A Lincoln County Superior court has ruled James A. Nelson violated the South Bristol Town Shoreland zoning ordinance when he cut more than 70 trees from his, and his neighbor’s shorefront property.
The finding came recently when Justice Andrew Horton granted a summary judgment in a suit brought by South Bristol stemming from an incident that took place in October 2006.
All that remains of the case is for the judge to decide civil penalties and other appropriate relief, the judge ruled. These include possible civil penalties, funding for restoration work and attorney fees, the order said.
Although the ruling found he had violated the town’s Shoreland Zoning rules, Nelson claimed victory, saying it would give him a chance to present his view that he had done just minor damage with his actions.
“I will have a chance to explain. I believe I just did minor damage and that has grown back. All I did was trim along the edge,” he said in a phone interview.
The suit was filed in August 2007 after the town ordered Nelson to pay a $45,000 fine, and deposit $15,000, to cover cost of replanting the destroyed trees. The fines were imposed following a series of hearings before the town’s Selectmen and Board of Appeals.
An inventory of the trees cut by Nelson showed 76 trees were cut with 10 of them measuring between six and more than 22 inches in diameter, according to the court records.
In a phone interview, Nelson referred to the damage as a “couple of cords of wood.”
The property of his neighbor, Hildegarde Perkins, is under a conservation easement granted to the Damariscotta River Association.
Steven Hufnagel, the DRA’s executive director, said the conservation association was interested in restoring the property.
“The goal is to replant the biggest trees as possible, however, we are limited by bed rock,” he said.
Justice Horton ruled Nelson admitted to the violations, therefore there was no dispute about the nature and extent of the (zoning) violations.
“Given that there is no genuine dispute about the nature and extent of the violations in this case, and given that the parties engaged in a prolonged administrative process, during which Nelson admitted to the violations, the town is entitled to a partial summary judgment on that issue,” wrote Horton.
In his order, the judge said the “true contested issue in this case is whether the Town had the authority to assess the fine and replantation deposit.”
Judge Horton said the town’s ordinance does not specifically grant the town the power to impose penalties.
Instead, it grants them the power to “institute any and all actions seeking …imposition of fines.” This requires the town to file suit asking a court to issue fines or penalties, he said.
Although Nelson has filed for debt relief under Chapter 7 of the U.S. Bankruptcy Code, the claims of the town and that of his neighbor, Mrs. Perkins, were not discharged in his bankruptcy case, said Jonathan Hull, the lawyer for Mrs. Perkins.
This means Nelson can be required to pay any fine to the town and damages to his neighbor, Hull said.
The properties of both Nelson and Perkins are located near the tip of South Bristol’s Rutherford Island looking east towards Johns Bay.
