The Whitefield Board of Appeals ruled that a structure on Weary Pond is not permitted under the town’s shoreland zoning ordinance.
At issue is an unheated, enclosed structure about 16-feet-square with an attached six-foot porch. It sits on a ledge just over the pond’s edge. The building’s owners say they use the structure solely for observing wildlife.
Harold and Cathy Dauphin received the town’s permission to build the structure last September, although their application did not state how close to the pond the building was going to be. Whitefield Code Enforcement Officer Arthur Strout says he approved the structure with the understanding it would meet the required 100-foot shoreland zoning setback.
The structure was built this spring. This summer neighbors complained to the town. In September, Strout ruled the structure is in violation of the shoreland zoning ordinance and must be removed or relocated outside the required setback.
The Dauphins argue their observatory is permitted under a shoreland zoning provision that allows for structures within the 100-foot setback if they are “functionally water dependent.” Because a permanent structure allows them to be close to the shore with fewer disturbances to wildlife, they contend the building must be on the shoreline to serve its purpose.
Strout and the Dept. of Environmental Protection determined the structure is not functionally water dependent. “To function, a dock has to be on the water,” said DEP representative Deirdre Schneider in explanation of what “functionally water dependent” means.
“As does a facility for observing water birds,” responded the Dauphins attorney, Jenny Burch.
The board’s unanimous vote on Dec. 8 came at the end of two hearings on the issue. The board ruled that, although the structure is a non-residential building for wildlife observation, it does not meet necessary criteria for a water dependent use exemption.
The board agreed with Schneider and town attorney Clifford Goodall who said water dependent use exemptions are limited to structures such as docks, wharfs, fish processing facilities and boat-building facilities, none of which can function without direct access to the water. The board ruled that a wildlife observatory does not need to be within 100-feet of the water to function.
“We could come up with a lot of uses that it would be wonderful to be on the water,” but that doesn’t mean they require direct access to the water, said appeals board member Eric Ekholm prior to the board’s vote.
Although they voted against the appeal, some board members expressed a hope that the town could orchestrate an agreement with the Dauphins that would allow the building to stay.
“It wouldn’t hurt my feelings if the structure remained on the lake – I hope that happens, but the board can’t reverse Arthur [Strout]’s decision in this case,” said board member Todd Cummings.
The board signed a statement Goodall prepared, which outlines the events and facts in the case and concludes with the recommendation that the Whitefield Board of Selectmen consider issuing the Dauphins a consent agreement.
A consent agreement would allow the structure to remain, while acknowledging that it is in violation of ordinance. Towns may issue consent agreements when a violation of ordinance was created due to an error or other wrongdoing on the part of the town.
Goodall said the Dauphins would need to show that Strout knew the building’s setback from the pond and was in error when he approved the structure.
The Dauphins’ lawyer, Jenny Burch, said several weeks ago the structure was brought before the Whitefield Planning Board on Aug. 18, 2010, and the board told them it was acceptable. Burch said the board was told where the structure would be located relative to the pond.
There is very little documentation of what was presented to the planning board at the time.
According to the minutes of that meeting, local builder Dennis Gould appeared before the planning board of behalf of the Dauphins to discuss a “screened gazebo … Mr. Gould was advised that a Notice to Build would need to be completed by the homeowner.”
An article about that meeting in the Aug. 26, 2010, edition of The Lincoln County News states that Gould appeared before the board to discuss a “gazebo atop a 10-ft. tall ledge that rises from the shore. No site work would be required.”
According to the article, “[then-Planning Board Chairwoman Christi] Mitchell determined the area is limited residential, not resource protection, and only if the CEO ‘has a problem with it’ after inspecting the site would the board have to review the proposal.”
Whitefield Code Enforcement Officer Arthur Strout approved a Notice to Build application for the gazebo on Sept. 13, 2010. Strout did not visit the site until neighbors complained about the structure this year, officials said.
The Notice to Build Strout approved did not include a sketch of the structure or any indication of the structure’s setback from the pond. The applicant requested approval for an open-air structure; the building currently on Weary Pond is enclosed with doors and windows, town officials said.
“It wasn’t going to be a problem because it wasn’t going to be anything,” Strout told the selectmen on Aug. 8 when asked about his approval of the structure.
Goodall said the Dauphins are very unlikely to receive a consent agreement, because Strout’s approval of the structure did not include approval to build within the 100-foot setback.
Additionally, on Dec. 8, the DEP issued a notice of violation to the Dauphins. The notice requires the Dauphins to remove or relocate the structure to outside the required setback. Even if they receive a consent agreement from the town, the Dauphins will still be in violation, according to the state.
