Casco tables consent pact until DEP reviews it

By Dawn De Busk

Staff Writer

CASCO — Scott Hebert said he thought he was doing the right thing when he corrected the shoreland erosion on his property. After all, Hebert is a professional contractor who is certified to do work in the Shoreland Zone. That is what he did on the Sebago Lake waterfront lot that he purchased last October.

“I got a permit by rule from the DEP. I built the slope up, ripped-rapped it. The dead trees — I cut those. I loamed and reseeded it,” Hebert said. “This whole thing [wouldn’t be happening] if I hadn’t purchased the property and then decided I wanted to clean this mess up. The ground was floating away. It looked awful. It was a mess. If I hadn’t come in [to the Casco Code Enforcement office] and tried to do the right thing, this wouldn’t have come up. Believe me, this thing would have gone on for another 30 years. Nobody would have known. I just feel like for trying to do the right thing, I am being punished.”

The proposed consent agreement for Hebert’s property involves a deck that was illegally-built because there are no permits or paperwork to back it up. However, as far as anyone remembers, the deck has been in existence since the 1950s. Meanwhile, shoreland photos taken by Portland Water District (PWD) prove its existence in 1992.

When the consent agreement — one of many in the past year — came before the Casco Board of Selectmen on Jan. 22, it elicited several responses. In the end, the Casco selectmen voted unanimously to table the consent agreement for 122 Acadia Rd., stating they would prefer the Maine Department of Environmental Protection (DEP) to weigh in on this particular case.

Casco Code Enforcement Officer (CEO) Alex Sirois said he left messages at the regional DEP office over the holidays, but had not yet heard back. Also, he e-mailed DEP a copy of the proposed consent agreement. In general, a consent agreement simply states that something is not up to code, whether it is the setback from the water or from a road or because the lot is too small to provide proper setbacks. Once signed by all parties, the consent agreement is filed with the Registry of Deeds.

According to Sirois, who presented some of the background information to the board, the applicant is hoping to be able to keep the deck. The lot is too small to relocate it to another spot, Sirois said. Hebert bought the lot in October and the deck was a deciding factor in purchasing the property. He “came in and wanted to do some improvements. Once something comes in, I look at the history and make sure it is all legal. If I am issuing a permit to modify the floating portion, I want to make sure it is good and legal,” Sirois said.

That is when it was discovered that there was no paperwork trail to show that a permit had been approved for the deck. Hebert explained that not only does the deck provide a gathering place on the small, slice-of-pie shaped lot, but also it provides an anchor for the dock that he extended in order to moor his boat. “I would really hate to see it go. This was a huge selling point for us because it is a nice gathering area. A portion would have to stay just to support the dock,” Hebert said, adding the shoreline slopes dramatically and changes with the water levels. “It is kind of a unique situation,” he said.

Later in the conversation, Vice Chair Mary Fernandes spoke. “When does uniqueness become the standard? That is the crux for me. There are different sizes, different angles, different lengths. With each one, we say, ‘Yes, yes, yes,’” Fernandes said. She said that some shoreland zoning laws date back to the 1970s and that there is reason that a Shoreland district is designated and protected. “For me, there is an uncomfortability, there is too much murkiness — for lack of a better word,” she said.

Responding to Hebert’s comments about being penalized for doing conservation work in the Shoreland Zone, Fernandes spoke again. “We haven’t made a decision yet. This board makes the best effort to deal with these issues” whether the nonconforming structure dates back five or 50 years, she said. “We just want to be careful and consistent. I am also in the presence of mind, I just want to table this.”

The other board members agreed that tabling it was a good idea. Selectman Thomas Peaslee said he would be more comfortable making a decision after hearing DEP’s take on it. Peaslee spoke twice after hearing the landowner’s viewpoint. “I am very understanding of your situation. Without being there and seeing the site, I am not sure why the deck has to be there for the dock,” Peaslee said.

While considering it, the selectmen talked about how the consent agreement would allow the owner to maintain the deck. The wording in the agreement would allow the deck to be replaced board by board and stay there indefinitely. “This language — they could keep it there forever,” Selectman Grant Plummer said. “I think an important part of the conversation is what do we allow from here on out or what we do not allow.”

Plummer mentioned that there was no documentation backing up the legality of the deck. “There is going to be a line out the door, if we start handing out consent agreements,” he said.

The tabled consent agreement for this property is scheduled to be on the agenda during the Feb. 12 meeting.

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