Lakefront property code enforcement
 

I've been looking at a number of island properties and it seems that a pretty good percentage of them have more bedrooms than the septic permit calls out and many have bunkhouses that don't appear to have ever been properly permitted. Also many have more dock than is at least allowable today.

Does anyone have any experience with issues with the town or state on these sorts of issues? Would a town actually make you tear down a bunkhouse that has been sitting there for 25+ years without a proper permit?

I can't find any grandfather rules on the DES web pages about docks. I'm looking at a place thats around 20 years old and has a nice U dock that I know you couldn't get a permit for today.

U-Shaped Docks
 

Why don't they allow U-shaped docks any more?

Good luck in your search jazzman.

Yes the town, DES or both can make you tear out what has not been done properly permitted.

The problem with many of these places is that things were done many times without permits "under the radar" and now when they hit the market they are finding out oops that's a problem. If the current owner doesn't fix it guess what, you do as the new owner. IF DES gets tipped off to any kind of setback, dock or septic violations they will respond and will force you to remove and restore anything that was done without permit or face fines especially if it doesn't meet current requirements. I'm not so sure the towns are quite as zealous about enforcement but the laws are there for a reason and the burden of proof is on you if you think something should be "grandfathered". This is a big issue especially with island property since many of these places that have been around for a while were built over the course of years, many with questionable - dare I say peculiar construction techniques. Many never bothered with permits and with nothing on file it's hard to determine the exact age of anything and when it comes to septic systems, setbacks and anything with shoreline modifications or docks DES is really hardcore.

I can tell you fixing stuff like this can be extremely expensive, and in some cases depending on the lot size and characteristics darn near impossible to overcome. That's been my overall observation in having several discussions with DES and at least two towns where such things were in play.

Generally speaking I've found both the towns and DES to be really good about "grandfathered" structures. With the homes I've owned on the lake I've had more than a few non-conforming situations and I'm reasonably certain that there are even rules protecting you. In reality anything built prior to about 2000 probably wouldn't be meet current building codes.

Its my understanding that the only thing that could get you in real trouble is if the seller had just done a bunch of work prior to selling it to you or if you were planning on adding on to something that was already nonconforming.

For the deck you can always look at Google earth's historical pictures and see what the dock looked like 10 years ago. If it was the same that long ago you should be in the clear.

Grandfathered
 

My family has 30 feet frontage and a U shape dock. That's because the dock been around since the '60's. No problem as long as it is documented. We even have an aerial photo taken in the early 70's. Proof!

Yet my buddy up in Tuftonboro bought land with 120' frontage. The town and DES is giving him an awful time just getting one 40' dock! The lay of the land requires that he put in a deck adjacent to the shore and add a dock. They are OK with the deck, but won't permit the dock. Go figure. Something about grandfathered decks his neighbors has on both sides and grandfathered moorings. His neigbors are almost mini marinas!

I have to agree with my friend. Why does his neighbors have bearing on what he can do with his land?

That's sort of true. I was looking not to long ago at a place for sale, there were several major problems with it. I happened to have both somebody from the town and DES with me at the time. DES's position was if you don't have proof when things were done if they were "non conforming" basically they had to be brought up to current standards. Even though it was clear some of this stuff had been around for a while without a reference date they didn't care. The guy from the town was a little more lenient since (my guess) the more that's removed the less tax revenue they will get. However with all that said if something was done that would have never been legal to do it doesn't matter how long it's been there it has to go.

It didn't help that the abutters on both sides were complaining that some renovations done they did not like and had contacted both the town and DES to start raising hell with the owner since this guy apparently had no use for getting approvals for anything he did over the years and this battle had been raging for a while from what I could tell. End of the day to straighten the place out was going to push the cost up way over what I would have been willing to pay, plus I didn't want to deal with the headaches. Didn't help either when I actually spoke to one of the neighbors in person and the guy had steam coming out his ears when I started to ask him about possible options in fixing things. With an unreasonable person next door that was enough for me to just walk away.

I think it's a case by case basis too. Since there was a history of bad blood at least on this property they were playing everything by the book. Also keep in mind that DES sets the bar, the town can put further restrictions in place if they so desire. You've really got to do your homework on this stuff because once you own something it's your problem to fix.

