Spiteful trees and other recent decisions


So, last entry I said that the Maine SJC had issued a few decisions of note from the appellate perspective, and here they are:

1. Witham Family Limited Partnership v. Town of Bar Harbor, 2011 ME 104 http://www.courts.state.me.us/court_info/opinions/2011%20documents/11me104wi.pdf

This was an 80B dismissed by the Superior Court for lack of standing.  The takeaway here is that the standing test is rather liberal in the 80B context when defining the needed participation below.  Previous decisions made clear that it wasn't necessary whether the participant below was an individual versus an organization and it was vice versa in the appeal – as long as you participated in some way as a practical matter, "you" liberally defined, that was enough (assuming a particularized interest).  This decision confirms that point.  The lesson here is, to avoid these questions down the line, it's always prudent in the administrative hearing to be clear about the universe of people for whom the speaker is speaking.        

The question the decision raises for me is whether you've adequately participated in a Rule 80B or 80C if you only speak in the public comment part of the meeting.  Some language here suggests yes.  If so,  minutes for such meetings had better get the names straight for each speaker.  Some proceedings can also have rather lengthy public comment sessions, sometimes lasting for hours over many days in  multiple venues for certain state administrative activities.  My understanding is that none of those comments is evidence for the purposes of the record, so I'm not sure how clearly they keep the record of who spoke.  If participation as one of those commentors is enough, then the names must be retained in that record nonetheless. 

2.  Bond v. Bond, 2011 ME 105, http://www.courts.state.me.us/court_info/opinions/2011%20documents/11me105bo.pdf

This was a divorce appeal in which the appellant challenged an order entered by the District Court granting the appellee's motion to have two post-judgment motions for relief heard by the same referee whose report formed the basis of the parties’ divorce judgment.  The appellant claimed that (1) the court’s order was immediately appealable; (2) although he had agreed to have a referee hear the divorce case, the court erred in appointing a referee to hear the post-judgment motions over his objection pursuant to M.R. Civ. P. 119; and (3) the court lacked authority pursuant to 19-A M.R.S. § 252(1) (2010) to appoint a referee to hear the particular motions at issue.  The majority held that  no exception to the final judgment rule applied, so they dismissed the interlocutory appeal without reaching the merits.  The dissent (Alexander, J. and Jabar, J.) disagreed.  The majority said that the issue could be reviewed later because if it shouldn't've gone before a referee, there can be a remand to fix that.  The dissent basically said that because the court can always accept or reject a referee's input at its discretion, with no deference, that's really not the case, so the collateral order exception should apply.

 3.  Peters v. O'Leary, 2011 ME 106.http://www.courts.state.me.us/court_info/opinions/2011%20documents/11me106pe.pdf

The Peters own a parcel of land in Ogunquit that abuts and is uphill from oceanfront property owned by O’Leary. After a series of disputes, O’Leary planted a row of at least seventy-four trees near the parties’ 125-foot-long boundary, which obstructed ocean views from the Peterses’ newly constructed home. The Superior Court found that O’Leary had created a nuisance pursuant to Maine’s spite fence statute, 17 M.R.S. § 2801 (2010), and the common law, and granted injunctive relief.  The basic issue was whether a tree could be a "structure" under the statute, and the answer was yes.  Justice Alexander wrote a separate concurrence to say that this didn't mean that if trees happen to grow and obscure a view, you have a claim against your neighbor.  

The curious part of this decision for me is the following.  To show the malice required, one factor noted was that the CEO told the defendant that if someone plants a tree in a shoreland zone it can't be removed later.  But part of the relief ordered was removing some of the trees.  I asked two different environmental attorneys whether if someone plants a tree illegally in a shoreland zone, it can be removed.  They both gave the same answer;  "Why Cathy, what an interesting question."

So if someone trespasses onto your property and plants a tree illegally, it's unclear whether you can just remove it.  From this decision, it appears that the court has the power to order a spite tree fence removed.  I would find it difficult to believe that a court would not have the power to order an illegal structure removed, wherever located — but do you have to always to get a court order if you just want to remove it yourself?  Apparently, you aren't, as a general matter, supposed to remove vegetation from shoreland zones unless they are safety hazards.  Could you cite this as an argument against equitable relief in any suit based on illegal planting for whatever reason?

I'm thinking that the number of people wandering the State of Maine illegally planting vegetation in shoreland zones is not huge, but still ….