2017-08-04 / Front Page

Guidelines for code fines are on the way

By Wm. Duke Harrington Staff Writer

KENNEBUNK — The next time Kennebunk selectmen adopt a consent agreement with someone in town accused of violating the town’s code of ordinances, it may do so with a fresh guideline in hand for how much they should set for a fine.

In late June, selectmen signed an agreement with brothers Kevin and Derek Mosser, owners of a home at 53 Old Falls Road, over an apartment space built over the home’s garage nine years ago, without obtaining any of the required town permits. That agreement, Selectman Christopher Cluff said, added a “new wrinkle,” because part of the fine included an attempt to collect back taxes on the project, something board member say they have never previously done.

Code Enforcement Officer Paul Demers originally recommended a $6,315 fine for the violation, which included $4,750 for back taxes, based on the estimate of Town Assessor Daniel Robinson, who ballparked that the $5,000 renovation actually added $35,000 to the home’s value.

The amount of missed revenue for the town was based on an average tax rate over the past nine years of $15 per $1,000 of assessed value. Ultimately, selectmen knocked that portion of the fine down to $225, billing a total of $1,790, which included a double rate all the permits the Mossers should have take out, along with $800 to cover staff and attorney time in dealing with the issue.

However, some selectmen objected to the defense that the Mossers were good guys, as well as the nicest neighbors you could ever ask for, to one member of the board at the time, who, while they allegedly knew they should have taken out various building permits, were nonetheless regular Joes just trying to get by.

Some members of the board, like Shiloh Schulte and Blake Baldwin, argued that there should be some uniformity to consent agreements — those deals in which, in exchange for a fine or other considerations, selectmen agree to allow a violation to exist, rather than incur a costly court battle — asking for a special workshop session on the topic.

“For us to do this on a case-by-case is insane,” Baldwin said at the time. “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.’”

However, at the July 18 meeting, Selectman Daniel Boothby argued that each code violation presents a unique set of circumstances, making it virtually impossible to set a one-size-fits-all policy on fines.

“I think this [current system] is perfect,” he said. “We are put in these seats to use our best judgement.”

Chairman Dick Morin, meanwhile, who recused himself from the vote on the Mosser agreement because he had done mortgage work for the brothers, claimed the $1,790 fine realized was greater than any fine the courts would have imposed, had the issue gone that far.

Still, others on the board made the case for some form of written policy to use as a guide, in order to avoid the perception that some are treated differently based on perceived intent in violating the code, or standing in the community.

“I’m a big one for saying set the rules and set them right,” Selectman Ed Karytko said.

Still, others noted that sometimes the agreement includes undoing all or part of the work done in the absense of permits, or in violation of town ordinences.

In December 2015, selectmen signed a consent agreement with Shahriar and Deborah Khaksari of Surf Lane, who built a small shed and a 500-square-foot patio area within the proscribed setbacks from the marsh area adjacent to Gooch’s Creek.

For that violation, the Khaksaris agreed to pay a $500 fine and were made to remove the patio within six months, returning the lawn area to a vegetative state better equipped filter stormwater runoff into the marsh.

Also in 2015, the town made the owners of a home on Marsh View Avenue put up a $20,000 cash surety to pay for restoration of eight mature red pine trees cut down from inside the town’s resource protection zone. The mitigation efforts reportedly ended up costing $13,000. A year later, however, the Kennebunk Land Trust was fined $500 for allowing a patch of beach roses to be cut along the shoreline off Great Hill Road. Some in town criticized selectmen at the time for going easy on the land trust and treating it differently that it might a private citizen.

“If that was a contractor like me down there who did that, you’d be slapping me all around the room,” said Stephen Bowley, owner of Bowley Builders, at the time.

However, at the more recent consent deal Bowley, who knows and has worked with the Mossers and their father, said the Mossers creation of 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.

The weight of feeling among those who set the fines was also referenced by John Costin, a member of the town’s budget board, who seemed to feel selectmen went easier on Mossers than they should have, in part because the brothers were in a reported time crunch to get a decision made in time to complete a refinancing deal.

“They were in violation and they were driving the train.”

“What we need to do is take the personal decisions out of it,” Karytko said at the recent workshop, noting that selectmen are as prone as anyone else to shifting mood. A range of options for different types of violations, violations, similar to the classification system in the Maine criminal justice codes, would be appropriate, he said.

“The question is, should we impose penalties as a deterrent to future action?” Schulte said. “If not, then we are only looking recovering what we can for taxpayers without having to take people to court. If that’s all we are trying to do, then it all becomes an exercise in judgement on that key point.”

“I don’t think we need to put people in a public stock and pillory,” Baldwin said.

Town Manager Michael Pardue agreed to develop a range of fine options for selectmen to use for future consent agreements.

“I would anticipate a worksheet that can be easily read, to go with articulated findings of fact, asking if it meets certain elements and what’s the impact, with guidelines for suggested remedies. So, we’ll come back with suggestions for you.”

Pardue said that, after consulting with planning and code enforcement staffers, a new guidebook for future consent agreements could be ready for a vote as early as the next board of selectmen’s meeting, August 11.

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

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