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APPELLANTS’ MOTION FOR RECONSIDERATION (M.R.App.P. 14(b))

MAINE SUPREME JUDICAL COURT Decision No. Mem 20-30

Sitting as the Law Court Docket No. Aro-19-97

Richard Cayer, et al.

(Appellants)

APPELLANTS’ MOTION FOR

RECONSIDERATION

(M.R.App.P. 14(b))

Town of Madawaska

(Appellee)

APPELLANTS, pro se, respectfully move pursuant to M.R.App.P. 14(b) that the Law Court reconsider its Memorandum Decision, decided March 10, 2020, and state the following in support of this Motion:

1. Law. Rule 14(b) of the Maine Rules of Appellate Procedure provides as follows:

(1)(A) A motion for reconsideration of any decision of the Law Court, together with the fee specified in the Court Fees Schedule, shall be filed with the Clerk of the Law Court within 14 days after the date of that decision.[[1]] The motion shall state with particularity the points of law or fact that the moving party asserts the Court has overlooked or misapprehended and shall contain such arguments in support of the motion as the moving party desires to present. An original and 7 copies of the motion and any supporting papers shall be filed and shall conform to Rule 10(d).

(B) No response to a motion for reconsideration shall be filed unless requested by the Law Court. The motion is not subject to oral argument except by specific order of the Court.

(2) A motion for reconsideration will not be granted unless ordered by a Justice who concurred in the decision and who acts with the concurrence of a majority of the Justices who participated in original decision and remain available and qualified to act on the motion.

(3) If a motion for reconsideration is granted, the Law Court may make a final disposition of the cause without re-argument, may restore it to the calendar for reconsideration, or may make such other orders as are appropriate. Frivolous or repetitive motions for reconsideration may result in the imposition of appropriate sanctions.

The Memorandum Decision in this case was issued by a Panel composed of Chief Justice Saufley, and Justices Mead, Gorman, Jabar, and Humphrey. Justices Alexander and Hjelm participated in the appeal, but retired before the opinion contained in the Memorandum Decision was certified.

2. Argument. The Law Court should reconsider its Memorandum Decision and grant our appeal because it overlooked and/or misapprehended important and dispositive points of law and fact, which, if not so overlooked and/or misapprehended, would result in the Law Court’s granting of our appeal, and preserving and protecting our vested and constitutional rights to our building permits and the use and enjoyment of our real property.

A. Points of fact overlooked and/or misapprehended by the Court.

We believe that the Court overlooked and/or misapprehended the following facts related to our building permits and the manner and timing of our construction work done at our property: In the Memorandum of Decision 20-30 Aro-19-97 issued by the Maine Supreme Court on 3-10-20, the court erroneously claims, that we appealed a Superior Court Summary Judgement based on the vested rights of a 2008 permit issued to us (the Cayers) without any evidence in the record that there was a permit issued in 2008, and based the Law Court decision on that false undisputed material fact. It is an undisputed Material Fact between us and the Town, that nowhere in any record did we ever claim to have received, or the Town has ever claimed to have issued us a building permit for a camp on lot 468, in 2008. It is an undisputed material fact that a letter was issued from CEO Ouellet dated April 26, 2012 stating, “[I] reviewed your file and did not find a land-use permit issued for this lot. Therefore, I am considering this request as a new application and not a continuous.” These undisputed facts are from the building violation brought by the Town against us, that was Dismissed with Prejudice, and cannot be relitigated by virtue of Res Judicata. Moreover, the brief of appellee, by Jonathan P. Hunter, second paragraph states, “[O]n January 19, 2017, the Cayers brought this action seeking a declaratory judgement that their permits issued in 2012 and 2013, remain valid.”

It is also an undisputed material fact that all of the 2012 and 2013 substantial construction of the 20 foot high, two-story steel framed building with floors, professionally built flat commercial roof, and modified mobile home, at a total cost of well over $40,000.00 was completed pursuant to two legally issued 2012 permits, and one 2013 permit, [7] by the same CEO, Robert Ouellet, was legal and also was dismissed with Prejudice on the merits, by Justice Stewart, and also cannot be relitigated.

