A Superior Court judge last week ruled the Haines Borough violated its own code last year when it fined a Skyline Estates property owner $600 for failing to meet a deadline for removing improperly-processed glass fill from his property.
Resident Paul Nelson was initially fined $300 for using the glass fill and given a 10-day period to remove and dispose of the fill. Former manager David Sosa then attempted to fine Nelson an additional $1,200 for his failure to meet the deadline, but the assembly ultimately cut that figure to $600 when Nelson appealed Sosa’s decision.
Still, Nelson was convinced the borough wasn’t allowed by code to fine him beyond the initial $300, and he appealed to the Superior Court. Last week, judge Phil Pallenberg issued a decision backing up Nelson’s interpretation of code and ordering the borough to refund the $600.
“The code clearly sets a maximum fine of $300 per violation. There is no provision of code allowing an additional fine of $300 for each day that violation lasts,” Pallenberg wrote.
The borough has spent about $3,500 on its own attorney fees in the case, said chief fiscal officer Jila Stuart.
The borough could have argued that the greater penalty was justified because of the continued violation – i.e., Nelson’s failure to clean up the glass – but there are two problems with this argument, Pallenberg said: Nelson was only given one notice of violation, and the borough gave no reason why a day is the appropriate unit of time on which a new violation arises.
“It could just as well be a new fine for each month, or week, or hour or minute, for which the failure to comply continues,” Pallenberg wrote. “Absent any justification in the code for choosing a day as the appropriate time period, this is an entirely arbitrary unit of time to choose. The borough cannot simply decide to exceed the maximum authorized fine based on its arbitrary selection of a time period for doing so.”
Pallenberg also determined that the borough again broke code by setting an improper deadline. Borough code sets out a time period of at least 30 days for remedying a nuisance situation. Nelson was given 10.
When Nelson addressed the assembly to appeal the $1,200 fine for missing the deadline, several assembly members – Ron Jackson, Mike Case, and George Campbell – agreed with Nelson’s interpretation that code didn’t allow for fining on a per-day basis.
Campbell said at the time that anything other than a $300 fine would be “mistreating the public, because we’ve got to do what we say.”
Though he will get his $600 back, Nelson said in an interview this week he spent far more than that on attorney fees, which he is going to try to recoup from the borough.
Regardless of whether he gets reimbursed for the fees, though, Nelson said the suit was about the principle of the borough violating its own code, not the money.
“I’m not gaining anything financially, but I feel like I gained my right to be able to say, ‘Whoa, wait a minute. I comply with the law, now you comply with the law,” Nelson said.
Nelson said he hopes the court’s finding emboldens others to stand up to the borough if they feel their rights are being violated.