Opinion
AP-18-15
04-01-2020
Timothy Pulk, Sr., Petitioner, v. Town of Sabattua, Respondent.
Plaintiff's Attorney Adam Lee, Esq. Trafton Matzen Defendant's Attorney Michael Carey, Esq. Brann & Isaacson
Plaintiff's Attorney Adam Lee, Esq. Trafton Matzen
Defendant's Attorney Michael Carey, Esq. Brann & Isaacson
ORDER ON APPEAL
Valerie Stanfill Justice
This matter is before the court on Petitioner's complaint pursuant to M, R. Civ. P. SOB for review of the action taken by the Sabattus Board of Selectmen on August 7, 2018, declaring the building tie owns to be a dangerous building and ordering it demolished, Factual and Procedural History
Petitioner Timothy Pulk, Sr. acquired the property at 69 Lisbon Road in the Town of Sabattus [Town] in 2015. The properly has more than one building on it, and was apparently previously used as a nursing or boarding home. By Mr. Pulk's admission, the building at issue was not in good condition when he purchased it. On January 1, 2016, lire Sabattus Code Enforcement Officer issued a:'stop work order" to Mr, Pulk, requiring that he cease working on one of the buildings without a permit. The building that was the subject of the ''stop work order" is a different building than the one at issue in this appeal, Between that lime and the Hoard of Selectmen meeting on August 7, 2018, Mr. Pulk did not apply for or receive any permits for the property, On June 26, 2018, the Town recorded a notice of a Select Board hearing to have a multi-family building in the rear of the Pulk property declared a dangerous building as well as to secure it from occupancy. Mr. Pulk was served with the notices on June 27, 2018, as were Thomas Blancato and Albert Hubbard who were believed to occupy the building.
Other interested parties were also served. No issues have been raised regarding notice.
On August 7, 2018, the Select Board held a hearing in accordance with the notices' to determine whether the building is a dangerous building or a nuisance in accordance with 17 MRS § 2851, whether to secure it against any occupancy, and if dangerous building or a nuisance, what action to ask the owner to take. Evidence was presented to the Board by the Code Enforcement Officer that the foundation was collapsing and caving in and was structurally unsafe. He also presented evidence that the roof was deteriorated, the exterior stairs and decks had failed and were unsafe, that the service panel was exposed creating a fire hazard, that the exterior walls were in significant disrepair and have openings exposing the structure to the elements, and that there is an opening in the floor from the main level to the basement without stairs, Mr. Pulk was present and presented evidence in his own behalf. At the close of the hearing, the Board voted in favor of declaring that the structure is a nuisance or dangerous building within the meaning of 17 MRS § 2851 and that it should be demolished and immediately secured. The written order with findings of fact and conclusions of law was dated August 13, 2018.
The Board started its meeting at 6:30 p.m.; the notices said the hearing would be at 7 p.m. Neither Mr. Pulk nor the Town attorney were present when the Board originally started the hearing at about 6:40 or so. However, the Board realized its error before any evidence was actually taken, recessed until 7 p.m. after Mr. Pulk arrived, and re-started the hearing from the beginning. There was no denial of due process or other infirmity requiring reversal on this basis.
Mr. Pulk timely filed this appeal. His request for a trial was denied, as was the Town's motion to dismiss. Briefs were then filed, and this matter is in order for decision. Mr. Pulk argues on appeal that he was denied due process and subjected to a decision by a biased decision-maker.
The court ordered oral argument to be waived.
Standard of Review
Review of administrative decision-making is deferential and limited; the decision is reviewed for abuse of discretion, errors of law, and findings not supported by substantial evidence in the record. Wolfram v. Town of North Haven, 2017 ME 114 ¶7.
"Substantial evidence exists when a reasonable mind would rely on that evidence as sufficient support for a conclusion." Osprey Family Trust v. Town of Owls Head, 2016 ME 89, ¶ 9, 141 A.3d 1114. When reviewing administrative findings of fact, we "examine the entire record to determine whether, on the basis of all the testimony and exhibits before it, the [Board] could fairly and reasonably find the facts as it did." Friends of Lincoln Lakes, 2010 ME 18, ¶ 13, 989 A.2d 1128. We must affirm findings of fact if they are supported by any competent evidence in the record "even if the record contains inconsistent evidence or evidence contrary to the result reached by the [Board]." Id. ¶¶ 13-14.Beal v. Town of Stockton Springs, 2017 ME 6 ¶26. In addition, Petitioner is entitled to a fair and unbiased hearing. The administrative hearing board members "enjoy0 a presumption of honesty and integrity, which is only rebutted by a showing of some substantial countervailing reason to conclude that a decisionmaker is actually biased with respect to factual issues being adjudicated." Id. at ¶19, citing Mr. & Mrs. V. v. York Sch. Dist., 434 F.Supp.2d 5, 12-13 (D. Me. 2006). Petitioner bears the burden of persuasion on appeal. Beal, 2017 ME 6 ¶13.
Analysis
The relevant statute with regards to dangerous buildings states as follows:
The municipal officers . ., may after notice pursuant to section 2857 and hearing adjudge a building to be a nuisance or dangerous, in accordance with subsection 2-A, and may make and record an order, in accordance with subsection 3, prescribing what disposal must be made of that building. The order may allow for delay of disposal if the owner or party in interest has demonstrated the ability and willingness to satisfactorily rehabilitate the building. . . .
2-A. Standard. To adjudge a building to be a nuisance or dangerous, the municipal officers or county commissioners must find that the building is structurally unsafe, unstable or unsanitary; constitutes a fire hazard; is unsuitable or improper for the use or occupancy to which it is put; constitutes a hazard to health or safety because of inadequate maintenance, dilapidation, obsolescence or abandonment; or is otherwise dangerous to life or property.17 MRS §2851.