My main concern here is a "bunkhouse"... There is a permit from 1980 to build a storage shed and it clearly says "not for occupation". Since that time, the storage shed grew a really nice interior finish, a bathroom and even a small porch (but thankfully no kitchen so it isn't a separate dwelling). My guess is there are many "bunkhouses" on the islands like this. Of course it all sits on blocks with new blocks added as things sag. Amazingly the windows and door fit perfectly and it's a very attractive and functional building. My teen daughter is in love with it.

I anonymously called the building inspector and he wasn't much use on the whole topic. He of course can't say it's ok, but I didn't get the impression he was off trying to ferret this sort of stuff out. I guess if they tried to sort out every unpermitted thing in the last 31 years, they'd have to bust most every vacation place on the lake.

Jazzman;

Ever heard of "don't ask don't tell"... I would think this rule would apply here...

If the bunkhouse was built in the 80's then it would be grandfathered under the Shoreland Protection law regardless of use. Wetlands would not have jurisdiction over the structure unless it was built over the lake, in the bank of the lake, or in a wetland. If it's located over the bank or the lake itself; that's a significant problem. I'm going to guess it is not built over a wetland but if it is, I have seen that permitted by DES before. Your problem is going to be related to the septic system and whether the additional loading for the bathroom in the bunkhouse was ever permitted. I believe that so long as the building is plumbed it needs to be discharging to a septic system even if someone were to argue that the bunkhouse did not have a "bedroom". NH law requires that the sellers of shorefront property complete a site assessment evaluating the septic system for disclosure to potential buyers. Ask to see it. As for reliable info on the grandfathering dates on septic systems go right the the Subsurface Systems Bureau at DES at (603) 271-3501.

As for the docks, 20 years old puts the construction date in the 90's. Definately not grandfathered. Dates for "grandfathering" are 1969 for permanent structures and commercial seasonal structures, and 1978 for all other seasonal structures. Look for a permit, odds are it has one. Technically the permit should be recorded at the registry of deeds and should come up in a title search but if not then try the online permit query found at the link below. It will query records back through October 1987.

http://www2.des.state.nh.us/OneStop/...its_Query.aspx

I see this often also
 

It seems that some of the worst offenders are those who can afford to do it right but are just too cheap to conform to the rules.
I don’t know if he did it or not but there was a new house on the south side of Rattlesnake where the homeowner wanted to make a shed into a bunkhouse. He already asked the town for permission and was told no. Last I heard his intention was to do it anyway.

Remember Marriott
 

As I recall Bill Marriott tried to do stuff under the radar as well, more than 10 years ago... and after he built his boathouse with living space above, the town made him take it down.

I don't think I have ever read a thread with more misinformation than this one.

Cabins, sheds, bunk houses etc. only have to conform to the building codes that were in effect when they were built. Grandfathering is the law of the land when it comes to construction and anybody that tells you differently doesn't know what they are taking about.

Probably 80% of the homes on Bear Island were built BEFORE building codes and permits were in effect. I have seen cabins with 2x4 floors and roofs and they are perfectly legal. That is one reason why the buyer must beware when buying older property.

The most important thing to look at is the septic. All these things should be inspected by a professional, and you should back out if a serious problem is found.

If you buy a place that is poorly constructed the state and town is the least of your problems.

When it comes to docks it is the same thing. My dock, like most docks around here do not meet current regulations, but then again they don't have to.

That was the state. After a few years he lost and had to restore the bay in the boathouse as well as some wetland issues.

BI is right in theory, but it is the property owners responsibility to prove the grandfathering. If your outbuilding is built to 1969 standards but you built it in 1995, you are not grandfathered. So you may have to prove you built it in 1969.

This has been an issue a lot around the state. There has been a long running battle in my town about a gun club that was grandfathered in, but now is closed. The lawyers on both sides are rolling in the cash but the club is closed. On this site we read about the grandfathered boat launching at Ames Farm, they no longer lauch boats.

An angry neighbor with a good lawyer can really test your grandfather status, same thing with an overzealous bureaucrat.

If I had any serious material concerns about the legality of the property, I'd want written assurances from either the property owner or the town. Ask yourself this, if it burns down can you rebuild it? If the ice destroys the dock can you rebuild it?

