St. Hillaire v. City of Auburn

STATE OF MAINE SUPERIOR COURT

ANDROSCOGGIN, 58. CIVIL ACTION

DOCKET NO. AP-00-18

CLEMENT ST. HILLAIRE and

TIMOTHY ST. HILLAIRE,

Petitioners, RECEIVED & FILED

“ 31 2001 ORDER

SCOGGIN

CITY OF AUBURN S ABGaT

Respondent.

BACKGROUND

Clement St. Hillaire is the owner of real property located at 1133 Center

Street, abutting the Body Max property. Timothy St. Hillaire, Clement St. Hillaire’s

son, leases the property from his father. One or both of the St. Hillaires have resided

at the 1133 Center Street property since the 1980s. In keeping with its plan to

redevelop an existing building located at 1125 Center Street, Auburn, into an auto

body repair facility (“the Body Max Property”) Body Max Auto Repair Facility and/or

Raymond Clavette (“Body Max”) made a Special Exceptions Request (“the Request”)

to the City of Auburn Planning Board (“the Board”) pursuant to Section 3.62(B)(2)(d)

of the Auburn Zoning Ordinance (“AZO”). On August 8, 2000, after a public hearing

in which the Petitioner Timothy St. Hillaire participated, the Board approved Body

Max’s Request.

On September 7, 2000, Timothy St. Hillaire, acting pro se, filed a petition for

review of the Board’s Decision entitled, “Appeal Action,” in the Superior Court,

pursuant to M.R. Civ. P. 80B and Section 7.3 of the AzO.'! Both the City and

Timothy St. Hillaire have submitted timely briefs and, after several motions to

compel, a transcript has been provided.

In addition, Timothy St. Hillaire filed a “Motion for Trial By Jury” pursuant

to MR. Civ. P. 80B(d) on October 10, 2000. In his motion, he submitted an offer of

proof, alleging that:

the City of Auburn Planning Department and Enforcement have no interest

in protecting the rights of Abutters and Strict Compliance with Auburn

Zoning Ordinances Chapter 7 and Chapter 5. .. . Mr. Clavette’s application

lacks that necessary information to insure that he will not adversely effect [sic]

the Adjacent areas. The surveys, maps and assessment cards will show that

the applicant’s Agent (Surveyor) was knowledgeable of the area prior to this

job and yet excluded relevant information in an effort to promote his client.

Motion for Trial by Jury at 3. On October 24, 2000, the Superior Court (Delahanty, J.)

denied the motion “subject to timely motion and full compliance with Rule 80B(d),

M.R. Civ. P. and opportunity of defendant to respond and be heard.” Order on

Motion for Trial by Jury.

Timothy St. Hillaire did not file an amended motion for a trial of the facts

pursuant to the court’s October 24, 2000 Order. However, he filed a motion for relief

of that Order.

On December 14, 2000, Timothy St. Hillaire filed a document entitled “Power

of Attorney,” whereby Clement St. Hillaire granted Timothy St. Hillaire the right to

“manage and control” the business and affairs with respect to his property. In

‘That petition, like many of the other documents in the file, also purports to contain Clement

St. Hillaire’s signature.

addition, the document purported to grant Timothy St. Hillaire the authority to

represent Clement's interests in court. The document states in relevant part:

I, Owner of Property at 1133 Center Street, Auburn, Maine 04212 Designate

my Son, Timothy L. St. Hillaire and Appointing the Power of Attorney in Fact

in the Role of Manage the cause in this Court as He is the Lease Holder with

the Exclusive Possession to Defendant in Court under M.R.S.A. Probate Code

Title 18 A § 5-507 Power of attorney in Fact.

THAT I, Designate Timothy L. St. Hillaire as Attorney in Fact that will

manage and control the handling of all the Principal Business as the Personal

Affairs at 1133 Center Street Auburn, Maine 04212, In This Court in a

Complete Manner as Specific Power Granted as “Fiduciary Duty” as the

Principal.

The “Fiduciary Standards” will be observed by Timothy L. St. Hillaire as a

prudent person dealing with the property of another in Court.

Power of Attorney. The document was signed by Clement and two witnesses before ©

a Notary Public in York County.

