Court Fines Cousinses $231,100 in Tremont Case
Couple also banned from operating a junk yard
TREMONT—On Friday, December 6, Ellsworth Superior Court Justice Harold Stewart found in favor of the Town of Tremont in a civil code enforcement violation trial for land use ordinance (LUO) violations dating back to August 2018. Robert and Judy Cousins have been ordered by the court to abate the conditions of the violation within 30 days, pay the town “reasonable” attorneys’ fees, and to pay a monetary civil penalty of $231,100.
On the night of December 4, 2013, Cap’n Nemo’s a restaurant and bar with an attached residence in Bass Harbor, Maine, burned to the ground. The Cousinses were the owners of Cap’n Nemo’s and the land where the structure sat is the land that is the subject of the land use ordinance violations.
In April 2014, the Tremont Planning Board approved an application by the Cousinses for a permit to rebuild within the existing footprint of the previous structure. Then, in December of 2015, the Cousinses filed a lawsuit against the Town of Tremont and more than a dozen firefighters who were at the scene of the Cap’n Nemo’s fire on December 4, 2013.
In March of 2017, the court dismissed the lawsuit filed by the Cousinses in relation to most of the firefighters and in August of 2018 granted a summary judgement in favor for the town and the remaining firefighters.
In the interim, then Code Enforcement Officer (CEO) Debbi Nickerson issued a stop work order and a notice of violation NOV to the Cousinses in October 2015 because they had allegedly poured a new foundation that went beyond the footprint of the original structure.
According to the order and findings of fact issued on December 11, 2024, by Justice Stewart, the Cousinses have since filed an unrelated and lawsuit in federal court relating to the 2015 stop work order and NOV.
On August 9, 2018, Tremont CEO John Larson issued the Cousinses a NOV for three alleged code violations on their property.
An unpermitted junk yard.
An unpermitted campsite.
Creating a road opening without a permit.
The Cousinses allegedly received the NOV in September of 2018 and eventually worked with the town to enter into a consent agreement to take care of the matter. The Cousinses did not ever enter into that consent agreement however, saying that it would require them to drop their pending federal court case related to the stop work order and NOV from October 2015. Nor did they correct the three alleged violations.
On December 6, 2024, the court found in favor of the town for the violation of having an alleged unpermitted junk yard but did not find that the town presented enough evidence to persuade the court that the alleged unpermitted campsite and the alleged creation of a road opening without a permit constituted violations.
CREATION OF A ROAD OPENING WITHOUT A PERMIT
The NOV alleged that “an unpermitted road opening was created on the property as a result of the Cousinses removing a section of fence adjacent to Flat Iron Road and parking a car in the opening created by the removal of a section of fence.”
Tremont’s LUO reads, "A road opening permit must be obtained from the town for any driveway or road opening onto a town road." During the trial, the Cousinses did admit to removing a section of fence in order to get items on or off of the property.
The court found that, “It is not uncommon for property owners on an occasional basis to use some part of their property other than the actual driveway to either move a vehicle or some item onto their property or remove it therefrom. The court finds that that the town has not met its burden of proof to establish a road opening violation.”
UNPERMITTED CAMPSITE VIOLATION
The basis of this alleged violation was a tow-behind camper that Larson alleged was set up as a living space. The tow-behind camper was removed from the property sometime after the original NOV was issued. At the December 6 trial, the court findings states that “the town asserted the black bus located on the property is the source of the violation. The black bus contains a sleeping area, a kitchen and a bathroom, and can be recognized as a recreational vehicle.”
Tremont’s LUO, the court findings states, “requires a permit and compliance with all requirements for residential structures when a recreational vehicle is occupied on-site for more than 90 days per year.”
The court found that “the town has not met its burden of persuasion that the black recreational vehicle was occupied for any 90-day period and has not proven it was occupied at any time since the issuance of the Notice of Violation.”
The court declined “to find the black bus/recreational vehicle situated on the property, without evidence of occupancy, constitutes a campsite violation.”
UNPERMITTED JUNK YARD
Title 30-A, section 3752, of Maine statutes defines a junkyard as “a yard, field or other outside area used to store, dismantle or otherwise handle:
A. “Discarded, worn-out or junked plumbing, heating supplies, electronic or industrial equipment, household appliances or furniture;
B. “Discarded, scrap and junked lumber; and
C. “Old or scrap copper, brass, rope, rags, batteries, paper trash, rubber debris, waste and all scrap iron, steel and other scrap ferrous or nonferrous material.”
According to the court documents, "located upon the property since the issuance of the NOV are stacks of used bricks, piles of old and discolored lumber, old lawn furniture, numerous pieces of scrap metal, an old freezer, remains of wooden fencing, discolored buoys of various sizes, a large metal cylinder marked ‘for sale’, an old unregistered snowmobile, a metal canopy frame, garbage cans, used commercial cooking equipment, numerous rubber tires, stacks of old metal lobster traps, two old unregistered trailers, two old unregistered boats, and a tow behind trailer. Vegetation is growing over most of the items. Also located on the property at the time the NOV was issued was an unregistered and uninspected white food truck/van, an unregistered and uninspected maroon construction truck, and a black bus. The tow behind trailer and the white food truck were removed from the property after the NOV was issued but the maroon construction truck and black bus remain on the property to date.”
The Cousinses argued that the items in the yard were work materials and those materials have sat so long because of the 2015 stop work order and subsequent suit that they filed in federal court.
The court rejected “the contention that the items constitute construction materials. The court finds the items located on the property render the property a junkyard as defined by the statute.” The court also acknowledged that the Cousinses do not possess a junkyard permit as required by Maine statute.
The court found that “accordingly, the property is in violation of” the requirement to possess a permit for a junkyard.
PENALTIES
As of December 6, 2024, it had been 2,311 days since the original August 9, 2018, NOV was issued. The court found that this constituted 2,311 separate violations.
The minimum fine for a land use penalty without permit is $100 per day and the court stated that the Maine Supreme Court ruled that the courts have no discretion to suspend any portion of a minimum penalty.
Therefore, the court imposed a civil monetary penalty of $231,100. The court also declared that the Cousinses pay “reasonable” attorneys’ fees to the town, that the Cousinses are permanently banned from operating or maintaining a junkyard, and that the Cousinses must remove the materials that constitute a junkyard form their property. If they do not remove the materials within 30 days, the town may enter the property to take corrective action.
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