Abutter Files Objections with DES in Lee Case

Ossipee – January 22, 2009 – A lake property owner has hired an attorney and a civil engineer to oppose dredging the Lovell River to remediate environmental damage caused by his neighbor, Donald Lee.

In a January 7th letter to DES, an attorney for James Lamm said his client is concerned that the dredging plan ordered by a Superior Court judge last April will “adversely affect the lake environment without accomplishing any lasting benefit.”

The attorney, E. Tupper Kinder of Manchester, asserted to DES that Lamm’s property rights extend to the center of the Lovell River and the agency “has no authority” to approve dredging “without his permission.” Kinder also said his client opposes dredging adjacent property if it will have an adverse impact “on the portion of the Lovell River bed which is owned by him.”

Lamm’s concerns stem from a report he commissioned from University of New Hampshire civil engineering professor Thomas Ballestero. After visiting the site and reviewing many of the technical documents filed in the Lee case, Ballestero concluded that the information at hand is “inadequate to predict a favorable outcome of a dredging project.”

Lamm wants a new study of the situation, according to Kinder, who put DES on notice that if it proceeds with a dredging plan it must impose conditions that include a project design that ensures his client’s property “will not be adversely affected over the long term,” and “financial assurances that any adverse affects…are corrected immediately and at the sole cost of the applicant.”

But who the applicant might be is anyone’s guess. More than two years after a State Court judge ordered Lee to file a remediation plan with DES there is still no approved plan for the project, raising the possibility that the State itself may have to remove thousands of tons of sediment and debris from the lake.

Last April, Superior Court judge James D. O’Neill ordered Lee to apply to DES within 60 days to implement the “preferred alternative” plan that was detailed in the trial by environmental specialists.

Instead, Lee filed an entirely different plan with DES, prompting abutting property owners from the Ossipee Bluffs Association to file a Motion for Contempt against him in July. The Motion asks the State to impose civil fines and place a lien on Lee’s property to cover the $850,000 estimated project cost.

The Motion was scheduled to be heard in November, but was continued to January 20 after Lee asked for more time to prepare. This week, the scheduled court date was postponed again after the presiding judge said he was not finished with a murder trail that is running late.

A history of the Lee case can be found by clicking here.

Abutter Files Objections with DES in Lee Case

7 thoughts on “Abutter Files Objections with DES in Lee Case

  • January 23, 2009 at 9:57 am
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    Open Letter,

    As a long time neighbor of both Mr. Lee, and Mr. Lamm, and having watched this saga unfold over the years, I feel I must say something.

    Having read the unbelievably biased article attached to this article at the bottom, one thing strikes me as particularly unfair, which I’d like to comment on specifically:

    “The legal focus is the enforcement of state environmental laws as they pertain to the intentional alteration of flow of the Lovell River, causing the huge sandbar shown at the left.”

    This statement is a biased indictment of Mr. Lee, with no basis in fact whatsoever. To say that Mr. Lee created the sandbar with a wall constructed in 1988 is simply ridiculous. My family bought our house in 1979. As a child, ten years prior to the construction of the wall, I played on that sandbar. I was told that it had always been there, and it was a great place for kids to play, because the water was shallow so far out. I never took any measurements, but it looks to me as though the navigation marker is always in the same place every year. In fact, part of our entertainment as kids was watching people who didn’t know how to read navigation markers run their boats aground on that very same sandbar on their way, oddly enough, into the Bluffs boat basin. (Sorry, sometimes kids are entertained by destruction.)

    I have in my posession aerial photographs, dating from 1937 to 2003 showing the existence of that same sandbar, so to say that Mr. Lee CREATED it is uninformed at best. Now as to whether or not what he did changed the flow of the river, or the fan of the delta, I’m not an expert, so I’m going to leave that to the experts to argue that one. As of yet, until the entry of Professor Ballestero into the mix, it seems that real experts on these topics have been curiously absent from the entire process.

    One thing that concerns me greatly, is that the idea of removing a naturally occuring sandbar, could and probably would have a detrimental effect on all the properties along the whole shoreline, including the Bluffs, and I’d really like to see a legitimate study published by people who know what they’re doing before anyone removes one grain of sand.