At a September 2016 pre-trial conference, the Town was represented by attorney Richard Currier, and Town Manager Ryan Pelletier. After three (3) years of defending this meritless lawsuit, the Town attorney Currier and Ryan Pelletier pressured us to Dismiss with Prejudice, to which we agreed in September 2016.[2] It was also understood at the dismissal with prejudice that we would file a tort action against the Town and its employees for filing these meritless lawsuits against us. This understanding of a tort action clearly shows no intent or agreement to work with the Town, “[t]o bring the property into compliance,” as fraudulently claimed by town attorney Jonathan P. Hunter, CEO Andrew Dube, and past Town Manager Ryan Pelletier. M.R.S.A. Title 38. §443-A. (3) Cooperation; enforcement requires the town to enforce the statute or face severe penalties. [8][2][3][4] Therefore, our property must be in compliance, otherwise the Town could not dismiss with prejudice, without the Attorney General’s permission. M.R.S.A. Title 38. §443-A. (2)

“[R]es judicata; or claim preclusion, and issue preclusion, bars relitigation of a cause of action between the same parties or their privies once a valid final judgement has been entered in an earlier suit on the same cause of action”. See Beegan v. Schmidt, 451 a.2d 642, 644 (Me. 1982) The Dismissal with prejudice was decided on the merits of the case. Issues of whether permits were in violation, legal, illegal, vested, or expired are legal issues properly adjudicated with the Dismissal with Prejudice and are barred from relitigation because these questions could have, and should have been decided, before the dismissal with prejudice. We believed the following statement by Town manager Ryan Pelletier to be true. It is also an undisputed fact that the Town manager,

Ryan Pelletier said in a statement to the SJVT April 12, 2017, “[T]he courts dismissed the code violation case with prejudice in September, at the request of the town. The ‘with prejudice’ condition means that the town may bring no further legal action against the Cayers for the original alleged code violations.” “[I]t was a good faith effort to put the past behind us and to move forward for the betterment of the community”. [2]

Less than 2 months later, Town Manager Pelletier willfully commits fraud on the courts in his affidavit of June 6, 2017 when he claims, on line 16, “[T]he Town agreed to dismiss its pending enforcement actions against Plaintiffs in the hope that the parties could work together to bring the Property into compliance.”[8][2] And the Town Manager, Pelletier, commits fraud on the courts again on line 5. of his sworn affidavit to the Supreme court when he claims, “[N]o record exists of a meeting of the Board of Selectmen on June 27, 2013”. We have the town minutes (a Town record), a video, and an audio recording of that selectman meeting of June 27, 2013. [2][3]

This willful fraud on the court is also exposed in the SJVT article,[2] and is repeated by Jonathan P. Hunter, Esq. (Bar No. 4912) in his Statement of Facts and Procedural History on P.3 in the first paragraph where attorney J. Hunter states under oath, “[T]he Town agreed to dismissal in the hope that the parties could work together to bring the Property into compliance.” See M.R.S.A. Title 38. §443-A. (3) Cooperation; enforcement.

2 The town manager Ryan Pelletier stated in an email to the Saint John Valley (SJVT) times, on 4/11/2017, “[T]he courts dismissed the code violation case with prejudice in September, at the request of the town. The ‘with prejudice’ condition means that the town may bring no further legal action against the Cayers for the original alleged code violations.” “It was a good faith effort to put the past behind and move forward for the betterment of the community.”

And, the second paragraph starts off by stating “[O]n January 19, 2017, the Cayers brought this action seeking a declaratory judgement that their permits, issued in 2012 and 2013, remain valid.” (A. 2, 16-23.) This fact is also more dispositive proof that we did not rely on a 2008 permit as claimed in the Law Court decision.

Now, the Town’s new councel Ed Bearor, attorney Jonathan P. Hunter, and the new CEO Dube, wish to re-litigate the Superior court decision of September 2016 in which they did not take any part in and are intentionally falsifying the record.

Attorney Hunter and CEO Dube also willfully make false claims in the statement of facts, that they have no firsthand knowledge of, such as, what the town agreed to at the dismissal with prejudice.[3][5] This cannot be allowed, especially as in this instant case; there were, and still are, issues of material facts of Due Process Constitutional rights violation because we were denied a hearing with the illegal Stop Work Order.

These issues can only be determined with a trial of the facts that we expect to have with our tort filing. CARSC-CV-2018-135[5][6][7] See Frank Draus Jr. v. Town of Houlton et al. Aro-98-529 April 2, 1999

3 The Town Manager Pelletier also lied again in line 16. when he claims in a sworn affidavit. “[T]he Town agreed to dismiss its pending enforcement actions against Plaintiffs in the hope that the parties could work together to bring the Property into compliance.”