DISCUSSION

In his petition, Timothy St. Hillaire alleged that the Body Max property has

caused, does cause, and will continue to cause injury to his father’s property due to

Body Max’s operation of its auto repair facility. More specifically, he alleged the

following injuries: (1) erosion to his father’s property due to surface water drainage

from the Body Max property; (2) a potential for contamination of the surface water

by toxic automobile fluids; and (3) a “real potential” for particularized injury from

emissions, excessive noise, and dust, all of which will decrease his quality of life and —

negatively affect the value of his father’s home.

Timothy St. Hillaire claims that the Board erred in concluding that Body Max

adequately provided for surface water drainage; erred in granting Body Max’s

Request because of the potential for unhealthy and offensive odors from “down

drafting”; and erred by approving it despite possible “detrimental uses or offensive

uses.”

TImothy St. Hillaire, the lessee of his father’s property, also asserted that the

Board inappropriately granted the Request to a lessee, and should have required the

owner, Lake Superior Corporation, to make the Request. In addition, Mr. St.

Hillaire claimed that the Board deprived him “of liberty and property without due

process of law and denie[d him] the equal protection of the law” under the 14th

Amendment to the United States Constitution.

In its brief, the City urged the court to dismiss the appeal because Mr. St.

Hillaire failed to join the permittees, Body Max and/or Raymond Clavette, as

necessary parties pursuant to MLR. Civ. P. 19. However, the City also addressed the

merits of the claim, noting that no external changes had been made to the property,

and that Mr. St. Hillaire’s claims were essentially enforcement issues that were not

properly before the court. The City argued that Mr. St. Hillaire had waived any

constitutional claims by failing to raise and argue the claims in his brief. Each issue

is addressed below.

I. Power of Attorney

As a preliminary matter, the court finds that Clement St. Hillaire’s Power of

Attorney does not grant Timothy St. Hillaire the authority to represent Clement's

interest in this action. The Law Court has recently held that Maine’s Unauthorized

Practice of Law statute, 4 M.R.S.A. § 807, does not allow attorneys-in-fact to appear in

court on their principal’s behalf. See Haynes v. Jackson, 2000 ME 11, {| 12, 744 A.2d

1050, 1053(holding that wife could not represent husband’s interest in lawsuit); see

also Boyer v. Boyer, 1999 ME 128, 4 n.2, 736 A.2d 273, 275 n.2 (giving no effect to

response to motion for summary judgment filed by father of minor child, where

father was not a party to the case). This policy serves the “protection of the client,

the general public, and the courts.” State v. Simanonok, 539 A.2d 211, 212-13 (Me.

1988)(holding that personal representative of an estate could not represent the estate

in court).

In this case, the Power of Attorney was filed with the court on December 14,

2000. Although Clement’s purported signature appears on all court documents filed

before that date before that date, Clement was not present at the administrative

hearing, and has never appeared in court. The court has disregarded any pleadings

or memoranda filed by Timothy on behalf of Clement. Because Clement has not

individually filed a timely brief on his own behalf and because he failed to appear at

oral argument, the appeal to the extent it concerns Clement's individual interests is

dismissed.

II. Failure to Join Necessary Parties

As noted above, the City argued that Mr. St. Hillaire’s appeal should be

dismissed because he failed to serve and join Raymond Clavette and/or Body Max

as necessary parties to the appeal. Pursuant to M.R. Civ. P. 80B, a permittee is a

necessary party to any action. See Booker v. Town of Poland, 599 A.2d 812 (Me.

1991). Despite this requirement, both the City and Mr. St. Hillaire agreed to waive

this procedural challenge. Mr. St. Hillaire also asserted that he had given sufficient

notice to Body Max by sending copies of various documents. The City argued that

Mr. St. Hillaire’s appeal was without merit and that, therefore, there would be no

harm to Body Max. Because the City is correct, the court has addressed the merits of

the appeal.

Il. Trial of the Facts

Mr. St. Hillaire contends that his Motion for Relief from the October 24, 2000

Order denying his motion for a trial of the facts, is unopposed, and therefore, a trial

is warranted. The Maine Rules of Civil Procedure provide that “[a] party failing to

file a timely memorandum in opposition to a motion shall be deemed to have

waived all objections to the motion.” MLR. Civ. P. 7(c)@). That Rule, however, does

not preclude the court from denying the motion if it is without merit or if the

moving party otherwise failed to follow the proper procedure.