We had some friends that bought a house on the lake and then someone took them to court saying that the person who had built the house had built it illegally. It took years, but they finally won. But it put them through a lot. The guy was not a neighbor just someone who thinks he must take care of the world I guess.

If it makes you feel any better, the DES has been seen on our property and others with tape measures checking the dimensions of docks and decks. Also checking moorings for decals. I don't think we have to worry about them trusting us too much or not knowing what's going on with shore line property and structures.

Not trying to say this is good or bad. I guess it all depends if you are the one doing something wrong or if it's your neighbor.

Last time I checked, the number of boat slips the state will allow is a function of the amount of frontage you have on the lake. If you have frontage for 3 slips than a U shaped dock (or two docks with a slip between) would be permitted. I think 3 is about 200 feet if my memory is correct. (Which it seldom is)

jazzman, you looking at that small foreclosed place on Bear?

Which is why people should always get a buyers title insurance policy.

I'm looking at places in the southern end of the lake... They were all built in the 80's. Many of them do not have a pristine permit trail. It seems to be the status quo for island properties. But with the DES and Shoreline Protection rampage I'm nervous about buying a place and then having to pay to remove something and at the same time devalue the property (at least devalue a feature that I paid for).

I'm sure DES could find many 100s of non fully permitted docks on the lake if the non conforming grandfathered date is really 1969.

The "shoreland protection rampage" will not affect your ability to retain, and maintain, a structure built on land in the 1980's since it was first enacted in 1991. If the structure is not built entirely over land and it has residential capabilties, then there is no "grandfather" date, nor is it possible to argue adverse possession against the public trust. Septic regulations are far older than shoreland and thus should be your concern.

As for DES being able to find 100's of of fully permitted docks if the "grandfather" date is 1969... There are really two dates. Specifically they are July 2, 1969 for permanent structures and commercial seasonal structures, and September 4, 1978 for all other seasonal structures. And yes, we could easily find hundreds.

D. Forst
Shoreland Section Supervisor
NH DES Wetlands Bureau

Chilling response, Shore Things. This is the frustrating thing about law like this and the bureaucrats that enforce it. It is totally arbitrary when a law is enforced and who it is enforced against. It's recipe for corruption and misuse.

The response is factual. These laws are no different than any others. The ability to enforce any law is dependent upon the evidence available. What some may see as arbitrary is often a reflection of that fact. I'm not going to deny the Bureau's lack of consistency in the past. There is a file record rife with examples. But that was the past. Over the last 10 years DES has gone to great effort to correct those issues. Improving consistency in decision-making continues to be, and will continue to be, one of our main focal points.

There are some very clear examples of properties that meet this criteria, Oliver Lodge, The Inn in Smith Cove, the big concrete monster in the Weirs channel, the Swallow boathouse, so when do they get torn down? You and I both know they won't, because the rules are anything but consistent. The whole grandfathering thing is a squirrely to begin with, why does Fays boat yard get to control half of Smith Cove, just because he built his stuff faster than anyone else in the cove.

DES' authority to permit changes to residential structures that extend over public waters is extremely limited. If you read RSA 482-A:26 you will note that the Department can permit the repair of foundations and interior renovations that result in reduction in kitchen and bath space. Any expansion of dimensions or use is strictly prohibited by law and not within the Department's authority to consider. The Department does not do the enforcement on these issues when they arise. They are the purview of the Department of Justice. DES' role is essentially reduced to technical support. A full discussion of residential structures over the public trust is best left to an attorney and I am not one.

As for Fay's, DES pursued a case against them in the 80's before I came on board. What you see today is the result of the Court's decision on that case. I would have to refer you to that decision for the answers you seek.

Shore Things, Thanks for your insight, it is always nice to know, that your around when it comes to things like this, and always post valuable responses.

There are certainly many places around the lake where fault can be found and where things are not permitted properly, are and never have been allow etc. The problem is do we want agencies like DES going through the shoreline of Lake Winnipesaukee property by property to find all the unpermitted docks, unallowed structures over water, etc. that have been in place for years, or do we want them paying attention to new construction, that is not confirming to the laws in place. I would rather they pay attention to all the new building going on around the lake and make sure that going forward, everything is properly done. All that looking back is going to do is cause heartache, unless there is an extreme case where there are clear violations.

