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Town of Kittery v. Dineen

Supreme Court of Maine

March 16, 2017

TOWN OF KITTERY
v.
JAMES M. DINEEN

          Submitted On Briefs: February 23, 2017

          James M. Dineen, appellant, pro se

          William H. Dale, Esq., and Mark A. Bower, Esq., Jensen Baird Gardner & Henry, Portland, for appellee Town of Kittery

          Panel: ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.

          ALEXANDER, J.

         [¶1] In this consolidated appeal, James M. Dineen challenges two Superior Court judgments (York County, Fhtzsche, J.), addressing issues on abutting properties he owns at 40 Old Post Road (Mary's Store) and 42-44 Old Post Road (the Bus Lot) in Kittery.[1] First, Dineen appeals from a March 31, 2016, judgment finding him in contempt for violation of a June 19, 2015, procedural order for failure to remove a burnt bus from the Mary's Store property. Second, Dineen challenges the court's affirmance of the Kittery Town Council's finding that the Mary's Store structure constitutes a dangerous building pursuant to 17 M.R.S. § 2851 (2016), and ordering that it be demolished.

         [¶2] On appeal Dineen argues that the court erred in finding him in contempt of the June 19, 2015, order because (1) the court lacked subject matter jurisdiction over the Mary's Store property, (2) the motion to extend existing orders to the Mary's Story property was abandoned by the Town and is barred by laches, (3) the court exceeded the scope of the order, and (4) the language in the order is overbroad and unlawful. Dineen also argues that the judgment affirming the finding that Mary's Store is a dangerous building and must be demolished is not supported by substantial evidence in the record, and that the court erred in failing to consider less destructive alternatives to limit danger to the public. We affirm both judgments.

         I. CASE HISTORY

         A. Contempt

         [¶3] The contempt judgment is based on Dineen's failure to comply with the court's June 19, 2015, order, which required him to remove a burnt bus and a bread van from the Mary's Store property at 40 Old Post Road. Following a hearing, the court found the following facts, "which are viewed in the light most favorable to support the trial court's judgment." MacMahon v. Tinkham, 2015 ME 9, ¶ 4, 109 A.3d 1141.

         [¶4] This action commenced in 1985 when the Town of Kittery filed a complaint for declaratory and injunctive relief, alleging that Dineen-through his business Dineen Bus Lines-was operating an automobile junk yard and maintaining a nuisance by keeping a substantial number of worn out or junked buses and other vehicles on the Bus Lot property at 42-44 Old Post Road. Dineen also owns the abutting Mary's Store property, which contains a badly dilapidated building and the burnt bus at issue in this appeal.

         [¶5] The Town was granted leave to file a motion to extend all existing orders to the Mary's Store property on March 13, 1998. On July 1, 1999, and May 21, 2002, the Superior Court [Crowley, J.) issued orders appointing receivers to monitor Dineen's compliance with various court orders and injunctions issued pertaining to the Bus Lot. After the motion to extend was filed, on July 28, 2008, the court issued an order by agreement that appointed a new receiver to monitor and enforce the previous court orders.[2] In accordance with that order, the appointed receiver filed five reports indicating that "Dineen has gradually become increasingly out of compliance as the number of junk or inoperable buses increased."

         [¶6] The court held a hearing in 2012, and issued an order addressing the noncomplying vehicles; Dineen did not comply with that order. In May 2015, the Town of Kittery filed a motion to renew its previously filed requests for relief, which had been stayed since 2008. The motion sought to extend the orders dealing with the Bus Lot property to the Mary's Store property, as the business and junk buses had partially migrated onto the Mary's Store property.

         [¶7] The court [Fhtzsche, J.) met with the parties on June 19, 2015, on the Town's motion to renew previously filed requests for relief. The parties reached an agreement, and the court memorialized that agreement in the procedural order. That order required, among other things, that Dineen ...


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