AUGUSTA — The city of Gardiner objects to Brady Palmer’s use of in-town property for a tenant’s business and has taken that objection to court.
The city filed a complaint recently in Kennebec County Superior Court, asking a judge to overturn both a denial from a city code enforcement officer and a permit granted by the city’s Board of Appeals.
“This matter involves interpretation and application of the land use ordinance,” said Jonathan Pottle, the city’s attorney who filed the complaint. “The City Council is looking to enforce and uphold the provisions of the Land Use Ordinance.”
That ordinance prohibits commercial office use in the high-density residential zone where the property is located, according to the complaint.
Palmer, through his attorney, Bill Lee, said he will respond to the court filing and seek to retain the commercial use at the 122 Brunswick Ave. site where Brady Palmer Realty operated for 13 years. The two-story white building is on half an acre and has a 5,000-square-foot parking lot. City assessing records classify it as an office building with multiple units.
“He’s a taxpayer in the city of Gardiner,” Lee said. “He followed all the rules and did everything they asked him to do.” Lee maintains that “land use doesn’t deal with the identity of the person; it deals with the use of the property.”
According to the complaint, Paul D. Mathews obtained a special exception in 1984 to use one of the units at 122 Brunswick Ave. for his law office but stopped using it for that purpose more than two years before Palmer’s purchase of the site in October 2000.
The complaint says Palmer then ran a real estate office there “without obtaining any necessary approvals from the city.”
In late 2013, Palmer moved his office from Gardiner to Manchester and filed a building permit application with Gardiner asking whether he could lease the property to a tenant for commercial use. Lee said an accountant wanted to put an office there. The space is unoccupied.
The code enforcement officer denied the request by letter, saying the special exception permit was issued to the property owner and did not include tenants.
Palmer then went to the city’s Board of Appeals, where the board overturned the code enforcement officer’s decision. “The board finds that the special exception permit issued in 1984 for the property does not contain any provisions that restrict the owner from allowing tenants to conduct activities on the property, so long as such activities are consistent with the terms and conditions of the 1984 special exception permit,” stated the decision signed by John Burgess, chairman of the Board of Appeals, on Jan. 28.
The court complaint says the city’s codes “do not contain any provision authorizing the city’s code enforcement officer to review and decide requests to lease property to tenants for commercial use” and that the appeals board ruling “was an abuse of discretion arbitrary and capricious, based on errors of law, and based on findings unsupported by substantial evidence in the record.”
The complaint asks a superior court judge to do several things:
â€¢ void the 1984 Mathews special exception permit and determine that it was not legally transferable to another owner;
â€¢ vacate the actions of both the code enforcement officer and the Board of Appeals; and
â€¢ award costs to the city.