MOUNT VERNON — The state’s highest court has upheld a ruling in favor of the town of Mount Vernon in a dispute over the siting of a homeowner’s generator.
Oral arguments in the appeal by Mount Vernon property owners James Landherr and Valerie Center were heard June 14 in Augusta.
The unanimous opinion published Tuesday was authored by Maine Supreme Judicial Court Chief Justice Leigh Saufley, in the case in which the offending “relatively large generator” has long since been removed.
Saufley wrote that because the Mount Vernon Board of Appeals found that the generator was a structure, “It must meet the requirements of Mount Vernon’s Land Use Ordinance regarding structures. It does not. The court did not err in finding that the landowners were in violation of the ordinance and assessing a modest penalty.”
David Sanders, the attorney who represented the town of Mount Vernon, said Thursday that he notified selectmen of the decision but had not heard back.
“Originally I was shocked that (Landherr and Center) appealed the case to the law court,” Sanders said. “From my perspective, all they wound up doing was costing themselves a lot of money in the fine and attorney’s fees.
“It cost the town a lot of money, too,” he said. “Both issues were pretty straightforward and it could have been resolved just from talking to the code enforcement officer.”
Saufley made that suggestion in the decision: “(K)nowing the town’s interpretation of the ordinance before the initiation of a land use violation complaint … allows a landowner to take corrective action before risking the potentially draconian penalties flowing from the filing of a land use violation complaint, if the landowner is willing to work with the town toward a solution.”
Oral arguments in the case were heard last month in Augusta. At that hearing, Saufley said, “Isn’t the really practical problem here that these are small lots, they are very close to the water and (subject to) shoreland zoning?”
Sanders, who lives near the property in Mount Vernon Village, noted that all of the Landherr and Center property is within 100 feet of Minnehonk Lake.
Landherr and Center had installed the 8-square-foot 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.”
Several of the supreme court associate justices at the oral argument indicated it would have been better for the couple to appeal the town’s ruling that the generator was a structure.
After being notified that the generator violated the town ordinance, the couple had sought a permit and applied for a variance, which was denied by the code officer and later by the town’s Board of Appeals. The generator was ordered removed by Nov. 30, 2015.
The town’s Board of Appeals found that the generator was a structure because it sat on a pad, had underground pipes and power lines, and “was intended to remain in place.”
That decision was appealed to the superior court level, where Justice William Stokes upheld the board’s decision, remarking in writing, “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.”
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 as well as attorney’s fees and costs of $7,634, but Stokes cut that amount significantly, awarding counsel fees of $2,020 through June 2016 and costs of $244, and imposed a civil fine of $500.
The couple then appealed Stokes’ decision to the Maine Supreme Judicial Court, sitting as the law court.
At the oral argument, attorney Robert Sandy Jr., representing Landherr and Center, told the justices the only possible placement for the generator would have been under a deck, which was within the footprint of the house. “The problem with that is that it’s lethal,” Sandy said. He was unavailable for comment Thursday.
The justices were told that the house has a regular power supply.
The couple also went to court over a garden they installed at their 14 Main St. property and later were forced to remove because it was within 25 feet of the lake.
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