Land sale to resolve 26-year-old Bath code violations

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BATH — The City Council voted 5-2 Wednesday to allow an elderly couple to purchase land adjoining their Mallard Road property to settle code violations created because two of their buildings are on city property.

The panel also unofficially supported selling a sliver of city-owned Winter Street Court property to settle another compliance issue, and approved a liquor license for the Winnegance General Store.

The council had voted 7-1 in February to fine Mardouni and Esther Sharrigan, who own property at 107 Mallard Road, $31,200 for code violations going back 26 years. The couple violated the city code by building two structures on city land – now the adjoining Butler Head preserve – and partly on their own property.

The Sharrigans were granted an easement for less than an acre of that land in 1989 to install a septic system. They have said they wanted to settle those long-standing violations and comply with the code, and have hoped to purchase most of that easement and a small non-easement area, and release the rest back to the city.

Councilor Steve Brackett said he favored the agreement, which requires the Sharrigans to pay $48,000. “I think it reaches a fair settlement to both sides and will rid us of the issue,” he said.

Councilor David Sinclair, who voted with fellow Councilor Sean Paulhus against the agreement, disagreed with Brackett that the settlement was fair.

“I think it’s patently unfair to those great plurality of citizens who obey the laws …  who respect their neighbors, in the course of respecting their own boundaries, and who don’t come before us asking for special dispensation after multiple decades of flagrantly abusing the process.”

Brackett noted that the city also stood to shoulder some blame, for the matter being allowed to last as long as it had.

Winter Street Court

The council also expressed support for, but took no official action on, selling a 480-square-foot piece of city-owned land on Winter Street Court to settle another compliance issue.

While the city purchased the parcel in 1996 to create a turnaround at the end of the street for snowplows, it was never used for that purpose, and the Public Works director has said the city has no reason to hang onto it, City Solicitor Roger Therriault has said.

The land has been wanted by two abutters: Toader Serban, who owns 12 and 14 Winter Street Court, and Andrea DiBenedetto of 16 Winter Street Court. With the city’s permission, DiBenedetto in the mid-1990s erected a fence on the property, where she parks, according to Community Development Director Scott LaFlamme.

Meanwhile, a deck Serban built is too close to the property line and fails to meet setback requirements. It is therefore in violation of the city code, Therriault wrote in an Aug. 28 memo.

Serban has said he wants the parcel because owning it would bring his deck into compliance; otherwise he may have to dismantle the structure.

Attempts by the two abutters to reconcile the matter have been unsuccessful, and the city tabled the matter last month, wanting to hear more from DiBenedetto.

The City Council voted Wednesday to establish an order conveying the land to Serban with an easement for DiBenedetto, which would allow her to leave her fence and parking area as is.

DiBenedetto stated the importance of being able to maintain both. Serban expressed reluctance with having to pay for the land while allowing her the fence and parking space, mentioning that he was thinking about taking down the deck.

Sinclair acknowledged that the situation has been difficult for both parties, noting that the council did not want to make one or the other the winner, but both of them, through the proposed compromise, “in that each of you would be able to continue to use the space exactly as you are today.”

City Solicitor Roger Therriault said if nothing is done, the city could revoke DiBenedetto’s ability to maintain the fence and park on the property, and proceed against Serban for his code violation.

“If you two can’t figure this out, that’s where we’re headed,” he said. “… Nobody’s going to be happy with that.”

The council has not yet addressed a sale price for the parcel. City Manager Bill Giroux said he could draft an order on the disposition of the land, with Serban as the owner and DiBenedetto having the easement, and meet with them on its terms. The matter would then return to the council for a vote.

Sinclair suggested that it be stated in that order “that if either of them declines the opportunity to purchase (the parcel or the easement) at whatever price or prices we have set, then the other party will be granted the opportunity to simply buy the parcel outright, at the sum of those two prices.”

Councilor Andrew Winglass agreed with that direction, noting that “this item has been on the docket here for too many years, for too many times, in too many different versions. I think that the council is trying to satisfy both parties in this instance. … The city does not want this land, so one way or another this is going.”

Winnegance liquor license

The City Council also voted 4-2, with Councilors Merrill and Sean Paulhus opposed and Sinclair abstaining due to a conflict of interest, on a liquor license for the Winnegance General Store that would allow on-site consumption of alcohol in a cafe setting.

Holly Snowdon of West Bath is managing the 36 High St. business for owner Jennifer Greene. While the council approved a liquor license for Greene earlier this year, she ended up not going through with it, so Snowdon as the new manager had to reapply.

“I’m not sure whether I realized there was an intent to consume alcohol on the premises,” Merrill said.

Andrea Tebben, who runs a day care at her abutting 40 High St. home, noted Winnegance’s outdoor patio and expressed concern over the consumption of alcohol so close to where children spend time; her business is about 70 feet from Winnegance, door-to-door, she said.

Tebben, who noted that she did not mind just the sale of alcohol at Winnegance, said she had applied that day for her day care to become a licensed preschool. The state requires establishments with consumption licenses to be at least 3,300 feet away from schools and churches, but day cares are not included in that restriction, Tebben said.

Snowdon said she would maintain Winnegance as a respectable business and environment. The business would serve as a convenience store serving light food and beer and wine, and there would be no bar nor hard liquor, and the store would close around 8 p.m., she added.

With the application for a preschool likely to clash with the nearby cafe with alcohol when considered at the state level, due to the close proximity of the two, “it’s something the state will have to straighten out” when receiving the application, Therriault said.

Tebben said her application could be granted within three months.

Merrill noted that if the council allowed the consumption license, the panel would be voting against a preschool, “a very needed service here in Bath.”

But since that preschool does not yet exist, and with the liquor license application in order, the council was limited in its ability to deny the license, Therriault said.

Alex Lear can be reached at 781-3661 ext. 113 or [email protected]. Follow him on Twitter: @learics.

A Maine native and Colby College graduate, Alex has been covering coastal communities since 2001, and currently handles Bath, Topsham, Cumberland, and North Yarmouth. He and his wife, Lauren, live in the Portland area, and Alex recently released his third album of original music.