  • January 24, 2009 at 5:59 pm
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    Dave: The 9/27/06 Superior Court order held Mr. Lee responsible for creating the Lovell River sandbar with his walls, and it ordered him to file a remediation plan with DES that “expeditiously results in the removal of the present sandbar and the replenishment of the typical fan-shaped delta that was in existence prior to the Respondent’s [Lee’s] non-permitted above-stated actions.” Mr. Lee’s responsibility for the sandbar is a matter of fact, not a matter of our conjecture.

    Similarly, your statement that “real experts” have been “absent from the entire process” until the arrival of Professor Ballestero (more than two years after the trial ended) is at odds with the facts. The trial record contains hundreds of pages of testimony, reports and maps presented by credentialed technical and environmental specialists on behalf of Mr. Lee and the Bluffs Association. There has been no shortage of expert opinion in this case.

  • January 25, 2009 at 11:15 am
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    The facts are very clear in the case of Bradford Cove and its ability to morph over the many years with varying deltas, however, the issue of a sandbar is non-existant prior to Mr. Lee’s wall; it has always been a delta. See transcripts of trial. We now have Mr. Lee’s testimony in evidence at time of trial showing his intent and ultimate goal coming to fruition, the construction of the huge, inpenetrable (sandbar) he designed clearly shown in his late entry design for post construction permit approval which was denied. It is quite revealing and shocking.
    Your assertion of a “naturally occuring sandbar” is unfortunately ignorant of fact. To suggest because you may have read Ballesterro’s study, that there should be a “legitimate study” tells me you are new to this subject or greatly partisan to the Lee camp.
    Unless you know the facts of the case, and it’s testimony of experts and witnesses, you should probably be more intent on protecting the environment before casting overboard OBA’s endeavor to restore the river and the bay to it’s natural beauty based on lengthy studies, Lee’s own testimony, witnesses and years of neglect, for which you apparently are not a witness.

  • January 25, 2009 at 12:00 pm
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    Alliance Staff,

    Thank you for taking the time to respond to me specifically, but I must take issue with some of your points..

    “The 9/27/06 Superior Court order held Mr. Lee responsible for creating the Lovell River sandbar with his walls, and it ordered him to file a remediation plan with DES that “expeditiously results in the removal of the present sandbar”

    I know quite a bit about the case, and I have copies of much of the evidence presented. I know that the Superior Court held Mr. Lee responsible for the creation of the sandbar as well. However, the simple fact that the court decided that he was responsible does not make it so. Courts, at ALL levels, throughout this great country’s history, have made MANY mistakes. So have so-called “subject matter experts”, who have also been incorrect.

    My question to the DES, to the Superior Court, and to you, would be, if the sandbar was created by Mr. Lee as a result of a wall he constructed in 1988, are my memories of playing with friends in the late 70’s and early 80’s on that same sandbar figments of my imagination? Did I imagine seeing multiple amateur boaters run their brand new boats aground on a sandbar that didn’t exist? Does the black and white sandbar marker that is erected every year not exist?

    “your statement that “real experts” have been “absent from the entire process” until the arrival of Professor Ballestero (more than two years after the trial ended) is at odds with the facts. The trial record contains hundreds of pages of testimony, reports and maps presented by credentialed technical and environmental specialists on behalf of Mr. Lee and the Bluffs Association. There has been no shortage of expert opinion in this case.”

    I’m VERY pleased that you mentioned this. It allows me to also present facts not yet in evidence in this forum. So here are the FACTS:

    The “hundreds of pages of testimony” you mention being entered into evidence is not entirely forthright. There have been five studies done on this issue. RWG, Noyes, Corman, Tilman, and now Ballestero. The FACT is that the only study that stated that Mr. Lee’s actions were the SOLE cause of the sandbar, rather than a contributary cause, as the other four studies stated, was the RWG report, which was commissioned, paid for, and presented into evidence at trial by the Bluffs Association. Mr. Lee, because of his financial situation, did not have the extra funds to pay the experts whose study he commissioned to testify in court. As I understand it, with noone to testify in person,. there could be no cross examination of HIS “expert” witnesses, and thus, the study would not carry the same weight. So the FACT is that the only “expert” study presented into testimonial evidence was the one commissioned by the Bluffs. To me, considering the fact that all other studies done on the topic say that Mr. Lee’s actions were contributory rather than the sole cause, that means that it IS opinion and conjecture to state as fact that Mr. Lee created the sand bar.