In this case, the initial motion for a trial of the facts did not seek to introduce

evidence of sufficient particularity relating to any alleged procedural irregularity in

the Board proceedings such as illegal executive sessions, ex parte communications,

bias or conflict of interest. Rather, Mr. St. Hillaire attempted to retry facts that were

tried or could have been tried before the Board. Therefore, the denial of the motion

for a trial of the facts was proper. See Baker's Table, Inc. v. City of Portland, 2000 ME

7,19, 743 A.2d 237, 240-41.

Although the court provided Mr. St. Hillaire an opportunity to file an

amended motion for a trial of the facts, he failed to do so. The Motion for Relief,

filed without an offer of proof setting forth facts with particularity is simply

insufficient. Because the original denial was proper, and because Mr. St. Hillaire

failed to an amended motion, the court denies Mr. St. Hillaire’s Motion for Relief.

IV. Due Process, Equal Protection and Federal Law Claims

Mr. St. Hillaire has contended that Mr. Clavette and/or Body Max failed to

disclose the repair shop’s expected volume of paint usage to the Board in violation

of “Federal Law.” However, he failed to cite any authority to support this assertion.

Furthermore, any claims based on federal statutes or regulations should have been

brought as independent claims. The Board would not have had jurisdiction to

address those issues.

Mr. St. Hillaire also alleged that he was deprived of “liberty and property

without due process of law” and that he was denied equa! protection of law under

the 14th Amendment to the United States Constitution. In his brief, however, he

did not articulate the specific basis for these Constitutional claims. At best, he

addressed these issues in a perfunctory manner. Therefore, the court dismisses

these claims. See United States v. Zanino, 895 F.2d 1, 17 (ist Cir. 1990)(issues averted

to in a perfunctory manner, unaccompanied by some effort at developed

argumentation, are deemed waived); New England Whitewater Ctr., Inc. v. Dep't

Inland Fisheries and Wildlife, 550 A.2d 56, 60 (Me. 1988)(pro se litigants are not

afforded special consideration).

V. Special Request Permit’s Compliance with AZO Requirements

As mentioned above, Mr. St. Hillaire alleged that the following problems

violated some provisions of the AZO: (1) potential emissions from spray booths on

the Body Max Property; (2) existing water drainage that runs from the Body Max

Property onto the his father’s property; (3) potential contamination of the drainage

with radiator fluid, oil, and gas; (4) lights from the vehicles beaming onto his

father’s property; (5) excessive noise; (6) unhealthy dust; and (7) general depreciation

in the value of his father’s property. Each concern is addressed below.

_ A. Emissions

Mr. St. Hillaire contended that Body Max has failed to provide for proper

protection of abutting properties from emissions. Article 7.4 of the AZO

contemplates that any potential emissions problems caused by the use of spray

booths would be addressed in the subsequent building permit application process.

Emissions are not addressed in the Special Exception hearing. Mr. St. Hillaire

argument is without merit.

B. Existing Drainage

Mr. St. Hillaire contended that the Request should have been denied because

of water drainage. The court disagrees. The Board determined that drainage would

occur whether the Body Max Property was used for an auto repair facility or not. The

issue addressed by the Special Exceptions hearing was the use of the building, not

the building itself. Furthermore, the requested use does not change the drainage

situation.

C. Other Potential Offensive Uses

Mr. St. Hillaire also stated his concern for many potential problems:

unhealthy dust, noise, light and contamination of water drainage. However, these

are all enforcement issues. The Board cannot deny a Request based on possible

problems that might occur at some unknown time in the future. Rather, its focus is

the prevention of imminent and probable injuries that will result from a particular

use.

Should problems arise in the future, the owner of the property would be able

to seek enforcement of applicable ordinances, laws and regulations by filing a

complaint with the Auburn Code Enforcement Officer, or filing a complaint with

the Department of Environmental Protection, or initiating private litigation. In

addition, many or these concerns will - or have been - addressed as building permit

issues. Therefore, the court rejects any claim based on potential offensive uses.

D. Depreciation of Value

It does not appear that the City presented any evidence as to the devaluation

of Clement St. Hillaire’s property. However, only Clement St. Hillaire owns the

property, and he is not a party to this appeal. Therefore, the court deems this

argument waived.

ORDER

Clement St. Hillaire’s Appeal is Dismissed. The Board’s Decision is

Affirmed with respect to Timothy St. Hillaire’s Appeal.

This Order to be incorporated into the docket by reference in accordance with

M.R. Civ. P. 79(a).

DATED: August 31, 2001

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