Late last week a superior court judge ruled in favor of Haines’ Paul Nelson, who appealed a decision by the Haines Borough regarding a 2014 nuisance abatement order. The case has dragged on, and now Nelson will be refunded a $600 fine he paid nearly two years ago.
Superior Court Judge Philip Pallenberg sided with Nelson, stating that the Haines Borough violated its own code when it came to dishing out fines and deadlines.
It all started back in 2002, when Nelson became concerned about an abundance of solid waste in the borough. He started Acme Transfer Company, Inc., and collected local refuse at a transfer station before relocating it out of Haines. He had a recycling program, too – crushing aluminum cans and putting them in containers bound for Seattle. When it came to glass, he says he found a solution he thought would take care of the mound of bottles, jars and the like.
“And in communication with DEC, we found that DEC was OK with using glass as fill and it did not require a landfill permit. So, we began taking clean glass at no charge and crushing the glass,” Nelson says.
Nelson says the regulations from the Department of Environmental Conservation didn’t specify the size that the glass had to be crushed to, so he smashed it all down using heavy equipment and didn’t give it a second thought.
In 2014, Nelson used the crushed glass as fill on the site he was building his house. His neighbors complained to the borough that he was using garbage. The borough ticketed him $300 and issued him a nuisance abatement order because, Nelson says, they didn’t think the glass was crushed small enough. He appealed to the assembly, but they told him the glass, with the exception of that which had been used as fill in the foundation, had to be removed. They gave him 10 days to comply from the June 10 hearing.
According to court documents, on June 24, 2014, the assembly adopted the resolution upholding the abatement order. It took Nelson 14 days to complete the task, and so he was fined $300 a day, resulting in a total of $1,200.
There are a couple of things wrong with the borough’s actions: They continued to fine Nelson even though daily citations were not issued. The fine is $300 per inci dence, Nelson says, and only one notice of violation was issued. The other facet of the ruling that came into question stemmed from the deadline given by the borough. The clock should have started ticking when the assembly adopted the resolution to uphold the nuisance order. But instead it started before that, after the appeal hearing, two weeks prior.
In his decision, Judge Pallenberg wrote “I do not view this provision as permitting the Assembly to require abatement by a time that has already passed when the resolution is adopted.”
During the time between when the fines were handed out and the spring of 2015, the building permit Nelson needed to continue building his house, expired. The borough refused to renew it until he paid the $1,200, which he did under protest. In the spring of 2015, Nelson appealed to the assembly again citing due process and equal protection violations. The assembly, after going around and around with a few failed motions, agreed to cut the $1,200 fine in half and return $600.
“At no time did I get the feeling that the assembly or the manager referred to the Code. Basically, I had to go to court to get them to comply with their own rules,” Nelson says.
Nelson filed the appeal in court in August, 2015. And with last week’s superior court ruling, the other $600 will be returned to Nelson.
The borough’s lawyer did not file a brief in this case. Interim manager Brad Ryan said the borough had no comment.
Now Nelson is going after the borough for court fees and lawyer costs, which he says total around $6,000.
“You know, it was not the money, it was the fact that I refuse to have my rights violated. And I refuse to have them not comply with their own laws. I just can’t live that way,” he says.
Nelson attends a lot of borough meetings. And he speaks out, mostly about individual and constitutional rights. And now, he says, he feels he’ll have a better foothold when declaring his or others in the community have had their rights violated.