Shoreland Protection Act Violation

mcdude · 07-29-2004, 08:49 AM

From the Granite State News
click for link
I've posted the whole story as the link will be obsolete once the next issue of "The Grunter" comes out.

DES: House too tall, too big
Structure violates limits set after construction was approved
By LARISSA MULKERN
Staff Writer
WOLFEBORO — The state Department of Environmental Services has ordered a real estate trust to halt construction of a new home on Wolfeboro Neck because, essentially, it’s too big.
In what local officials describe as a potentially precedent-setting case, the DES Water Division ordered Ian Ferguson and Tourrettes Trust of Brookline, Mass., to stop construction. The order claims the parties violated the Shoreland Protection Act by expanding the outside dimensions of a nonconforming dwelling within the protected shoreland without a waiver from DES. The proposed home is too tall as well as large.
That attorney representing Tourrettes Trust said he will appeal on behalf of the owner. Considering construction was approved before the vertical limits were established, the DES order caught the owners by surprise.
“This order was really unexpected,” said Concord attorney Gregory Smith of McLane, Graf, Raulerson & Middleton. “Especially since the owners have stayed in communication over the entire time with state and local regulators who were fully aware of what they were doing,” said Smith. His client was surprised to receive an order now claiming the project was covered by a law passed in 2002, when they were well into the project.
“This is a project that began before the law was changed,” said Smith.
A DES spokesman commented on the essence of the findings, but was not questioned as to the timing.
“The Shoreland Protection Act deals not only with footprint – length and width – but also vertical dimensions,” said DES spokesman Jim Martin. “That’s the violation at issue. The vertical problem is that it is more than triple the height of the original structure,” Martin said.
The project, however, did acquire the necessary state and town building permits, but the owner was later informed they needed to lower the elevation of the structure.
Town of Wolfeboro Building Officer Richard Hammer said the vertical limits were added to the law after the project had acquired the necessary permits.
“The change (in vertical dimension) was made after the town had approved the permits,” said Hammer, “so it’s a gray area.”
“The building is higher than the one they tore down,” he said. It’s not unusual for a land or homeowner to tear down an existing home and rebuild, especially on limited waterfront property and Hammer agrees there’s a trend towards larger homes.
“Beauty is in the eyes of the beholder,” he notes, adding that one person’s dream home may be another’s nuisance.
Hammer said the remedy in this situation is up to the courts, but the case may have an impact.
“The outcome may set a precedent for what happens in the future,” he added.
“It could affect several projects depending on magnitude of rebuild,” said Hammer. “If it’s within the 50-foot setback you can’t change the third dimension … the footprint and the vertical appearance cannot be enlarged,’ he added.
This building project has been in the works for two and a half years. The DES order, dated July 2, outlines the complaint:
According to the DES order, DES personnel inspected the property in September of 2002 and found the footprint of the new dwelling exceeded the development standard set forth in the law by expanding the footprint within the protected shoreland. DES personnel explained the need for a variance or waiver for continued instruction, but never received one for the work in question.
A year later, on October 1, 2003, DES found a two-to-three story steel superstructure erected on the site.
The Shoreland Protection Act (RSA 483-B:11) provides that nonconforming structures build before July 1, 1994 located within the protected shoreland may be repaired, renovated or replaced … but that no expansion of the existing footprint or outside dimensions shall be permitted.”
The law gives the DES commissioner the power to waive some of the standards specified, “as long as there is at lease the same degree of protection to the public waters,” according to the order.
“DES has no record of receiving a request for, or granting, a waiver for the work in question.”
Based on its findings, DES ordered Tourrettes Trust to immediately cease all construction activities and to submit a restoration plan for removal of all portions of the structure, which exceed the height of the preexisting single-story structure within 30 days of the order.

abc123 · 07-30-2004, 05:13 AM

I hope that the Ferguson's succeed in appealing this ruling from DES. Living nearby, I know personally that the State and the Town have been involved in their building plans and process from day one, not to mention that the project has been in process for two years. For some bureaucrat at the State to pull this is an abuse of power. I wish them the best of luck.

madrasahs · 07-31-2004, 08:24 AM

Within view of the Ferguson violation (and before the Planning Board), is a proposal to tear down the nice (elderly-owned) cottage there, and remove all of the shorefront trees (paying the fines levied by the State), and putting in a McMansion.

