Charlton v. Town of Oxford
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	2001 ME 104
Docket:	Oxf-00-431
Argued:February 14, 2001
Decided:	July 12, 2001

Panel:	WATHEN, C.J., and CLIFFORD,{1} RUDMAN, DANA, SAUFLEY, ALEXANDER and
CALKINS, JJ.
Majority:	WATHEN, C.J., and CLIFFORD, RUDMAN, and SAUFLEY, JJ.
Concurring:	DANA, ALEXANDER, and CALKINS, JJ.

WILLIAM and BARBARA CHARLTON


v.

TOWN OF OXFORD et al.

					

RUDMAN, J.

	[¶1]	William and Barbara Charlton appeal from a judgment entered in
the Superior Court (Oxford County, Gorman, J.), after a nonjury trial in favor
of the Town of Oxford, its Code Enforcement Officer, Rodney Smith, its
Planning Board, and Carl Delekto.  Finding no error, we affirm the judgment.

I.  BACKGROUND

A.  Procedural History

	[¶2]	Count I of the Charltons' amended complaint contained an
appeal, pursuant to M.R. Civ. P. 80B, from the decision of the Oxford Zoning
Board of Appeals ("ZBA").  Count II alleged that Delekto's construction
constituted a nuisance pursuant to 30-A M.R.S.A. § 4302 and sought
injunctive relief.  Count III requested a declaratory judgment and injunctive
relief against the Planning Board and Delekto.  Count IV of the amended
complaint requested a declaratory judgment finding that Delekto had
violated various land use statutes and ordinances.  Count V alleged
negligence by Delekto and sought compensatory and punitive damages. 
Count VI demanded damages from Delekto for nuisance, pursuant to 30-A
M.R.S.A. § 4302 and the common law.  
	[¶3]	The court first considered Count I, the 80B appeal from the
refusal of the ZBA to hear the Charltons' appeal, concluding that it was
untimely.  The ordinance required that an appeal be filed within thirty (30)
days of the issuance of the building permit to Delekto.  See Oxford, Me.,
Code § 19(G)(4)(a)(1) (March 12, 1994).  The permit was issued
October 1, 1997; the appeal was taken August 5, 1998.  The Superior Court
(Oxford County, Perkins, A.R.J.) affirmed the decision of the ZBA.  The
Charltons did not appeal from the Superior Court's decision affirming the
decision of the ZBA.   
	[¶4]	The remaining counts in the Charltons' complaint were tried by
the court without a jury.  The court found in favor of the defendants on all
counts in the complaint.  The Charltons timely appealed and Delekto cross-
appealed from that portion of the court's order that was adverse to him. 
Because we affirm, we do not reach the issues raised by Delekto's cross-
appeal.
 
B.  Factual History

	[¶5]	The Charltons own land and a cottage located on Thompson
Lake in Oxford.  Delekto owns an adjacent parcel of land.  On
August 28, 1997, Delekto submitted a Shoreland Zoning Application to the
Oxford Planning Board seeking to build a new structure; the application was
approved that day.  On October 1, 1997, the Town issued Delekto a building
permit.  Despite an ordinance requiring notification, the Town failed to
notify the Charltons, who reside in Massachusetts, that Delekto had applied
for, and was granted, a building permit.{1} 
	[¶6]	The trial court, in its well-reasoned and thoughtful decision,
found that Delekto's house, garage, and breezeway violated the permit issued
by the Planning Board in several ways:	

1.	[T]he Ordinance mandates that a "replacement" structure
within the Shoreline Zone cannot be more tha[n] 30% larger
than the footprint or the volume of the nonconforming, existing
building.  Measurements taken by Richard Baker demonstrate
that the shoreline floor area of the existing building was 632
square feet.  Therefore, the shoreline floor area of the new
building could only be 822 square feet under the Ordinance. 
According to Richard Baker, this building exceeds that by more
than 1000 cubic feet.  Mr. Baker also measured the volume of
the existing building at 5412 cubic feet.  Again based upon the
Ordinance's 30% rule, the new building could be no larger than
7036 cubic feet.  Plaintiff's exhibit 18.

2.	The permit allowed Mr. Delekto to construct a 28' x 44',
two-story house with a full foundation, a 28' x 40' garage on a
slab, a 12' x 16' deck, and a 12' x 16' breezeway between the
garage and the house.  The breezeway exceeds the
measurements allowed by the permit.

