A.G. Says DES Will Make Final Decisions In Cases of Shoreline Building

Wolfeboro — September 8, 2004 — The state has decided to allow a Massachusetts couple to continue to build a controversially tall house on Lake Winnipesaukee, even though its height violates shoreline protection laws. The state Department of Environmental Services said the decision was fair since the town of Wolfeboro told the homeowners their plan was environmentally sound.Now, DES is looking to let lake towns like Wolfeboro know that if anyone raises a hammer within 50 feet of the shore, DES – and not the town – has the final say as to whether it’s legal.

Last month, Ian and Corinne Ferguson of Brookline, Mass. appealed an administrative order issued by DES telling them to stop construction on their multi-million-dollar home at 20 Wyman Drive. DES claimed the multi-story structure violated the Comprehensive Shoreland Protection Act. The act was amended in 2002 to say that any building replacing one within 50 feet of the shore can’t be any taller than the original. The Fergusons purchased the land in 2001, obtained the building permits from Wolfeboro in 2002 and then knocked down a one-story cottage to build their massive home.

Eight months after DES found out about the Ferguson’s plans, it ordered the couple to stop construction and tear down part of the house. The Fergusons claimed DES knew about the house’s height all along. DES said finding the giant frame in the woods was a surprise.

In their appeal, the Ferguson’s attorney, Gregory Smith of Concord, said the homeowners received all the proper permits from the town, whose ordinances they thought had authority over the state’s law. Smith also argued that ordering the Fergusons to stop building was unfair because they had already sunk two years and $6 million into the home.

Yesterday, Martin said DES disagrees with almost everything the Ferguson’s attorney said was true except one thing: asking them to chop their house in half now was unfair. “We believe they were operating under good faith,” Martin said. “They had been informed by the town that they had the appropriate permits they needed. We didn’t provide them with timely documentation to the difference.”

There was also some confusion as to whether the home fell under the amended Shoreland Protection Act, Martin said. Wolfeboro Building Inspector Richard Hammer said the permits were issued before the law was changed. “The Fergusons’ home complied at the time,” Hammer said.

Though DES recognized that the permitting of the Fergusons home happened around the time the law was amended, potentially causing some confusion, Martin said the town of Wolfeboro incorrectly told the Fergusons that its ordinances superceded the state law.

“The state decided as matter of fairness that there was sufficient confusion to settle the case,” Martin said.

To avoid that confusion in the future, DES asked the state attorney general’s office to write a clarification of the Shoreland Protection Act. In the six-page document, Senior Assistant Attorney General Jennifer Patterson said that a town ordinance only governs building along the shoreline when it is stricter than the state law. In that instance, the ordinance must also be approved by the state Office of Energy and Planning. Wolfeboro’s ordinance was not, she said. Sunapee is the only town that has that approval, according to DES.

The only exception is if a town adopted a setback requirement before 2002 that differs from the 50-foot setback required by the state, according to the document. For instance, if a town made a rule that new houses can be built within 20 feet of the shore, then that’s the law. Height, however, is always regulated by the state.

Currently, people looking to build on the shoreline do not have to submit a proposal to DES for approval. It is up to the towns to hand out building permits, Martin said, though DES is responsible for permitting things like boathouses and sewer systems.

In Patterson’s clarification, she wrote that if DES issues a boathouse permit, for example, they must also assess whether everything else on the property within 50 feet of the shore complies with the Shoreland Protection Act.

Patterson suggested that DES include a question on all permit applications asking if any additional work will be done within 50 feet of the shore. This way, DES can ask applicants to prove their structure complies with the law before it’s too late.

Martin said DES plans to use the attorney general’s clarification to educate towns and developers about the Shoreland Protection Act. As for the Fergusons, they are now allowed to build their home as tall as they want. The frame for the house sits eight feet from the shore, separated from the water by rock and sand.

The home is constructed so when visitors walk through the front door, they can see a view of the lake through a picture window down a long hallway. The house is built to slope up the hill, and the kitchen and library are on the first floor under the window. The five bedrooms – for the Fergusons and their four daughters – are in a wing to the east. The structure reaches 40 feet tall in some places.

Martin said the house’s affects on the environment will be purely aesthetic. The Shoreland Protection Act was amended to prevent high rises and big hotels from being built along New Hampshire’s waters, he said.

“The law is to help minimize the possibility of creating situations like the New Jersey shore or Miami Beach,” Martin said.

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