The trick nowadays is to put a well right next to the Lake (where they "have to" cut all the biggest trees to get the drilling equipment "down there"), erect "silt fences" (for rains to push the construction mud under), leave a white birch (to fall over after its forest protection is removed) and erect a McMansion (for nobody to live in).

Yes, I know "It's Good for the Economy", but construction -- per se -- is also good for New Jersey's economy.

I like the trees -- especially white pines -- holding back the Shoreland's "march" into Winnipesaukee.

jrc · 08-02-2004, 08:58 AM

If no one is living in the Mcmansion, then no septic or laundry leaching into the lake. Plus the two off-shore boats and four jet-skis that will be there, will never leave the dock. Assuming they follow the tree cutting and fertilizer rules, it sound like a reasonable trade-off.

madrasahs · 08-02-2004, 08:26 PM

McMansions have always puzzled me -- more so, now it appears nobody actually lives in them. Why despoil such a beautiful lake formerly ringed with great pine groves, mossy banks, and granite boulders, and "Suburbanize it" with over-sized non-traditional houses and lawns?

The only reason I can figure such large McMansions exist is for the day when they can convert to commercial use -- such as B&Bs (Bed & Breakfasts) -- and put-up four or five families at once...winter and summer.

Even beautiful Switzerland is falling to this trend around its lakes. Long-time residents complain that their lake-country areas are becoming one giant Suburbia.

Quote:

Originally Posted by jrc

Assuming they follow the tree cutting and fertilizer rules, it sound like a reasonable trade-off.

"Following the tree-cutting rules?"

"Paying the fines" for removing the trees from state-protected shore lines is hardly "Following the Rules".

A friend who's been here even longer than I went for a swim at his place after a two week absence. He asked me if I noticed the algae increase in the water. I said I'd just drawn lakewater and noticed it was much darker than even last month.

His response? "It's like swimming in vegetable soup".

Sure, New Hampshire has naïve but modest laws; but remember, it enforces them with great ineptness.

(Try filing an environmental complaint).

Edited. This article appeared in Internet news this morning:

http://www.newscientist.com/news/news.jsp?id=ns99996229

"Cyanobacteria [blue-green-algae] are common in freshwaters and seas worldwide, and thrive in polluted, nutrient-rich waters. “Their influence is expanding as we nutrify the environment,” he says."

While blue-green algae isn't yet a Lake Winnipesaukee problem, it has made the news in several NH lakes, killing pets and livestock -- and causing Jet-Skiers to pass out in other lakes.

(Maybe Concord will notice that their nearby Webster Lake has been blue-green-algae invaded just last year?)

abc123 · 09-01-2004, 03:38 PM

The NH Attorney General's office over ruled DES in this case. The owners were given the go-ahead to move forward as planned.

Just Sold · 09-02-2004, 06:12 AM

Seems interesting that the NH AG got involved with this rather quickly and made the decision to override the NHDES.

Looks like $$ and influence, a who knows who, played a part in the quick turn around in this case (60 days). If it had been an owner of more average means then they might not have succeded in over turning the DES ruling.

GWC... · 09-02-2004, 12:44 PM

Quote:

Originally Posted by Just Sold

Seems interesting that the NH AG got involved with this rather quickly and made the decision to override the NHDES.

Looks like $$ and influence, a who knows who, played a part in the quick turn around in this case (60 days). If it had been an owner of more average means then they might not have succeded in over turning the DES ruling.

The state and AG were already involved. Who do you think prosecutes for the state?

Why spend money on a case that will not have a favorable verdict - the owners were being wronged. Sounds like they acquired good representation - attorney.

You sound envious and spiteful. Hope you never have this experience; but then again, perhaps it will alleviate some of your predisposed opinion of others.

abc123 · 09-02-2004, 05:27 PM

Thank you GWC. I could not agree more.