3.	The permit required that the house be set back a
minimum of ninety feet from the high water mark.  Parts of the
structure are approximately eighty-six feet from the high water
mark.

4.	The permit allows the structure to be no higher than 24
feet.  It is 32 feet high at the garage.  The height of the house is
unknown, but any measurements taken on the non-water side of
the house must be increased by 3.5 feet to accommodate the fill
Mr. Delekto added to the land.  Ordinance definition of "height
of a structure," p. 72.

5.	There are more than 492 square feet within 90 feet of the
high water mark.

6.	More than 492 square feet of the structure are within 100
feet of the high water mark.

	[¶7]	The court also found other violations with the building
construction and site:

1.	The garage and the breezeway both have full foundations. 
The permit does not provide for a full foundation for any
structure except the "house."  The basement under the garage is
currently being used to store building materials, snowmobiles,
and water craft.  The basement under the breezeway will be used
as living space.

2.	Mr. Delekto built a drainage ditch that also serves as a
retaining wall immediately next to the boundary between his
land and the Charltons' land. The ditch/retaining wall is a
structure pursuant to the definition contained within the
Ordinance:

[A]nything built for the support, shelter or enclosure of
persons, animals, goods or property of any kind, together
with anything constructed or erected with a fixed location
on or in the ground, exclusive of fences[,] streets and
sidewalks.  The term includes structures temporarily or
permanently located, such as decks and satellite dishes.

Ordinance, p. 76.  The permit requires that there be a minimum
of twenty-five feet between any structure and the boundary line.

3.	As noted above, the permit granted to Mr. Delekto did not
grant permission for the construction of this ditch.  In addition,
Mr. Delekto did not obtain a permit from the DEP as required by
38 M.R.S.A. § 480-C.

4.	The Ordinance allows for some clearing of trees and brush
to allow for construction, but no greater than 10,000 square feet. 
Ordinance § 17(I)(3)[.]  Before constructing his home, Delekto
cleared a quadrangle measuring 100' x 85' x 167' x 118'. 
Plaintiff exhibit 18.

5.	The permit allowed for a two-story house and a garage on a
slab.  The house site slopes down to the water. Rather than
remove earth at the road side to create a level area, Mr. Delekto
built up that side, and constructed a basement under the house,
the breezeway and the garage so that it is entirely above grade on
the water side.  As a result, the house and the garage rise three
stories above the ground at the water side.

6.	During the trial, Mr. Delekto installed a 4' x 5' concrete
slab next to the garage to allow for the installation of a generator. 
He was unable to state whether the slab was closer than twenty-
five feet to the boundary line, and asserted that he did not
believe he needed a permit to install the slab.

7.	The Ordinance states that terms not defined therein "shall
have the customary dictionary meaning."  Ordinance, § 20(A)(2). 
The common dictionary meaning of "breezeway" is a roofed
open-sided passageway connecting two buildings.  Oxford
American Dictionary 1980.  The breezeway constructed by Mr.
Delekto is entirely enclosed, has a full basement, and houses the
main kitchen, laundry, and a full bath.

	[¶8]  The trial court, in its judgment and order, noted that Oxford,
Me., Code § 19(G)(4)(a)(1) (March 12, 1994) "allows the Charltons to
appeal every decision made by the CEO concerning Mr. Delekto's property." 
Subsequent to the trial court's decision but prior to the oral argument on
this appeal, an occupancy permit was issued to Delekto.  The Charltons,
however, did not appeal the issuance of the occupancy permit.

II.  DISCUSSION

	[¶9]	The Charltons contend that they have suffered an injury to the
comfort, use, and enjoyment of their estate and that, consequently, they may
bring statutory causes of action, pursuant to 17 M.R.S.A. § 2701{2} and 30-A
M.R.S.A. § 4302{3} for nuisance, as well as a common law cause of action for
nuisance.  The Charltons further assert that the trial court committed clear
error in rejecting the testimony of their expert witness and in finding that
they failed to prove that they suffered damages as a result of Delekto's
construction.
 
