The struggle between a property owner and the town of Whitefield continues, as the two disagree about whether the landowner received proper authorization from the town to build a gazebo next to Weary Pond.
Town officials say the building violates shoreland-zoning regulations and should not have been approved. In a letter sent to the landowner last month, the town requested the structure be moved or otherwise removed.
The landowners, Harold and Cathy Dauphin, say the building received approval from the town.
The gazebo, built this spring, is an enclosed structure about 16-feet-square with an attached six-foot porch.
It sits on a ledge just over the pond’s edge.
The Dauphins’ lawyer, Jenny Burch, said 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.
In a letter sent to the town dated Sept. 22, Burch cites an exception to shoreland zoning rules for “small, non-residential facilities for educational, scientific, or nature interpretation purposes.” She said this applies to the gazebo, which was designed for bird watching.
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.
“It wasn’t going to be a problem because it wasn’t going to be anything,” Strout told the Whitefield Board of Selectmen on Aug. 8.
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.
The application does not mention a porch; the landowner has agreed to remove the porch, according to a letter Burch sent to the town.
Whitefield does not have an ordinance allowing the town to issue building permits or any other official approval of structures. Notice to Build forms are the town’s opportunity to inform applicants about any infractions. There is no ordinance that gives Notice to Build forms any real authority to approve or deny structures.
The town relies on applicants to fill out Notice to Build forms in detail in order to provide applicants with accurate information about whether their building is permissible, said Whitefield Planning Board Chairman Bob Bills. In this case, significant details – setback, a sketch of the structure – were missing from the Notice to Build.
Whitefield approved the current shoreland zoning ordinances in November 2010 – after the Dauphins’ Notice to Build was approved. Under the ordinances in place prior to that time, no new construction was permissible within 200 feet of the shoreland; the planning board was not authorized at the time to grant variance to that setback, Bills said.
The old ordinance did not have provisions for educational structures, Bills said.
Under the ordinance in use at the time the Notice to Build was approved, all structures within 200 feet of a pond went to the town appeals board. This structure was not brought before the appeals board.
Even if the town now approves the structure remaining on the pond by issuing a consent agreement or other variance, it will still need to go before DEP for approval.
Bills believes it is questionable whether water dependent use variations are available to private individuals. Typically, that exception is used for government buildings and other structures available to the public, Bills said.
It’s unclear at this time what will happen next, but selectmen said they expect the town’s attorney to draft a response to the landowners. Burch’s letter indicates the Dauphins have no intention of removing the structure, as requested by the town.