Rockland attorney seeks to dismiss Hayward appeal
Rockland — City Attorney Kevin Beal has moved to strike an appeal filed by Harold Dale Hayward Jr. and his wife, Geraldine B. Hayward, of North Main Street on the grounds that their "appeal is untimely, is filed in the wrong court, and is without merit."
In legal terms, "move to strike" means an attorney is asking a judge to remove a statement or document from the record, Beal said.
"The code office will do a follow-up inspection to see if the Haywards are in compliance," Beal said Friday, Oct. 5, in a phone interview. "He has not paid his fine."
"He filed a request to have his filing fee paid, and was denied that," Beal said of Hayward.
The Haywards are represented by attorney William S. Maddox.
Dale Hayward is one of three residents seeking the single city council seat listed on the Nov. 6 ballot. The other two candidates are incumbent Brian Harden and challenger Frank Isganitis.
The city had filed a land-use complaint against the Haywards in April for putting up a "fabric structure" without a permit. The structure was used to store items for resale at flea markets, something not allowed in the residential zone where they live.
When the Haywards were ordered by Code Enforcement Officer John Root to remove the structure, they ignored the request and claimed "selective enforcement" on the grounds that "the city, through its city attorney, has shown a pattern of behavior to accept and prosecute selective enforcement of land use regulations."
The Haywards failed to give examples to support their claim.
On May 24, the Haywards and the city signed a consent agreement following a motion for an enlargement of time to find an attorney.
The consent agreement stated that the Haywards not resume the storage of articles for resale on the premises; that they remove the fabric-coated structure from the premises no later than Sept. 30; that they pay the city of Rockland its costs of the suit, amounting to approximately $181; and that they would pay Rockland a penalty of $100 a day for non-compliance.
The Haywards filed an appeal to the consent order, claiming that it was done in lieu of the defendants' ability to afford legal counsel.
In the appeal, the Haywards alleged that the city through its attorney violated the defendants' due process rights; that the city through its attorney served the couple in a "frivolous and careless manner"; that the city through its code enforcement officer violated their constitutional rights by not supplying requested matter; and that the defending attorney did not properly protect the Haywards' constitutional rights to due process.
The city also showed a pattern of behavior to accept and prosecute selective enforcement of land use regulations, according to the appeal.
The list goes on to cite 22 points in which the defendants' rights were violated.
The Haywards said the consent order was the product "of coerced advice and behavior of both defense and city attorney."
The appeal was signed by the Haywards and not by an attorney.
In his motion to strike the appeal, Beal argued that the document was untimely because it had to have been filed within 21 days. While it should have been filed by June 14, it was filed Oct. 1, Beal said.
The defendants also filed the appeal in the wrong court and should have filed it in Maine's Law Court rather than Rockland District Court.
Beal said the appeal is without merit because the Haywards signed the consent order, which is the judgment they now seek to appeal.
On alleged selective enforcement, Beal said the city's code enforcement officials issue dozens of notices of violations every year, and nearly all the violations are resolved without resort to litigation.
"The defendants do not deny that they were in violation of the city's requirements, only that they among all others in Rockland have been targeted," Beal wrote.
Beal praised defense attorney William Maddox as an experienced litigator and attorney, who negotiated a settlement with the city with deadlines that were more generous than those sought by the city.
Based on the reasons he gave, Beal urged the court to dismiss the appeal.
Courier Publications reporter George Chappell can be reached by phone at 207-594-4401, ext. 117, or by email at firstname.lastname@example.org.