A.  Statutory Causes of Action

	1.  30-A M.R.S.A. §  4302

		A.  Legislative History

	[¶10]  "We review the interpretation of a statue de novo for errors of
law."  In re Wage Payment Litig., 2000 ME 162, ¶ 4, 759 A.2d 217, 220
(citation omitted).  "When construing a statute, we seek to give effect to the
legislative intent by examining the plain meaning of the statutory language." 
Id. at 220-221 (citation omitted).  When the plain meaning of the text does
not resolve an interpretative issue, "we then consider the statute's history,
underlying policy, and other extrinsic factors to ascertain legislative intent."
Id. at 221 (citation omitted).  When discerning legislative intent, "we
interpret the section of the statute in the context of the statutory scheme in
which it is found." Id.  (citation omitted).	
	[¶11]  30-A M.R.S.A. § 4302 states that "[a]ny property or use existing
in violation of a municipal land use ordinance or regulation is a nuisance." 
Therefore, based on the clear, unambiguous language of 30-A M.R.S.A.         
§ 4302, Delekto committed a statutory nuisance because the trial court
found that he had violated the Town's land use ordinance.  The question
then, is whether, given that Delekto's construction constituted a nuisance,
the Charltons have a private right of action for a nuisance statutorily created
by the enactment of 30-A M.R.S.A. § 4302.{4}
	[¶12]  The language of 30-A M.R.S.A. § 4302 can be traced back to P.L.
1855, ch. 149, and R.S. ch. 3, § 27 (1857).{5}   In 1860, R.S. ch. 3, § 27 was
amended by P.L. 1860, ch. 144.  This amendment was codified at R.S. ch. 3,
§ 40 (1871).{6}  This statute was located in the part of the Maine Revised
Statutes entitled, "Town and City By-Laws and Ordinances."  Notably, R.S.
ch. 3, § 40 contains a cross-reference to ch. 17, § 26, the then-nuisance
statute.  That statute states that the nuisance may be abated, removed, or
altered and "all expenses thereof shall be repaid to the town within thirty
days . . . ."  R.S. ch. 17, § 26 (1871). 
	[¶13]  Our review of the legislative history shows that, at one point,
the land use statutes and nuisance statutes were, in fact, read in tandem.  A
violation of a land use ordinance was actionable by the Town pursuant to
Chapter 17, which is now Title 17.  As this legislative history reflects, the
early nuisance statutes, however, were enacted solely for the benefit of the
towns as an enforcement mechanism.  Conversely, the early nuisance
statutes did not provide any private remedy to abutting land owners.

		B.  Implied Right of Action

	[¶14]  The trial court found that "a nuisance arising from the violation
of a zoning or land use ordinance must be considered a 'public' nuisance." 
The court concluded that 30-A M.R.S.A. § 4302 does not provide a private
cause of action in zoning or land use violation situations because "public
problems are not abated by individuals, but rather by public officers. . . ."
	[¶15]  Because section 4302 does not state that a private right of
action exists, we must determine if such a right of action can be implied. 
We are hesitant to imply a private right of action where the legislature has
not expressly stated that a cause of action exists.  In Larrabee v. Penobscot
Frozen Foods, Inc., 486 A.2d 97 (Me. 1984), we noted that when the
Legislature deems it "essential that a private party have a right of action, it
has expressly created one." Larrabee, 486 A.2d at 101 (citation omitted). 
Therefore, absent express language creating a private right of action, the key
to determining whether there is an implied cause of action lies in the
legislative intent, expressed either in the statute or the legislative history. 
In re Wage Payment Litig., 2000 ME 162, ¶ 7, 759 A.2d at 222.
	[¶16]  The language in section 4302, however, does not by itself
confer a private right of action for nuisance on the Charltons.  Thus, we must
resort to the canons of statutory interpretation to discern the legislative
intent behind the enactment of section 4302.  In determining legislative
intent, we look to that section of the statutory scheme in which section
4302 is found.  Section 4302 is located in Chapter 187, which deals with
municipal "planning and land use regulation[s]."  See 30-A M.R.S.A. § 4301
et seq.  Chapter 187 also contains section 4452, which expressly provides
mechanisms for the enforcement of land use laws and ordinances.  Section
4452 states in pertinent part:

	§ 4452.	Enforcement of land use laws and ordinances
. . . . 
	2.	Liability for violations.  Any person, including, but not
limited to, a landowner, the landowner's agent or a contractor,
who violates any of the laws or ordinances set forth in subsection
5 or 6 is liable for the penalties set forth in subsection 3.  

. . . . 