4 The SJVT continues, “[S]ince then, town and new code enforcement officer, Andrew Dube, have declined to reinstate the original building permit. The town has declined to approve the building project the Cayers want to complete, according to Dube.” The SJVT continues, “[H]e would be uncomfortable reissuing a permit that old and one that another CEO previously approved.”

5 The Town has a history of doing this to us as we have pointed out in our ongoing complaint based partly on this lawsuit, to the Board of Overseers of the Bar against attorney Richard Currier for lying to the court falsely claiming that we had a hearing, inter alia. SEE; GCF #20-026- Richard Cayer v. Richard Currier. Letter to Chief Justice Cole July 21, 2019.

B. Points of law overlooked and/or misapprehended by the Court.

We believe that the Court overlooked and/or misapprehended the following points of law related to our vested permit rights and the doctrine of estoppel that should have been applied to our building permits and the related approvals involved in our proposed construction project:

Estoppel: The Town cannot litigate a position when that position is inconsistent with the Town’s earlier conduct, (in the Dismissal with Prejudice and vested building permits), which we have detrimentally relied upon to continue building with vested permits.[2]

Judicial Estoppel: The Town cannot unfairly take factual positions in litigation that are inconsistent with previous positions that the Town had taken in prior judicial proceedings.[2][4]

The Illegal Stop Work Order is a violation of our 14th Amendment Constitutional Right of Due Process. We assert that the illegal Stop Work Order issued by the CEO and the Town in 2013, and was allowed to continue illegally, in essence, revoking the vested permits without a hearing. This is a violation of our 5th and 14th Amendment Property, and Due Process Rights. See, People v. Miller. The Town’s CEO, Ouellet, is authorized to issue a notice of violation, but the SZO does not explicitly authorize the separate issuance of a Stop Work “Order”. See Marshall v. Town of Dexter: 2015 ME 135 Pen-14-440 10/11/2015. Like Marshall v. Town of Dexter. There is no provision in the Madawaska SZO for the CEO to issue a Stop Work “Order”.

8 Title 38. §443-A. 3. Remedies. Any municipality that fails to adopt, administer or enforce zoning and land use ordinances as required under this article is subject to the enforcement procedures, equitable remedies and civil penalties set forth in sections 347-A to 349.

Moreover, unlike Dexter, we cannot appeal the CEO’s decision to the board of appeals; See Madawaska, Me., SZO 16(H)(1)(a) Administrative Appeals: Any order, requirement, decision or determination made, or failure to act, in the enforcement of this ordinance is not appealable to the Board of Appeals (BOA). Whenever a permit holder either has vested rights, or has a permit that is beyond the 30-day appeal period, that permit holder is entitled to a hearing before it is revoked. see Mad. SZO 16.I.(3) Legal Actions. This 16(H)(1)(a) Administrative Appeals stipulation in the town ordinance denies its citizens the legal mechanism to request an appeal by the Madawaska BOA for a Hearing, after the 30-day appeal period has passed, and is therefore, unconstitutional.

When used in this way, with an illegally issued Stop Work Order without Due Process or a Hearing; the Madawaska SZO 16.H(1)(a) is unconstitutional, and violated our procedural Due Process Right to appeal an illegal “Order” to Stop work with vested permits, beyond the 30-day appeal period, without a hearing. See Howe Realty Co. v. City of Nashville, 141 SW 2d 904 (1940). See Handbook for Local Code Enforcement Officers. (July 1988) Page 33. C. Permit Revocation, and No. 2 on page 32, for a “Stop work” Notice.

“[G]enerally, the code enforcement officer may not revoke a permit, unless an ordinance specifically grants that power to the CEO and also provides a right to appeal the decision to revoke to a local appeals board”. Cf., Howe Realty Co. v. City of Nashville, 141 SW2d 904 (1940) P.33 HANDBOOK FOR LOCAL CEO. [6][7]

The CEO did not have the legal authority to serve a Stop Work “Order in the manner that he applied the SWO in 2013; as a permanent injunction without a hearing. A “stop work” Notice is used simply to provide a notice to someone who cannot be reached otherwise, and is a note usually nailed to a tree. See “Stop Work” Notice from the HANDBOOK FOR LOCAL CODE ENFORCEMENT OFFICERS Appendix E Sample Forms. Page E-12. Stop Work Notice. [I]f the person conducting the activity is unavailable, the CEO should post a “stop work” Notice in a conspicuous place on the property on which the violation exists.

