2017-07-07 / Front Page

Selectmen approve accessory dwelling

Board wants better rules for setting consent agreement fines
By Wm. Duke Harrington Staff Writer

KENNEBUNK — Selectmen in Kennebunk have signed a consent agreement with brothers Kevin and Derek Mosser, owners of a home at 53 Old Falls Road, for an accessory dwelling built over the building’s garage nine years ago, without obtaining the required town permits.

Code Enforcement Officer Paul Demers said the violation came to light during a recent refinancing attempt on the property, when bankers questioned if all living spaces were up to code.

The actual renovation was not illegal and could have been permitted had the Mossers made the required applications. The unit was never rented out, Demers said, and was instead used by Derek Mosser.

The consent agreement will, in exchange for a fine, “make this issue essentially go away and legal ... without engaging in a costly and more painful court process,” Demers said.

Demers suggested a fine of $6,315. That included a “double fee” for permits that should have been taken out at the time, including electrical ($300), plumbing ($120), septic ($265), and building on the original $5,000 investment by the owners ($80).

New permits will be required, Demers said, from minor work needed to bring the apartment into total code compliance.

Demers also suggested selectmen ask for $800 to cover staff and town attorney time spent dealing with the issue, as well as back taxes on the upgrade.

Town Assessor Daniel Robinson estimated that the $5,000 renovation actually assed $35,000 to the home’s value. At an average tax rate over the past nine years of $15 per $1,000 of assessed value, the town missed out on collecting $4,750 in property taxes, he said, as quoted by Demers.

Some selectmen, including the Mossers’ neighbor, Deborah Beal, suggested waiving the back taxes, given that the town has rarely assessed such a fine.

“We’ve had far greater violations and assessed far less of a penalty,” Selectman Christopher Cluff said.

“But this is not a penalty, we’d just be collecting taxes that should have been paid. That’s the difference,” Selectman Blake Baldwin replied.

“Other similarly situated residents would have paid those taxes and these guys didn’t, so how can me look those residents in the eye and say that’s OK,” Baldwin said. “I hate these kinds of situations. I’m a catch-and-release kind of guy. I don’t want to hurt anyone. But I was elected to make these sorts of decisions and I think fair is fair. There should be some claw back of the back taxes, even if it’s not the full nine years. He should not give them a complete hall pass on this.”

From the audience, residents Rachel Phipps and Sharon Staz urged selectmen to collect back taxes out of fairness to the balance of taxpayers in town and anyone who did take out one of the requisite permits over the past decade.

However, Stephen Bowley said this issue, in which the Mossers created an additional living area for themselves, was different from a contractor who knowingly violates town codes.

“This was affordable housing at its best,” he said.

Meanwhile, Betsy Smith said she was “really uncomfortable” with the fact that Selectmen Deborah Beal and Dick Morin were participating in the debate.

Morin recused himself from the vote because he works as a mortgage broker, has dealt with the Mossers before, “and there may be money to be made in the future.” However, his continued to weigh in while moderating the debate as board chairman. Beal, who deemed the Mossers “the nicest neighbors you could ever ask for,” had asked he fellow board members if she should also recuse herself, but they decided she had no pecuniary interest at stake.

“This is a small town,” Baldwin said. “If we all recused ourselves any time we dealt with someone we live near, we’d never get anything done.”

Prior to Smiths comment, Beal had suggested calculating the back tax collection on three years (the furthest the assessor would normally be able to bill in arrears), at the $5,000 estimated construction costs (because Robinson had not actually visited the property in arriving at his $35,000 value-added estimate). That would have dropped the $4,750 back-tax fine to $225, for a total fine of $1,790.

Complicating the decision-making process was the assertion of Town Manager Mike Pardue that, “there may be many of these coming our way,” due to federal law changes that have bankers and mortgage brokers treading more carefully that ever to assure properties are not encumbered by legal tangles before opening the financial coffers.

With that in mind, and the notion that future violators might have homes worth a lot more than the Mossers’ $107,300 building, and thus deeper pockets to wage legal war, resident John Costin warned the selectmen from setting a lowball precedent just because the Mossers were deemed to be “nice guys.”

Meanwhile, selectmen said they felt compelled to reach some sort of decision that night, because the Mossers had already been stalled nine weeks on their refinancing effort and claimed to be under the gun of an imminent pop in interest rates.

In the end, selectmen agreed to enter into the consent agreement making the illegal renovation legal in return for a $1,790 fine. Morin and Beal both abstained from the vote. Selectman Shiloh Schulte was not at the meeting, while the balance of the board voted in favor of the deal.

Selectmen have since scheduled a workshop session for 6:30 p.m. on Tuesday, July 18, to try and standardize the fee structure to be used when signing consent agreements. It’s an issue that has arisen every time selectmen have a similar issue on their plates over the past three years. When selectmen tried to set a fee for the Kennebunk Land Trust in late 2016 when it came to light the group had illegally cut back beach roses, Schulte complained that the process amounted to “picking a number out of a hat.”

At the June 27 meeting, Baldwin echoed that view.

“For us to do this on a case-by-case is insane,” he said. “We need to set a firm policy on this so we are not here spending 30 minutes on something like this in the future, just because we are agonizing over ‘good people.’”

Staff Writer Duke Harrington can be reached at news@kennebunkpost.com.

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