	4.	Proceedings brought for benefit of municipality.  All
proceedings arising under locally administered laws and
ordinances shall be brought in the name of the municipality.  All
fines resulting from those proceedings shall be paid to the
municipality.

	5.	Application.  This section applies to the enforcement of
land use laws and ordinances or rules which are administered
and enforced primarily at the local level, including:
. . . . 
G. Local land use ordinances adopted pursuant to section
3001;
	H.  Local building codes adopted pursuant to 3001 and 3007;
. . . .
Q.  Shoreland zoning ordinances adopted pursuant to Title
38, sections 435 to 447, including those which were state-
imposed;
. . . . 

30-A M.R.S.A. § 4452 (1996 & Supp. 2000).
	[¶17]  The Oxford zoning ordinance was adopted "pursuant to Title
30A [sic] Section 3001, 4311-4353 and Title 38 Sections 435-449 . . . ." 
Oxford, Me., Code § 2 (March 12, 1994).  Because the Oxford zoning
ordinance was adopted pursuant to section 3001, section 4452 makes it
clear that any actions brought to enforce provisions of the zoning ordinance,
which is the case here, must be brought by the Town.  An action to recover
damages or to seek injunctive relief pursuant to section 4302 is an action to
enforce an ordinance within the meaning of section 4452.  Section 4452
specifically provides that all enforcement actions shall be brought in the
name of the municipality for its benefit.  Accordingly, only the Town of
Oxford, and not the Charltons, may bring such an action.{7}
	[¶18]  Finally, as we noted in Larrabee, "if our Legislature had
intended that a private party have a right of action pursuant to 30-A M.R.S.A.
§ 4302, it would have either expressed its intent in the statutory language
or legislative history or, more likely, expressly enacted one."  Larrabee, 486
A.2d at 101.  
	[¶19]  Although Delekto, an abutting land owner, violated a land use
ordinance and committed a nuisance pursuant to 30-A M.R.S.A. § 4302, the
Legislature, in enacting section 4302, did not intend to provide the
Charltons with a cause of action for nuisance.  Instead, by enacting 30-A
M.R.S.A. § 4452, it provided the Town with an enforcement mechanism. 
Specifically, section 4452 gives a municipality, and only a municipality, the
authority to enforce land use regulations.  Accordingly, only municipalities
may bring an action for violations of such regulations.{8}  Herrle v. Town of
Waterboro, 2001 ME 1, ¶ 11, 763 A.2d 1159, 1162 (recognizing that
private citizens do not have standing to initiate proceedings to enforce
municipal zoning regulations).  The trial court, therefore, did not err in
holding that "the legislature must have intended that no such remedy
existed pursuant 30-A M.R.S.A. § 4302."
	[¶20]  The Charltons also argue that 17 M.R.S.A. § 2701 and 30-A
M.R.S.A. § 4302 must be read in pari materia because they deal with the
same subject matter-nuisance.  "Statutes are considered to be in pari
materia when they relate to the same person or thing, to the same class of
persons or things, or have the same purpose or object." 2B Norman J. Singer,
Sutherland Statutory Construction § 51.03 (5th ed. 1992) (citations
omitted).  "Characterization of the object or purpose is more important than
characterization of subject matter in determining whether different statutes
are closely enough related to justify interpreting one in light of the other."
Id.  (citation omitted). 
	[¶21]  17 M.R.S.A. § 2701 falls within Chapter 91, which deals with
the law of nuisance.  30-A M.R.S.A. § 4302 falls within Chapter 187, which
deals with "planning and land use regulation."  While both statutes deal with
a similar "subject"-i.e., nuisance, the legislative "purpose" of  30-A M.R.S.A.
§ 4302 is to provide enforcement mechanisms for towns, and not remedies
for private citizens.  Therefore, contrary to the Charltons' assertions,
17 M.R.S.A. § 2701 and 30-A M.R.S.A. § 4302 cannot be read in pari materia
as they do not relate to the "same subject matter," nor do they have the
same "purpose." 

