause, and the court safeguarded Pinkham’s right to cross-examine the witness. Additionally, the court did not commit an error in not excluding, sua sponte, testimony from the Town’s Code Enforcement Officer concerning two out-of-court statements made by the witness who testified telephonically. Here, the Town did not offer the witness’s prior statements for their truth, but instead offered them to authenticate the witness’s affidavit as part of that witness’s telephonic testimony to demonstrate that the witness’s prior statements concerning violations had the effect of prompting the Code Enforcement Officer to inspect Pinkham’s home. Moreover, the court found that the statements were merely cumulative of the live telephonic testimony, which rendered their admissibility harmless even if the statements were considered hearsay.

 

Pinkham next contended that the court erred in not making explicit findings addressing the statutory factors to be considered in setting the amount of a civil penalty. Here, while the evidence in the record supported the court’s ultimate finding that Pinkham allowed the alleged plumbing and subsurface wastewater disposal violations to occur on the property, the record was absent of any mention of a “municipal order to stop,” or any other notice to the landowner that he was in violation of the ordinance. As such, the imposition of the $23,900 civil penalty was vacated. Despite this, because evidence the violations occurred was fully supported by the record, the award of attorney fees was affirmed.
Town of Glenburn v Pinkham, 195 A. 3d 1226 (ME 10/30/2018)


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