mcdude · 09-10-2004, 10:40 AM

click here for link
and I have cut and copied the article as when the new issue of the Grunter comes out the link will be obsolete.
Granite State News
© 2004
September 9, 2004
--------------------------------------------------------------------------------
Dream house nightmare resolved, DES gives OK
By LARISSA MULKERN
Staff Writer
WOLFEBORO — The New Hampshire Department of Environmental Services has withdrawn a cease and desist order that halted construction of a house of Lake Winnipesaukee for violating the State Shoreland Protection Act.
The settlement agreement resolves a pending appeal of the DES decision filed by homeowner’s Ian and Corrine Ferguson. The order was lifted effective Aug. 30. The Ferguson’s attorney Gregory Smith, of McLane, Graf, Raulerson and Middleton, said construction of that shorefront portion of the home resumed that afternoon.
The Fergusons, who had already spent several million dollars on their lakefront dream home, responded to the DES ruling.
“We are so relieved that we can proceed, said Mrs. Ferguson. “However, we are still at a loss to understand why the state issued the order in the first place. It came as a great surprise. But once again, we are pleased and certainly appreciative of the state’s decision, and we look forward to completing our home and moving in,” she said in a statement released last week.
The DES Administrative Order alleged the Fergusons had violated the Shoreline Protection Act, specifically in regards to height restrictions. The Fergusons filed an appeal, pointing out they had obtained all the necessary permits, had invested significantly to protect the land itself and reduce runoff into the lake, according to the statement. They had also received assurances that the plans were in compliance with the Shoreline Protection Act when they began construction, according to the statement.
According to a statement released by DES spokesman Jim Martin, the state’s decision to resolve the case was based on concerns about the overall fairness of the situation. DES, along with its legal counsel, the Office of the Attorney General, continues to disagree with many of the assertions made by the Ferguson’s in the appeal. In particular, according to the statement, DES feels that its staff acted in good faith based on the agency’s understanding of the situation.
“Nevertheless, under the specific facts of this case, there was strong potential for confusion regarding which version, the prior or as-amended 2002, of the State Shoreland Protection Act applied to the construction of this particular house,” according to the statement.
This particular case has turned out to be a learning experience for local town officials as well as state DES officials. For instance, the Town of Wolfeboro Planning Board has decided to hold a work session to look at shorefront residential development.
In its statement, DES said it intends to use the opinion generated on the matter by the Attorney General’s office to notify and educate towns as well as developers about the specifics of the State Shoreland Protection Act.
Two key elements will include:
DES in permitting a project within the protected shoreland that falls under separate permit jurisdiction of the agency (i.e. wetlands, septic) will also assess whether the proposal meets the minimum standards under the Shoreland Protection Act.
A municipal ordinance applies in place of the state law only if the State Office of Energy and Planning has certified to DES that the local ordinance is at least as stringent as the State Shoreland Protection Act. Currently, Sunapee is the only municipality to have received such certification.
Smith said that after the state reviewed its files and the records of the Town of Wolfeboro approvals, it concluded that lifting the administrative order “was the fair and right thing to do.”
If all goes well, the Ferguson’s home is expected to be completed in August 2005. Mrs. Ferguson said the family is looking forward to the move to Wolfeboro.
“The local officials were especially helpful as we moved forward with our home, to ensure that we were in compliance and I would like to thank them for their assistance,” said Mrs. Ferguson. “We look forward to the end of construction, moving in, and actively participating in the Wolfeboro community.”

