Town of Gorham v. Duchaine

STATE OF MAINE NINTH DISTRICT COURT
CUMBERLAND, ss. Div. of Southern Cumberland
Civil Docket No. PORDC-CV-17-245

TOWN OF GORHAM, )
)
Plaintiff ) ORDER
) ON MOTION TO ENFORCE CONSENT
V. ) ORDER
)
SUSAN DUCHAINE and )
DESIGN DWELLINGS, INC., )
)
Defendants )

Following a testimonial hearing on October 21, 20211, Plaintiffs Motion to
Enforce Consent Order ("Motion") is GRANTED, and it is hereby ORDERED as
follows: 2

A. Procedural History.

The background and procedural history ofthis case are not disputed. This case
involves certain land use violations existing at 166 Narragansett Street in Gorham
("Prope1iy"), that is the business office of Defendant Design Dwellings, Inc.

Efforts to resolve this matter before hearing did not bear fruit.
2 The Court adopted many of the findings proposed by the pmties. The comt also added significant
findings and conclusions. This Cou,t is well aware of the Law Cami's concern as expressed in the case of
In Re Marpheen C. et al, 2002 ME 170,17, 812 A.2d 972, 974: "The mother also complains that the District
Comt adopted several pages of findings purposed by the State without significant change. We have said
that a verbatim adoption of findings proposed by one pmty in a case is disfavored, as such an approach
suggests that the court has not applied its independent judgment in making its findings and conclnsions.
[citation omitted] At the same time, however, we recognize that fact-finding can be aided by pmties
submitting and trial cou1ts considering and utilizing, where appropriate, draft findings of fact offered by
either side. The key question is whether the comt findings reflect the application ofjudgment by the comt,
and not simply one of the pmties." This Comt applied its own judgment in this case. See also, Banville v.
Banville, 2006 ME 3, 1110-11, 890 A.2d 263,266. (trial comt warranted in using proposed findings, and
rejection of a proposed finding reflected use of independent judgment).

REC'D CUMB CLERKS OFC iJ
rmv 10 ·21 p,,2:<12
("DDI"). 3 The Prope1iy contains, inter alia, a storage garage depicted on a site plan
approved by the Gorham Planning Board on October 5, 2015 ("Site Plan Approval").
(Pl.'s Exs. 1, 2.) On February 28, 2018, this Court entered a final Judgment based
on an approved Consent Order that was signed by counsel for all parties. The
Consent Order included a number of terms and conditions as well as a "Compliance
Plan" containing a list of items to be completed by Defendants, with deadlines for
completion of each, and penalties.

After all deadlines for completion of the items expired, numerous items
remained incomplete. On October 18, 2018, Plaintiff filed the within pending
Motion, supported by two affidavits signed by the Town's Code Enforcement
Officer ("CEO"), Freeman Abbott, and the former Town Engineer, Megan
McDevitt. Defendants filed an opposition to the Motion and Plaintiff filed a reply.
On November 15, 2018, the Court granted the Motion without holding a hearing,
and Defendants appealed to the Law Court.

On appeal, the Law Court vacated this Comi's November 2018 Order. See
Town of Gorham v. Duchaine, 2020 ME 7, ,r 7,224 A.3d 241 (holding that, in order
to determine that Defendants were not in compliance with the Consent Order, the
District Court "must rely on evidence presented at a hearing or, as anticipated by
Maine Rule of Civil Procedure 43(e), through affidavits.").

On remand, this Motion was assigned to this Judge, who held an evidentiary
hearing on the Motion on October 21, 2021, at which all parties appeared and were
represented by counsel. The Court admitted documentary evidence, as well as
testimony from three witnesses: Mr. Abbott, Ms. McDevitt, and Defendant Susan
Duchaine, who is the owner ofDDI.

B. Legal Standard on Remand.

"When a consent decree has allegedly been violated, the trial court has broad
discretion to fashion an appropriate remedy, but only in accordance with the te1ms
of the decree." Duchaine, 2020 ME 7, ,r 8,224 A.3d 241 (citations omitted); see
also State v. Shattuck, 2000 ME 38, ,r 17, 747 A.2d 174 ("[T]he court does not

Defendant Susan Duchaine testified at trial that, at some point after the commencement of this action,
she conveyed the Property to her son's business, CCLD, LLC, but she has not moved for a substitution of
the party. See M.R. Civ. P. 25(c) ("In the case of any transfer of interest, the action may be continued by
or against the original pa1ty, unless the comt upon motion directs the person to whom the interest is
transferred to be substituted in the action or joined with the original pmty."). However, DOI has occupied
the Prope1ty continuously during the entire timeframe relevant to this litigation.

