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Charlton v. Town of Oxford: concurring opinion, attorneys, footnotes

CALKINS, J., with whom DANA and ALEXANDER, JJ., join, concurring.
	[¶41]  I concur in the result, but I write separately because I think
that it is unnecessary for the Court to determine whether 17 M.R.S.A.
§ 2701 or 30-A M.R.S.A. § 4302 provides a cause of action for the relief
sought by the Charltons.  Even assuming that there is a cause of action, there
is no question that the Charltons must demonstrate that they have been
damaged in order to obtain relief.  The trial court found that the Charltons
were not damaged, and that finding is supported by the evidence.  That
finding alone disposes of this case.  The discussion of the availability of a
cause of action is unnecessary to a disposition of this appeal.

Attorneys for plaintiffs: Gregory P. Hansel, Esq., (orally) Ann R. Robinson, Esq. Joel H. Thompson, Esq. Preti, Flaherty, Beliveau, Pachios & Haley, LLC P O Box 9546 Portland, ME 04112-9546 Attorneys for defendants: Elliott L. Epstein, Esq., (orally) Isaacson & Raymond P O Box 891 Lewiston, ME 04243-0891 (for Carl Delekto) Geoffrey H. Hole, Esq. Bernstein, Shur, Sawyer & Nelson, P.A. P O Box 9729 Portland, ME 04104-5029 (for Town of Oxford)
FOOTNOTES******************************** {1}* Although not available at oral argument, Justice Clifford participated in this opinion. See M.R. App. P. 12(a) stating "[a] qualified justice may participate in a decision even though not present at oral argument." {1} . Section 19 of the Oxford Zoning Ordinance states in pertinent part: C.Procedure for Administering Permits . . . . 2.For applications which require Planning Board review, the Planning Board shall approve, approve with conditions, or deny the application within 35 days except that: . . . . c.Before a public hearing or rendering a decision, the Planning Board shall notify property owners within 500 feet, the fire chief, the police chief, the town manager, . . . . Oxford, Me., Code § 19(C)(2)(c) (March 12, 1994). {2} . § 2701. Action for damages caused by nuisance Any person injured in his comfort, property or the enjoyment of his estate by a common and public or a private nuisance may maintain against the offender a civil action for his damages, unless otherwise specially provided. 17 M.R.S.A. § 2701 (1983). {3} . § 4302. Nuisances Any property or use existing in violation of a municipal land use ordinance or regulation is a nuisance. 30-A M.R.S.A. § 4302 (1996). {4} . We note that in its emergency preamble to legislation reenacting § 4302, the Legislature stated that the reenactment was "urgently needed . . . to preserve the ability of local government to effectively address issues of local concern[.]" (emphasis added). P.L. 1989, ch. 104, § 45. {5} . Chapter 149, entitled: "An act giving further powers to cities and towns to pass by- laws and ordinances[,]" states, in relevant part: Sect. 3. Said cities and towns are hereby further authorized to adopt such regulations in regard to the erection of wooden buildings . . . and may provide penalties necessary for the due execution of such regulations; and any building erected in violation of the by-laws and ordinances of any city or town shall be deemed to be a nuisance and shall be liable to all the proceedings and penalties provided by law in case of nuisance. P.L. 1855, ch. 149, § 3. {6} . Section 40 states, in relevant part: Sec. 40. Towns, cities, and village corporations may make such by- laws or ordinances as they think proper, not inconsistent with the laws of the state, and enforce them by suitable penalties, for the purposes and with the limitations following: . . . . Seventh. Respecting the erection of wooden buildings therein, or buildings the exterior of which shall be in part of wood, and defining their proportions and dimensions; and any building erected contrary to a by-law or ordinance adopted under this specification shall be deemed a nuisance and dealt with accordingly. R.S. ch. 3, § 40 (1871). {7} . Section 4452(3)(E) recognizes that a municipality may have contributed to the violation by providing the violator with incorrect information or by failing to take timely action, and therefore, encourages a court to consider such inaction on the part of the municipality when setting a penalty for violations of land use laws and ordinances. See 30-A M.R.S.A. § 4452(3)(E) (1996). {8} . The Charltons did have the right to challenge Delekto's actions-an appeal to the ZBA, an appeal from the ZBA to the Superior Court, and an appeal from the Superior Court to us. The Charltons did appeal the issuance of Delekto's building permit. The ZBA found that appeal untimely and the Superior Court agreed. The Charltons, however, did not appeal from the Superior Court's decision, nor did they challenge the issuance of the certificate of occupancy even though the trial court made detailed findings of Delekto's numerous violations of the applicable regulations. {9} . The Charltons assert that Levasseur v. Dubuc, 229 A.2d 201 (Me. 1967) supports their claim for a statutory cause of action for private nuisance under 30-A M.R.S.A. § 4302. Such is an overreading of Levasseur. In Levasseur, we held, [i]n view of the fact that the [municipal ordinance in question], and the enabling act under which it was adopted, are both silent as to the provision that a violation constitutes a nuisance, we hold that [the predecessor of section 4302] is not effective under the legal aspects of the instant case. Levasseur, 229 A.2d at 203. Levasseur does not, however, imply the reciprocal. Johnson, 384 A.2d 698 (Me. 1978), decided eleven years after Levasseur, at least by implication, precludes an argument that by stating that a violation constitutes a nuisance the Legislature intended to create a right of action. Heretofore, Levasseur has never been cited in our case law to support a private right of action for a statutorily created nuisance. {10} . "The interference must be substantial and unreasonable. Substantial simply means a significant harm to the plaintiff and unreasonably [sic] means that it would not be reasonable to permit the defendant to cause such an amount of harm intentionally without compensating for it." w. page keeton et al., prosser and keeton on the law of torts § 88 at 626 (5th ed. 1984). However, "[w]hen defendant's conduct involves mere physical discomfort or mental annoyance, there is somewhat more difficulty in deciding when the interference is substantial and unreasonable justifying a recovery for damages. Probably a good working rule would be that the annoyance cannot amount to unreasonable interference until it results in a depreciation in the market or rental value of the land." {11} . In regard to the intentional interference requirement, it has been noted that "often the situation involving a private nuisance is one where the invasion is intentional merely in the sense that the defendant has created or continued the condition causing the interference with full knowledge that the harm to the plaintiff's interests are occurring or are substantially certain to follow." W. Page Keeton et al., Prosser And Keeton On The Law Of Torts § 87 at 624- 25 (5th ed. 1984).

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