	2.  17 M.R.S.A. § 2701

	[¶22]  The Charltons next argue that they have a cause of action
pursuant to 17 M.R.S.A. § 2701 because Delekto's structure violates the
Town's zoning ordinance and certain Maine statutes. 
	[¶23]  Title 17 M.R.S.A. § 2701 states that "[a]ny person injured in his
comfort, property or the enjoyment of his estate by a common and public or
a private nuisance may maintain against the offender a civil action for his
damages, unless otherwise specially provided."  17 M.R.S.A. § 2701 (1983). 
The question then, is whether section 2701 applies only to those nuisances
delineated in 17 M.R.S.A. § 2741 (Supp. 2000) (common nuisances) and 17
M.R.S.A. §§ 2791-2806 (1983 & Supp. 2000) (particular nuisances) or
whether plaintiffs can bring an action based solely on the language of section
2701.  
	[¶24]  We have held that "[17 M.R.S.A. § 2701] . . . was intended to
apply to those nuisance actions presently delineated in 17 M.R.S.A. § 2802
[miscellaneous nuisances]."  Johnson v. Whitten, 384 A.2d 698, 702
(Me. 1978) (citation omitted).  The Charltons, however, argue that Johnson
is inapplicable to the case at bar.  The Charltons' arguments are
unpersuasive.  They argue, for example, that "the legislature was not
required to place 30-A M.R.S.A. § 4302 in Title 17 rather than with its
companion land use statutes in order to give it its full force and effect."  It is
true, that if the legislature so intends, different provisions in disparate acts,
dealing with similar issues, may be construed together.  However, "when
statutory language has acquired a consistent and entrenched meaning
through prior judicial decisions, we will not abandon our traditional
interpretation of that language unless there is expressive statutory language
plainly showing a legislative intent to abrogate those prior decisions."  Tripp
v. Philips Elmet Corp., 676 A.2d 927, 930-31 (Me. 1996) (citation omitted). 
Here, the Charltons can point to no such intent on behalf of the legislature
to abrogate our holding in Johnson, and in fact, none can be found.  Their
argument, therefore, lacks merit.
	[¶25]  Johnson clearly establishes that statutory causes of action
pursuant to Title 17 M.R.S.A. § 2701 are limited to those nuisances
delineated in the statute.  Johnson, 384 A.2d at 702; see  also State v. Rees,
2000 ME 55, ¶ 4, 748 A.2d 976, 978 (stating that "[w]e do not disturb a
settled point of law unless 'the prevailing precedent lacks vitality and the
capacity to serve the interests of justice. . . .'" (quoting Bourgeois v. Great N.
Nekoosa Corp., 1999 ME 10, ¶ 5, 722 A.2d 369, 371)).{9}  The Superior
Court, therefore, did not err by finding that "[t]here is no private nuisance
in this case.  Title 17 M.R.S.A. § 2701 permits private actions for damages
caused by the nuisances listed in sections 2791 through 2805."
	[¶26]  The Charltons also argue that, because Delekto's violations of
the Oxford Zoning Ordinance constitute a common or public nuisance, they
can recover damages pursuant to section 2701.  Relying on Sproul v. Town
of Boothbay Harbor, 2000 ME 30, 746 A.2d 368, they assert that "setback
violations are a sufficient adverse consequence to give an abutter a
particularized injury."  The trial court found, however, that the Charltons
did not incur any special or peculiar injury because of Delekto's violations.
	[¶27]  To establish a cause of action for common or public nuisance, a
party must show that he has "suffered therefrom some special and peculiar
damages other and greater than those sustained by the public generally."
 Brown v. Watson, 47 Me. 161, 162 (1859); see also Penley v. City of Auburn,
85 Me. 278, 27 A. 158 (1893).  "For an injury to a particular person, as by a
common nuisance, no matter how inconsiderable the injury, he may
maintain an action."  Brown, 47 Me. at 164 (citation omitted); see also
Hanlin Group, Inc. v. Int'l Minerals & Chem. Corp., 759 F. Supp. 925, 935
(D. Me. 1990).
	[¶28]  A review of the land use violations found by the trial court
establishes that the only violation that arguably could have caused the
Charltons special or peculiar injury is the installation of the ditch/retaining
wall.  The trial court found, however, that "the Charltons have failed to
prove, by a preponderance of the evidence, that they suffered any special
damage as a result of the placement of the ditch/retaining wall."  We review
the trial court's finding of fact for clear error, and will "uphold the trial
court's findings unless there is no evidence to support them."  Sargent v.
Tomhegan Camps Owners Ass'n, 2000 ME 58, ¶ 5, 749 A.2d 143, 144
(citing Sturtevant v. Town of Winthrop, 1999 ME 84, ¶ 9, 732 A.2d 264,
267).
	[¶29]  The evidence shows that, before Delekto constructed the
ditch/retaining wall, the Charltons had problems with "a little bit of runoff"