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ordinarily treat a judgment entered upon agreement of the parties differently than a
judgment entered after hearing or other adversarial process."). In this case, the
Consent Order is very detailed as to the remedies for noncompliance. However,
because the calculation of penalties in this case necessitates a finding of
noncompliance, Plaintiff must present evidence that Defendants failed to comply
with the Consent Order. See Duchaine, 2020 ME 7, ,r 8, 224 A.3d 241.

C. Violations of Consent Order.

1. Compliance Plan

Plaintiff proved Defendants' failed to comply with various provisions of the
Consent Order.

The Feb1uary 28, 2018 Consent Order required Defendants to complete all
items in the Compliance Plan by the deadlines specified in the table below. (Also
see Pl.'s Ex. 5.) As of September 5, 2018, five provisions in the Compliance Plan
that were incomplete:

Item Deadline

2. Install sliding door enclosures for the storage 90 days from date of
area on the southeast side of the storage signed Consent Order
garage.

5. Plant landscaping trees (46) and shrubs (27). By September 1, 2018

6. Install concrete dumpster pad and fenced 120 days from date of
enclosure. signed Consent Order

7. Install concrete island, four (4) bollards, and a 120 days from date of
wooden roof structure for fuel storage tanks. signed Consent Order

9. Install 6' high decorative vinyl fence to the 120 days from date of
northeast of the office building. signed Consent Order

A year later, Ms. McDevitt's Field Repmi dated October 25, 2019 (Pl.'s Ex.
11 ), rep01ied that provisions #6 and #9 from the list above were completed, but the
other provisions #2, #5, and #7 remained incomplete.

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At the hearing, Ms. Duchaine admitted that she has not completed those
remaining items. 4 Item #2 was due on May 29, 2018 (1,241 days from the hearing
date), and Item #5 was due on September 1, 2018 (1,146 days). Therefore, the Court
finds that Defendants have been in violation of Paragraph 4 of the Consent Order
continuously for 1,241 days, as of the date of the hearing.

2. Certificate of Occupancy

Paragraph 3 of the Consent Order prohibited Defendants from using the
storage garage on the Property until they obtained a temporary or permanent
certificate of occupancy from the CEO. 5 (Pl.' s Ex. 5.) The Comi finds that the CEO
never issued a temporary or permanent ce1iificate of occupancy for the storage
garage. The Court fu1iher finds that Defendants are cUJTently using the storage
garage, and that the building has been in use since at least December 1, 2016, when
the CEO visited the Propetiy for an inspection. (See Pl. 's Ex. 3.) Therefore, the
Comi finds that the storage garage has been in use continually at least since the date
of the Consent Order (1,331 days from the hearing date).

3. Outside Storage

Paragraph 2 of the Consent Order prohibited the outside storage of "large
commercial vehicles (such as, but not limited to, dump t1ucks and box trucks),
equipment, material, or supplies at the Prope1iy." 6 Defendants have been in violation
of Paragraph 2 continuously at least since September 5, 2018 (1,142 days from the
hearing date), storage of construction vehicles, equipment, and materials on the
Property during various time periods, including storage of materials in the
unenclosed "overhang" potiion of the garage.

D. Defendants' Arguments.

At the hearing, Defendants made various arguments to excuse their
noncompliance with the Consent Order, none of which the Comi finds persuasive.

4 Based on the representations made by Ms. Duchaine at the hearing that fuel would not be stored on the
Property, the Town agreed that it would not fu1ther pursue Item #7, so long as Defendants are prohibited
from storing fuel at the Property without compliance with this item.
Section l-3(F) of the Town's Land Use and Development Code prohibits the use or occupancy of any
building until a certificate of occupancy has been issued by the CEO, and the failure to obtain such a
certificate is a violation of the Code. (Pl. 's Ex. 12 at 11.)
6 This requirement echoes Condition of Approval #5 in the Site Plan Approval. (Pl. 's Ex. I at 9.)

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E. Relief Granted.

