Shoreland Protection Act Violation

[mcdude]

From the Granite State News
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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.