    As far as Professor Ballestoro’s entry into this being a later one, I don’t think timing is really all that important. What IS important is that the CORRECT action is taken, regardless of what the DES determines that is, in the interest of the long term effect on the shoreline.

    The problem we run into now, is that the Superior Court, as I understand it, can’t really ENFORCE anything here, other than requiring Mr. Lee to put forth a plan to the DES, as that is the agency with jurisdiction over what action would be taken, and commission the studies as to what the long term effect on the shoreline would be, in the best interest of the ENVIRONMENT.

    Let me close by saying, I’m not an agent of Mr. Lee,. nor am I defending his actions over the years or attempting to defend him. I’m simply a neighboring property owner who has seen many things said on here that are simply not entirely accurate, and I wanted to set the record, (from an objective perspective), straight. In the end, I want what is best for the entire shoreline, and the longterm stability of the environment, nothing more, nothing less.

  • January 25, 2009 at 12:34 pm
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    Mr Foley,

    You’ve made several allegations against me, which I’d like to address. One at a time:

    First and foremost, let me say this. I have been going to Ossipee Lake every year since my parents purchased our lakefront property in late 1978, except from 1992-1996, when I was serving in the US military. I grew up there. Every summer, I played on that sandbar at the mouth of the river, so for you to say it was never there before Mr. Lee’s wall was constructed shows that you may not have spent as much time on the waterfront as I have.

    “To suggest because you may have read Ballesterro’s study, that there should be a “legitimate study” tells me you are new to this subject or greatly partisan to the Lee camp.”

    Well, I have not read Dr. Ballestero’s report, nor did I say I read his study, or any other. I simply know who he is, and having seen his credentials, know that he knows what he’s talking about. For you to say that I’m a partisan party in this fight is silly, considering that I’m only stating facts as I remember them. I have no dog in this fight, other than the fact that I don’t want to see some hastily thrown together plan to simply remove sand from the lake backfire and destabilize the entire shoreline.

    “you should probably be more intent on protecting the environment before casting overboard OBA’s endeavor to restore the river and the bay to it’s natural beauty based on lengthy studies”

    As I stated in my lengthy response to the Alliance Staff, my PRIMARY concern is the TRUTH, closely followed by whatever action is taken being in the best interest of the long term stability of the environment, the shoreline, and the lake itself. Considering that my family’s property is waterfront, I spend ALL of my time ON THE WATER when I’m up there, so my wish is for it to continue to be beautiful as well. You can think what you like about me being partisan to Mr. Lee’s case. I assure you, I’m not in favor of ANYONE in this case. I simply don’t to see anyone’s property, or the longterm stability of the shoreline, (which by the way, INCLUDES the OBA beach and boat basin, in case you forgot), be negatively affected by enacting a drastic plan that hasn’t been fully vetted to show all potential effects over time.

  • January 25, 2009 at 10:54 pm
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    I never said there was nothing there. Your memory is of a delta, not a sandbar. Totally different, structures which need to be distinguished from one another. Because someone has credentials and is a johny-come-lately to a scene, Bellastero, makes him a hired gun in some peoples eyes. Our experience in the area is earlier than yours and without interruption. Thank you for your service. I served as well, 1970-1976 and more recently for two more years, 2002-2004, MARNG. Don’t underestimate the studies already done and the fine work done to find this man has done a great disservice to the environment, and Please find that the Department of Environmental Services will assure the job is completed in a manner which is acceptable to the environment. Any correction to such detriment as Lee has caused has some temporary tribulations. But to allow more time to pass is a greater crime to the lake and the surrounding area.
    Let’s work to see this is kept to an emotional minimum and keep our emotions in check, as I will. My appology if I have made insinuations that you have alterior motives. My motives are pure and simple: The total restoration of the Delta as it was prior to this man’s misguided acts against Mother Nature by the Rule of Law.
    My Best,
    Steve

  • January 27, 2009 at 9:08 am
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    The bottom line is that everyone has to play by the same rules. As is the case with the Ossipee Lake Marina. Those of you who travel by boat between the big lake and broad bay must have seen the total excavation of the bank on the Ossipee side next to the foundation with only a roof this past spring. Immediately after excavation the individual(s) then began to build a block wall!! As of September it is now just a large open space between the road and the channel. What use to be a bank with trees is now just a dirt ramp. It appears that the state stepped in and stopped that as well. Simply put the rules are for everyone. Before you act check with your town officials.

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