AUBURN — A dispute over replacing an old, two-bedroom house on 240 Hatch Road pits former City Councilor Dan Herrick against the city’s agriculture zoning philosophy.

“This is something that fell through the cracks,” Herrick said. “I don’t blame anybody. Most of the people that did this are dead. But we need to be able to move on.”

Herrick simply wants to build a modern cape-style house on the 5.45 acres he purchased earlier this year. It would replace an existing home, built in 1993 without city permits.

The lot is in the city’s Agriculture and Resource Protection zone, which only allows residential dwellings when they are part of a farm or ranch operation.

Herrick has been turned down once by city staff and taken his plan to the city’s Zoning Appeals Board, who also turned him down.

He can take the city to court or hopefully work something out with the city.

Clinton Deschene, Auburn’s city manager, said he’s open to options.

“I’ve asked (Herrick) if he wants to consider a zoning change,” Deschene said. “This is an error I want to correct on behalf of the city of Auburn. The process has evolved in a way that’s confusing. I think we’ve tried to address that but he hasn’t gotten what he wanted. So I think we still have an issue to work through.”

Nobody disputes that there’s a house on the lot at 240 Hatch Road, and that it has been there  since 1993.

And neither the city nor Herrick dispute that the house shouldn’t be there. It was built, despite the city’s zoning codes, by John Lander Jr., the previous owner.

Lander had built an agricultural shed on the land in 1991, according to city records, and had expanded it and added a septic system in 1992. But a 1993 request to add a bedroom, living area and kitchen were turned down. Lander made the expansion anyway and later moved in.

Herrick, who purchased the property for $9,000, wants to tear it down and put up a modern cape.

“The city does not recognize that as a residence, unless it’s the assessing department,” Herrick said. “They don’t want me renting it, they don’t want anybody living in it, they don’t want nothing there because it’s an illegal residence, according to planning standards.”

Lander and his wife lived in the house for the past 20 years. They had their morning newspaper delivered there, they had electrical service and they paid property taxes to the city.

“I’m not changing a thing, the house is there,” Herrick said. “Somebody dropped the ball, the ships left the dock. It’s been there all along, so let’s move forward.”

But Deputy City Planner Eric Cousens said he didn’t realize there was an illegally built single-family residence in the middle of the Agriculture and Resource Protection zone.

“The assessor picked up the house, and we should have taken enforcement action back then,” Cousens said. “I don’t know why we didn’t but I can’t change that fact.”

The city assessed the value of the house, extra features and land at $94,800.

The Agriculture and Resource Protection zone was created to protect open spaces, promote agriculture and help farmers afford their land by keeping their property taxes lower.

“It’s part of a long-standing policy of the city to try and confine growth to the area where we can provide services efficiently,” Cousens said.

Allowing Herrick to rebuild on that lot doubles-down on the original violation, and that could weaken the city’s agriculture zoning philosophy.

“If the board were to say the city should have taken action 20 years ago, and therefore it’s a legally existing home, anybody else in that zone can go build a house and when we find out, they can argue that enough time has passed and now it’s OK,” Cousens said. “Is it a year? Is it that they finished without us catching them? That would destroy the integrity of the zoning.”

Herrick has support from at least three city councilors, Belinda Gerry, Leroy Walker and Tizz Crowley. The three attended the Aug. 7 appeals board meeting and urged them to find a way to protect the city’s laws and treat Herrick fairly.

“Sometimes juries literally ignore the law and say ‘Not guilty’,” Crowley said. “I’m not suggesting we do that in this case, but it certainly was an option. If it was just that we collected 21 years of taxes on a property that was not a residence, how do we fix that problem? So another option might be for the city to return those taxes.”

Crowley said she doesn’t want to weaken the city’s agriculture zone, but thinks something can be done.

“What we need to do is put together a little work group and ask people to come forward and start working on all things related to the (agriculture) zone,” she said. “I want to be very careful and deliberate in making changes to that zone. Once that land is gone, it’s gone. So I don’t want to get rid of the (agriculture) zone.”

Herrick said he’ll go as far as he must to get the building he wants on the lot.

“Since there’s a residence there, I want to put a residence back,” Herrick said. “If I have to go to the Planning Board, I’ll do that.”

staylor@sunjournal.com