AUGUSTA — The Town of Mount Vernon wants a court to penalize a couple who allegedly garden too close to Minnehonk Lake.
It’s the third time the dispute between the town and the couple, James Landherr and Valerie Center, has been in court.
The most recent complaint was filed last month in Kennebec County Superior Court but will be handled in Waterville District Court, attorneys say.
The complaint, filed by attorney David Sanders on behalf of the town, maintains that Landherr and Center removed vegetation under 3 feet in height at some point around May 2, 2012, in violation of the town’s “Land Use Ordinance.”
The lawsuit asks a judge to impose penalties, saying the ordinance allows for penalties of $100 minimum for each specific violation and a maximum of $2,500. It also says that “for purposes of assessing civil penalties, each day that the violation continues to exist is considered a separate violation.”
The complaint includes a “Notice of Violation and Order for Corrective Action” apparently sent to Landherr and Center by the town’s code enforcement officer in June 2012.
The notice says, “Mr. Landherr or someone under his control put in a garden and by doing so destroyed vegetation under three feet tall within 25 feet of Minnehonk Lake. The exposed soil was not protected and subsequently caused a significant erosion problem into the lake.” It also said that because the garden remained in the same area, the erosion continued.
The town asks the judge to order the defendants to remove the garden and “to replant the affected areas with natural ground cover.”
Landherr and Center, through attorney Robert Sandy Jr., deny that they are violating the ordinance and that they are subject to any penalties. They also seek attorneys’ fees and costs and ask for the complaint to be dismissed.
“Any fair reading of that ordinance would make it abundantly clear that it was intended to apply to wild and rural areas,” Sandy said on Friday. “This is downtown where lawns are manicured and most people have gardens.” Sandy said the couple did not plant a garden this year.
In June 2013, Justice Michaela Murphy ruled that the town’s Board of Appeals erroneously granted the couple a variance on the grounds of “undue hardship” that permitted the couple to have a vegetable garden within the 100-foot setback from the lake.
“The claim that the value of the property to (Landherr and Center) would be ‘radically less’ if they are not allowed to have a garden in the area 25 to 75 feet from the lake is not enough for Landherr and Center to establish ‘undue hardship,'” Murphy wrote, adding that denial of the variance “would not prevent the use of the lot for residential purposes.”
In pleadings in that case, the couple said they would not have bought the property if they had known they could not have the garden.
The case was previously brought in 2013 in Waterville District Court, but was dismissed without prejudice, which allows it to be brought again.
Betty Adams — 621-5631
Twitter: @betadams
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