Last month the Maine Supreme Judicial Court decided a dangerous building case, Beale v. Town of Stockton Springs, 2017 ME 6. This case is noteworthy for a municipal attorneys, code enforcement officials, and municipal legislative officers, who often have to deal with unsound structures in their community, as well as anyone who appears before administrative tribunals in an evidentiary hearing, for its reaffirmation of the notion that due process does NOT require the right to cross examine witnesses in every administrative proceeding.
The Dangerous Building Statute – A Key Tool for Cities and Towns
Maine’s dangerous building statute, 17 M.R.S. §§2851-59, is a key tool in the fight against blight, and in protecting the lives of first responders who may be asked to enter structures that are in bad shape. The statute allows the municipal officers to order the owner of a property deemed to be dangerous to the hazardous conditions on the property and if the property owner fails to do so within the time ordered by the municipal officers, the city or town itself can either make the repairs or can even demolish the structure altogether. The process requires notice to the property owner and all persons with an interest in the property (i.e. mortgagees), recording notification in the registry of deeds, and holding a public hearing to determine whether, in the municipal officers’ estimation, the property is “structurally unsafe; unstable; unsanitary; constitutes a fire hazard; is unsuitable or improper for the use or occupancy to which it is put; constitutes a hazard to health or safety because of inadequate maintenance, dilapidation, obsolescence or abandonment; or is otherwise dangerous to life or property.”
If a property owner fails to comply with the order of the municipal body, a city or town can take the matter into its own hands, and can even demolish the property if necessary. The costs of doing so are then assessable against the property owner as a special property tax. That makes this a very powerful tool, and one we have used effectively with our municipal clients. However, as this also involves a “taking” of the owner’s property, no matter how dilapidated it may be, the municipality needs to comply with the constitutional right to due process.
But . . . Constitutional Questions Can Arise
In the Beale case, the property owner raised two due process arguments on appeal. First, she argued that she was denied due process of law because during the first session (the hearing was continued several times), the board did not allow her attorney to cross examine witnesses. Second, she argued that she was denied due process because members of the board who had previously stated that they thought the property ought to have been condemned, refused to recuse themselves from the dangerous building hearing. The court quickly dispatched these arguments, on the strength of the multiple sessions held by the board. During two of those sessions, she was in fact permitted to cross-examine witnesses (likely on the advice of the board’s attorney after the first session). In light of these facts, the Law Court saw “no reason to disturb years of precedent that does not require that boards provide the opportunity for cross-examination at every local administrative hearing.” The Court also held that the board members were not required to recuse themselves, notwithstanding the comment about the property being “condemned,” because at the time the comment was made, the Town and the owner were in negotiations toward a consent agreement, (which ultimately proved unsuccessful), and because the board had pledged on the record, to decide the matter on the evidence submitted not based on past comments.
Take-Aways for Municipal Leaders
In Maine’s small towns, municipal officials wear lots of hats, and often cannot set aside impressions that they form about matters that will come before them. However, this case nicely illustrates how a careful approach, with the right input from experienced municipal counsel, can make a big difference in the outcome. The Town did a couple of things right here. First, it continued the hearing after its first session in November, rather than closing it. That gave the board a chance to talk to their lawyer, and to reopen the evidentiary record at a later date, all while treating those sessions as part of one hearing. Second, they consulted with their lawyer about their rights and duties, and took the more cautious approach of allowing the owner the right to examine witnesses at subsequent sessions (a right she never exercised).
Sometimes, a dangerous building hearing can’t wait. When the situation is so dire, a six to seven month process may be too long. I’m not suggesting all dangerous building hearings need to be conducted over multiple sessions. But when the municipal officers take their time, and make the extra effort to talk to their lawyer, carefully consider the evidence, and give an owner the opportunity to be heard, they really increase the odds of getting it right. Well done, Stockton Springs.