A Superior Court Justice has reversed his own earlier ruling in favor of the town of South Bristol, awarding legal fees and financial penalties in the case of a local landowner who admitted to cutting down 47 trees within the town’s shoreland zone in Oct. 2006.
In a ruling handed down Feb. 13, Justice A.M. Horton determined that because former South Bristol and California resident Jim Nelson may have filed an objection within a 21 day deadline, he had effectively negated the courts earlier ruling.
Horton determined in a footnote that he considered Nelson’s objection on its merits because of potential confusion over the filing deadline.
According to Nelson, the ruling throws out the entire case against him and he is looking forward to arguing his case in court.
“A judgment had been obtained and the case was over and that was thrown out,” Nelson said. “The reason it was over was because I had filed my appeal one day late. On that basis they (South Bristol) went to court and asked for a summary judgment and they were given one and we went to court and said being one day late shouldn’t constitute a $100,000 crime…The fine that South Bristol assessed was based on the fact that I technically didn’t appeal the order because the fine was one day late, so we put that in front of the judge.”
South Bristol town attorney Peter Drum said he had always planned for oral arguments anyway. In an email communication, Drum categorically refuted Nelson’s assertion the entire case was thrown out.
“Nelson mis-stated the meaning of Justice Horton’s order… His order vacates his own granting of the motion for summary judgment but he has (to) also schedule the motion for summary judgment for oral argument,” Drum said. “We had always assumed that we would have to argue the motion for summary judgment orally, and it was only when Nelson defaulted that we thought that we would not have to argue it.”
Outlining the basis of his decision, Horton briefly discussed a series of legal filings in 2008 beginning with South Bristol’s application for summary judgment on Jan. 31, 2008.
“On Feb. 27, the court issued an order to confirm that the Defendant was served with the Plaintiff’s motion.” On Feb. 28, the court received notice of Nelson’s bankruptcy filing in California, “the effect of which was to stay and extend the 21 day response deadline.”
In a July 9, 2008 letter, Drum advised the court an earlier stay had been lifted and asked for a final ruling.
On Aug. 8, the court granted South Bristol’s motion. In his latest ruling, Horton notes that, “On the same day, coincidentally, the defendant filed an objection. The Court was not aware of the objection and acted on the understanding that the Defendant had waived objection. Taking all allegations as undisputed, the Court’s order granting summary judgment was appropriate.”
On Aug 22, Nelson filed a motion to dismiss the summary judgment. At the time of that filing the court became aware of Nelson’s Aug. 8 objection.
In a footnote, Horton notes: “The court is considering the defendant’s objection on its merits although it arguably was filed late, because of legitimate uncertainty over whether 21 day deadline needed to be reset, given the bankruptcy stay.”
Having reviewed the entire case file, the court has thrown out the original judgment and set the matter for oral argument after which the court may or may not grant the motion anew.
According to Nelson, the courts’ awarding of the summary judgment in August was not based on the facts of the case. “Everything was based on the technicality that I had turned in my response to the Town one day late because I was in Boston at my mother’s deathbed,” he said.
The case stems from Nelson’s appeal that he was in violation of South Bristol’s shoreland zone ordinances as a result of his Oct. 2006 admission to cutting 21 trees without a permit within 75-feet of the shore, and cutting an additional 38 trees between 76 and 250 feet from the shore.
Some of the trees cut were on property adjacent to Nelson’s and within a Damariscotta River Association conservation easement.
In June 2007, the South Bristol Board of Selectmen ordered Nelson to pay a $45,000 fine for cutting trees in violation of the shoreland zone, and an additional $15,000 for remediation and a replanting program.
In Horton’s original summary judgment, the court awarded South Bristol $88,000 including legal fees and cost incurred by the town.
Noting that legal fees are disputed, Judge Horton directed Drum to submit a detailed statement of his fees and services provided.
“As you can see, the Judge says that after oral argument he may decide to re-grant the motion for summary judgment and wants South Bristol to enter an affidavit of fees and costs in the case, which the Town is entitled to by statute,” Drum said. “The Town will provide that affidavit.”