Cousins’ state suit dismissed



ELLSWORTH — A Hancock County Superior Court judge has dismissed a lawsuit against Tremont town officials and others filed by the owners of a restaurant that burned in a fire several years ago.

In the lawsuit, filed in July 2017, Robert and Judy Cousins claimed mistreatment by town employees and defamation of character in news accounts. Judge Robert Murray ruled that the Cousinses failed to substantiate these claims.

The Cousins’ restaurant, Cap’n Nemos, burned to the ground in December 2013. In the spring of 2014, the Cousinses applied for a permit to rebuild on the same footprint as the previous restaurant.

In October 2015, then-Code Enforcement Officer Debbi Nickerson issued a stop work order and asked the Cousinses to attend a planning board meeting later that month. Before that meeting took place and less than a week after issuing the stop work order, Nickerson sent the Cousins a letter requesting they cut seven and a half feet from a concrete slab that had been poured. She stated the reason for the request was because the slab was closer to the property line than indicated in the application.

Nickerson had told the Cousinses they could not appeal her decision to the town’s board of appeals. In their complaint, the Cousinses cite that as a violation of due process. But Nickerson was acting in line with town ordinances, Murray wrote in his decision, and the Cousinses “misconstrued the ordinance language.”

Further claims in the suit included defamation allegations against former Islander reporter Mark Good, stating his reporting on the stop work order converted “a controversy of footprint into a battle over metes and bounds without fact checking.” Robert Cousins also claimed defamation because a news story by Good said Cousins “had not proven that [he] was a disabled Vietnam veteran.”

“Neither of these statements are defamatory as a matter of law,” Murray wrote in his decision.

Defense requested a dismissal of claims made against Assistant Fire Chief Heath Higgins regarding comments he made to the Southwest Harbor Police Department. The defense was based on the state’s anti-SLAPP statute. SLAPP stands for Strategic Lawsuit against Public Participation. The anti-SLAPP statute provides a procedure to dismiss lawsuits that are brought not for legitimate wrong suffered but for the purpose of dissuading a defendant from exercising his First Amendment right to make statements to the government. In the decision, the judge stated the Cousinses were unable to prove actual injury incurred from the statements Higgins made.

Claims were also made against current Fire Chief Keith Higgins for statements he made to the state fire marshal in a letter written in December 2010. In it, Higgins lists safety concerns regarding Cap’n Nemos. This claim also was dismissed.

Named as defendants in the suit were the town of Tremont, former Town Manager Dana Reed, Nickerson, Keith Higgins, Heath Higgins, the Mount Desert Islander, the paper’s former Publisher Alan Baker, former Editor Earl Brechlin and Good.

A federal case brought by the Cousinses against the firefighters continues in U.S. District Court. Last year, all but four claims in the Cousinses’ complaint were dismissed by the court as well as claims against the town and the Islander and its staff. At the time, Devin Deane of Norman, Hanson and DeTroy in Portland, who represents the firefighters in the federal case, said the remaining claims are all related to the fire and give the firefighter defendants the opportunity to tell their side of the story and establish a record necessary for summary judgment in their favor.

 

Sarah Hinckley

Sarah Hinckley

Sarah Hinckley covers the towns of Southwest Harbor, Tremont and neighboring islands. Send story ideas and information to shinckley@mdislander.com.

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