SOUTH PORTLAND – After making a city homeowner get a $4,000 boundary survey, the South Portland City Council decided Monday that it will not assess a fine for a setback violation, partly because the offending portion of the building sits in Cape Elizabeth.

However, the experience, which spanned two separate workshop sessions this past week before a decision was reached, has prompted a new set of guidelines on how the council should tackle special consent agreements with zoning violators.

“We’ll workshop that sometime in the next couple of months,” said Mayor Tom Blake. “I think that will go a long ways to preventing this kind of thing in the future.”

In April, Robert Pratt bought a run-down home at 24 Stone Drive and, with his son-in-law Bob McNally, promptly set out to make $75,000 worth of renovations. McNally filed for a building permit and Pratt duly paid the city $1,125 to review the document.

However, when it came time to do the work, McNally and Pratt went beyond mere renovations, instead tearing down a 5-by-8-foot pantry on the rear of the home and reframing it as a bathroom. According to South Portland’s Code Enforcement Officer Pat Doucette, that act of removing the small addition meant whatever replaced it had to conform to current zoning rules, which require a 6-foot set back from the property line.

However, McNally and Pratt built the new bathroom on the exact footprint of the pantry, which sits exactly on the property line. Complicating matters further, part of the rebuilt room sits across the town line in Cape Elizabeth.

Following a lengthy workshop session on Oct. 28, South Portland solicited an opinion from Cape Elizabeth’s code enforcement officer, Ben McDougal, who authorized Doucette to do as she saw fit.

In Cape, McDougal said, the code enforcer has unilateral authority to allow reconstruction of non-conforming structures, if the new building mirrors the footprint and floor area of its predecessor.

“I will not require the landowner to obtain a building permit in Cape Elizabeth because it is not reasonable to require someone to get permits from both South Portland and Cape Elizabeth for the same project,” McDougal wrote in a Nov. 1 letter. “I hereby authorize the city of South Portland to allow this setback relief, approve the building permit and inspect the work for the portion of the structure that is in Cape Elizabeth.”

That problem solved, the City Council authorized City Manager Jim Gailey to sign a consent agreement with Pratt at Monday’s workshop session, allowing the new bathroom to remain, while not assessing a fine for the violation. The council also agreed that Pratt should not be made to pay $520 in fees racked up by city attorney Sally Daggett on the case.

That decision was based partly on the fact that Pratt had initially relied on a mortgage inspection loan survey, which inaccurately portrayed the property line, a fact that did not come to light until after the city made him obtain a more accurate boundary line survey.

“I know ignorance of the law is no excuse and I know the law is clear, but it doesn’t seem to me that the property owner in this case could have won no matter what he did,” said Councilor Linda Cohen. “And I don’t think there was anything done maliciously or to skirt the law in any way.”

“We spend legal fees all the time on all sort of things,” said Councilor Patti Smith, on eating Daggett’s $520 bill. “I don’t think this is an inordinate amount of money.”

“This property was in really, really bad disrepair,” said Councilor Melissa Linscott. “For someone to come along and fix it up and make it habitable again, that’s a great thing.”

“I understand the need for fines, but I can assure you I won’t be doing this again, without going to the Planning Board,” said McNally, who, along with Pratt, plans to put the newly renovated home on the market.

The new guidelines drafted by Daggett lay out strict conditions under which Doucette can refer a potential consent agreement to the City Council, including that the violation not be part of a “non-movable structure.” Pratt’s violation would have been eligible under the new guideline because the pantry was on sonotubes, not a foundation.

“The city must use consent agreements sparingly,” wrote Daggett in an Oct. 22 memo. “[They] are not to be used by property owners as a way to avoid compliance with the zoning ordinance. For property owners and their agents and contractors, it must always be better to seek permission from the city first than to ask for forgiveness after the fact.”

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