In this case, the testimony and evidence presented by the Code Enforcement Officer fully support the findings of the Board that the building is a nuisance or dangerous as defined in section 2851(2-A). While Mr. Pulk disagreed with the characterization of the conditions in the building or that they presented an imminent risk -for example, he testified that the cracks and buckling of the foundation were unchanged from when he bought it three years ago and were stabilized with lally columns- there was little disagreement as to the existence of most of the conditions the Code Enforcement Officer described. The findings made by the Board are supported by substantial evidence and there is no error of law in the Board finding that the building met the definitions in section 2851(2-A).
The Board also decided to order the immediate demolition of the building rather than give Mr. Pulk time to rehabilitate the building. The statute places the burden on Mr. Pulk to demoustrate that he has both the ability and the willingness to satisfactorily rehabilitate the building in order to obtain a delay in the demolition order. Mr. Pulk claimed he had the ability to rehabilitate the building, but he admitted he did not presently have the means, although he felt he could do it by putting the costs on credit card. He also asserted he had been approved for a loan but was unable to provide any proof of that. The Board was not required to accept his statements. To the contrary, there was evidence that Mr. Pulk had made little progress toward rehabilitating the building in the three years he had owned it. He produced no estimates or cost of rehabilitation, and identified no contractors. There was also evidence that Mr. Pulk owed at least $200,000 to the prior owner which was secured by a mortgage and owed thousands in back real estate taxes to the Town. In short, there was substantial evidence in the record supporting the Board order of immediate demolition rather than giving Mr. Pulk time to satisfactorily rehabilitate the building.
The parties have stipulated that since the Board hearing, Mr. Pulk has made some repairs. Actions he has taken after the hearing are not relevant to this court's review of the Board decision,
Mr. Pulk argues on appeal that procedural abnormalities and statements by individual board members combined to create an intolerable risk of bias and lack of due process. He points to evidence and comments that he argues were well outside the matters before the Board, specifically "consideration of criminal history, probation status, credit worthiness, real estate taxes, potential future uses or property value." Petitioner's Brief at p. 4.
As discussed above, however, much of that evidence was relevant to the Board determination of whether to order demolition or give Mr. Pulk an opportunity to rehabilitate the building. Evidence of police reports and actions responding to that address were relevant to the issue whether the property was occupied, and thus whether there were people other than Mr. Pulk who were entitled to notice of the proceeding as well as whether securing the building against occupancy was needed. In that connection, the court notes that there was nothing in those police reports that reflected negatively on Mr. Pulk - indeed, he appeared cooperative and helpful. With respect to Mr. Pulk's own criminal history and probation status, there was no discussion of the specifics of that history. Rather, Mr. Pulk stated that he got out of prison 3 years ago in connection with his ability to establish a sufficient earnings record to obtain financing. One Board member did raise his probation status in connection with how the Board could enforce a demolition order, and it is difficult to understand how that was relevant to matters then pending before the Board. Nonetheless, although irrelevant, those statements must be considered in the context of the whole proceeding. Beal, 2017 ME 6 ¶22. Board members stated they were able to judge the matter fairly, the process outlined was fair and followed, and Mr-. Pulk was given ample opportunity to present the evidence he wished to present. The findings of the Board were not based in any way on Mr. Pulk's criminal history or probation status, and were based on substantial proper evidence in the record. Taken as a whole, the court cannot say that statements of any Board members reflected an "unlawful bias or predisposition." Gorham v. Town of Cape Elizabeth 625 A.2d 898, 902 (Me. 1993). Absent evidence that any improprieties in fact affected the decision, the statements are not a basis to overturn the Board's decision. Wolfram v. Town of North Haven, 2017 ME 114 ¶ 21.
Nowhere in the record does anyone identify what he has been convicted of, the specifics of any sentence, or any other details of his criminal history.
Mr. Pulk criticizes actions of the Town's attorney and of the Town manager at the meeting. Contrary to assertions he makes, the court did not find a basis to conclude that the Town attorney misled the Board or represented the Code Enforcement Officer or Town Manager in the hearing, There was no deprivation of due process by the actions of the Town's attorney in providing advice during the hearing. See Turbat Creek Preservation, LLC v. Town of Kennebunkport, 2000 ME 109 ¶9. The court also found no basis to conclude that the actions of the Town Manger were improper and deprived Mr. Pulk of due process.
An administrative process "may be infirm if it creates an intolerable risk of bias or unfair advantage." Zegel v. Bd. Of Social Worker Licensure, 2004 ME 31 ¶ 16. Whether the effect of any bias or procedural unfairness denies a party due process is a question of law. Wolfram, 2017 ME 114¶20. While it is not Mr. Pulk's burden to demonstrate that each Board member was biased against him, it is his burden to overcome the presumption of honesty and integrity and to show that there are substantial countervailing reasons to conclude that the decision was tainted by bias with respect to the factual issues being adjudicated. Real, 2017 ME 6 ¶19. Taking the proceeding as a whole, Mr. Pulk has failed to demonstrate any denial of due process in the Board of Selectman hearing.
Conclusion
The findings and order of the Board of Selectmen were supported by substantial evidence in the record. There was no abuse of discretion or error of law, nor was there any denial of due process. Therefore, the orders of the Board of Selectmen dated August 13, 2018 are affirmed. This Order on Appeal may be incorporated on the docket of the case by reference pursuant to Me. R. Civ. P. 79(a).