Frankly, we don't have the manpower to go out searching for every little thing that wasn't built in compliance. We do a routine compliance check on structures shown on applications that come in and if necessary have anything evidence shows isn't legal corrected at that time. Please realize that "non-conforming" does not mean the same as "not legal" and if we stumble on to something that could have been permitted but simply wasn't, we probably going to just permit the structure. Between that and the number of complaints that come in, we have more than enough to keep us busy.

Our long-term goal is a program of post-construction compliance checks on all permits issued as they are about to expire. (so all permits issued in 2011 would be scheduled for inspection in 2015) It would, eventually, pick up the vast majority of issues.

Hey Shore Things-

I got a question for you that I seem to be having a difficult time getting a straight answer on. I've looked at several island properties that are on the market and of those many were outfitted with running water drawn from the lake, have a gas fired or electric powered composting toilet which all as far as I know is fine, BUT they had one or several dry wells for grey water disposition. Now is that OK? Obviously to today's standard that cannot be done but for a place that has been around for quite some time is that something that is subject to grandfathering or never was legal and therefore a liability for me if I were to purchase the property? Not necessarily looking for an "official" statement per say just your insight. If you don't want to post something for public consumption feel free to PM me.

Shed??
 

Interesting posts. Is it possible to build a shed near the water for all stuff... Tubes, skis, life jackets, floats, etc....???

My understanding and reading of the law is that you cannot build anything like that within 50 feet of the water. If the structure is pre-existing, you can maintain it. Correct me if I'm wrong, but as I read the regulations, that's what I get out of it.

privys and dry wells
 

Privys and drywells are allowed.
Below are the rules for both.

PART Env-Wq 1022 ALTERNATE SYSTEMS
Env-Wq 1022.01 Privies.
(a) No privy shall be located within 75 feet of drinking water wells, surface waters, or foundations on
abutting lots.
(b) Subject to (c), below, the bottom of the privy pit shall be at least 4 feet above seasonal high water
table and impermeable substratum or ledge.
(c) If the bottom of the privy pit is less than 4 feet above the seasonal high water table or impermeable
substratum or ledge, the pit shall be sealed.
Source. (See Revision Note at chapter heading for Env-Wq
1000) #9086, eff 2-9-08
Env-Wq 1022.02 Mini-Dry Wells for Gray Water.
(a) For purposes of this section, “gray water” means residential wastewater other than from a urinal or
a toilet.
(b) A mini-dry well shall be used for the disposal of gray water only if there will be no running water
to, or other wastewater discharge from, the structure to be served.
(c) No mini-dry well for gray water shall be within 75 feet of drinking water wells or surface waters.
(d) A mini-dry well for gray water shall be a hole up to 18 inches in diameter and up to 12 inches
deep, filled with stone or gravel.
Source. (See Revision Note at chapter heading for Env-Wq
1000) #9086, eff 2-9-08; ss by #9904-A, eff 4-16-11

I am working on getting an answer for Maxum's question which I will post here because I think it likely of interest to several people. I have attempted to answer Guiness' question below.

Accessory structures such as a shed are allowed within the 50 ft primary building setback. The standards applied to thes structures can be summed up as follows:

• They should be setback at least 20 ft from the water.
• They should not be constructed on (or in) land having a slope steeper than 25%.
• Height limit of 12 ft.
• Total square footage allowed within the 50 ft setback is calculated as 1.5 ft per linear ft of frontage.

Please understand that these standards only apply to those accessory structures within 50 ft of the water. Structures in this area do need a Shoreland permit but should qualify for the new Permit by Notification. (Please note that this is NOT the same as the Wetlands Permit by Notification. This process really is simplified and easier.)

It should also be noted that the "storage locker" type units that can be purchased and placed on the land do not meet the definition of structure and thus their placement would not be regulated under Shoreland.

Thanks for the info!
 

Appreciate the input on structures within the 50 ft. That gives me a great starting point. Thanks

I said would post what I could to answer Maxum's question about the legality of existing cesspools. The are too many variables to give a short answer here other than this: The seller is required to have a site assessment done evaluating the septic system. Always ask to see it. If the camp was built after 1967 then any system would have needed a permit. You may want to ask to see that also. If when you get these things, if anything makes you uneasy you can call the Subsurface Systems Bureau at DES and do some property specific investigating.