07-29-2004, 08:49 AM	#1
mcdude Senior Member Join Date: Jul 2002 Location: Rock Haven Lake - West Newfield, ME Posts: 5,359 Thanks: 374 Thanked 1,041 Times in 489 Posts	Shoreland Protection Act Violation From the Granite State News click for link I've posted the whole story as the link will be obsolete once the next issue of "The Grunter" comes out. DES: House too tall, too big Structure violates limits set after construction was approved By LARISSA MULKERN Staff Writer WOLFEBORO — The state Department of Environmental Services has ordered a real estate trust to halt construction of a new home on Wolfeboro Neck because, essentially, it’s too big. In what local officials describe as a potentially precedent-setting case, the DES Water Division ordered Ian Ferguson and Tourrettes Trust of Brookline, Mass., to stop construction. The order claims the parties violated the Shoreland Protection Act by expanding the outside dimensions of a nonconforming dwelling within the protected shoreland without a waiver from DES. The proposed home is too tall as well as large. That attorney representing Tourrettes Trust said he will appeal on behalf of the owner. Considering construction was approved before the vertical limits were established, the DES order caught the owners by surprise. “This order was really unexpected,” said Concord attorney Gregory Smith of McLane, Graf, Raulerson & Middleton. “Especially since the owners have stayed in communication over the entire time with state and local regulators who were fully aware of what they were doing,” said Smith. His client was surprised to receive an order now claiming the project was covered by a law passed in 2002, when they were well into the project. “This is a project that began before the law was changed,” said Smith. A DES spokesman commented on the essence of the findings, but was not questioned as to the timing. “The Shoreland Protection Act deals not only with footprint – length and width – but also vertical dimensions,” said DES spokesman Jim Martin. “That’s the violation at issue. The vertical problem is that it is more than triple the height of the original structure,” Martin said. The project, however, did acquire the necessary state and town building permits, but the owner was later informed they needed to lower the elevation of the structure. Town of Wolfeboro Building Officer Richard Hammer said the vertical limits were added to the law after the project had acquired the necessary permits. “The change (in vertical dimension) was made after the town had approved the permits,” said Hammer, “so it’s a gray area.” “The building is higher than the one they tore down,” he said. It’s not unusual for a land or homeowner to tear down an existing home and rebuild, especially on limited waterfront property and Hammer agrees there’s a trend towards larger homes. “Beauty is in the eyes of the beholder,” he notes, adding that one person’s dream home may be another’s nuisance. Hammer said the remedy in this situation is up to the courts, but the case may have an impact. “The outcome may set a precedent for what happens in the future,” he added. “It could affect several projects depending on magnitude of rebuild,” said Hammer. “If it’s within the 50-foot setback you can’t change the third dimension … the footprint and the vertical appearance cannot be enlarged,’ he added. This building project has been in the works for two and a half years. The DES order, dated July 2, outlines the complaint: According to the DES order, DES personnel inspected the property in September of 2002 and found the footprint of the new dwelling exceeded the development standard set forth in the law by expanding the footprint within the protected shoreland. DES personnel explained the need for a variance or waiver for continued instruction, but never received one for the work in question. A year later, on October 1, 2003, DES found a two-to-three story steel superstructure erected on the site. The Shoreland Protection Act (RSA 483-B:11) provides that nonconforming structures build before July 1, 1994 located within the protected shoreland may be repaired, renovated or replaced … but that no expansion of the existing footprint or outside dimensions shall be permitted.” The law gives the DES commissioner the power to waive some of the standards specified, “as long as there is at lease the same degree of protection to the public waters,” according to the order. “DES has no record of receiving a request for, or granting, a waiver for the work in question.” Based on its findings, DES ordered Tourrettes Trust to immediately cease all construction activities and to submit a restoration plan for removal of all portions of the structure, which exceed the height of the preexisting single-story structure within 30 days of the order.

07-31-2004, 08:24 AM	#3
madrasahs Senior Member Join Date: Apr 2004 Posts: 381 Thanks: 0 Thanked 1 Time in 1 Post	Can Winnipesaukee be forced to "go eutrophic"? Within view of the Ferguson violation (and before the Planning Board), is a proposal to tear down the nice (elderly-owned) cottage there, and remove all of the shorefront trees (paying the fines levied by the State), and putting in a McMansion. The trick nowadays is to put a well right next to the Lake (where they "have to" cut all the biggest trees to get the drilling equipment "down there"), erect "silt fences" (for rains to push the construction mud under), leave a white birch (to fall over after its forest protection is removed) and erect a McMansion (for nobody to live in). Yes, I know "It's Good for the Economy", but construction -- per se -- is also good for New Jersey's economy. I like the trees -- especially white pines -- holding back the Shoreland's "march" into Winnipesaukee.

09-02-2004, 06:12 AM	#7
Just Sold Senior Member Join Date: Apr 2004 Location: Suncook, NH, but at The Lake at Heart Posts: 2,612 Thanks: 1,082 Thanked 433 Times in 209 Posts	Seems interesting that the NH AG got involved with this rather quickly and made the decision to override the NHDES. Looks like $$ and influence, a who knows who, played a part in the quick turn around in this case (60 days). If it had been an owner of more average means then they might not have succeded in over turning the DES ruling. __________________ Just Sold At the lake the stress of daily life just melts away. Pro Re Nata

