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Septic System Also a Building

February 13, 2010 - LITCHFIELD -- A judge has ruled that an underground septic system meets the definition of a structure in the town's Shoreland Zoning Ordinance.

The decision by Justice Nancy Mills rejects the interpretation of the Litchfield Planning Board and allows an Auburn man to make his case for stretching that structure into a home at 275 Peacepipe Shores Drive.

Mills' ruling sends the case back to the Planning Board, which then must reconsider Daniel Bernier's change-of-use application to build a home.

"When we go back to the Planning Board, we have the benefit that the court has now defined what a structure is," said Michael Hodgins, Bernier's attorney.

Bernier, who lives in Auburn, had sought to change the use of a 12-foot-by-20-foot portion of the septic system by converting that portion of his lot into a similarly sized residence.

The Planning Board on June 17, 2009, decided that the septic system did not meet the definition of "structure" under the town's ordinance -- and rejected his application.

At the time, the town's Shoreland Zoning Ordinance defined a structure as "anything built for the support, shelter or enclosure of persons, animals, goods or property of any kind, together with anything constructed or erected with a fixed location on or in the ground, exclusive of fences, and poles, wiring and other aerial equipment normally associated with service drop as well as guying and guy anchors."

Mills, however, ruled that it met the structure definition, saying "a septic system is constructed in a fixed location on the property to support residential activity."

Clifford Goodall, the town's attorney in the appeal in Kennebec County Superior Court, said Wednesday that Bernier's application will have to meet other hurdles in order to be successful.

"The Planning Board will have to decide that this change of use of a structure will have no more adverse effect than the existing structure," Goodall said.

He notified Litchfield selectmen by letter of Mills' decision Tuesday.

"I strongly disagree with the court's conclusions," he wrote. "However, we have to live with it for now."

Bernier's property at 275 Peacepipe Shores Drive has an underground septic system that services two campers.

Bernier has taken the town to court before.

The last time, Litchfield paid almost $6,000 in legal fees to successfully defend itself in a case that ended at the Maine supreme court in 2004.

In another previous case, Bernier lost in his bid to build a 4,000-square-foot home on two lakeside lots he bought in 2002. A building permit was denied because of the proximity to Cobbossee Lake.

At the June 2009 annual Town Meeting, residents voted to amend the Shoreland Zoning Ordinance by excluding subsurface sewage disposal systems from the definition of structure and by requiring minimum setbacks for those systems from ponds and waterways.

by Betty Adams, Kennebec Journal, February 11, 2010


Lakes: Branch Pond, Buker Pond, China Lake, Chisholm Pond, Clearwater Pond
Regions: Belgrade


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