Therefore, the Law court overlooked and/or misapprehended its interpretation of §16(I) Enforcement, when the Law court claimed “[F]urther, contrary to the Cayers’ contention that their permits cannot be “revoked or terminated” until the Town’s alleged violations “are proven through proper legal proceedings with due process”, the Town and its CEO had the authority to enforce the provisions of the SZO against alleged violation.”

6 “[I]n this case, the stop work order, if issued because the work permit obtained by Juliano was invalidly issued, is in essence a challenge to the former Code Enforcement officer’s decision to issue the building permit. Considered as an appeal from a prior decision of a Code Enforcement officer, the stop work order was issued nearly two years after the permit was granted and was not timely due to the thirty-day appeal period specified in the ordinance.” We have noted that “[s]trict compliance with the appeal procedure of an ordinance is necessary to ensure that once an individual obtains a building permit, he can rely on that permit with confidence that it will not be revoked after he has commenced construction.” See Wright v. town of Kennebunkport, 1998 ME 184, note 8, 715 A.2d 162, 165. Frank A. Juliano, SR. v. town of Poland. 1999 ME. 42 And-98-348

7 “[T]he vested rights theory is court-made law which is utilized to permit developers to complete structures/projects which have been halted either by illegal actions of a municipality and/or as a result of community/political pressures. If illegal actions are found to have occurred, the developer is deemed by law to have acquired “vested” rights to complete the project as it was initially approved. The “vested” rights theory, in fact, returns the developer to that point in time where illegal action occurred and permits the developer to complete the project under the law as it existed at that time.” See: Town of Orangetown v. Magee 156 Misc.2d 881 (1992)

We agree that the Town can bring an enforcement action under 16.I.(a) However, it cannot be intended to prevent or issue a “Stop work” Order for construction with a legal, vested, permit, or after the 30-day appeal period is passed, without a Due Process Hearing pursuant to the 14th Amendment of the U.S. Constitution. see Mad. Me., SZO § 16(I).” [5][6] Certainly the Law Court does not agree with Judge Stewart’s assessment of §16(I)(2)(a) that “[E]ven if the Cayers did acquire vested rights in their building permits, the Town issued a Notice of Violation and Stop Work Order pursuant to section 16(I)(2)(a) of the Town’s SZO and the Cayers’ permits have expired by operation of Section 16(F) of the Town’s SZO.” It would be quite astonishing to hear the Maine Supreme Court declare that the citizens of Maine no longer have the protection of the 14th Amendment Right of “Due Process” for a “Hearing” under the Constitution of Maine and the United States, when a vested permit is illegally “revoked with an illegal permanent “Order” to Stop Work ”. Much less, one that the CEO has no authority to issue, and especially after the 30 days of its issuance.[6][7] See Juliano v. Town of Poland, Docket: And-98-348 March 2, 1999 ME 42 [6][7]

3. Conclusion.

The Law Court erroneously claims, that we appealed a Superior Court Summary Judgement based on the vested rights of a 2008 permit. This is the one, gravamen issue that both sides agree to be sufficiently proven false. There is no evidence of a 2008 building permit issued to us by the Town, and the CEO makes that clear in his letter of April 26, 2012. The 2014 code violation was Dismissed with Prejudice and the legality of the permits cannot be relitigated based on the doctrine of Res Judicata.

It is also an undisputed material fact that at the dismissal with prejudice that all of the 2012, and 2013, substantial start of construction of the 20-foot-high, two-story steel framed building with floors, professionally built commercial roof, and modified mobile home, at a total cost of well over $40,000.00 clearly satisfies the Substantial Start requirement.[7] The 2014 code violation was Dismissed with Prejudice.

Town Manager Pelletier willfully committed fraud on the courts in his sworn affidavit of June 6, 2017 when he claims, on #5. “[N]o record exists of a meeting of the Board of Selectmen on June 27, 2013. We are in possession of the Town minutes of the June 27, 2013 selectmen meeting; and we also have audio and video of that board meeting, as they should. The Town Manager Pelletier also lied in his sworn affidavit to the Law court again on line 16 when he claims “[T]he Town agreed to dismiss its pending enforcement actions against Plaintiffs in the hope that the parties could work together to bring the Property into compliance.” [2][3][7][8] See M.R.S.A. Title 38. §443-A. (3) Cooperation; enforcement. The town could not dismiss the case with prejudice if there still was a violation.

