AUGUSTA — There will be no lakeside gardening for a Mount Vernon couple under a recent ruling by a superior court judge.
James Landherr and Valerie Center had received a variance from the town’s Appeals Board for a vegetable garden in an area 25 to 75 feet from Minnehonk Lake.
The variance was requested after the town’s code enforcement officer rejected the proposal, indicating “it would have involved the removal of vegetation less than three feet tall in violation of the town ordinance” and state and local laws requiring a 100-foot setback from great ponds.
The board granted the variance on June 6, 2013, but the Board of Selectmen almost immediately asked for a reconsideration of the vote — which the Appeals Board denied. The Department of Environmental Protection also indicated it should not have been granted because the property was in the shoreland zone and that not being able to have a garden there was not an undue hardship
The dispute ended up in Kennebec County Superior Court when the selectmen formally petitioned to have the Appeals Board ruling overturned.
Justice Michaela Murphy’s order, which quotes from a series of Maine Supreme Judicial Court decisions involving land use, says the variance by the Board of Appeals was granted erroneously.
“The claim that the value of the property to (Landherr and Center) would be â€˜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 â€˜undue hardship,'” Murphy wrote, adding that denial of the variance “would not prevent the use of the lot for residential purposes.”
Landherr and Center, who live in the two-story brick home at the 14 Main St. property, said at one point in the pleadings that they would not have bought the property if they had known they could not have the garden.
Reached by phone on Tuesday, Center said she did not know about the decision yet and was not going to comment on it.
David Sanders, the attorney who represented the petitioners, collectively called “The Inhabitants of the Town of Mount Vernon, through its Board of Selectmen,” was in court and unavailable to comment on the decision on Tuesday.
Previously, Sanders said he was attempting to right an incorrect decision by the Appeals Board; and Russell Evans, board chairman at the time the decision was made, agreed.
The Appeals Board, which was named as a respondent in the case, was not represented separately.
Another respondent named in the original court case, J. Lorraine Putnam, owner of property on Minnehonk Lake Road, indicated she recognized that her variance — which permitted creation of a retaining wall within 100 feet of the lake — was illegal, and she agreed to bring her property into compliance with state law and town ordinances by Jan. 1, 2014. That information was contained in a footnote in the judge’s recent order.