Defendants present themselves as hard working owners of a construction
company with decades of experience including but not limited to board
presentations, site plans, coordination with town officials, code enforcement
officers, site review, financing, etc. Defendants obtained the necessary approvals
from the Town to renovate their Propetiy and to operate their business thereon, with
conditions. After receiving the benefits of Town approval, Defendants began a
campaign to eliminate or modify some of the conditions, but their efforts proved
unsuccessful. Nonetheless, to this day, Defendants continue to fail to abide by the
approved site plan conditions, and/or all of the provisions of the Consent Order. At
trial, Defendant Duchaine blamed other for their troubles and misunderstandings,
including former lawyers, Town enforcement officers, her knowledge ofthe Consent
Order, representatives of Town Boards and officials, all without credible evidence.
The Court concludes Ms. Duchaine was not a credible witness on these issues.

In the end, we are left with umepentant Defendants who believe they can
selectively decide what conditions associated with their site approval and Consent
Decree apply; and will continue to resist compliance until the Town agrees to their
demands. Sadly, this firmly held but misguided view of this situation remains
unaltered to this day and is unlikely to change without significant Court intervention.

The Court concludes that Plaintiff met its burden to demonstrate that
Defendants are in violation of several aspects of the Consent Order. Accordingly,
the Court grants the following relief:

I. Within sixty (60) days of the date of this Order, Defendants shall
complete the remaining Item #2 and Item #5 and apply for a certificate
of occupancy from the Town's Code Enforcement Officer or his
designee.

2. Defendants shall cease any outside storage on the Propetiy
immediately, including storage of materials in the unenclosed
"overhang" portion of the storage garage.

3. In accordance with Paragraph 6 of the Consent Order, Defendants shall
pay to the Town the suspended civil penalty of $10,000.

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4. In accordance with Paragraph 9 of the Consent Order, Defendants shall
pay to the Town an additional civil penalty of$133,100. 7

5. In accordance with Paragraph 9 of the Consent Order, Defendant shall
pay the Town an additional amount representing the reasonable
attorney's fees and costs incmTed by the Town in bringing its Motion
to Enforce Consent Order. Based on the submission of the Town, and
without opposition filed, the Court awards the Town $20,000.00 in
attorney's fees and costs to date. Defendants shall remit this sum within
thirty (30) days of the date of the Court's order on the Town's
application.

6. The civil penalty and attorney's fees payments imposed by Paragraphs
3-5, above, shall be paid by check made out to the "Town of Gorham,"
and shall be mailed or hand delivered to Town of Gorham, c/o Town
Treasurer, 75 South Street, Suite 1, Gorham, ME 04038-1382.

7. Upon any failure of Defendants, or their principals, heirs or assigns, to
perform the work required by Paragraph 1 of this Order by the date
specified, or failure to cease outside storage under Paragraph 2,
Defendants may still be held in violation of the Order and may be liable
to the Town of Gorham for (a) an additional civil penalty in the amount
$100 per day for each day the violation continues; and (b) such further
relief as a court may deem appropriate, including, without limitation,
injunctive relief and payment of attorney's fees and costs incmTed by
the Town to bring a motion to enforce this Order.

8. Upon any failure of Defendants, or their principals, heirs or assigns, to
pay the sums specified in Paragraphs 3-5 of this Order, the Town may
obtain a writ of execution for the remaining amounts outstanding under
the terms of this Order upon the submission of an affidavit from the
Town's Treasurer setting forth such remaining amounts outstanding.
The Clerk is hereby authorized and directed to issue a writ of execution
upon receipt of such affidavit.

Paragraph 9 imposes a $100-per-day penalty "in the event that Defendants fail or refuse to comply with
any of the terms of this Consent Order. ... " (Pl.'s Ex. 5 at 4.) The four violations identified above have
varying lengths (sliding doors = 1,241 days, landscaping= 1,146 days, cettificate of occupancy= 1,331
days, and outside storage= 1,142 days). The Coutt calculates the penalty using the greatest of the four
violations.

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9. At the expiration of sixty (60) days, if items #2 and #5 have not been
completed, Defendants are enjoined from using the propetiy for any
commercial purpose until such conditions have been met.

10. This Orde: shall be inc orp~·ated
to M.R. C1v. P. 79(a).
b;.~Jl~~
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on the Dqcket pursuant
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DATEc No,cmbec I 0, 2021 '· ;J J,~ _ <:;C
Pe e'r Goranites '
Judge, Maine District Court

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