from Delekto's property.  Prior to the building of the ditch/retaining wall,
Mr. Charlton and Delekto had a brief conversation regarding the run-off from
Delekto's property onto the Charltons' property.  At that time, Mr. Charlton
believed that installing a "silt fence" would stop the run-off from spilling
onto the Charltons' property.  Mr. Charlton testified that there have been, on
at least two occasions, water running from Delekto's property onto the
Charltons' property since Delekto built the ditch/retaining wall.  Mrs.
Charlton also opined that the Charltons' property had diminished in value
because of Delekto's construction, land clearing, and zoning violations.  The
Charltons contend, pointing to several land use cases, that Delekto's land
use violations resulted in "particularized injury" sufficient to support their
nuisance claim.
	[¶30]  In municipal land use cases, "'particularized injury' is met
when the judgment adversely and directly affects the party's property,
pecuniary or personal rights."  Anderson v. Swanson, 534 A.2d 1286, 1288
(Me. 1987) (quoting New England Herald Dev. Group v. Falmouth, 521 A.2d
693, 695 (Me. 1987)).  A high degree of proof is not required to establish
standing to appeal from a Zoning Board of Appeals decision.  Id.  
	[¶31]  Conversely, to show "special or particularized injury" in a
nuisance case, a plaintiff must show that they have suffered an actual injury
that is "different from those [injuries] suffered by the community at
large. . . ."  Tuell v. Inhabitants of Marion, 110 Me. 460, 463, 86 A. 980, 981
(1913).  Therefore, while Delekto's violations are such that the Charltons
may have suffered "particularized injury" sufficient to provide standing to
appeal from a decision of the ZBA, which they did, the violations have not
resulted in "particularized injury" such that they can maintain a suit for
nuisance because they have not "sustained special damages different from
those suffered by the community,. . . ."  Tuell, 110 Me. 460, 463, 86 A. 980,
981 (1913).  The Charltons did not produce evidence to establish that they
have suffered any pecuniary loss, or injuries, to their person or property
because of Delekto's land use violations.
	[¶32]  The Charltons also argue that we have recognized "aesthetic
injury" to an abutter and that the trial court's holding that "aesthetic
concerns alone would not give rise to a determination that the Charltons
have been damaged" is incorrect as a matter of law.  Again, however, the
Charltons buttress their arguments by looking at a land use case dealing with
standing issues.  In that case, we held that, "due to the proximate location of
[the abutter's] property together with the potential for [a]esthetic or noise
injury from the construction or use of the double deck, [the abutter] has
sufficient standing to seek judicial review of the action of the Zoning Board
of Appeals in granting a variance."  Forester v. City of Westbrook, 604 A.2d
31, 32 (Me. 1992) (emphasis added).  The issue here, however, is one of
nuisance, not standing; the standard for nuisance requires a higher degree
of harm.  Therefore, Forester and the other ZBA standing cases are
inapposite to the facts of this case.
	[¶33]  The Charltons confuse the nature of injury necessary to
establish standing with the requirement of demonstrating actual harm in
order to recover damages in a nuisance claim.  Contrary to the Charltons'
arguments, we have specifically held that an "aesthetic injury" alone is not
an infringement of any legal rights.  We have stated, for example, that "[a]
neighbor's building on his own land, by its ugliness of architecture or by its
mere proximity, may lessen one's enjoyment of his own residence and
lessen its market value; . . . and yet no legal right be infringed."  Whitmore v.
Brown, 102 Me. 47, 57, 65 A. 516, 520 (1906).  We further noted, in
Whitmore, that the law does not "recognize as a cause of action the
annoyance caused by the proximity or ugliness of otherwise harmless
structures upon the land of another."  Id., 102 Me. at 59, 65 A. at 521.
Whitmore remains good law; the law of the State of Maine does not
recognize a cause of action for an "otherwise harmless structure[] upon the
land of another[,]" regardless of how unsightly or overbearing the structure
may be.  See id.
	[¶34]  The Charltons, citing Brown v. Watson, 47 Me. 161 (1859),
argue that the standard for what constitutes special injury is low.  See
Brown, 47 Me. at 164 (stating that "no matter how inconsiderable the
injury, he may maintain an action.").   In this case, however, it is not that the
Charltons have suffered a nominal or de minimis injury, rather, it is that
they have not suffered a quantifiable injury, such that the value of their
property has been diminished or that the Delekto property has interfered
with the use and enjoyment of their property.  Moreover,

