2014-12-19 / Front Page

Selectmen eye fining contractors

Board cites ‘upward trend’ in building without permits
By Duke Harrington
Staff Writer

KENNEBUNK — Apparent frustration over an “upward trend” in unpermitted construction boiled over at the most recent selectmen’s meeting, prompting some to suggest the town should go after contractors, rather than homeowners.

“I think going forward we should put something in where we literally hammer the hell out of contractors,” said Kevin Donovan, chairman of the board. “And I don’t mean for $500, nor do I mean $5,000. I mean tens of thousands of dollars.”

At issue was a consent agreement reached between the board and Shahriar and Deborah Khaksari of Surf Lane. The couple has owned the half-acre property located in a resource protection zone since 2005. In June, Code Enforcement Officer Paul Demers found the Khaksaris had built a small shed and a 500-square-foot patio area within proscribed setbacks from the marsh area adjacent to Gooches Creek.

For that violation, the Khaksaris agreed to pay a $500 fine by Dec. 31, and will remove the patio by May 15, returning the lawn area to a vegetative state better equipped to filter stormwater runoff into the marsh.

But the setback violation was not what set selectmen off. Instead it was the revelation made by Jim Logan, an engineer who spoke for the Khaksaris. He said the Khaksaris built their patio in emulation of a neighbor, who had one about the same size, little realizing the adjacent properties might have different setback allowances. Selectmen then sat up and took notice when Logan said this neighbor, like the Khaksaris, also had not obtained a building permit.

Demers has since said that the neighbor’s patio, if built, has apparently been taken apart. But he also alerted selectmen to the fact that in January, he’ll be bringing forth another consent agreement from a home not 200 yards from the Khaksaris, which was also built in the resource protection area without a building permit.

The lost permit fees in these instances only amount to about $90, including the minimum $40 fee and a $50 shoreland zone fee. However, selectmen were cognizant of an issue in October when Demers found that the owner of a home located in a flood zone built a finished basement after being told that was not allowed, because basements in that area are prone to flooding.

“He simply went out and found another contractor to do the work, and never bothered to get a permit,” said Demers.

In that case, the town lost “close to $1,000” in permit fees, based on the $75,000 cost of the renovation, said Demers.

“I think this kind of thing has been a bit of an upward trend,” he said.

In the case of the Khaksaris, Logan claimed they were simply confused over how the process works in Kennebunk. Being from Massachusetts, they were used to the contractor being the one to “pull” permits. In Maine, the homeowner bears the ultimate responsibility.

Selectmen were not generally inclined to let contractors off the hook that easily, even if there appeared to be some general sympathy for homeowners.

Selectman John Kotsonis told how he had recently paid a fine for a home renovation project that he did not realize required a permit. But contractors, the board felt, should know better.

“In my opinion there isn’t a contractor in the state of Maine who thinks he can go build something like this without a permit,” said Selectman Al Searles. “It’s common knowledge anywhere you go, especially in southern Maine. And for a contractor to come into a town, especially a town like Kennebunk, and do this kind of work, and not want to see the building permit before he starts to work, he deserves anything he gets.”

Searles felt the Khaksaris also bore some culpability, and so voted against the consent agreement, which was approved 6-1. Searles’ rationale for the no vote seemed to be a belief that the fine should have been more than $500. However, he also passed a note to Town Manager Barry Tibbetts during the meeting asking him to check on how the town could hold contractors responsible for working without permits.

In a Dec. 11 interview, Tibbetts said he’s reached out to the town attorney Bill Dale for advice.

“My initial gut tells me, we can go after the homeowner because, if they don’t pay we can put a lien on their property,” he said. “But a contractor may not own property here and, even if he does, it’s probably unassociated with the issue at hand, and the business is likely an LLC (limited liability corporation).

“I think it will be very hard for us to go after contractors like that,” said Tibbetts.

“But I can tell you, this one coming in January, the board is going to be pretty mad about, because the homeowner was told not to do something and he did it anyway. He cut down 15 trees in the resource protection zone. He totally disregarded code enforcement. You just don’t do things when you’re told not to do it, so he’s going to have to pay restitution.”

“The rules that we have are not arbitrary,” said Demers. “They’re there to protect the natural resource, and to protect the residents.”

The town can lose out on property taxes when the lack of a building permit does not alert the assessment office to take a look at a property. But that’s a soft cost that’s hard to track, said Demers.

“The real issue is, if we don’t know about a construction project until after it’s done, we aren’t able to check the plumbing, we aren’t able to check the wiring. We aren’t able to do any of the things that are needed to help ensure that people stay safe.

“You only have to look to some recent news out of Portland to know how important that can be,” he said, referring to code violations reported at a fatal fire on Noyes Street.

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