09-10-2004, 10:40 AM	#10
mcdude Senior Member Join Date: Jul 2002 Location: Rock Haven Lake - West Newfield, ME Posts: 5,359 Thanks: 374 Thanked 1,041 Times in 489 Posts	issue resolved click here for link and I have cut and copied the article as when the new issue of the Grunter comes out the link will be obsolete. Granite State News © 2004 September 9, 2004 -------------------------------------------------------------------------------- Dream house nightmare resolved, DES gives OK By LARISSA MULKERN Staff Writer WOLFEBORO — The New Hampshire Department of Environmental Services has withdrawn a cease and desist order that halted construction of a house of Lake Winnipesaukee for violating the State Shoreland Protection Act. The settlement agreement resolves a pending appeal of the DES decision filed by homeowner’s Ian and Corrine Ferguson. The order was lifted effective Aug. 30. The Ferguson’s attorney Gregory Smith, of McLane, Graf, Raulerson and Middleton, said construction of that shorefront portion of the home resumed that afternoon. The Fergusons, who had already spent several million dollars on their lakefront dream home, responded to the DES ruling. “We are so relieved that we can proceed, said Mrs. Ferguson. “However, we are still at a loss to understand why the state issued the order in the first place. It came as a great surprise. But once again, we are pleased and certainly appreciative of the state’s decision, and we look forward to completing our home and moving in,” she said in a statement released last week. The DES Administrative Order alleged the Fergusons had violated the Shoreline Protection Act, specifically in regards to height restrictions. The Fergusons filed an appeal, pointing out they had obtained all the necessary permits, had invested significantly to protect the land itself and reduce runoff into the lake, according to the statement. They had also received assurances that the plans were in compliance with the Shoreline Protection Act when they began construction, according to the statement. According to a statement released by DES spokesman Jim Martin, the state’s decision to resolve the case was based on concerns about the overall fairness of the situation. DES, along with its legal counsel, the Office of the Attorney General, continues to disagree with many of the assertions made by the Ferguson’s in the appeal. In particular, according to the statement, DES feels that its staff acted in good faith based on the agency’s understanding of the situation. “Nevertheless, under the specific facts of this case, there was strong potential for confusion regarding which version, the prior or as-amended 2002, of the State Shoreland Protection Act applied to the construction of this particular house,” according to the statement. This particular case has turned out to be a learning experience for local town officials as well as state DES officials. For instance, the Town of Wolfeboro Planning Board has decided to hold a work session to look at shorefront residential development. In its statement, DES said it intends to use the opinion generated on the matter by the Attorney General’s office to notify and educate towns as well as developers about the specifics of the State Shoreland Protection Act. Two key elements will include: DES in permitting a project within the protected shoreland that falls under separate permit jurisdiction of the agency (i.e. wetlands, septic) will also assess whether the proposal meets the minimum standards under the Shoreland Protection Act. A municipal ordinance applies in place of the state law only if the State Office of Energy and Planning has certified to DES that the local ordinance is at least as stringent as the State Shoreland Protection Act. Currently, Sunapee is the only municipality to have received such certification. Smith said that after the state reviewed its files and the records of the Town of Wolfeboro approvals, it concluded that lifting the administrative order “was the fair and right thing to do.” If all goes well, the Ferguson’s home is expected to be completed in August 2005. Mrs. Ferguson said the family is looking forward to the move to Wolfeboro. “The local officials were especially helpful as we moved forward with our home, to ensure that we were in compliance and I would like to thank them for their assistance,” said Mrs. Ferguson. “We look forward to the end of construction, moving in, and actively participating in the Wolfeboro community.”

07-30-2004, 05:13 AM	#2
abc123 Junior Member Join Date: Jul 2004 Posts: 10 Thanks: 0 Thanked 0 Times in 0 Posts	I hope that the Ferguson's succeed in appealing this ruling from DES. Living nearby, I know personally that the State and the Town have been involved in their building plans and process from day one, not to mention that the project has been in process for two years. For some bureaucrat at the State to pull this is an abuse of power. I wish them the best of luck.

08-02-2004, 08:58 AM	#4
jrc Senior Member Join Date: Apr 2004 Location: NH Posts: 2,689 Thanks: 33 Thanked 439 Times in 249 Posts	If no one is living in the Mcmansion, then no septic or laundry leaching into the lake. Plus the two off-shore boats and four jet-skis that will be there, will never leave the dock. Assuming they follow the tree cutting and fertilizer rules, it sound like a reasonable trade-off.

09-01-2004, 03:38 PM	#6
abc123 Junior Member Join Date: Jul 2004 Posts: 10 Thanks: 0 Thanked 0 Times in 0 Posts	The NH Attorney General's office over ruled DES in this case. The owners were given the go-ahead to move forward as planned.

09-02-2004, 05:27 PM	#9
abc123 Junior Member Join Date: Jul 2004 Posts: 10 Thanks: 0 Thanked 0 Times in 0 Posts	Thank you GWC. I could not agree more.