[w]hen defendant's conduct involves mere physical discomfort
or mental annoyance, there is somewhat more difficulty in
deciding when the interference is substantial and unreasonable
justifying a recovery for damages.  Probably a good working rule
would be that the annoyance cannot amount to unreasonable
interference until it results in a depreciation in the market or
rental value of the land.

W. Page Keeton et  al., Prosser And Keeton On The Law Of Torts § 88 at 627
(5th ed. 1984).
	[¶35]  Because the Charltons failed to establish that they suffered a
special injury, the Superior Court did not err in finding that the Charltons
failed to submit sufficient evidence to support their statutory nuisance claim.

B.  Common Law Nuisance

	[¶36]  The Charltons argue that they have a common law cause of
action for nuisance because of Delekto's construction.  We have recently
recognized the existence of a common law cause of action for nuisance,
stating that "'[t]he essence of a private nuisance is an interference with the
use and enjoyment of land.'"  Town of Stonington v. Galilean Gospel Temple,
1999 ME 2, ¶ 15, 722 A.2d 1269, 1272 (quoting w. page keeton et al.,
prosser and keeton on the law of torts § 87 at 619 (5th ed. 1984)).  We note
that the following elements are necessary to satisfy a common law cause of
action for private nuisance:

	(1)	The defendant acted with the intent of interfering with
the use and enjoyment of the land by those entitled to that use;

	(2)	There was some interference with the use and
enjoyment of the land of the kind intended, although the amount
and extent of that interference may not have been anticipated or
intended;

	(3)	The interference that resulted and the physical harm, if
any, from that interference proved to be substantial . . . The
substantial interference requirement is to satisfy the need for a
showing that the land is reduced in value because of the
defendant's conduct;{10} 

	(4)	The interference that came about under such
circumstances was of such a nature, duration or amount as to
constitute unreasonable interference with the use and
enjoyment of the land. . . . 

W. Page Keeton et al., Prosser And Keeton On The Law Of Torts § 87 at 622-23
(5th ed. 1984).
	[¶37]  The Charltons satisfied the first element of common law private
nuisance because Delekto, by his code violations, acted with the intent of
interfering with their use and enjoyment of the land.{11} 
	[¶38]  Regarding the second element of common law nuisance, there
has, arguably, been some interference with the Charltons' use and
enjoyment of their property because Delekto's violations of the 25-foot set-
back provision encroached upon the Charltons' privacy.  The Charltons,
however, are unable to satisfy the third element for common law nuisance
because they did not produce sufficient evidence that their property's
market or rental value had been diminished.  See supra note 10.
	[¶39]  To establish their damages claim, the Charltons called Jonathan
Beal, a real estate appraiser, to testify regarding the impact Delekto's
construction had on their property.  The trial court chose, however, to
reject Beal's valuation testimony as "he acknowledged that his valuation
method was not sanctioned by his peers."  See Striefel v. Charles-Keyt-
Leaman P'ship, 1999 ME 111, ¶ 7, 733 A.2d 984, 989 (noting that we give
due regard to the trial court's determination of credibility of witnesses and
weight given to the evidence).
	[¶40]  The trial court's finding that the Charltons suffered no damages
as a result of the ditch/retaining wall is a finding of fact that we review for
clear error.  Dep't of Human Services ex rel. Hampson v. Hager, 2000 ME
140, ¶ 30, 756 A.2d 489, 495 (citation omitted).  "A trial court's factual
determinations are 'clearly erroneous' only if there is no credible evidence
on the record to support them." Id.  (citation omitted).  Neither of the
Charltons testified regarding how much, if any, their property value was
diminished by Delekto's actions.  Moreover, given Beal's acknowledgement
that "sometimes when . . . a large, new, expensive home [is built] next to a
small, older, less expensive home, [] the impact of the new construction on
the old one will be to raise the value on the old one[,]" we cannot say that
the trial court's findings are clearly erroneous. 
	The entry is:
Judgment affirmed.

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