Res judicata, or claim preclusion, and issue preclusion, bars relitigation of a cause of action between the same parties or their privies once a valid final judgement has been entered in an earlier suit on the same cause of action. See Beegan v. Schmidt, 451 a.2d 642, 644 (Me. 1982)


14th Amendment Constitutional Right Violation of Due Process

We assert an illegal Stop Work Order was issued by the CEO and the Town in 2013, and was allowed to continue illegally with warnings from the CEO Ouellet that are substantiated in the record. This SWO, in essence, revoked our vested permits without a hearing, in violation of our 14th Amendment Property, and Due Process Rights. The Town’s CEO, is authorized to issue a notice of violation, but the SZO does not explicitly authorize the separate issuance of an illegal Order to “Stop Work” of a vested permit, willfully intended to illegally deny our Due Process Rights for a hearing. As stated above, the CEO has the authority to issue a Stop Work “NOTICE”, pursuant to the intent of the HANDBOOK FOR THE LOCAL CODE ENFORCEMENT OFFICER on page 32. He does not have the authority to issue a Stop Work “Order” after the 30-day appeal period is past.” These are two completely different legal issues. See Juliano v. Town of Poland, Docket: And-98-348 March 2, 1999 ME 42 [5][6]

This is an Abuse of Process. There is an important distinction between an “Order” and a “Notice”. Black’s Law Dictionary; Order n. 1. A command direction, or instruction. 2. A written direction or command delivered by a court or Judge. Notice n. Legal notification required by law or agreement, or imparted by operation of law as a result of some fact. We assert that the Stop Work “Order” by CEO Ouellet was an Abuse of Process because he used the legal process, 16.I.(2)(a) and his authority to issue a notice of violation, with an illegal Stop Work “Order” intended to prevent us from continuing to build with legally issued vested permits, without a Hearing. This SWO was issued by the CEO without any authority to do so, and for a perverted reason, such as, to leverage the dismissal of a tort lawsuit by us against the Town, and a petition to secede from the town of Madawaska, all without providing a Hearing on our vested permits. We assert this to be Extortion. We may agree the CEO might have the authority to issue a “Stop Work” Notice, he has no authority whatsoever to issue a “Stop Work” Order, especially without providing the right of appeal to the BOA, and for a perverted reason to dismiss a tort lawsuit against the Town and its employees.

The foregoing request for reconsideration is based on errors of Facts, and errors of Law, as described above. The Fact that we did not rely on a 2008 permit for vested permit rights, as claimed by the Law court, is because we never had a 2008 permit. This is the one undisputed material fact that both, the Town, and us, agree on. The other fact that the CEO had no legal basis to revoke the vested permits with an illegal Stop Work Order under State Law without a hearing, and denying us the ability to appeal the enforcement act pursuant to the SZO 16.H(1)(a) is a Due Process Constitutional Right violation for property, and vested rights. For these reasons, inter alia Summary Judgement decision is not appropriate in this case, and we respectfully request a trial of the facts, or a decision in our favor to continue building.

Dated: ____________________ __________________________________

Richard Cayer, pro se

245 Lakeshore Drive

St. David, ME 04773

(207) 728-6613

bickcayer@hotmail.com

CERTIFICATE OF SERVICE

I, Richard Cayer, hereby certify pursuant to M.R.App.P. 10(b) that I have served the above Appellants’ Motion for Reconsideration upon the Appellee, Town of Madawaska, by placing one conforming copy thereof in the United States Mail, postage pre-paid, to the mailing address listed below:

Edmond J. Bearor, Esq. (ME Bar # 3904)

Joshua A. Randlett, Esq. (ME Bar # 4681)

Jonathan P. Hunter, Esq. (ME Bar # 4912)

Rudman Winchell

Attorneys for the Town of Madawaska

P.O. Box 1401

Bangor, ME 04402-1401

Dated: ___________________ ___________________________________

Richard Cayer, pro se

[1] The Memorandum Decision in this matter was decided on March 10, 2020, which would make the deadline for filing a motion for reconsideration fall on March 24, 2020. However, the Maine Supreme Judicial Court extended all deadlines by 49 calendar days by virtue of its Emergency Order Extending Unexpired Deadlines Relating to Law Court Appeals, issued and effective March 17, 2020. Because the deadline related to filing a motion for reconsideration in this case was unexpired at the time of the Emergency Order, the deadline was extended by 49 calendar days, thereby extending the current deadline to May 12, 2020. Read Exhibits here.

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