AUGUSTA — Installing a generator in a shoreland zone has cost a Mount Vernon couple more than $2,700 in fines, costs and court fees — and they had to remove the generator.
This is the second property-related dispute between James Landherr and Valerie Center and the town. In the previous case, the town sought penalties from them for allegedly having gardens too close to Minnehonk Lake.
Landherr, in an email responding to a reporter’s query about the generator case, wrote, “This ruling in part reflects that the town of Mount Vernon has been inconsistent in enforcing their ordinances.” He said any other comment would come from his attorney.
Justice William Stokes issued the ruling in the generator case last week at the Capital Judicial Center. It follows a hearing in late April.
It says Landherr and Center installed an 8-foot-square generator on their property in the Shoreland Zone without seeking or receiving a permit, and the town code enforcement officer notified them in July 2015 that the Mount Vernon Land Use Ordinance requires that “a ‘structure’ be set back at least 100 feet from the normal high-water mark in great ponds and rivers.”
The town’s attorney, David Sanders, said Thursday, “It was the fact that it was permanently installed that made it a structure. It was on a concrete pad with underground lines running to it.”
In a footnote, the judge suggested that rather argue that a generator is not a structure, “the defendants’ remedy is to persuade the voters and/or the municipal officials of Mount Vernon to amend the Land Use Ordinance.”
In court filings, Landherr and Center note they have a 19th-century home on a small property almost completely within 100 feet of the shoreline.
After being notified that the generator violated the town ordinance, the couple then sought a permit and applied for a variance, which was denied by the code officer and then later by the town’s Board of Appeals. The generator was ordered removed by Nov. 30, 2015.
Later the couple said they contracted with a company to put the generator on wheels, but that plan failed and it was later disconnected and removed in mid-March 2016. However, the town was not notified.
The town sought summary judgment in its favor in February 2017 and attorney’s fees and costs of $7,634.33, but the judge cut that amount significantly, awarding counsel fees of $2,020 through June 2016 and costs of $244.73, plus imposing a civil fine of $500.
“The only thing I was disappointed with was in the amount of attorney’s fees awarded,” Sanders said. He said he plans to request reconsideration. He noted that the town already had paid the attorney’s fees. “It’s a question of whether they’re reimbursed,” he said.
In Stokes’ decision, he addressed the town’s request for the full amount of its fees and costs.
“Frankly, this aspect of the case has caused the court the most consternation,” Stokes wrote. “The court is perplexed that this litigation continued for 18 months — long after the generator had been removed from the offending location. It was apparent to the court that the parties have had a contentious relationship and that, unfortunately, has blinded them to the value of cooperating with each other. In the court’s view, both sides bear some responsibility for this.”
Stokes cited Maine law that says, “If the municipality is the prevailing party, the municipality must be awarded reasonable attorney fees, expert witness fess and costs, unless the court finds that special circumstances make the award of these fees and costs unjust.”
He concluded, “The court finds that there are special circumstances that make it unjust to award the town attorney fees in the amount requested.”
Sanders, the town attorney, described it as an unfortunate situation.
“What they should have done is what anybody else in the village does: Check with the code enforcement officer,” he said. “We all live with these restrictions. It’s the price you pay for living on the lake.”
Robert Sandy, the attorney who represented Landherr and Center once the dispute reached the court, said Thursday, “We agree with the court’s comment about special circumstances. No other towns consider a generator as a structure.”
Sandy added, “We appreciate the court felt this was insignificant enough to reduce fees and costs the town was looking for. The amount the town is not getting is approximately one and a half times the cost of generator itself.”
Betty Adams — 621-5631
Twitter: @betadams
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