The court not only denied the DES but added this, "DES has failed to demonstrate, particularly in the circumstances of this case, how height has any relation to the protection of the public waters and the adjacent shoreland.".
This puts into question whether the DES has any future authority to regulate shoreland building HEIGHT unless they can prove that height of a building impacts the quality of public waters. I'm not sure that they can? Footprint, sure. Height?
The building "was approved by the local zoning board and the state board that oversees water pollution control, the Wetlands Council". I would argue that the Wetlands Council ALSO lacks control over building height, for the same reason.
Only the local zoning board could have control of the height of a building along the water, IF they created a shoreland zone with restricted building height. I'm not sure that would pass legal muster either but towns have a lot of discretion in zoning laws.
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